Payne: Alleyne error "harmless" because of uncontroverted evidence of brandishing

In U.S. v. Payne, No. 13-15699 (Aug. 15, 2014), the Court held that the district court committed Alleyne error when it imposed an 84-month mandatory minimum sentence based on its finding that a firearm was brandished during a bank robbery, but the error was harmless because of the “uncontroverted evidence” that a firearm was in fact brandished. Payne pled guilty to bank robbery and to possession of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). However, at sentencing, citing Alleyne, Payne objected to the imposition a mandatory consecutive minimum term of 84 months, under § 924(c)(1)(A)(ii), for the brandishing of a firearm. Overruling this objection, the district court relied on evidence at the sentencing hearing that a pistol was pointed at a bank teller during the robbery by one of the robbers, and imposed a consecutive 84-month sentence. The Court noted that because Payne did not admit to the brandishing of a firearm, the district court committed Alleyne error when it made its own brandishing finding. However, Alleyne error, like Apprendi error, was subject to “harmless error” review. Here, the evidence of the brandishing was uncontroverted. Hence, the error was harmless.