                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 19a0171p.06

                   UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 LONNIE LEE OWENS,                                       ┐
                                  Petitioner-Appellee,   │
                                                         │
                                                          >     No. 17-5488
        v.                                               │
                                                         │
                                                         │
 MIKE PARRIS, Warden,                                    │
                               Respondent-Appellant.     │
                                                         ┘

                         Appeal from the United States District Court
                     for the Eastern District of Tennessee at Winchester.
                   No. 4:14-cv-00018—Harry S. Mattice, Jr., District Judge.

                                   Argued: March 20, 2019

                               Decided and Filed: July 30, 2019

             Before: McKEAGUE, KETHLEDGE, and THAPAR, Circuit Judges.

                                     _________________

                                          COUNSEL

ARGUED: Richard D. Douglas, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellant. Kasdin M. Mitchell, KIRKLAND & ELLIS LLP,
Washington, D.C., for Appellee. ON BRIEF: Richard D. Douglas, OFFICE OF THE
TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellant. Kasdin M.
Mitchell, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellee. Lonnie Lee Owens,
Tiptonville, Tennessee, pro se.
                                     _________________

                                           OPINION
                                     _________________

       KETHLEDGE, Circuit Judge. Lonnie Lee Owens covered his estranged wife’s nose and
mouth with duct tape, hogtied her arms and legs behind her back, and left her alone in a shed to
 No. 17-5488                           Owens v. Parris                                    Page 2


die. A Tennessee jury convicted Owens of second-degree murder. The trial judge increased
Owens’s sentence based in part on the judge’s finding that a sentencing enhancement was
warranted for “exceptional cruelty.” Owens now seeks federal habeas relief, arguing that the
Sixth Amendment required the jury, rather than the judge, to make that finding. The district
court agreed and granted the writ. We hold that the state court’s error was harmless, and reverse.

                                                I.

        Owens and his wife Heather separated in September 2002 and agreed to share custody of
their two young children. Soon thereafter, Owens screamed at Heather that, if she took their
children away from him, he would kill her. Owens also told one of his friends that he had made
the same threat.

        On May 17, 2003, Owens was at his house with the children while Heather was at work.
Late that morning, Owens called Heather to ask when she would pick up the children, telling her
that he had plans that evening. According to Owens, Heather hung up on him without saying
when she planned to come over. Owens then called his girlfriend, Kara, and said that he was not
sure when Heather would come to get the kids. Kara agreed not to go over to his house to avoid
running into Heather. Around 3:00 p.m., Heather left work and drove her truck to Owens’s
house, where the children were napping and Owens was doing laundry. Owens says he was
startled when a person appeared behind him and said “F-you.” He swung at the person with all
his strength. Only after he struck the person in the head, Owens claims, did he realize it was
Heather.

        Owens says he checked for Heather’s pulse and thought she was dead. He bound her
arms and legs with duct tape, hogtying her limbs together behind her back—all, according to
Owens, to make it easier to move her dead body. He also wrapped tape around the bottom half
of her head, covering her nose and mouth—because, according to Owens, her face was turning
gray and he did not want to look at her. Then he dragged Heather to a shed behind his house and
left her inside.

        Around 4:00 p.m., Owens drove Heather’s truck to a nearby parking lot, abandoned it
with her keys inside, and ran back to his house. (His movements were filmed by a video camera
 No. 17-5488                           Owens v. Parris                                  Page 3


across the street from the parking lot.) Owens then made a series of phone calls. First, Owens
called Kara to ask her to come over. Then he called a friend to say that Owens and Kara planned
to attend the friend’s party that evening. Finally, he called Heather’s cell phone and left a
voicemail, asking her whether she planned to pick up the kids and saying “I love you” and
“[t]ake care.”

          Soon thereafter, Kara arrived at Owens’s house. According to Kara, Owens was “pacing
back and forth,” “sweating,” and “seemed to be nervous and upset.” He told her that some of his
friends had stolen Heather’s truck as a joke, and he convinced Kara to help him to move the
truck to another town. Then he and Kara went to the party. After they returned home, Owens
asked Kara to watch the children while he went fishing.        Instead, however, Owens drove
Heather’s body to a nearby lake and buried her in a shallow grave on an island, where the police
found Heather’s body more than two weeks later.

          A Tennessee jury thereafter convicted Owens of second-degree murder. At the time of
his sentencing, Tennessee law prescribed sentencing ranges based on the category of the offense
and the defendant’s prior convictions. See Tenn. Code Ann. § 40-35-112 (2004). Within these
ranges, the law further prescribed presumptive sentences from which the sentencing judge could
depart only if the judge found certain aggravating or mitigating factors. See id. § 40-35-210(c)
(2005).

          Owens faced a minimum sentence of 15 years and a maximum of 25 years for his second-
degree murder conviction. See id. §§ 39-13-210(c)(1), 40-35-112(a)(1) (2005). His presumptive
sentence within that range was 20 years.      See id. § 40-35-210(c) (2005).     Over Owens’s
objection, the sentencing judge found that two enhancements applied, including one for
“exceptional cruelty.” See id. § 40-35-114(5) (2005). Those enhancements allowed the trial
judge to increase Owens’s sentence to 25 years. The Tennessee Court of Criminal Appeals
thereafter affirmed the application of the exceptional-cruelty enhancement, but reversed the
application of the other enhancement. See State v. Owens, No. M2005-00362-CCA-R3-CD,
2005 WL 2653973, at *8 (Tenn. Crim. App. Oct. 18, 2005). The court thus reduced Owens’s
sentence to 24 years.
 No. 17-5488                            Owens v. Parris                                   Page 4


       Owens thereafter sought federal habeas relief, arguing among other things that his
sentence was increased, in violation of the Sixth Amendment, based on facts found by the judge
rather than the jury. The district court granted the writ. This appeal followed.

                                                II.

       We review the district court’s decision de novo. See Mendoza v. Berghuis, 544 F.3d 650,
652 (6th Cir. 2008). The Tennessee Court of Criminal Appeals adjudicated Owens’s Sixth
Amendment claim on the merits, which means Owens must show that the court reached a
decision that was “contrary to, or involved an unreasonable application of” clearly established
Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).

                                                A.

       In the district court, the State did not even dispute that the state court had unreasonably
applied Supreme Court precedent when the court rejected Owens’s Sixth Amendment claim.
Owens therefore says the State has forfeited its argument here that the state court’s decision was
not “unreasonable” as that term is used in § 2254(d)(1). Yet the district court decided that issue
on the merits, which means the State can challenge that holding now. See United States v.
Clariot, 655 F.3d 550, 556 (6th Cir. 2011).

       So we turn to question whether the Tennessee Court of Criminal Appeals unreasonably
applied Supreme Court precedent when it rejected Owens’s Sixth Amendment claim. Two
precedents are especially important here. The first is Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), where the Court held that, “[o]ther 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.” The second is Blakely v. Washington, 542 U.S.
296, 303 (2004), where the Court made clear that “the ‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected
in the jury verdict or admitted by the defendant.” (Emphasis in original.) Yet the Tennessee
court regarded the statutory maximum for purposes of Owens’s sentencing as the generic 25-year
maximum for second-degree murder, rather than the 20-year maximum that the judge could
impose based solely on the facts reflected in the verdict or admitted in Owens’s case.
 No. 17-5488                              Owens v. Parris                                    Page 5


See Owens, 2005 WL 2653973, at *6 (citing State v. Gomez, 163 S.W.3d 632, 661 (Tenn.
2005)).     That decision was inconsistent with Blakely’s plain terms.         Accord Portalatin v.
Graham, 624 F.3d 69, 83-84 (2nd Cir. 2010); Butler v. Curry, 528 F.3d 624, 636 (9th Cir. 2008).

          Yet the state argues that the issue was not so clear-cut in Owens’s case, because the
judge’s finding of “exceptional cruelty” merely permitted, rather than mandated, a sentence
above 20 years. But in Blakely the sentencing judge had the same discretion not to impose a
higher sentencing based on the judge’s own factfinding. And in Blakely the Supreme Court
specifically instructed that, “[w]hether the judicially determined facts require a sentence
enhancement or merely allow it,” a sentence violates the Sixth Amendment when “the verdict
alone does not authorize the sentence.” Blakely, 542 U.S. at 305 n.8 (emphasis in original). The
Supreme Court could hardly have been clearer; and here the verdict alone did not authorize
Owens’s sentence. The Tennessee court’s application (or refusal to apply) Blakely was therefore
unreasonable.

                                                  B.

          But Owens is entitled to habeas relief only if the state court’s error was not harmless. See
Washington v. Recuenco, 548 U.S. 212, 221-22 (2006). On habeas review, an error is harmful
only if it had a “substantial and injurious effect” upon Owens’s sentence, or if we have “grave
doubt” as to whether the error had such an effect. See O’Neal v. McAninch, 513 U.S. 432, 435
(1995).

          Owens states that, as to harmlessness, “[t]he only question is whether the jury would have
found that Owens acted with exceptional cruelty if that question had been submitted to it.” Br. at
36. We agree with that statement of the relevant question here. In Washington v. Recuenco, the
Court observed that “[a]ny possible distinction between an ‘element’ of a felony offense and a
‘sentencing factor’ was unknown to the practice of criminal indictment, trial by jury, and
judgment by court as it existed during the years surrounding our Nation’s founding.” 548 U.S. at
220 (quoting Apprendi, 530 U.S. at 478). Thus, the Court held, “elements and sentencing factors
must be treated the same for Sixth Amendment purposes.” Id. In Recuenco, that equality of
treatment meant that “[f]ailure to submit a sentencing factor to the jury, like failure to submit an
 No. 17-5488                            Owens v. Parris                                     Page 6


element to the jury, is not structural error.” Id. at 222. Here, that equality means that, for either
“failure,” we ask the same question to determine harmlessness: namely, “whether the jury
would have returned the same verdict absent the error[.]” Id. at 221; accord Butler, 528 F.3d at
648.

       That question is the dispositive one, we hold, even though in two other cases we asked
whether the sentencing judge would have imposed the same sentence absent the Blakely error.
But in the first of those cases, we simply rejected on its terms the Warden’s argument that the
sentencing judge would have “undoubtedly impose[d] the same sentence on remand.”
Villagarcia v. Warden, 599 F.3d 529, 537 (6th Cir. 2010). We notably did not address the
antecedent question whether the Warden had asked the right question in the first place. And in
the second case our discussion of what the sentencing judge might have done on remand was
plainly dictum—because the “State did not argue harmless error before the district court and did
not argue it in [its] briefing [on] appeal[,]” and thus had “waived” the issue. Lovins v. Parker,
712 F.3d 283, 303-04 (6th Cir. 2013). Moreover, the question whether the court would have
imposed the same sentence on remand is itself incoherent in cases where—as here—the court’s
factfinding liberated the court to impose the sentence that the court in fact imposed, rather than
mandated that sentence. What is missing in all these cases—as to elements and sentencing
factors alike—is a jury finding, not a judicial one. Hence the question as to harmlessness is
whether the jury would have made the necessary finding had the jury been asked to make it.

       Under Tennessee law at the time of Owens’s trial, the sentencing factor at issue—
namely, an enhancement for “exceptional cruelty”—required a finding that the defendant
inflicted “pain or suffering for its own sake or from the gratification derived therefrom,” and not
simply “pain and suffering inflicted as the means of accomplishing the crime charged.” Tenn.
Code Ann. § 40-35-114(5); State v. Arnett, 49 S.W.3d 250, 258 (Tenn. 2001). On this record,
whether Owens’s jury would have made that finding depends on whether they thought Heather
was still alive when Owens duct-taped her mouth and nose—leaving her eyes uncovered—and
then dragged her to the shed and left her there. Owens’s testimony, as described above, was that
Heather suddenly materialized behind him, that he punched her without realizing whom he was
punching, and that she died more or less immediately after the punch. Owens further testified
 No. 17-5488                            Owens v. Parris                                    Page 7


that he hogtied Heather not to restrain her, but (inexplicably, one might say) to move her body
more easily; and that he duct-taped her airways not to suffocate her, but to cover her face, which
distressed him because it was turning gray—a sensitivity notably absent the remainder of that
day, as he moved Heather’s truck, left her a voicemail (as she lay dead or dying in the shed),
partied with Kara, and buried Heather in a shallow grave, among other activities. The State’s
theory, in contrast, was more simple: that Heather had suffocated from the duct tape that Owens
placed over her nose and mouth.

        The judgment we need to make here is whether there is any substantial likelihood that
the jury believed Owens’s testimony—in which case his actions after the punch presumably were
not cruel because Heather was no longer alive to suffer from them. For the moment we set to
one side what seems to us the patently fantastic nature of Owens’s testimony. What plagues
Owens’s theory from the start, rather, is that the jury did in fact convict him of second-degree
murder. And that means the jury found that Owens killed Heather knowingly. See Tenn. Code
Ann. § 39-13-210(a)(1); State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000). Thus, for the jury to
have believed Owens’s testimony and to have convicted him nonetheless of second-degree
murder, the jury must have thought that, when Owens punched Heather (without knowing who
she was, no less), he was reasonably certain that the punch would kill her. Nothing in the record
or in common sense supports that hypothesis. Moreover, the State’s medical examiner testified
that Heather’s body bore no signs of blunt force trauma, and that her cause of death was
asphyxiation. Add in the other fantastic aspects of Owens’s testimony, and one doubts that any
sentient juror would have believed any of it. Suffice it to say that we are confident that the jury
rejected Owens’s account of the murder and accepted the State’s.

       But that leaves the question whether the jury, if asked, would have found that Owens
acted with exceptional cruelty. The duct-taping cannot support that finding, because it was “the
means of accomplishing the crime charged.” Arnett, 49 S.W.3d at 258. But other circumstances
strongly support a finding of exceptional cruelty. Owens did not simply suffocate Heather; he
left her alone in a shed, struggling to breathe with her limbs bound behind her back and her
children nearby in the house. Those actions amount to “psychological abuse or torture,” which
supports a finding of exceptional cruelty. See id. Moreover, Owens’s actions after duct-taping
 No. 17-5488                            Owens v. Parris                                 Page 8


Heather and leaving her to die—e.g., partying with his girlfriend and later burying Heather’s
body in a shallow grave—reflect his “calculated indifference toward [her] suffering,” which
likewise supports the necessary finding. See State v. Reid, 91 S.W.3d 247, 311 (Tenn. 2002).

       We have little doubt that, if asked, the jury would have made the requisite finding. The
Blakely error was therefore harmless.

                                    *     *    *     *    *
       The district court’s judgment is reversed, and the case is remanded with instructions to
deny the petition.
