                                                                           FILED
                           NOT FOR PUBLICATION                             DEC 24 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT

ZENTORY T. BEAN,                                 No. 10-16253

              Petitioner – Appellant,            DC No. 07 cv-1764 MJL

  v.
                                                 MEMORANDUM*
MATTHEW CATE, Secretary of
California Department of Corrections and
Rehabilitation

              Respondent – Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 M. James Lorenz, Senior District Judge, Presiding

                     Argued and Submitted November 4, 2013
                            San Francisco, California

Before:       TASHIMA, FLETCHER, and NGUYEN, Circuit Judges

       Zentory T. Bean (“Bean”) appeals from the judgment of the district court

denying his petition for writ of habeas corpus. Bean contends that the district court


          *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.


                                          1
erred in concluding that his sentence, which included the upper term on a

sentencing enhancement, was imposed in a manner consistent with the Sixth

Amendment. We have jurisdiction under 28 U.S.C. § 2253. Reviewing the district

court’s denial of the petition de novo, see Pinholster v. Ayers, 590 F.3d 651, 662

(9th Cir. 2009), we affirm.

      1.   Under California’s Determinate Sentencing Law, a judge may not

impose the upper term sentence for an offense “unless there are circumstances in

aggravation . . . of the crime.” Cal. Penal Code § 1170. Further, the Sixth

Amendment requires that any aggravating circumstance, other than a prior

conviction, that is relied upon to impose the upper term sentence must be admitted

by the defendant or found by a jury beyond a reasonable doubt. See Cunningham

v. California, 549 U.S. 270, 274–75 (2007). Bean contends that his sentence

violates the Sixth Amendment because he received the upper term based on an

aggravating fact, other than a prior conviction, that was neither admitted by him

nor found by a jury beyond a reasonable doubt.

      Bean entered a plea of no contest to one count of being a prohibited person

in possession of a firearm, one count of voluntary manslaughter, and a sentencing

enhancement for use of a firearm during a felony. The trial judge sentenced Bean

to a fixed term of 13 years, which included the upper term sentence on the firearm

                                          2
enhancement. In imposing Bean’s sentence, the judge relied on the aggravating

circumstance of planning, which was neither admitted by Bean nor found by a jury

beyond a reasonable doubt. As such, Bean’s sentence violated the Sixth

Amendment. See Cunningham, 549 U.S. at 294.

      2.     The dissent contends that Bean’s sentence did not violate the Sixth

Amendment because he was eligible for the upper term based on the fact of his

prior convictions, even though the trial judge did not actually rely on that

aggravating circumstance in imposing his sentence. Dissent at 1. Contrary to our

habeas jurisprudence that we should examine the state court judgment to determine

whether the judgment that was actually entered was contrary to the Constitution,

the dissent ignores the judgment that was entered by the state court. Instead, the

dissent proceeds directly to an abstract inquiry of whether the record would

support a sentence that complies with Cunningham. We disagree that this is the

proper inquiry in determining whether there was a Sixth Amendment violation.

      A sentence complies with the Sixth Amendment only “if at least one of the

aggravating factors on which the judge relied in sentencing [the defendant] was

established in a manner consistent with the Sixth Amendment.” Butler v. Curry,

528 F.3d 624, 643 (9th Cir. 2008) (emphasis added). Corollary rule is that a

sentence violates the Sixth Amendment when, as here, the maximum term “was

                                           3
raised based on facts, other than a prior conviction, that were not admitted or

proved to a jury beyond a reasonable doubt.” Id. at 648. Accordingly, facts that

were not relied upon by the sentencing judge – such as, in this case, Bean’s prior

convictions – are irrelevant in determining whether the sentence imposed complies

with the Sixth Amendment. See id. (examining only those aggravating factors

actually relied upon by the sentencing judge in determining whether the

petitioner’s sentence violated the Sixth Amendment).1 Therefore, Bean’s sentence

was not made constitutional merely because there existed an aggravating

circumstance, not relied upon by the sentencing judge, that could have rendered

him eligible for the upper term.2



      1
             The California Supreme Court has reached the same conclusion. See
People v. Black, 161 P.3d 1130, 1141-42 (Cal. 2007). In its extensive discussion
of Black, see Dissent at 3-5, the dissent fails to mention that, in Black, the sentence
was held to be constitutional because the trial court actually relied on at least one
circumstance that was established in a manner consistent with the Sixth
Amendment. See id.
      2
             The dissent also insists that “whether a defendant is eligible for the
upper term based on a factor not explicitly cited by the sentencing court is a
question of California law and not an appropriate ground to find constitutional
error.” Dissent at 3. But that is not the question before us. The question we
decide is whether the upper term sentence imposed violated the U.S. Constitution
because no aggravating factor was established in accordance with the Sixth
Amendment. That question, beyond peradventure, is a question of federal
constitutional law under Cunningham, which we may properly address on habeas
review. See Butler, 528 F.3d at 643.

                                           4
      3.     Sentencing errors are, however, subject to a harmless error analysis.

Butler, 528 F.3d at 648. Accordingly, Bean is entitled to relief only if the “error

had a substantial and injurious effect on [his] sentence.” Id.

      Under California law, circumstances that may justify the imposition of an

upper term include that “[t]he prisoner has committed multiple crimes which

indicate a significant pattern of increasingly serious criminal conduct.” CAL. CODE

REGS. tit. 15, § 2408(c). In imposing the upper term based on increasingly serious

criminal conduct, the sentencing judge may consider the crime for which the

petitioner is being sentenced. People v. Clark, 15 Cal. Rptr. 2d 709 (Ct. App.

1992). At the time of his sentencing, Bean had two prior convictions: the first for

misdemeanor assault and the second for driving without a valid license or

insurance. Petitioner’s instant crime of manslaughter is unquestionably more

serious than these offenses. Thus, Petitioner has committed crimes of increasing

seriousness, which would permit the imposition of the upper term sentence under

California law.   CAL. CODE REGS. tit. 15, § 2408(c); Clark, 15 Cal. Rptr. 2d 709.

Under Cunningham, these prior convictions need not have been admitted by Bean

nor found by a jury beyond a reasonable doubt. See 549 U.S. at 274–75. Because

the sentencing judge could have relied on Bean’s increasingly serious pattern of

criminal conduct to impose the upper term sentence on the firearm enhancement in

                                          5
a manner consistent with the Sixth Amendment, the error was harmless.

                                      • ! •

      The judgment of the district court denying Bean’s petition for writ of habeas

corpus is

      AFFIRMED.




                                         6
                                                                           FILED
Bean v. Cate, 10-16253                                                      DEC 24 2013

                                                                        MOLLY C. DWYER, CLERK
NGUYEN, Circuit Judge, concurring in the result and dissenting in part:U.S. COURT OF APPEALS

      The question is whether Bean’s sentence “resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal

law” or a “decision that was based on an unreasonable determination of the facts in

light of the evidence presented.” See 28 U.S.C. § 2254(d). Simply put, the answer

is “No.” Therefore, I concur in the result but dissent from the majority’s holding

that Bean’s sentence violated the Sixth Amendment.

                                          I.

      “Under California’s determinate sentencing system, the existence of a single

aggravating circumstance is legally sufficient to make the defendant eligible for the

upper term.” People v. Black, 161 P.3d 1130, 1138-39 (Cal. 2007) (emphasis

added) (citation omitted). The majority is correct that Bean was not eligible for the

upper term based on the aggravating circumstance of “planning.” Maj. Mem.

Dispo. at 3. Nevertheless, Bean was still eligible for the upper term sentence on

account of his increasingly serious convictions that were reflected in the record

before the sentencing court, including the sentencing report. See People v. Clark,

15 Cal. Rptr. 2d 709, 709 (Ct. App. 1992) (“The offense for which a defendant is

being sentenced may be considered in determining that his or her convictions are

                                          1
of increasing seriousness.” (citations omitted)); see also Cal. Ct. R. 4.421(b)(2).

      Because Bean was eligible for the upper term sentence based on a

constitutionally proper aggravating factor, there was no constitutional error in his

sentence. This should end the inquiry. See Cunningham v. California, 549 U.S.

270, 274-75 (2007) (“[T]he Federal Constitution’s jury-trial guarantee proscribes a

sentencing scheme that allows a judge to impose a sentence above the statutory

maximum based on a fact, other than a prior conviction, not found by a jury or

admitted by the defendant.” (emphasis added) (citations omitted)).

                                          II.

      The majority instead finds a constitutional error because it mistakenly

assumes that we are limited only to the aggravating circumstance specifically cited

by the state sentencing court—here, “planning”—when it imposed Bean’s

sentence. Thus, the majority’s reasoning goes, because the sentencing court did

not explicitly rely on Bean’s record of increasingly serious convictions, we may

not answer “an abstract inquiry of whether the record would support a sentence

that complies with Cunningham.” Maj. Mem. Dispo. at 3. The majority’s analysis

is flawed for two reasons. First, it is contrary to California law, which permits a

sentencing court to rely on aggravating facts not found by a jury in imposing the

upper term sentence, so long as the record demonstrates a defendant’s eligibility

                                           2
for the upper term sentence. Second, even assuming Bean’s sentence runs afoul of

state law, that question of state law is not cognizable on habeas.

                                          A.

       As the Black Court held, “if one aggravating circumstance has been

established in accordance with the constitutional requirements set forth in [Blakely

v. Washington, 542 U.S. 296 (2004)], the defendant is not ‘legally entitled’ to the

middle term sentence, and the upper term sentence is the ‘statutory maximum.’”

161 P.3d at 1139 (emphasis added). The question, then, is what is required—under

California law—to “establish” an aggravating circumstance? The majority finds

that, even when the aggravating circumstance is based on prior convictions, it must

be explicitly referenced and relied upon by the state sentencing court. Not so.

       In Black, the defendant was eligible for the upper term sentence based on

two aggravating circumstances, each of which “independently satisf[ied] Sixth

Amendment requirements and render[ed] him eligible for the upper term.

Therefore, he was not legally entitled to the middle term, and his Sixth

Amendment right to jury trial was not violated by imposition of the upper term

sentence . . . .” Id. at 1144.

       One circumstance, the use of force, was explicitly discussed by the

sentencing court. Id. at 1141. But the other, Black’s criminal history, was not.

                                           3
Instead, his prior convictions were reflected in the sentencing report and the district

attorney’s brief. Id. There is no indication that the sentencing court had explicitly

cited Rule 4.421(b)(2) or made a finding that Black’s prior convictions were

“numerous or of increasing seriousness.” See Cal. Ct. R. 4.421(b)(2) (a sentencing

court can impose an upper term sentence if the defendant’s prior convictions are

“numerous or of increasing seriousness”). Moreover, the Black Court never

concluded that the sentencing court was required to make such a finding.1

      Instead, the Court found that “the statutory maximum sentence . . . was the

upper term, because at least one aggravating circumstance (indeed, in this case,

two) was established by means that satisfy the requirements of the Sixth

Amendment.” Id. at 1141 (emphasis added); see also People v. Velasquez, 62 Cal.

Rptr. 3d 164, 172 (Ct. App. 2007) (“[I]n selecting the upper terms the trial court

did not articulate on the record its reasons for doing so . . . . however, it is apparent

that two of the aggravating factors present in this case—that [the defendant] had

served a prior prison term and that his prior adult convictions were

numerous—directly relate to [the defendant]’s recidivism . . . . Accordingly, the

trial court could properly rely on those two aggravating factors to impose an upper



      1
       More importantly, there is no United States Supreme Court case or other
federal law that would require as much.
                                            4
term . . . .” (citations omitted)).

       If Black’s eligibility for the upper term sentence was independently

established by the record of his prior convictions (despite the court’s failure to

explicitly rely on those convictions or cite to Rule 4.421(b)(2)), then Bean’s

eligibility for the upper term likewise was established. Black’s upper term

sentence did not violate state law or Cunningham. The same goes for Bean.

                                          B.

       Once a defendant is eligible for the upper term (by virtue of his prior

convictions or otherwise), California law permits a sentencing court to “rely upon

any number of aggravating circumstances in exercising its discretion to select the

appropriate term by balancing aggravating and mitigating circumstances,

regardless of whether the facts underlying those circumstances have been found to

be true by a jury.” Black, 161 P.3d at 1138 (emphasis added); see also People v.

Cardenas, 66 Cal. Rptr. 3d 821, 829 (Ct. App. 2007) (stating that the Black Court

“held the presence of a prior conviction which requires no jury finding makes a

defendant ‘eligible’ for an upper term sentence thus justifying the court’s use of

other aggravating factors when deciding whether to impose a high term sentence”

(citation omitted)).

       Because Bean was eligible for the upper term sentence, the sentencing court

                                           5
was free to exercise its discretion and impose the upper term based on the

aggravating circumstance of “planning”—“regardless of whether the facts

underlying th[at] circumstance[] ha[d] been found to be true by a jury.” Black, 161

P.3d at 1138. Therefore, Bean’s sentence violated neither California law nor the

Sixth Amendment.2

                                          C.

      In any event, even if Bean’s sentence was imposed in violation of state law,

what “clearly established” federal law did it violate? See 28 U.S.C. § 2254(d).

Neither Cunningham nor Apprendi v. New Jersey, 530 U.S. 466 (2000), nor any

other Supreme Court decision requires the state sentencing court to explicitly rely

on the prior convictions that render a defendant eligible for the upper term. The

Supreme Court in Cunningham held that California’s Determinate Sentencing Law

“violates Apprendi’s bright-line rule: Except for a prior conviction, ‘any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.’” 549 U.S. at 288-

      2
        The majority suggests that by examining Bean’s prior convictions, I am
“ignor[ing] the judgment that was entered by the state court.” On the contrary, I
agree that the question is whether “the judgment that was actually entered” was
“contrary to the Constitution.” Maj. Mem. Dispo. at 3. The answer, though,
requires us to examine whether Bean was eligible for the upper term sentence
under California law because, if so, that was the “statutory maximum” for purposes
of Cunningham.
                                          6
89 (emphasis added) (citation omitted).3 The Cunningham Court did not deal with

the question of whether a sentencing court must explicitly rely on the aggravating

circumstance of a prior conviction in imposing the upper term sentence. That

question is controlled by California state law.

                                     Conclusion

      California law dictates what is required to “establish” an aggravating factor

(and a defendant’s “eligibility” for the upper term), so long as the “means . . .

satisfy the requirements of the Sixth Amendment.” See Black, 161 P.3d at 1141.

The “means” in Bean’s case—increasingly serious convictions—satisfy the

requirements of the Sixth Amendment. Thus, any purported error in the imposition

of his sentence is a matter of state law and is not cognizable on a § 2254 petition.

Accordingly, although I concur in the result, I respectfully disagree with the

majority’s analysis.



      3
        The majority cites Butler v. Curry, 528 F.3d 624 (9th Cir. 2008), which is
inapposite. In Butler, the sentencing court had explicitly relied on two aggravating
factors. We held that the trial court could have imposed the upper term sentence so
long as one aggravating factor was validly established. “That the judge might not
have done so in the absence of an additional factor does not implicate the Sixth
Amendment, as that consideration concerns only the imposition of a sentence
within an authorized statutory range.” Id. at 649. We did not analyze what is
necessary under California law to establish a defendant’s increasingly serious prior
convictions or whether a court explicitly must rely on that aggravating factor to
impose the upper term sentence.
                                           7
