Pro Bono Appellate Victory in Third Circuit En Banc Criminal Constitutional Rights Case, “United States v. Lewis”

On September 16, 2015, the United States Court of Appeals for the Third Circuit, sitting en banc, vacated defendant Jermel Lewis’s criminal sentence and remanded for resentencing in United States v. Lewis. On behalf of Amachi, Inc., a nonprofit organization that tutors children of prisoners, Cravath filed an amicus curiae brief in support of Mr. Lewis and argued before the en banc court.

Mr. Lewis, along with two codefendants, was accused of committing an armed robbery. A federal grand jury indicted Mr. Lewis for robbery in violation of the Hobbs Act and with “using or carrying” a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i). The trial judge instructed the trial jury on the elements of the “using or carrying” offense, and the jury found Mr. Lewis guilty of that offense. The trial court, however, sentenced Mr. Lewis for “brandishing” a firearm during a crime of violence, under 18 U.S.C. § 924(c)(1)(A)(ii), and applied the heightened, seven‑year mandatory‑minimum sentence for “brandishing.” Mr. Lewis objected.

Mr. Lewis and his codefendants raised various issues in a first appeal. In 2012, the Third Circuit affirmed Mr. Lewis’s sentence. Mr. Lewis filed a petition for writ of certiorari. In 2013, the U.S. Supreme Court handed down Alleyne v. United States, 133 S. Ct. 2151, which held that it is an error for a sentencing judge to apply a statutory‑minimum sentence based on judicial fact‑finding where the jury did not find an element necessary to trigger that minimum. In a summary order, the Supreme Court granted Mr. Lewis’s petition, vacated the Third Circuit’s judgment, and remanded to the Third Circuit for further consideration in light of Alleyne. Back in the Third Circuit, Mr. Lewis argued that his sentence should be vacated due to Alleyne error. However, in a two‑to‑one decision, the circuit panel held that the error was harmless because evidence was such that the grand jury and trial jury would have found the aggravating element of “brandishing” had it been presented. Mr. Lewis moved for rehearing en banc, which, in a rare move for the Third Circuit, was granted.

Cravath filed an amicus curiae brief before the Circuit en banc in support of Mr. Lewis. Cravath’s brief explained that the preserved Fifth and Sixth Amendment error of sentencing a defendant for an aggravated crime for which there was no indictment, no trial, no jury instruction and no conviction could not be found harmless for two, distinct reasons. First, Cravath argued that the error was a pure sentencing error that could have affected the length of Mr. Lewis’s sentence. Second, Cravath argued that the error was a structural error that constructively amended Mr. Lewis’s indictment.

After Cravath submitted its brief, the en banc court sua sponte invited Cravath to participate in oral argument. On February 19, 2015, associate Michael P. Addis argued before the Third Circuit en banc.

Ten of the thirteen en banc judges decided to vacate Mr. Lewis’s sentence and remand for resentencing. Judge Rendell’s lead opinion followed the analysis set forth in Cravath’s first argument that the error was a pure sentencing error that was not harmless due to its potential effect on sentence length. Judge Rendell expressly refrained from reaching Cravath’s second structural error argument. Judge Smith’s concurring opinion, joined by three other judges, agreed with Cravath’s second argument that the error was structural and, therefore, reversible. The three‑judge dissenting opinion, authored and joined by the two judges whose panel opinion had been vacated by the en banc court, asserted that “[t]he plurality bases its ultimate decision on the rationale introduced by amicus curiae.”

In addition to Mike Addis, the Cravath team included partner J. Wesley Earnhardt and associate Michael D. Schwartz.

Pictured above, litigation associate Michael P. Addis of Cravath, Swaine & Moore LLP at the Third Circuit.