                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 10a0082p.06

                  UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                    X
                                                     -
 GERARDO VILLAGARCIA,
                                                     -
                            Petitioner-Appellee,
                                                     -
                                                     -
                                                           No. 07-3619
             v.
                                                     ,
                                                      >
                                                     -
                                                     -
 WARDEN, NOBLE CORRECTIONAL
                                                     -
 INSTITUTION,
                                                    N
                   Respondent-Appellant.

                      Appeal from the United States District Court
                     for the Southern District of Ohio at Columbus.
                    No. 05-00810—Gregory L. Frost, District Judge.
                                 Argued: April 30, 2009
                          Decided and Filed: March 25, 2010
           Before: MARTIN, SUHRHEINRICH, and WHITE, Circuit Judges.

                                  _________________

                                       COUNSEL
ARGUED: Diane Mallory, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellant. Noel J. Francisco, JONES DAY, Washington, D.C., for Appellee.
ON BRIEF: Diane Mallory, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellant. Noel J. Francisco, David J. Strandness, JONES DAY, Washington,
D.C., for Appellee. Gerardo Villagarcia, Caldwell, Ohio, pro se.
                                  _________________

                                       OPINION
                                  _________________

       HELENE N. WHITE, Circuit Judge. Respondent-Appellant, the Warden of Noble
Correctional Institution (“Warden”), appeals a district court judgment granting Petitioner-
Appellee Gerardo Villagarcia’s petition for a writ of habeas corpus under 28 U.S.C. § 2254.
We AFFIRM.




                                            1
No. 07-3619               Villagarcia v. Warden, Noble Correctional Inst.                                  Page 2


          After an Ohio state-court jury convicted Villagarcia of child endangerment and
felonious assault, the trial court sentenced him to two seven-year terms and one four-year
term of imprisonment, to be served concurrently. Villagarcia exhausted his state-court
remedies, and then brought this petition for habeas corpus, challenging his sentence as
unconstitutional because it was enhanced beyond the statutory maximum by judicial fact-
finding in violation of the United States Supreme Court decisions in Apprendi v. New Jersey,
530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). The district court
granted his petition and ordered the State of Ohio to vacate his sentence or resentence him
within 90 days. The district court’s order was stayed pending appeal.

                                                          I

          In 2002, Villagarcia was charged in Ohio state court with one count of child
                                                                                         1
endangering in violation of Ohio Rev. Code Ann. § 2919.22(B)(1), one count of child
                                                      2
endangering in violation of § 2919.22(A), and one count of felonious assault in violation
                           3
of § 2903.11(A)(1).            The charges stemmed from injuries suffered by five-month-old
Madison Fredritz, the daughter of Villagarcia’s roommate/girlfriend. Villagarcia pleaded
not guilty to all charges, and the case proceeded to jury trial.

          At trial, witnesses presented testimony concerning the care and behavior of Madison
on September 21, 2005, the day she was injured. That day, Madison was in the care of her
mother, Trish Fredritz, and Villagarcia. At 4:30 p.m., Villagarcia fed Madison a bottle, and
shortly after, at 5:00 p.m., Trish left for work, leaving Madison in the care of Villagarcia.
Madison slept in her cradle for several hours, and, at 8:30 p.m., Villagarcia woke her to feed
her another bottle. Madison began to cry, and Villagarcia saw that she was having difficulty
breathing. He said that it seemed as though “she was running out of breath, she wasn’t
breathing well,” so he “picked her up” and “sh[ook] her a little bit so that she could
respond.” Villagarcia denied hitting Madison, although he testified that her head was rattling

          1
              Section 2919.22(B)(1) provides that no person shall abuse a child under eighteen years of age.
          2
           Section 2919.22(A) states that “[n]o person, who is the parent, guardian, custodian, person
having custody or control, or person in loco parentis of a child under eighteen years of age . . . shall create
a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. . . .”
          3
          Section 2903.11(A)(1) states that “[n]o person shall knowingly . . . (1) [c]ause serious physical
harm to another or to another’s unborn.”
No. 07-3619          Villagarcia v. Warden, Noble Correctional Inst.                    Page 3


while he shook her. Ten to fifteen minutes later, Villagarcia called Trish. At this point,
Madison was not crying or responding, and was almost fainting. Villagarcia explained that
he did not call 911 because he does not speak English.

        When Trish returned home, she found Madison was limp, pale, and unresponsive,
and she called 911. Madison was taken by ambulance to the hospital, and ultimately had to
be placed on life support. X-rays revealed that Madison’s skull was fractured and that she
had suffered a sub-dural hematoma.

        Two days later, Dr. Mary Ranee Leder, a doctor who specializes in child abuse,
examined Madison and interviewed Trish at the hospital. At trial, Dr. Leder described
Madison’s head injuries as severe, and testified that such injuries are typically caused by an
impact or severe force, and can occur in severe motor vehicle accidents, where a baby falls
from a substantial height, or where a baby is vigorously shaken. Dr. Leder testified that it
was her belief that Madison’s injuries were the result of shaken-baby syndrome and that the
only plausible cause was vigorous shaking with impact, the type that a reasonable observer
would realize is dangerous. In addition, Dr. Leder testified that Madison’s skull fracture was
recent because no healing of the fracture was evident. Based on the x-rays, she estimated
the injury occurred “within a week, possibly within three days” of Madison’s admittance to
the hospital. The “clinical information” Dr. Leder received after interviewing Trish (i.e., that
the child appeared well until at least 5:00 that day) led her to conclude that Madison was
injured “sometime between the time she was last noted to be well and before she was noted
to be clearly abnormal.” Dr. Leder explained that by “not well,” she meant “problems
breathing,” being “floppy,” “limp,” and looking pale.

        On February 6, 2003, the jury convicted Villagarcia of all charges. Felonious assault
and child endangerment resulting in serious physical harm, in violation of § 2919.22(B)(1),
are both second-degree felonies; child endangerment resulting in serious physical harm,
under § 2919.22(A), is a third-degree felony. On March 21, 2003, the trial court sentenced
Villagarcia to seven years’ imprisonment for each second-degree felony, and one four-year
term for the third-degree felony, to be served concurrently.

        Ohio Rev. Code Ann. § 2929.14(A)(2) states that “for a felony of the second degree,
the prison term shall be two, three, four, five, six, seven, or eight years.” For a third-degree
No. 07-3619             Villagarcia v. Warden, Noble Correctional Inst.                            Page 4


felony, “the prison term shall be one, two, three, four, or five years.” Ohio Rev. Code Ann.
§ 2929.14(A)(3). The statute further provides that if the offender previously has not served
                 4
a prison term, the “court shall impose the shortest prison term authorized for the offense . . .
unless the court finds on the record that the shortest prison term will demean the seriousness
of the offender's conduct or will not adequately protect the public from future crime by the
offender or others.” Ohio Rev. Code Ann. § 2919.14(B) (2003) (emphasis added). When
Villagarcia was first sentenced, the trial court made no supplemental finding regarding the
adequacy of a two-year sentence, notwithstanding that it imposed seven-year sentences.

        Villagarcia challenged his sentence in a direct appeal, arguing that the trial court had
failed to make the requisite findings before imposing a sentence over two years. The Ohio
Court of Appeals agreed, and remanded for resentencing after finding that the “trial court
erred when it sentenced [Villagarcia] by failing to make required statutory findings.” On
September 17, 2004, the trial court resentenced Villagarcia to the same seven-year sentences
after stating that a minimum sentence would demean the seriousness of the offense.

        One year later, on September 15, 2005, Villagarcia filed a pro se motion for leave
to file a delayed appeal. Villagarcia asserted that he was not informed of his right to appeal
his sentences, and that his sentences deprived him of his “Sixth Amendment right[] to have
a jury determine the necessary elements for the court to impose more than the minimum
prison term.” The Ohio Court of Appeals denied Villagarcia’s motion on October 27, 2005,
finding that he had not provided “sufficient justification for [his] failure to perfect a timely
appeal,” and that his sentences did not violate the Supreme Court decisions in Apprendi, 530
U.S. 466, and Blakely, 542 U.S. 296. Villagarcia filed a timely appeal with the Supreme
Court of Ohio, which was denied.

        Villagarcia’s federal habeas petition was filed on September 1, 2005. In an order
dated March 30, 2007, the district court granted his petition on the ground that his sentences
violated Blakely, and ordered the State of Ohio “to vacate [his] sentence and release [him]
unless it resentences him within ninety (90) days.”                  Villagarcia v. Warden, Noble
Correctional Inst., No. 2:05-cv-810, 2007 WL 1028528 (S.D. Ohio Mar. 30, 2007)



        4
            See § 2919.14(B)(1). It is undisputed that Villagarcia had not previously served a prison term.
No. 07-3619          Villagarcia v. Warden, Noble Correctional Inst.                      Page 5


(unreported). The district court stayed the judgment pending appeal, and the Warden’s
appeal to this court followed.

                                               II

                                                A

        This court reviews a district court’s legal conclusions in a habeas corpus proceeding
de novo. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999). However, this court reviews
state trial and appellate court decisions under the standard set forth in 28 U.S.C. § 2254(d),
which was amended by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996). 28 U.S.C. § 2254 states in pertinent
part:

        (d) An application for a writ of habeas corpus on behalf of a person in
        custody pursuant to the judgment of a State court shall not be granted with
               respect to any claim that was adjudicated on the merits in State court
        proceedings unless the adjudication of the claim –
                (1) resulted in a decision that was contrary to, or involved an
        unreasonable application of, clearly established Federal law, as determined
        by the Supreme Court of the United States . . .

        This court has explained that “[t]he statute means what it says.” Rockwell v. Yukins,
341 F.3d 507, 511 (6th Cir. 2003). “What the statute says, to repeat, is that habeas relief may
not be granted unless the state court’s decision was either ‘contrary to . . . clearly established
federal law, as determined by the Supreme Court of the United States,’ or ‘involved an
unreasonable application of . . . [such] law.’” Id. To justify a grant of habeas relief under
the “contrary to” clause, “a federal court must find a violation of law ‘clearly established’
by holdings of the Supreme Court, as opposed to its dicta, as of the time of the relevant state
court decision.” Miller v. Francis, 269 F.3d 609, 614 (6th Cir. 2001). The “contrary to”
clause is satisfied “if the state court arrive[d] at a conclusion opposite to that reached by [the
U.S. Supreme] Court on a question of law or if the state court decide[d] a case differently
than [the U.S. Supreme] Court has on a set of materially indistinguishable facts.” Williams
v. Taylor, 529 U.S. 362, 413 (2000).

        Interpreting the “unreasonable application” clause, the Supreme Court noted that
No. 07-3619            Villagarcia v. Warden, Noble Correctional Inst.                            Page 6


         Congress specifically used the word “unreasonable,” and not a term like
         “erroneous” or “incorrect.”       Under § 2254(d)(1)’s “unreasonable
         application” clause, then, a federal habeas court may not issue the writ
         simply because that court concludes in its independent judgment that the
         relevant state-court decision applied clearly established federal law
         erroneously or incorrectly. Rather, that application must also be
         unreasonable.

Williams, 529 U.S. at 411. This court has interpreted the “unreasonable application” clause
to mean that even if this court “believe[s] that a state court incorrectly applied federal law,
[it] must refuse to issue the writ of habeas corpus if [it] finds that the state court’s decision
was a reasonable one.” Simpson v. Jones, 238 F.3d 399, 405 (6th Cir. 2000) (quoting
Machacek v. Hofbauer, 213 F.3d 947, 953 (6th Cir. 2000)).

                                                    B

         Villagarcia contends that he is entitled to federal habeas relief because the Ohio
Court of Appeals decision rejecting his Sixth and Fourteenth Amendment claims is contrary
to or an unreasonable application of Apprendi and Blakely. Although Villagarcia was
convicted and originally sentenced in 2003, before the decision in Blakely, he was
resentenced in September 2004, two months after the Blakely decision was issued on June
24 of that year.

         In Apprendi, the defendant pleaded guilty of possession of a firearm for an unlawful
purpose, an offense that carries a prison term of 5 to 10 years. At sentencing, however, the
state trial court concluded that Apprendi’s conduct could be considered a racially-motivated
                                                     5
“hate crime” and imposed a 12 year sentence. The Supreme Court invalidated Apprendi’s
sentence, holding 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.” 530 U.S. at 490.

         In Blakely, the defendant pleaded guilty of second-degree kidnaping involving
domestic violence and use of a firearm, a class B felony. In Washington, state law provided


         5
           Apprendi “fired several .22-caliber bullets into the home of an African-American family that had
recently moved into a previously all-white neighborhood in Vineland, New Jersey.” Apprendi, 530 U.S.
at 469. After his arrest, Apprendi made a statement (which he later retracted) that “because they are black
in color he does not want them in [his] neighborhood.” Id.
No. 07-3619         Villagarcia v. Warden, Noble Correctional Inst.                     Page 7


that “[n]o person convicted of a [class B] felony shall be punished by confinement . . .
exceeding . . . a term of ten years.” Blakely, 542 U.S. at 299 (quoting Wash. Rev. Code
§ 9A.20.021(1)(b)). Other provisions of state law, however, further limited the range of
sentences available, and specified a “standard range” of 49 to 53 months for second-degree
kidnaping with a firearm. Blakely, 542 U.S. at 299. The statute further explained that a
judge could impose a sentence above the standard range after finding “substantial and
compelling reasons justifying an exceptional sentence.” Id. (citing Wash. Rev. Code
§ 9.94A.120(2)). Pursuant to the plea agreement, the state recommended a sentence within
the standard range of 49 to 53 months, but after hearing Blakely’s wife describe her
kidnaping, the judge sentenced Blakely to 90 months on the ground that he had acted with
“deliberate cruelty,” a statutorily enumerated ground for departure in domestic-violence
cases. 542 U.S. at 300. The Supreme Court invalidated Blakely’s sentence, stating:

       [T]he “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. In other words, the relevant “statutory
       maximum” is not the maximum sentence a judge may impose after finding
       additional facts, but the maximum he may impose without any additional
       findings. When a judge inflicts punishment that the jury’s verdict alone does
       not allow, the jury has not found all the facts “which the law makes essential
       to the punishment,” and the judge exceeds his proper authority.

542 U.S. at 304 (citations omitted) (emphasis in original).

                                             C

       In its Memorandum Decision denying Villagarcia’s motion for leave to file a delayed
appeal, dated October 27, 2005, the Ohio Court of Appeals rejected Villagarcia’s Blakely
argument, finding that his “statutory maximum” sentence was between two and eight years,
and thus, that his sentence of seven years did not run afoul of Blakely and Apprendi:

               . . . Ohio’s sentencing scheme does not encroach upon the traditional
       and constitutionally required role of the jury in finding those facts that fix
       the upper limit of a defendant’s punishment for a particular offense. Rather,
       the upper limit, or in Blakely terms, the “statutory maximum” sentence to
       which one accused of a felony knows he will be exposed upon walking
       through the courtroom door, is established by statute. R.C. 2929.14(B) does
       not allow judge-made findings to enhance a defendant’s punishment beyond
No. 07-3619           Villagarcia v. Warden, Noble Correctional Inst.                            Page 8


         the maximum sentence corresponding to the class of offense of which he is
         convicted or to which he pleads guilty . . . .
                 In the present case, the jury verdict authorized the trial court to
         impose a sentence ranging from one to five years on the third degree felony
         count of child endangering and a sentence ranging from two to eight years
         on the remaining second degree felonies of which appellant was convicted.
         The trial court imposed a period of incarceration on each count which was
         below the “statutory maximum” for Apprendi purposes.                  Thus,
         [Villagarcia’s] sentence did not run afoul of Blakely and Apprendi.

State v. Villa-Garcia, No. 05AP-997 (Ohio Ct. App., Nov. 28, 2005).

         Four months later, the Ohio Supreme Court, in State v. Foster, 845 N.E.2d 470 (Ohio
2006), held the sentencing scheme under which Villagarcia was sentenced unconstitutional
and overturned the approach taken by the Court of Appeals in denying Villagarcia’s
sentencing appeal:

         Most Ohio appellate courts have determined that Blakely is inapplicable.
         They have distinguished Ohio’s plan from Washington’s grid system, or
         emphasized a sentencing court’s inability to exceed a statutory range
         through fact-finding, or characterized required findings as traditional
         sentencing factors, or read the “prior conviction” exception to Apprendi
         broadly to uphold the challenged sentences . . . . Nevertheless and
         unfortunately, Blakely is misunderstood if it is seen as inapplicable to Ohio.

845 N.E.2d at 488.

                                                   D

         We agree with the Ohio Supreme Court’s ultimate conclusion, and we also find that
the Ohio Court of Appeals decision that Villagarcia’s sentence “did not run afoul of Blakely
                                                                                     6
and Apprendi” is contrary to, and an unreasonable application of, Blakely. When the trial
court initially sentenced Villagarcia to seven-year terms, the Ohio Court of Appeals
recognized that additional findings of fact beyond those found by the jury were necessary


         6
          We observe that the instant case presents the unusual fact situation wherein the Ohio Supreme
Court has itself concluded that the analysis employed by the Ohio Court of Appeals in rejecting
Villagarcia’s claim is contrary to and demonstrates a misunderstanding of Blakely. The Ohio Supreme
Court observed that the “Supreme Court of the United States has repeated its holding that ‘[if] a State
makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact –
no matter how the State labels it – must be found by a jury beyond a reasonable doubt.’” Foster, 845
N.E.2d at 489 (quoting Ring v. Arizona, 536 U.S. 584, 602 (2002), citing Apprendi, 530 U.S. at 482-83)
(emphasis in original).
No. 07-3619          Villagarcia v. Warden, Noble Correctional Inst.                     Page 9


before the trial court could impose a sentence in excess of two years; it ordered the trial court
to resentence Villagarcia. Thus, it is undisputed that the facts contained in Villagarcia’s jury
verdict were insufficient to sentence him to a seven-year term of imprisonment, and that
judicial fact-finding was the predicate for extending his sentence beyond the statutorily
prescribed two years.

        The Warden argues that “the judicial findings required by Ohio’s sentencing statutes
reflect considerations that were traditionally left to the sentencing judge,” and claims that
“those findings are more aptly described as conclusions about the appropriateness of a
particular penalty for an offender given the goals of felony sentencing.” The Warden asserts
that “[j]uries simply do not have the cumulative experience and knowledge necessary to
make informed determinations related to the seriousness of an offense or the impact of a
sentence on the protection of the public from future crimes.”

        However, in Apprendi, the Supreme Court expressly rejected such a distinction,
stating that “the relevant inquiry is not one of form, but of effect – does the required finding
expose the defendant to a greater punishment than that authorized by the jury’s guilty
verdict?” Apprendi, 530 U.S. at 494. The rule in Blakely is clearly set forth, and states 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.” Blakely, 542 U.S. at 303 (emphasis in original). Applying Blakely, the Ohio
Court of Appeals concluded that Villagarcia’s statutory maximum was two to eight years.
This conclusion was both contrary to and an unreasonable application of clearly established
federal law. In Blakely, a statute provided that the maximum penalty for a class B felony is
ten years. Nevertheless, the Supreme Court focused on the “standard range” prescribed by
another sentencing statute, which permitted departure from that range only upon a judicial
finding of certain additional facts. 542 U.S. at 303-04. The Ohio provision at issue operates
in the same manner. The statutory maximum is limited by another provision that sets a lower
maximum from which the court can depart only upon a finding of additional facts.

        We thus affirm the district court’s conclusion that Villagarcia has shown that the
state court’s decision involved an unreasonable application of clearly established federal law
and satisfied the AEDPA standard.
No. 07-3619            Villagarcia v. Warden, Noble Correctional Inst.                            Page 10


                                                    III

                                                    A

         Having found that Villagarcia’s sentence violates Blakely and Apprendi, we must
next consider whether the constitutional error was harmless.                    Habeas relief is only
appropriate if the constitutional error harmed the petitioner. See Jensen v. Romanowski, 590
F.3d 373, 378 (6th Cir. 2009). “Failure to submit a sentencing factor to the jury, like failure
to submit an element to the jury, is not structural error,” and accordingly, such error is
subject to harmless error analysis. Washington v. Recuenco, 548 U.S. 212, 221 (2006).
There is no case directly on point in our circuit or from the Supreme Court applying the
harmless error standard to collateral review of a sentencing error.

         The Supreme Court has explained that in cases involving review of a state-court
criminal judgment under 28 U.S.C. § 2254, “an error is harmless unless it ‘had substantial
and injurious effect or influence in determining the jury’s verdict.’” Fry v. Pliler, 551 U.S.
112, 116 (2007) (quoting Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)). Fry adopted
Brecht’s more “state-friendly standard” for cases involving collateral review of state-court
decisions. Hereford v. Warren, 536 F.3d 523, 532-33 (6th Cir. 2008). Under Fry, an error
is considered not harmless when “the matter is so evenly balanced that the habeas court has
grave doubt as to the harmlessness of the error.” Id. at 533; Patterson v. Haskins, 316 F.3d
                             7
596, 609 (6th Cir. 2003).



         7
           In cases involving direct review of federal sentences, federal courts use a more lenient harmless
error standard, and this Court has explained that “[u]nder the harmless error test, a remand for an error at
sentencing is required unless we are certain that any such error was harmless – i.e.[,] any such error ‘did
not affect the district court’s selection of the sentence imposed.’” United States v. Hazelwood, 398 F.3d
792, 801 (6th Cir. 2005) (quoting Williams v. United States, 503 U.S. 193, 203 (1992)).
          In another federal sentencing case, United States v. Barnett, 398 F.3d 516 (6th Cir. 2005), a
defendant was sentenced under the then-mandatory United States Sentencing Guidelines to a midrange
sentence within his guidelines range. While his appeal was pending, the Supreme Court issued its decision
in United States v. Booker, 543 U.S. 220 (2005), establishing that the sentencing guidelines are advisory.
This court addressed whether the sentencing error (treating the guidelines as mandatory rather than
advisory) affected Barnett’s substantial rights, and noted that “it would be exceedingly difficult for a
defendant, such as Barnett, to show that his sentence would have been different if the district court had
sentenced him under the advisory, rather than the mandatory, Guidelines framework.” Barnett, 398 U.S.
at 528. This court further explained that it had “deep concern with speculating” how the district court
would have sentenced the defendant under a different standard. Id. Booker changed federal sentencing
from a narrow, mechanical process to one where the district court has a great deal of discretion, and in the
face of that change, the Barnett court found that it could not conclude that a Booker error was harmless
because it was impossible to know what the district court would do when freed from the constraints of the
Sentencing Guidelines and confronted with different arguments and different evidence. Id. at 529.
No. 07-3619          Villagarcia v. Warden, Noble Correctional Inst.                 Page 11


                                              B

        In Foster, the Ohio Supreme court followed the approach taken in Booker and
severed the “Blakely-offending portions” of Ohio’s felony-sentencing statutes, i.e., those
provisions that “either create presumptive minimum or concurrent terms or require judicial
fact-finding to overcome the presumption.” Foster, 845 N.E.2d at 496-97. This remedy left
Ohio sentencing judges with full authority to sentence within the statutory range without
making findings justifying sentences in excess of the minimum. But rather than simply
conclude that the sentencing judges in the cases before it would impose the same sentences
when unconstrained by the severed portions of the statutes, the Ohio Supreme Court
remanded for resentencing in all but one case. This is consistent with our decision in
Barnett. See n.7, supra. Recognizing that the standard here is more deferential to the state
than in Barnett, we nevertheless conclude that the constitutional error is not harmless.

        The Warden argues that Villagarcia’s sentencing judge, who sentenced him twice
to the same seven-year sentence, would undoubtedly impose the same sentence on remand.
This argument is not without force. However, the very provision relied on by the sentencing
judge has been found unconstitutional and was severed by Foster. Ohio Rev. Code Ann.
§ 2929.14(B); see p. 4, supra. Under the prior sentencing scheme, the sentencing judge was
obliged to start with a two-year sentence and then increase the sentence after considering
whether Villagarcia was serving a prison term at the time of the offense or previously served
a prison term – he was not and had not – and whether the two-year term would demean the
seriousness of Villagarcia’s conduct or would not adequately protect the public from future
crime by Villagarcia or others. Under the post-Foster sentencing scheme, although the court
is free to sentence to any term within the statutory maximum of eight years without making
judicial findings, it also is not constrained to follow the formula previously dictated by the
severed provision.

        The non-severed provisions of Ohio’s sentencing statutes outline a number of
considerations for judges to evaluate when sentencing defendants. Ohio Rev. Code Ann.
§ 2929.11(A) states that the “overriding purposes of felony sentencing are to protect the
public from future crime by the offender and others and to punish the offender,” and that
“[t]o achieve those purposes, the sentencing court shall consider the need for incapacitating
No. 07-3619             Villagarcia v. Warden, Noble Correctional Inst.                            Page 12


the offender, deterring the offender and others from future crime, rehabilitating the offender,
and making restitution to the victim of the offense, the public, or both.” Section 2929.11(B)
states that “[a] sentence imposed for a felony shall be reasonably calculated to achieve the
two overriding purposes of felony sentencing . . . , commensurate with and not demeaning
to the seriousness of the offender's conduct and its impact upon the victim, and consistent
with sentences imposed for similar crimes committed by similar offenders.”

        Section 2929.12(A) provides:

        Unless otherwise required by section 2929.13 or 2929.14 of the Revised
        Code, a court that imposes a sentence under this chapter upon an offender
        for a felony has discretion to determine the most effective way to comply
        with the purposes and principles of sentencing set forth in section 2929.11
        of the Revised Code. In exercising that discretion, the court shall consider
        the factors set forth in divisions (B) and (C) of this section relating to the
        seriousness of the conduct and the factors provided in divisions (D) and (E)
        of this section relating to the likelihood of the offender's recidivism and, in
        addition, may consider any other factors that are relevant to achieving those
        purposes and principles of sentencing.
                    8
Emphasis added.


        8
            The remainder of § 2929.12 provides:
        (B) The sentencing court shall consider all of the following that apply regarding the
        offender, the offense, or the victim, and any other relevant factors, as indicating that the
        offender’s conduct is more serious than conduct normally constituting the offense:
        (1) The physical or mental injury suffered by the victim of the offense due to the
        conduct of the offender was exacerbated because of the physical or mental condition or
        age of the victim.
        (2) The victim of the offense suffered serious physical, psychological, or economic harm
        as a result of the offense.
        (3) The offender held a public office or position of trust in the community, and the
        offense related to that office or position.
        (4) The offender’s occupation, elected office, or profession obliged the offender to
        prevent the offense or bring others committing it to justice.
        (5) The offender’s professional reputation or occupation, elected office, or profession
        was used to facilitate the offense or is likely to influence the future conduct of others.
        (6) The offender’s relationship with the victim facilitated the offense.
        (7) The offender committed the offense for hire or as a part of an organized criminal
        activity.
        (8) In committing the offense, the offender was motivated by prejudice based on race,
        ethnic background, gender, sexual orientation, or religion.
        (9) If the offense is a violation of section 2919.25 or a violation of section 2903.11,
        2903.12, or 2903.13 of the Revised Code involving a person who was a family or
        household member at the time of the violation, the offender committed the offense in
        the vicinity of one or more children who are not victims of the offense, and the offender
        or the victim of the offense is a parent, guardian, custodian, or person in loco parentis
        of one or more of those children.
No. 07-3619           Villagarcia v. Warden, Noble Correctional Inst.                              Page 13


        Because § 2929.14(B) has been severed as unconstitutional, it no longer operates as
a limit on the sentencing court’s discretion. Instead, the statutes direct the court to consider
the factors set forth in §§ 2929.12(B)(C)(D) and (E), and allow consideration of any other
factors relevant to achieving the stated purposes and principles of sentencing. Some of the
factors (such as whether the defendant has a criminal history, has “led a law-abiding life for
a significant number of years,” and whether “the offense was committed under circumstances
not likely to recur”) weigh in Villagarcia’s favor, while others (whether the defendant’s
relationship with the victim “facilitated the offense,” and whether the victim “suffered
serious physical . . . harm”) do not. Ohio Rev. Code Ann. § 2929.12(B), (E). In any event,



        (C) The sentencing court shall consider all of the following that apply regarding the
        offender, the offense, or the victim, and any other relevant factors, as indicating that the
        offender’s conduct is less serious than conduct normally constituting the offense:
        (1) The victim induced or facilitated the offense.
        (2) In committing the offense, the offender acted under strong provocation.
        (3) In committing the offense, the offender did not cause or expect to cause physical
        harm to any person or property.
        (4) There are substantial grounds to mitigate the offender's conduct, although the
        grounds are not enough to constitute a defense.
        (D) The sentencing court shall consider all of the following that apply regarding the
        offender, and any other relevant factors, as factors indicating that the offender is likely
        to commit future crimes:
        (1) At the time of committing the offense, the offender was under release from
        confinement before trial or sentencing, under a sanction imposed pursuant to section
        2929.16, 2929.17, or 2929.18 of the Revised Code, or under post-release control
        pursuant to section 2967.28 or any other provision of the Revised Code for an earlier
        offense or had been unfavorably terminated from post-release control for a prior offense
        pursuant to division (B) of section 2967.16 or section 2929.141 of the Revised Code.
        (2) The offender previously was adjudicated a delinquent child pursuant to Chapter
        2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter 2152. of the
        Revised Code, or the offender has a history of criminal convictions.
        (3) The offender has not been rehabilitated to a satisfactory degree after previously
        being adjudicated a delinquent child pursuant to Chapter 2151. of the Revised Code
        prior to January 1, 2002, or pursuant to Chapter 2152. of the Revised Code, or the
        offender has not responded favorably to sanctions previously imposed for criminal
        convictions.
        (4) The offender has demonstrated a pattern of drug or alcohol abuse that is related to
        the offense, and the offender refuses to acknowledge that the offender has demonstrated
        that pattern, or the offender refuses treatment for the drug or alcohol abuse.
        (5) The offender shows no genuine remorse for the offense.
        (E) The sentencing court shall consider all of the following that apply regarding the
        offender, and any other relevant factors, as factors indicating that the offender is not
        likely to commit future crimes:
        (1) Prior to committing the offense, the offender had not been adjudicated a delinquent
        child.
        (2) Prior to committing the offense, the offender had not been convicted of or pleaded
        guilty to a criminal offense.
        (3) Prior to committing the offense, the offender had led a law-abiding life for a
        significant number of years.
        (4) The offense was committed under circumstances not likely to recur.
        (5) The offender shows genuine remorse for the offense.
No. 07-3619        Villagarcia v. Warden, Noble Correctional Inst.               Page 14


we simply cannot know whether the sentencing judge would accord the relevant factors the
same weight when reassessing the matter outside the dictates of the severed provisions.

       We AFFIRM the district court’s conditional grant of Villagarcia’s habeas petition.
