                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 11a0869n.06

                                             No. 09-2532                                      FILED
                                                                                         Dec 21, 2011
                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk


JOSHUA DEATRICK                                            )
                                                           )         ON APPEAL FROM THE
        Petitioner-Appellant,                              )         UNITED STATES DISTRICT
                                                           )         COURT FOR THE WESTERN
v.                                                         )         DISTRICT OF MICHIGAN
                                                           )
JERI-ANN SHERRY, WARDEN                                    )                             OPINION
                                                           )
        Respondent-Appellee.                               )




BEFORE:        BATCHELDER, Chief Judge; COLE and COOK, Circuit Judges.

        COLE, Circuit Judge. Petitioner-Appellant Joshua Deatrick appeals the denial of his petition

for a writ of habeas corpus. Deatrick argues that his sentence pursuant to the Michigan sentencing

scheme is unconstitutional because the state trial court found facts that increased his minimum

sentence, in violation of the Apprendi/Blakely/Booker line of cases. Deatrick further argues that this

Court must reconsider previous panel decisions upholding the Michigan sentencing scheme in light

of the Supreme Court decisions United States v. O’Brien and Cunningham v. California, infra.

        We AFFIRM.

                                                   I.

        In October 2003, Petitioner-Appellant Joshua Deatrick committed at least three armed

robberies of gas stations. In all three cases, Deatrick entered the gas station on a pretext, brandished

and threatened the clerk with a knife, and took money from the cash register. On January 28, 2004,
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Deatrick pleaded guilty to three counts of armed robbery in Kent County Circuit Court (Michigan),

in return for an agreement by the government not to bring charges on other robberies he was alleged

to have committed, as well as an agreement that he would not be charged as a habitual offender.

Other than the agreement with regard to the habitual offender classification, Deatrick did not receive

any special sentence consideration in return for his plea.

       On March 15, 2004, Deatrick was sentenced to three terms of fourteen to forty years in

prison, to be served concurrently. The minimum sentence of 168 months, while at the upper end of

the range, was consistent with the guidelines calculation under Michigan law. In choosing to set the

minimum sentence at the high end of the range, the trial court referenced the fact that at least one of

the gas station attendants suffered lacerations as a result of Deatrick’s conduct.

       Deatrick filed an application for review with the Michigan Court of Appeals, arguing that his

sentence was improperly enhanced by judicial fact-finding that was not proven beyond a reasonable

doubt, in violation of Blakely v. Washington, 542 U.S. 296 (2004). The Michigan Court of Appeals

denied the application in a summary order, as did the Michigan Supreme Court.

       Deatrick filed this petition for a writ of habeas corpus on December 26, 2006, again asserting

that the Michigan statutory scheme is unconstitutional. The magistrate judge recommended denying

Deatrick’s petition and not granting a certificate of appealability. The district court adopted the

report in full after a timely objection from Deatrick. This Court granted a certificate of appealability

on two issues: (1) whether the holding in Cunningham v. California is implicated by Michigan’s

sentencing scheme, and (2) whether Michigan’s sentencing scheme is unconstititional under United

States v. Booker.

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                                                 II.

       Under the Michigan sentencing scheme, a particular criminal offense carries with it a

statutory maximum penalty set by the legislature. In this case, the statutory penalty for armed

robbery is life in prison or any term of years. MICH . COMP . LAWS 750.529 (2011). The sentencing

court then calculates a minumum sentence through a guidelines-based calculation that takes into

account various offense and criminal history factors. This guideline system is similar in nature to

the guidelines used in the federal system, though the specific method of calculating the sentence and

the factors considered are different. With these two numbers in mind, the trial judge then imposes

an indeterminate sentence, the upper bounds of which can be no greater than the statutory maximum

and the lower bound no less than the guidelines calculation. MICH . COMP . LAWS § 769.8(1) (2011);

see also People v. Drohan, 715 N.W.2d 778, 789-90 (Mich. 2006) (explaining the Michigan

sentencing scheme).

       We have twice before considered the constitutionality of Michigan’s sentencing scheme. See

Montes v. Trombley, 599 F.3d 490 (6th Cir. 2010); Chontos v. Berghuis, 585 F.3d 1000 (6th Cir.

2009). Both cases are virtually identical in their facts to Deatrick’s case. In both cases, the

defendant was convicted of or pleaded guilty to offenses that carried a statutory maximum penalty

of life or any terms of years. Montes, 599 F.3d at 493; Chontos, 585 F.3d at 1001. In both cases,

the state trial court imposed an indeterminate sentence that was between the guideline calculation

and the statutory maximum. Montes, 599 F.3d at 493; Chontos, 585 F.3d at 1001. In both cases, the

petitioners argued that judicial fact-finding raising the minimum sentence violated the

Apprendi/Blakely line of cases. As this Court succinctly explained in Chontos:

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       Apprendi v. New Jersey’s Sixth Amendment rule requires that “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 Supreme Court in Blakely v.
       Washington explained 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.” Under these cases, judicial factfinding
       may not increase the maximum penalty beyond that to which the jury’s verdict alone
       exposes the defendant.

Chontos, 585 F.3d at 1001-02 (emphasis removed) (citations omitted). In both cases, this Court held

that the Apprendi/Blakely line of cases is not implicated by Michigan’s statutory scheme because

judicial fact-finding increases the minimum sentence, rather than the maximum sentence. Montes,

599 F.3d at 496; Chontos, 585 F.3d at 1001. “The Sixth Amendment jury trial right simply ensure[s]

that the defendant will never get more punishment than he bargained for when he did the crime; it

does not promise that he will receive anything less than that.” Chontos, 585 F.3d at 1002 (quoting

Harris v. United States, 536 U.S. 545, 566 (2002) (emphasis in quote) (internal quotations omitted)).

       A published panel decision of this Court is binding on future panels considering the same

issue. Sykes v. Anderson, 625 F.3d 294, 319 (6th Cir. 2010). The exception to this rule is where “an

inconsistent decision of the United States Supreme Court requires modification of the decision or

this Court sitting en banc overrules the prior decision.” Id. Thus, Deatrick’s argument that the

Apprendi/Blakely analysis applies to the Michigan sentencing scheme is foreclosed by Chontos and

Montes unless he can show that those decisions are inconsistent with Supreme Court case law. We

find that he cannot make this showing.




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                                                 A.

       Deatrick argues that the Supreme Court in United States v. O’Brien, 130 S. Ct. 2169 (2010),

undermines our holdings in Montes and Chontos. O’Brien deals with a sentence under 18 U.S.C.

§ 924(c)(1), which prohibits using a firearm in furtherance of a crime of violence. 130 S. Ct. at

2172. Section 924(c)(1)(A)(i) carries a five year minimum mandatory sentence; however, §

924(c)(1)(B)(ii) carries a 30 year minimum mandatory sentence if the firearm in question is a

machine gun. O’Brien, 130 S. Ct. at 2172. The O’Brien Court, citing to a previous case intepreting

a prior version of § 924, held that the machine gun enhancement must be proven beyond a reasonable

doubt. Id. at 2180 (discussing Castillo v. United States, 530 U.S. 120 (2000), which intepreted the

prior version of § 924).

       Deatrick argues that this result is irreconcilable with Harris v. United States. Harris,

interpreting the current version of § 924, held that a provision that raises the minimum mandatory

sentence if a defendant brandishes a firearm was a sentencing factor that did not have to be proven

beyond a reasonable doubt. Harris, 536 U.S. at 552-54. Harris draws a bright-line distinction

between judicial fact-finding that raises the sentence beyond the stautory maximum, which is

prohibited under Apprendi/Blakely, and judicial fact-finding that raises a minimum mandatory

sentence, which does not violate the Sixth Amendment. Id. at 566-67. Deatrick argues that O’Brien

overturns this bright-line rule and requires all sentencing elements to be proven beyond a reasonable

doubt. As the judicial fact-finding at issue in the Michigan scheme involves the minimum sentence,

both Montes and Chontos rely on Harris in concluding that there is no Apprendi/Blakely problem



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with the Michigan scheme. If Harris is no longer good law, then Deatrick is correct that Montes and

Chontos must be reconsidered.

        Justice Stevens does argue in his concurrence in O’Brien that Harris was wrongly decided

and that Apprendi/Blakely should apply with equal force to any minimum mandatory sentence.

O’Brien, 130 S. Ct. at 2182-2183 (Stevens, J., concurring in the judgment). But only Justice Thomas

endorsed this view. The fact that the other Justices did not join Justices Stevens and Thomas means

that Harris is still good law and that opinions which rely on its rationale are still valid.

        Instead, the majority limits the holding in O’Brien to the specific statutory provisions

contained in § 924, as it holds that Castillo still controlled on the question of whether the machine

gun enhancement needed to be proven beyond a reasonable doubt. O’Brien, 130 S. Ct. at 2180. The

Court focuses on analysis of the statutory changes to § 924 made after Castillo and concludes that

Congress’s primary purpose in enacting the amendments was to convert the mandatory sentences

into minimum mandatory sentences and to reinforce that mere possession of a firearm was enough

to trigger the statute. It concludes that statutory changes do not impact the precedent of Castillo, and

the machine gun enhancement still has to be proven beyond a reasonable doubt. Id.

        Thus, O’Brien does not overrule Harris, nor does it undermine our previous holdings that

the Michigan sentencing scheme does not run afoul of Apprendi/Blakely.

                                                  B.

        Deatrick also argues that Cunningham v. California, 549 U.S. 270 (2007), requires Montes

and Chontos to be overturned. Cunningham considered the California sentencing scheme in light

of Apprendi/Blakely. For each offense, the California legislature set a low, middle, and upper term

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sentence. Cunningham, 549 U.S. at 277. A defendant will be sentenced to the middle term sentence

unless the judge finds specific facts that warrant an enhancement to the upper term. Id.. After

surveying the Apprendi/Blakely line of cases, the Court concluded that “[i]n accord with Blakely,

therefore, the middle term prescribed in California’s statutes . . . is the relevant statutory maximum.”

Id. at 288. Therefore, the California procedure that allows the judge, rather than the jury, to find

facts that enhance the sentence to the upper term violates the Apprendi/Blakely rule. Id. at 293.

        Cunningham is not applicable to the Michigan sentencing scheme. The judicial fact-finding

involved in Cunningham implicated the maximum sentence a defendant would serve, as in Apprendi

and Blakely. As discussed above, Harris draws a clear distinction between maximum sentences and

minimum mandatory sentences when analyzing the constitutionality of judicial fact-finding. The

Michigan sentencing scheme involves judicial fact-finding with regard to only the minimum

sentence, and so Cunningham is not applicable.

                                                  III.

        For the foregoing reasons, we AFFIRM the district court’s denial of the petition for a writ

of habeas corpus.




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