Whether a Fifth Amendment charging error for an aggravated offense is structural error and how harmless error review should be applied in the guilty plea context

Mr. Casey was indicted for a violation of 18 U.S.C. § 922(g)(1) before this Court issued Erlinger v. United States, 602 U.S. 821 (2024) . This indictment d id not include the elements of the aggravated offense contained in 18 U.S.C. § 924(e) as is required by the Fifth Amendment , Apprendi v. New Jersey , 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013) . Moreover, Mr. Casey was not informed that he was entitled under the Fifth and Sixth Amendment s to have a jury decide whether he was an armed career criminal . Instead, at sentencing, the district court determined, based on a preponderance of the evidence and Shepard1 documents , that Mr. Casey qualified for th at aggravated offense. Mr. Casey did not object to these constitutional violations. Accordingly, his appeal was considered under plain error review. T his case presents an excellent opportunity for this Court to provide definitive guidance to the lower courts regarding whether the Fifth Amendment “charging error” which occurred in this case is structural error, a question left open by United States v. Cotton , 535 U.S. 625 (2002), and United States v. Resendiz -Ponce , 549 U.S. 102 (2007) . Even if this Court declines to grant certiorari to address the Fifth Amendment “charging error” present in Mr. Casey’s case, this Court should grant certiorari in Mr. Casey’s case on a second question to address a significant circuit split regarding the correct application of harmless error analysis of Erlinger -based errors for individuals 1 Shepard v. United States , 544 U.S. 13 (2005). ii who plea ded guilty to an ACCAenhanced offense without notice of their jury trial rights related to the aggravated offense contained in 18 U.S.C. § 924(e) . The questions presented in this matter are I. Whether the failure to indict a defendant with the elements of an aggravated offense in violation of the Fifth Amendment is structural error. II. Whether harmless error review of an Erlingerbased error in the guilty plea context requires assessing what a reasonable jury would have done or whether the proper inquiry is whether a defendant would have pleaded guilty to the aggravated offense.