District court’s error in imposing sentence in excess of statutory minimum based on a fact that was not supported by any jury finding was harmless. Defendants were convicted in federal court of robbing a Vons Federal Credit Union in Santa Fe Springs, California. The jury found that both defendants used and carried a firearm during the commission of a violent crime in violation of 18 U.S.C. § 924(c), which subjected the defendants to a mandatory minimum sentence of five years in addition to the punishment imposed for the substantive offense. The mandatory minimum increases to 10 years if the gun is discharged during the crime, but the jury made no finding regarding discharge of the weapons. At sentencing, the district court found that both defendants discharged their guns and applied a 10-year mandatory minimum penalty. On appeal, defendants claimed error, as the jury did not make a finding as to this fact. Held: Affirmed. In Apprendi v. New Jersey (2000) 530 U.S. 466, the Court held that any fact other than the fact of a prior conviction that increases the sentence for a crime beyond the statutory maximum must be proved to a jury beyond a reasonable doubt. This was extended to the statutory minimum in Alleyne v. U.S. (2013) 133 S.Ct. 2151, which applies to defendants as it was decided before their cases were final (Griffith v. Kentucky (1987) 469 U.S. 314). The court’s imposition of a 10-year statutory minimum that was unsupported by any jury finding was therefore error. It was harmless, however, because the reviewing court concluded beyond a reasonable doubt that the omitted element was uncontested and supported by substantial evidence.

The district court did not err by admitting a witness’s pretrial identification testimony. Defendants claimed the district court erred by allowing witness Fields to testify regarding her pretrial identification of them because the identification procedure was impermissibly suggestive and unreliable to such an extent that misidentification was likely. Such claims require a three-part inquiry: (1) was the pretrial identification impermissibly suggestive; (2) if so, was it sufficiently reliable such that it does not implicate the defendant’s due process rights; and (3) was any error prejudicial. (Simmons v. U.S. (1968) 390 U.S. 377.) An identification procedure is suggestive when, based on the totality of the circumstances, it directs the focus upon a single individual, thereby increasing the risk of misidentification. Here, the defense presented no reason to discredit the officer’s testimony that the witness was presented with an array of 12 photographs and immediately chose the pictures of the three defendants, which was not impermissibly suggestive. This conclusion is not changed by the fact the officer failed to admonish the witness that the photos presented may not include the suspects. While this failure may undermine the reliability of the identification, it does not render it inadmissible.