Does sentencing a criminal defendant for an uncharged and untried offense qualify as structural error under Supreme Court precedent, and if harmless-error review applies, what showing must the government make to carry its harmless-error burden?

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 cases1 was not “ structural, ” meaning that it was subject to harmless -error review. Id. at 220 n.3; see id. at 21822. 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).