                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 19a0151p.06

                  UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



 MARCUS MAGNUM REIGN,                                  ┐
                               Petitioner-Appellant,   │
                                                       │
                                                        >      No. 18-1086
       v.                                              │
                                                       │
                                                       │
 LORI GIDLEY, Warden,                                  │
                              Respondent-Appellee.     │
                                                       ┘

                        Appeal from the United States District Court
                       for the Eastern District of Michigan at Detroit.
                  No. 2:17-cv-11692—Gershwin A. Drain, District Judge.

                                   Argued: May 9, 2019

                             Decided and Filed: July 10, 2019

                Before: ROGERS, DONALD, and THAPAR, Circuit Judges.

                                    _________________

                                        COUNSEL

ARGUED: Michael H. McGinley, DECHERT LLP, Philadelphia, Pennsylvania, for Appellant.
Linus Richard Banghart-Linn, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan,
for Appellee. ON BRIEF: Michael H. McGinley, DECHERT LLP, Philadelphia, Pennsylvania,
for Appellant. Linus Richard Banghart-Linn, OFFICE OF THE ATTORNEY GENERAL,
Lansing, Michigan, for Appellee.
                                    _________________

                                         OPINION
                                    _________________

      ROGERS, Circuit Judge. Marcus Magnum Reign was convicted of armed robbery in
Michigan state court. He was originally sentenced under a mandatory guidelines scheme that
 No. 18-1086                               Magnum Reign v. Gidley                          Page 2


determined his minimum sentence and incorporated judge-found facts. As became clear before
the judgment was final, such a sentence would violate his Sixth Amendment right to a jury trial.
See Robinson v. Woods, 901 F.3d 710, 714 (6th Cir. 2018); People v. Lockridge, 870 N.W.2d
502, 513–14 (Mich. 2015) (applying Alleyne v. United States, 570 U.S. 99 (2013), and United
States v. Booker, 543 U.S. 220 (2005)). In the end the sentencing court recognized the Sixth-
Amendment-driven change in the law from a mandatory to an advisory guideline scheme. The
sentencing court nonetheless imposed a minimum sentence within the relevant guidelines, taking
into account such judge-found facts, reasoning that the advisory nature of the guidelines did not
affect the court’s previous application of the guidelines. Magnum Reign 1 now appeals the denial
of habeas relief by the federal district court below, arguing that he is entitled to a resentencing
hearing, essentially because the guidelines were considered mandatory at the time of his hearing,
even though not at the time that his sentence became final. Declining to conduct such a new
hearing in this case was not contrary to, nor did it involve an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States, and habeas
relief was therefore properly denied. See 28 U.S.C. § 2254(d)(1).

       In August 2014, Magnum Reign pled guilty to one count of armed robbery in Michigan
state court. At the time, minimum sentences in Michigan were chosen by the sentencing court
from a range computed under nearly mandatory guidelines. The state sentencing court calculated
Magnum Reign’s minimum-sentence guidelines range at 108–180 months. This calculation was
built in part upon judge-found facts, neither admitted by Magnum Reign nor found by a jury.
The sentencing court chose a minimum sentence of 144 months, at the middle of the range.

       After Magnum Reign moved to correct his sentence in January 2015, the sentencing court
recalculated the guidelines range for his minimum sentence at 81–135 months, or roughly 6 ¾ to
11 ¼ years. At the second sentencing hearing, however, Magnum Reign’s counsel incorrectly
stated that the range was “around 7 years to about 13 years.” Even though the sentencing court
again stated its intention to sentence in the middle of his guidelines range, the court gave
Magnum Reign a minimum sentence of ten years, halfway between seven and thirteen, instead of
nine years, the actual middle of his range.
       1Petitioner’s   last name is Magnum Reign.
 No. 18-1086                         Magnum Reign v. Gidley                               Page 3


       Five days after this first resentencing, the Michigan Supreme Court handed down its
decision in People v. Lockridge, 870 N.W.2d 502 (Mich. 2015). In Lockridge, the Michigan
Supreme Court held that the Michigan guidelines scheme violated defendants’ Sixth Amendment
rights under Alleyne, because it was all but mandatory and incorporated judge-found facts to
increase minimum sentences. See 870 N.W.2d at 513–14. The Michigan Supreme Court’s
remedy was to “Booker-ize the Michigan sentencing guidelines, i.e., render them advisory only.”
Id. at 520; see Booker, 543 U.S. at 245. Lockridge accordingly made the Michigan guidelines
for minimum sentences akin to the federal guidelines—advisory, but “a highly relevant
consideration in a trial court’s exercise of sentencing discretion.” 870 N.W.2d at 520. Thus,
Lockridge did not change how the guidelines ranges for minimum sentences were computed; the
only change was that they were no longer binding on the sentencing judge. To provide guidance
to Michigan appellate courts, the Michigan Supreme Court instructed that “in cases in which a
defendant’s minimum sentence was established by application of the sentencing guidelines in a
manner that violated the Sixth Amendment, the case should be remanded to the trial court to
determine whether that court would have imposed a materially different sentence but for the
constitutional error.” Id. at 523.

       After his first resentencing, and after Lockridge came down, Magnum Reign again moved
for a correction of his sentence. Magnum Reign argued that his previous sentencing counsel had
been ineffective by stating that the guidelines range for a minimum sentence was 7 to 13 years,
when in fact it was 6 ¾ to 11 ¼ years. Magnum Reign also argued that the sentencing court had
relied on judicial factfinding in violation of Alleyne. Using the language of Lockridge, he wrote
that “the Court should reconsider the sentence and whether it would have imposed a ‘materially
different’ sentence using advisory sentencing guidelines.”

       In a written order on March 2, 2016, the sentencing court did just that. After granting
Magnum Reign’s motion in part, based on the earlier misstatement by his counsel, and lowering
his sentence to nine years, the sentencing court declined to resentence under Lockridge. The
court wrote that it “did not feel constrained by the then-mandatory nature of the guidelines. That
is, the Court would have applied its same reasoning regardless of whether sentencing occurred
before or after Lockridge. Accordingly, Lockridge does not require resentencing in this case.”
 No. 18-1086                          Magnum Reign v. Gidley                                Page 4


Put differently, the sentencing court again decided on a middle-of-the-guidelines sentence even
though the guidelines were by then advisory, but did so without holding another hearing.

       Magnum Reign appealed his sentence to the Michigan Court of Appeals and the
Michigan Supreme Court. In both appeals, he argued that the sentencing court had failed to
follow Lockridge properly, because, in his view, if the sentencing court had followed Lockridge
it would not have considered judge-found facts and would have lowered his guidelines range.
Both courts denied his appeal in summary orders.

       Magnum Reign then filed a petition for writ of habeas corpus in the federal district court
below, asserting among other things that the sentencing court had based his sentence on
“unconstitutional judicial fact finding” in violation of his Sixth Amendment rights. The district
court denied his petition. See Magnum Reign v. Gidley, Case No. 2:17-cv-11692, 2017 WL
4918533 (E.D. Mich. Oct. 31, 2017).

       We granted Magnum Reign a certificate of appealability with respect to his Sixth
Amendment claim. In reviewing Magnum Reign’s habeas appeal, we look to the last reasoned
state court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803–05 (1991). The last reasoned state
court decision was the state sentencing court’s order in which it imposed a minimum sentence
within the guidelines range without holding another hearing.

       This decision by the sentencing court was not “contrary to, or . . . an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States,” and is therefore entitled to deference under the Anti-Terrorism and Effective
Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d)(1). There is no Supreme Court decision that
clearly requires a sentencing court in this posture to hold a resentencing hearing.

       It is true that, at an earlier point in the state proceedings, the sentencing court had
imposed a minimum sentence based on state guidelines deemed mandatory. However, the final
minimum sentence actually challenged by Magnum Reign in the instant appeal was imposed by
the state trial court at a point in the proceedings when it was clear under state law that the trial
court must treat as advisory the Michigan guidelines for imposing a minimum sentence.
 No. 18-1086                          Magnum Reign v. Gidley                               Page 5


Moreover, at that point the sentencing court explicitly recognized that the Michigan guidelines
were advisory.

       Magnum Reign argues that the sentencing court at that point should have declined to
consider certain judge-found facts, but that argument is flatly without merit. Throughout his
briefing, Magnum Reign contends that a resentencing would necessarily result in a lower
sentence because his guidelines range would be lower post-Lockridge, but he presents no
reasoning that supports this contention. According to Magnum Reign, “[h]ad the State Trial
Court conducted a proper harmful error analysis, the relevant question would have been whether
Magnum Reign would have received the same sentence without the judicially found facts . . . not
whether the judge might impose the same sentence under the new discretionary sentencing
regime.” Reply Br. at 9.

       But the constitutional error here was the mandatory application of the guidelines, not
merely the consideration of judge-found facts. Indeed, under Michigan law the sentencing court
must still consider judge-found facts. See Lockridge, 870 N.W.2d at 520 n.28. The most recent
edition of the Michigan Sentencing Guidelines Manual explains that “sentencing courts are still
required to determine the applicable guidelines range [and] [a]ccordingly, the guidelines-
scoring content of this manual remains applicable, with the caveat that the calculated guidelines
range is advisory rather than binding.”      Mich. Sentencing Guidelines Manual at 3 (2019)
(emphasis in original).

       At oral argument, Magnum Reign’s attorney argued for the first time that the harm here
was Magnum Reign’s inability to argue for a downward departure in a post-Lockridge world. In
other words, by depriving him of a full resentencing hearing, the sentencing court deprived
Magnum Reign of the chance to make an argument that the court should depart from the
guidelines under a sentencing scheme where such departures were more likely. This is a stronger
argument than the argument in his briefing regarding the calculation of the guidelines, but it does
not change the result. Aside from the fact that it came too late, this argument fails for two
reasons. First, Magnum Reign had the ability to make this argument to the sentencing court.
He could have asked for a new hearing in order that he might request a downward departure.
Instead, he asked the court to consider whether the mandatory nature of the guidelines made a
 No. 18-1086                          Magnum Reign v. Gidley                              Page 6


material difference in his sentence—the court answered that question, and said it did not.
Second, under AEDPA, Magnum Reign must do more than demonstrate the possibility of a
lower sentence if his petition were granted. He must demonstrate that the sentencing court’s
decision contravened clear dictates of the Supreme Court, and this he has not done.

        Finally, Magnum Reign argues that Supreme Court precedent forecloses the procedure of
the sentencing court here. He contends that under Booker, when a defendant makes a Sixth
Amendment objection to the mandatory application of sentencing guidelines, the reviewing court
cannot consider whether the constitutional error was harmless, but must instead hold a
resentencing hearing. He relies on cases after Booker in which an appellate court, reviewing a
pre-Booker sentence, had remanded and required a sentencing hearing on remand, rather than
merely remanding for the district court to determine whether such a hearing was required.

        These cases do not help Magnum Reign for two reasons. First, whatever the merits of
these varying approaches to Booker remands, the Supreme Court has not clearly established
which approach is correct, such that the requirements of AEDPA are not met. Second, Magnum
Reign’s case is not a remand, but rather an appeal from the district court’s sentence finally
imposed when the guidelines were known and understood to be advisory.

        In Booker, the Supreme Court held that the federal sentencing guidelines were
unconstitutional because they incorporated judge-found facts, 543 U.S. at 226–44, and in a
“remedy opinion” the Court fixed the problem by rendering the guidelines advisory, 543 U.S. at
244–68. The Court did not hold that a trial court must conduct a resentencing hearing if
presented with this objection to a mandatory guidelines sentence.

        Magnum Reign reads much into the final paragraph of the Court’s opinion. There the
Court noted that it was remanding one of the defendant’s cases for resentencing, but cautioned
that:

        That fact does not mean that we believe that every sentence gives rise to a Sixth
        Amendment violation. Nor do we believe that every appeal will lead to a new
        sentencing hearing. That is because we expect reviewing courts to apply ordinary
        prudential doctrines, determining, for example, whether the issue was raised
        below and whether it fails the “plain-error” test. It is also because, in cases not
        involving a Sixth Amendment violation, whether resentencing is warranted or
 No. 18-1086                          Magnum Reign v. Gidley                               Page 7


        whether it will instead be sufficient to review a sentence for reasonableness may
        depend upon application of the harmless-error doctrine.

Id. at 268.

        Magnum Reign’s argument rests on a negative inference from the final sentence: if, “in
cases not involving a Sixth Amendment violation,” the harmless-error doctrine may apply, this
means that in cases that do involve a Sixth Amendment violation, the harmless-error doctrine
may not apply. This negative inference does not “clearly establish” the law for AEDPA’s
purposes. “The text of § 2254(d)(1) . . . suggests that the state court’s decision must be
substantially different from the relevant precedent of the Supreme Court.” Williams v. Taylor,
529 U.S. 362, 405 (2000).    The state court’s decision was not substantially different from these
final lines of Booker. What is more, the Supreme Court in Booker was discussing how federal
appellate courts should consider appeals by federal defendants who were sentenced under the
mandatory guidelines.     Magnum Reign presented his Sixth Amendment challenge to the
sentencing court on a motion for resentencing. The end of the remedy opinion in Booker does
not clearly forbid the original sentencing court from determining, prior to a direct appeal,
whether a previously imposed sentence would be altered in an advisory scheme.

        Moreover, our precedent does not require us to deem such a reading of Booker to be
clearly established law. In United States v. Milan, 398 F.3d 445 (6th Cir. 2005), we considered
the proper procedure for reviewing appeals by federal defendants in the wake of Booker. The
Second Circuit had recently issued a decision in United States v. Crosby, 397 F.3d 103 (2d Cir.
2005), in which it had held that such appeals should be remanded to the district court for it to
determine in the first instance whether resentencing was necessary under the advisory guidelines
(that is, the Second Circuit recommended doing what the Michigan Supreme Court did in
Lockridge). Milan read Booker differently than the Second Circuit, and rejected the so-called
“Crosby remand.”     See 398 F.3d at 452.       To Magnum Reign, then, Milan stands for the
proposition that Booker clearly forbade lower courts from reviewing their own sentences for
harmless error when the defendant has objected on Sixth Amendment grounds.

        However, Milan did not stand on “clear” language from the Supreme Court, but rather
relied upon implicit cues. As Milan explained, “[i]t is certainly our obligation as courts of appeal
 No. 18-1086                         Magnum Reign v. Gidley                               Page 8


to carefully consider what the Supreme Court said in Booker. Nevertheless, we cannot ignore
what the Court did.” Id. at 452 (emphasis in original). Because the Court in Booker remanded
for resentencing, in Milan we held that we would remand for resentencing, contrary to Crosby.
It is hard to read Milan as standing for the proposition that the Supreme Court in Booker clearly
prohibited Crosby-type remands.

       In fact, Milan and Crosby serve to demonstrate why Booker cannot be the foundation for
habeas relief here. “A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as fairminded jurists could disagree on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotation marks omitted). Milan and
Crosby show that “fairminded jurists could disagree” on the propriety of a lower court’s
reviewing its own sentence for harmless error. Magnum Reign points out that even the Second
Circuit later rejected the Crosby remand (for preserved errors), see United States v. Fagans, 406
F.3d 138, 140–41 (2005), but this development has little force here. Whatever the current
unpopularity of the Crosby remand, such disfavor does not diminish the fact that different federal
judges read the final lines of Booker in different ways to require different remedies. This fact
requires the conclusion that “fairminded jurists could disagree” on the action taken by the
sentencing court here.

       Magnum Reign’s position is also not supported by Robinson v. Woods, 901 F.3d 710 (6th
Cir. 2018). In Robinson, the petitioner was sentenced in Michigan when the guidelines were
mandatory, and he appealed when they were mandatory (that is, pre-Lockridge). See id. at 713.
We granted his petition for a writ of habeas corpus and remanded “with instructions to remand to
the state sentencing court for sentencing proceedings consistent with this opinion and the
Constitution.” Id. at 718. Magnum Reign urges that because we remanded in Robinson, we
must do so in his case. But the petitioner in Robinson was in a fundamentally different position,
having never been able to ask the sentencing court to reconsider its sentence under an advisory
scheme. In Robinson, we essentially granted as relief the chance to do what Magnum Reign has
already done: ask the sentencing court if it would change its mind once the guidelines became
advisory.
 No. 18-1086                          Magnum Reign v. Gidley                              Page 9


       No clearly established federal law prohibits the sentencing court’s procedure here—
neither Booker, nor, for what it is worth, Milan or Robinson. Further, there was no constitutional
error in the substance of the sentencing court’s decision.

       For the foregoing reasons, we affirm the judgment of the district court.
