United States v. Lewis, No. 10-2931 (3d Cir. 2014)Annotate this Case
Lewis, Shavers, and White committed an armed robbery of a North Philadelphia “speakeasy” in 2005, pointing firearms at customers and employees, ordering them to the floor, and threatening to shoot. They were charged with Hobbs Act robbery, 18 U.S.C. 1951(a), and conspiracy to commit Hobbs Act robbery; using and carrying a firearm during and in relation to a crime of violence, 18 U.S.C. 924(c); and attempted witness tampering. The district court instructed the jury that Lewis was charged with “using and carrying a firearm during the crime of violence.” The jury found the three guilty of the Hobbs Act violations and the section 924(c) violation. Lewis was sentenced to 57 months on the Hobbs Act counts and 84 months’ incarceration, the mandatory minimum, on the section 924 count, for “brandishing” a firearm. The Supreme Court remanded in light of its decision in Alleyne v. U.S., concerning imposition of a mandatory minimum sentence based upon facts that were never charged or found by a jury beyond a reasonable doubt. The Third Circuit affirmed Lewis’s sentence, reasoning Alleyne error of the sort alleged here is not structural, but is subject to harmless or plain error analysis under FRCP 52. Lewis essentially conceded that the evidence supported the finding that he brandished a firearm; other testimony clearly demonstrated that Lewis went beyond “use” of a firearm. Given “overwhelming and uncontroverted evidence” in support of the brandishing element, had the jury been properly instructed, it would have found that element beyond a reasonable doubt. Any error was therefore harmless.