Rico Lorodge Brown v. United States

This case presents two important and recurring criminal-law questions, one of which was expressly reserved in Washington v. Recuenco, 548 U.S. 212 (2006). In Recuenco, the Court held that a “judicial factfinding” error under the Apprendi line of cases 1 was not “structural,” meaning that it was subject to harmless-error review. Id. at 220 n.3; see id. at 218-22. But the Court specifically declined to address whether a claim of Apprendi-based “charging error” would likewise be subject to harmless-error review. Id. at 220 n.3. This Court’s continued silence on that question has led to varying opinions on the structural-error question and an entrenched four-way circuit conflict on the nature of harmless-error review in this context (if it applies). This case squarely presents these long-simmering issues. The questions presented are: I. Does the type of error that occurred in this case—sentencing a criminal defendant for an uncharged and untried offense—qualify as structural error under this Court’s precedent? II. If harmless-error review applies, what showing must the government make to carry its harmless-error burden? 1 Apprendi v. New Jersey, 530 U.S. 466 (2000).