In United States v. Hackett, No. 12-2248, the Sixth Circuit rejected the government's argument that a violation of Alleyne v. United States, 133 S.Ct. 2151 (2013), was harmless because the defendant admitted the facts giving rise to the greater mandatory minimum.
The defendant was charged in an indictment with using or carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A), a crime carrying a five-year mandatory minimum sentence. At trial, he admitted to firing a handgun but disputed his motive for doing so. He was convicted. Instead of sentencing him to the five-year mandatory minimum charged in the indictment, the district court sentenced him under Section 924(c)(1)(A)(iii), which raises the mandatory minimum to ten years "if the firearm is discharged."
There is no serious dispute that the sentence violated Alleyne, since the defendant's mandatory minimum sentence was increased on the basis of facts not found by the jury. But the government nevertheless maintained that the error was harmless, given the defendant's admission to discharging the firearm. Put differently, there is no question that the jury would have convicted the defendant of the ten-year offense if it had been given the option. The problem with this argument, the court found, is that it would allow for a constructive amendment to the indictment, which can never be harmless.