                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 12 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



PAUL REMME,                                      No. 09-35439

             Petitioner - Appellant,             D.C. No. 1:07-cv-00273-PA

  v.
                                                 MEMORANDUM *
JEAN HILL, Superintendent, Snake River
Correctional Institution,

             Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Owen M. Panner, District Judge, Presiding

                       Argued and Submitted March 2, 2010
                                Portland, Oregon

Before: PAEZ, TALLMAN and M. SMITH, Circuit Judges.

       Paul Remme appeals from the district court’s denial of his 28 U.S.C. § 2254

habeas corpus petition challenging his conviction and sentence for four counts of

criminal mistreatment under Or. Rev. Stat. § 163.205. We have jurisdiction under




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
28 U.S.C. § 2253. We review de novo the district court’s denial of the petition,

Gonzalez v. Brown, 585 F.3d 1202, 1206 (9th Cir. 2009), and we affirm.

      Remme challenges his convictions on two counts of criminal mistreatment

for which only 11 of the 12 jurors found him guilty. According to Remme, his

conviction by a non-unanimous jury violates his Sixth Amendment rights. Remme

concedes that the Supreme Court upheld Oregon’s system of allowing convictions

by non-unanimous juries in Apodaca v. Oregon, 406 U.S. 404, 406 (1972).

Nonetheless, he contends that the Apodaca plurality opinion is incompatible with

the Supreme Court’s recent decisions in Apprendi v. New Jersey, 530 U.S. 466

(2000), Blakely v. Washington, 542 U.S. 296 (2004), and Cunningham v.

California, 549 U.S. 270 (2007). We need not consider the merits of this argument

because, regardless, we lack the authority to disregard the holding of Apodaca. See

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If

a precedent of this Court has direct application in a case, yet appears to rest on

reasons rejected in some other line of decisions, the Court of Appeals should

follow the case which directly controls, leaving to this Court the prerogative of

overruling its own decisions.”). Because Remme’s challenge to his conviction

fails on the merits, we affirm the denial of habeas relief on this ground without first

determining whether a state procedural bar or failure to exhaust precludes federal


                                           2
habeas relief. See 28 U.S.C. § 2254(b)(2); Lambrix v. Singletary, 520 U.S. 518,

525 (1997).

      Remme also challenges his sentence on two grounds. First, Remme

contends that the sentencing judge violated his Sixth Amendment rights under

Apprendi, 530 U.S. at 490, and Blakely, 542 U.S. at 303, by sentencing him to a

term of imprisonment above the Oregon sentencing guidelines’ presumptive

sentence on the basis of facts not proven to a jury. Although this sentence did, in

fact, violate the Sixth Amendment under Blakely, it does not entitle Remme to

federal habeas relief because his conviction became final before the Supreme Court

issued its decision in Blakely, and Blakely does not apply retroactively. Schardt v.

Payne, 414 F.3d 1025, 1038 (9th Cir. 2005). Moreover, Remme is not entitled to

relief on the basis of Apprendi alone. Id.

      Second, Remme contends that the sentencing judge violated his Sixth

Amendment rights under Apprendi, 530 U.S. at 490, and Blakely, 542 U.S. at 303,

by imposing consecutive sentences on the basis of facts not proven to a jury. This

argument is foreclosed by Oregon v. Ice, which upheld Oregon’s law requiring

judges to find certain facts before imposing consecutive sentences. 129 S. Ct. 711,

714–15 (2009).

      AFFIRMED.


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