                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 28 2011

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




                            FOR THE NINTH CIRCUIT



RICHARD HORTON,                                  No. 08-56927

               Petitioner - Appellant,           D.C. No. 2:05-cv-08641-VAP

  v.
                                                 MEMORANDUM *
KATHLEEN DICKINSON, Warden,

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                    Virginia A. Phillips, District Judge, Presiding

                            Submitted October 25, 2011 **

Before:        TROTT, GOULD, and RAWLINSON, Circuit Judges.

       California state prisoner Richard Horton appeals from the district court’s

judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction

under 28 U.S.C. § 2253, and we affirm.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Horton contends that his upper-term sentence violates his Sixth Amendment

rights because it was based on aggravating facts found by a judge relying on a

probation report, rather than by a jury beyond a reasonable doubt.

      The California Court of Appeal’s determination that Horton’s upper-term

sentence is constitutional because it was based on the fact that he served a prior

prison term and the fact that he was on probation at the time of the underlying

crime was not contrary to, or an unreasonable application of, clearly established

federal law as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1);

Kessee v. Mendoza-Powers, 574 F.3d 675, 677 (9th Cir. 2009). Any error related

to other judicial fact-finding was harmless, because, under California law, one

aggravating factor is sufficient to impose an upper-term sentence. See People v.

Black, 41 Cal. 4th 799, 815 (2007); see also Butler v. Curry, 528 F.3d 624, 642-43

(9th Cir. 2008) (explaining that one aggravating factor is sufficient notwithstanding

the language of Cal. R. Ct. 4.420(b)).

      AFFIRMED.




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