                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 STEVE ALLEN SMITH ,                           No. 11-16858
        Petitioner-Appellant,
                                                D.C. No.
                  v.                        2:07-cv-02237-AK

 ANTHONY HEDGPETH ,
 Warden; ATTORNEY                                OPINION
 GENERAL FOR THE STATE OF
 CALIFORNIA ,
      Respondents-Appellees.


        Appeal from the United States District Court
            for the Eastern District of California
        Alex Kozinski, Chief Circuit Judge, Presiding

                 Submitted November 6, 2012*
                   San Francisco, California

                       Filed February 5, 2013

     Before: Jerome Farris, Ferdinand F. Fernandez, and
                Jay S. Bybee, Circuit Judges.

                       Opinion by Judge Bybee


   *
     The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2                       SMITH V . HEDGPETH

                           SUMMARY**


                          Habeas Corpus

    The panel affirmed the district court’s denial of a petition
for writ of habeas corpus challenging on double jeopardy
grounds a conviction for assault with a deadly weapon,
coupled with a great-bodily-injury enhancement, and
infliction of corporal injury on a spouse.

    The panel held that Apprendi v. New Jersey, 530 U.S. 466
(2000), Texas v. Cobb, 532 U.S. 162 (2001), and Sattazahn v.
Pennsylvania, 537 U.S. 101 (2003),—whether considered
individually or together—did not create “clearly established
Federal law” requiring a state court to consider sentencing
enhancements as an element of an offense for purposes of the
Double Jeopardy Clause.


                             COUNSEL

Cliff Gardner and Lawrence A. Gibbs, Berkeley, California,
for Petitioner-Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell,
Senior Assistant Attorney General, and Brian G. Smiley and
Justain P. Riley, Deputy Attorneys General, Sacramento,
California, for Respondents-Appellees.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     SMITH V . HEDGPETH                       3

                          OPINION

BYBEE, Circuit Judge:

    In this Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) action we address whether clearly
established federal law requires that sentencing enhancements
be considered for purposes of the Double Jeopardy Clause of
the Fifth Amendment. The district court denied Smith’s
Petition for Writ of Habeas Corpus, holding that clearly
established federal law does not require the consideration of
sentencing enhancements when determining if one offense is
a lesser-included offense of another under the “same-
elements” test. We affirm.

     I.    FACTS AND PROCEDURAL HISTORY

A. Facts

    Steve Allen Smith brutally beat his wife, Amelia Rogers,
with his fists and a telephone in the presence of her daughters,
ages 13 and 16, and a neighbor friend. Smith’s attack left
Rogers with multiple serious injuries, including a fat lip,
missing teeth, a broken nose, brain injuries, and a stroke
caused by an injury to her carotid artery. Her injuries left
Rogers hospitalized, or in the care of a nursing home, for four
months. Furthermore, the stroke Rogers suffered left her
partially paralyzed, a malady that continued to plague her
during Smith’s trial.

B. Prior Proceedings

    In 2005, a California jury convicted Smith of:
(1) infliction of corporal injury on a spouse, with special
4                   SMITH V . HEDGPETH

findings of great bodily injury involving domestic violence
and use of a deadly weapon (phone); (2) assault with a deadly
weapon (phone), with a special finding of great bodily injury
involving domestic violence; and (3) four other related
counts.

    Smith appealed his conviction in state court, claiming
among other grounds, that his conviction for assault with a
deadly weapon—coupled with the great-bodily-injury
enhancement—was a lesser-included offense of his
conviction for infliction of corporal injury on a
spouse—coupled with the deadly weapon
enhancement—thus, violating the Double Jeopardy Clause.
In 2007, the California Court of Appeal denied Smith’s
Double Jeopardy claim based on the reasoning in In re
Jose H., 92 Cal. Rptr. 2d 228 (Cal. Ct. App. 2000), though
noting that the same issue was currently pending before the
California Supreme Court in People v. Sloan, 64 Cal. Rptr. 3d
137 (Cal. 2007). The California Supreme Court denied
Smith’s petition for review.

    After exhausting his state-law remedies, Smith filed a
federal petition for writ of habeas corpus under AEDPA.
Smith claimed that Sattazahn v. Pennsylvania, 537 U.S. 101
(2003), had conclusively rejected the view adopted by the
California courts. The district court held, however, that it
was not clear whether Sattazahn covered Smith’s position or
was limited to the capital-sentencing context; therefore, the
California court’s decision could not violate “clearly
established Federal law.” 28 U.S.C. § 2254(d)(1).
                     SMITH V . HEDGPETH                       5

             II.   STANDARD OF REVIEW

    We review the district court’s denial of a petition for writ
of habeas corpus de novo. Lopez v. Thompson, 202 F.3d
1110, 1116 (9th Cir. 2000) (en banc). Under AEDPA, a writ
of habeas corpus may be granted to a state prisoner only if the
state-court decision was (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court” or (2) “based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). Under AEDPA, we review the last reasoned state-
court decision. Polk v. Sandoval, 503 F.3d 903, 909 (9th Cir.
2007). In this case, that decision is the California Court of
Appeal’s April 19, 2007 decision.

    Before us, Smith has only argued that the California Court
of Appeal’s decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court.”                28 U.S.C.
§ 2254(d)(1). Clearly established federal law “refers to the
holdings, as opposed to the dicta, of th[e Supreme] Court’s
decisions as of the time of the relevant state-court decision.”
Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (citing Williams
v. Taylor, 529 U.S. 362, 412 (2000)). A state-court decision,
however, need not “cit[e] [the Supreme Court’s]
cases—indeed, [the state court] does not even [need to be]
aware[] of [the Supreme Court’s] cases, so long as neither the
reasoning nor the result of the state-court decision contradicts
them.” Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam);
see also Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (per
curiam).
6                    SMITH V . HEDGPETH

                    III.   DISCUSSION

    The Double Jeopardy Clause of the Fifth Amendment
states: “[N]or shall any person be subject for the same offence
to be twice put in jeopardy of life or limb.” U.S. Const.
amend. V. The Double Jeopardy Clause protects a defendant
against both successive punishments and prosecutions for the
same criminal offense. United States v. Dixon, 509 U.S. 688,
696 (1993) (citing North Carolina v. Pearce, 395 U.S. 711
(1969)). However, only “where the two offenses for which
the defendant is punished or tried cannot survive the
‘same-elements’ test, [does] the double jeopardy bar appl[y].”
Id. The “same-elements” test was enunciated by the Court in
Blockburger v. United States: “[W]here the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision
requires proof of a fact which the other does not.” 284 U.S.
299, 304 (1932). Consistent with Blockburger, the California
courts look to the “statutory elements” to determine whether
“the greater offense include[s] all of the statutory elements of
the lesser offense,” which would make “the latter . . .
necessarily included in the former.” People v. Sloan, 164
P.3d 568, 572 (Cal. 2007) (quoting People v. Reed, 137 P.3d
184, 186–87 (Cal. 2006)).

    Here, the parties do not contest that if the sentencing
enhancements are considered as elements of an offense under
the “same-elements” test, then Smith’s conviction for assault
with a deadly weapon would be a lesser-included offense of
his conviction for infliction of corporal injury on a spouse
with an enhancement for use of a deadly weapon. As the
California Supreme Court has explained, the question is
whether the offense of conviction must be considered
                    SMITH V . HEDGPETH                       7

together with the sentencing enhancement. Id. at 572. It has
recognized that although “looking only to the statutory
elements” would not run afoul of the “rule against multiple
convictions,” considering the enhancement as an element
would, and it has concluded that “[i]n deciding whether
multiple conviction is proper, a court should consider only the
statutory elements.” Id. at 572–73.

    We are not called upon to determine whether California’s
judgment is correct, because its judgment is subject to direct
review by the U.S. Supreme Court. Rather, our task is to
determine whether California’s judgment violates clearly
established federal law requiring sentencing enhancements to
be considered as elements of an offense for purposes of the
Double Jeopardy Clause. In this vein, Smith argues that the
Supreme Court’s decisions in Apprendi v. New Jersey, 530
U.S. 466 (2000); Texas v. Cobb, 532 U.S. 162 (2001); and
particularly Sattazahn, clearly establish this principle,
entitling him to federal habeas relief. We disagree.

A. Apprendi v. New Jersey

    In Apprendi, the Supreme Court considered a New Jersey
scheme under which the maximum penalty for second-degree
possession of a firearm was 5 to 10 years imprisonment.
Apprendi, 530 U.S. at 468. A separate statute, however,
provided for an extended term of imprisonment for second-
degree offenses of 10 to 20 years if the crime was a “hate
crime.” Id. at 468–69. New Jersey authorized its judges to
determine, by a preponderance of the evidence, whether a
hate crime had been committed. Id. The Supreme Court held
that New Jersey’s scheme violated the Due Process Clause of
the Fourteenth Amendment and the Sixth Amendment right
to a jury trial. Id. at 476–77. The Court stated that “[o]ther
8                    SMITH V . HEDGPETH

than the fact of 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.” Id. at 490. At the same time, it observed that
“nothing in this history suggests that it is impermissible for
judges to exercise discretion—taking into consideration
various factors relating both to offense and offender—in
imposing judgment within the range prescribed by statute.”
Id. at 481; see also id. at 494 (“[T]he effect of New Jersey’s
sentencing ‘enhancement’ here is unquestionably to turn a
second-degree offense into a first-degree offense.”).

    In his concurring opinion, Justice Thomas, joined by
Justice Scalia, expressed his “view that the Constitution
requires a broader rule than the Court adopts.” Id. at 499
(Thomas, J., concurring). Justice Thomas believed that:

       Sentencing enhancements may be new
       creatures, but the question that they create for
       courts is not. Courts have long had to
       consider which facts are elements in order to
       determine the sufficiency of an accusation
       (usually an indictment). The answer that
       courts have provided regarding the accusation
       tells us what an element is, and it is then a
       simple matter to apply that answer to
       whatever constitutional right may be at issue
       in a case . . . .

Id. at 500–01 (emphasis added). For Justice Thomas, the
“elements” of “a ‘crime’ include[] every fact that is by law a
basis for imposing or increasing punishment.” Id. at 501.
                    SMITH V . HEDGPETH                      9

    Although Justice Thomas’s opinion, if it had been a
majority opinion and if it extended to Fifth Amendment
questions, might have governed California’s analysis,
Apprendi itself did not clearly establish whether sentencing
enhancements must be considered as an element of an offense
for purposes of the Double Jeopardy Clause. Indeed, that
case seems to suggest the opposite. In any event,
Apprendi alone is insufficient to entitle Smith to federal
habeas relief.

B. Texas v. Cobb

    In Texas v. Cobb, the Court again looked at what
constitutes the “elements” of an offense, this time in the
context of the Sixth Amendment right to counsel. Cobb, 532
U.S. at 167, 172–73. Cobb involved a defendant (Cobb) who
was represented by counsel on a burglary charge. Id. at 165.
With his counsel’s permission, Cobb was questioned about a
mother and infant who had disappeared from the home
burglarized by Cobb. Id. Cobb argued that his confession to
the murders should have been suppressed because it was
secured in violation of his right to counsel. Id. at 166. The
Court granted review to consider “whether the Sixth
Amendment right to counsel extends to crimes that are
‘factually related’ to those that have actually been charged.”
Id. at 167. The Court noted that it had previously considered
the definition of an “offense” only in the double jeopardy
context. Id. at 173 (citing Blockburger v. United States, 284
U.S. 299 (1932)).

   The Court clarified that there is

       no constitutional difference between the
       meaning of the term “offense” in the contexts
10                  SMITH V . HEDGPETH

       of double jeopardy and of the right to counsel.
       Accordingly, we hold that when the Sixth
       Amendment right to counsel attaches, it does
       encompass offenses that, even if not formally
       charged, would be considered the same
       offense under the Blockburger test.

Id. at 173. The Court held that because burglary and murder
are not the same offense under Blockburger, the Sixth
Amendment did not bar Cobb’s questioning. Id. at 174.
Nothing in Cobb should have alerted the California courts
that its analysis of sentencing enhancements clearly violates
the Constitution. If anything, Cobb would have warded off
the California courts from reading too much into decisions
not on point, because the Court observed that
“[c]onstitutional rights are not defined by inferences from
opinions which did not address the question at issue.” Id. at
169.

C. Sattazahn v. Pennsylvania

     Sattazahn provides a closer question since in that case,
unlike Apprendi and Cobb, the Court confronted a Double
Jeopardy Clause issue. In Sattazahn, a capital case, the jury
advised the trial court that it was “hopelessly deadlocked at
9-3 for life imprisonment.” Sattazahn, 537 U.S. at 104. The
trial judge discharged the jury as hung and entered a life
sentence. Id. at 104–05. The trial court was reversed for
instructional error, and the case was retried. Id. at 105. This
time, Sattazahn was found guilty and sentenced to death. Id.
Sattazahn argued that the Double Jeopardy Clause barred the
state from seeking the death penalty at his retrial. Id. The
Pennsylvania Supreme Court rejected this argument, and the
Supreme Court affirmed. Id.
                     SMITH V . HEDGPETH                        11

    The Court stated that “the touchstone for double-jeopardy
protection in capital-sentencing proceedings is whether there
has been an ‘acquittal.’” Id. at 109. Here, because the jury
had deadlocked, the trial judge was obligated by state law to
enter a life sentence. Id. at 104–05. The Court, however,
held that “[t]he entry of a life sentence by the judge was not
[an] ‘acquittal.’” Id. at 109. In Part III of the opinion, Justice
Scalia—joined by Chief Justice Rehnquist and Justice
Thomas—added that Apprendi had clarified “what constitutes
an ‘element’ of an offense for purposes of the Sixth
Amendment’s jury-trial guarantee.” Id. at 111 (plurality
opinion). Justice Scalia continued: “Just last Term we
recognized the import of Apprendi in the context of
capital-sentencing proceedings” in Ring v. Arizona, 536 U.S.
584 (2002). Sattazahn, 537 U.S. at 111 (plurality opinion).
He explained that:

        [F]or purposes of the Sixth Amendment’s
        jury-trial guarantee, the underlying offense of
        “murder” is a distinct, lesser included offense
        of “murder plus one or more aggravating
        circumstances”: Whereas the former exposes
        a defendant to a maximum penalty of life
        imprisonment, the latter increases the
        maximum permissible sentence to death.

Id. Justice Scalia added: “We can think of no principled
reason to distinguish, in this context, between what
constitutes an offense for purposes of the Sixth Amendment’s
jury-trial guarantee and what constitutes an ‘offence’ for
purposes of the Fifth Amendment’s Double Jeopardy
Clause.” Id. (emphasis added) (citing Monge v. California,
524 U.S. 721, 738 (1998) (Scalia, J., dissenting)). Smith
argues that Sattazahn established that enhancements must be
12                   SMITH V . HEDGPETH

considered part of the crime itself for double jeopardy
purposes.

     Sattazahn does not clearly establish Smith’s claim. First,
as the district court noted, “the ‘context’ [Justice] Scalia
emphasized was all-important: capital sentencing.” The
Court has long recognized the unique nature of capital
sentencing cases. In Monge, for example, the Court refused
to extend its interpretation of the Double Jeopardy Clause in
Bullington v. Missouri, 451 U.S. 430 (1981), a capital case,
to “the noncapital sentencing context.” Monge, 524 U.S. at
731–34; see also id. at 731–33 (“[A] critical component of
our reasoning in [Bullington] was the capital sentencing
context. . . . Moreover, we have suggested in earlier cases that
Bullington’s rationale is confined to the unique circumstances
of a capital sentencing proceeding.” (internal quotation marks
omitted)). The fact that Justice Scalia’s statement in
Sattazahn was expressly limited to the capital context is alone
sufficient to take it outside the realm of “clearly established
Federal law” for Smith’s purposes.

    Second, even if we thought that these statements in
Sattazahn extended to non-capital cases, Justice Scalia’s
statements in Part III are part of a plurality opinion and are
not a binding declaration of the Court. “When a fragmented
Court decides a case and no single rationale explaining the
result enjoys the assent of five Justices, the holding of the
Court may be viewed as that position taken by those
Members who concurred in the judgments on the narrowest
grounds.” Marks v. United States, 430 U.S. 188, 193 (1977)
(internal quotation marks omitted). And, the Court has
reminded us that, for purposes of AEDPA, only its “holdings,
as opposed to [its] dicta” are relevant. Lockyer, 538 U.S. at
71. Here, a single rationale explaining the result did enjoy
                     SMITH V . HEDGPETH                      13

the assent of five Justices—Part II of Justice Scalia’s opinion
applying the Court’s approach in Bullington and its progeny
to the issue before the Court. See Sattazahn, 537 U.S. at
106–10. Part II did not reach the issue of whether the
definition of offense for purposes of the jury-trial guarantee
of the Sixth Amendment was coextensive with the definition
of “offence” in the Double Jeopardy Clause. See id. The
district court correctly held that “Sattazahn offered only dicta
on this issue.”

     Smith argues that Justice Scalia’s statement in Part III
enjoyed the assent of a majority of the Court because,
including the dissenters, “fully seven [J]ustices in Sattazahn
recognized that enhancing allegations must be considered in
determining what constitutes a separate ‘offense’ under the
Double Jeopardy Clause.” Although Smith asks us to count
the dissenting justices, those justices did not rely upon the
rationale presented in Part III of Justice Scalia’s opinion.
Moreover, the dissent, like Justice Scalia, acknowledged the
special context of capital sentencing. Id. at 126 n.6
(Ginsburg, J., dissenting) (“This Court has determined,
however, that for purposes of the Double Jeopardy Clause,
capital sentencing proceedings involving proof of one or
more aggravating factors are to be treated as trials of separate
offenses, not mere sentencing proceedings. Our decisions
permitting resentencing after appeal of noncapital convictions
thus do not address the question presented in this
case.”(citations omitted)). Even if we could add the dissent
to the plurality, the Court has not clearly established the
principle Smith argues for outside of the context of capital
sentencing.

    We hold that Sattazahn did not clearly establish whether
sentencing enhancements must be considered as an element
14                   SMITH V . HEDGPETH

of an offense for purposes of the Double Jeopardy Clause.
Thus, Sattazahn is also insufficient to entitle Smith to federal
habeas relief.

                   IV.    CONCLUSION

    Apprendi, Cobb, and Sattazahn—whether considered
individually or together—did not create “clearly established
Federal law” requiring a state court to consider sentencing
enhancements as an element of an offense for purposes of the
Double Jeopardy Clause.           A state court cannot be
expected—much less required—to refer to federal law which
is not clearly established. Thus, we hold the state court’s
decision was not “contrary to, or an unreasonable application
of, clearly established Federal law.” The Supreme Court has
not squarely addressed this issue and fairminded jurists could
disagree as to the constitutional principle. The judgment of
the district court is AFFIRMED.
