                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUL 05 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


FRANCISCO JAVIER ROMERO,                         No.   15-15768

              Petitioner-Appellant,              D.C. No. 2:08-cv-00542-ROS

 v.
                                                 MEMORANDUM*
CHARLES L. RYAN,

              Respondent-Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Roslyn O. Silver, District Judge, Presiding

                    Argued and Submitted February 16, 2017**
                            San Francisco, California

Before: W. FLETCHER, RAWLINSON, and FUENTES,** Circuit Judges.

      Appellant Francisco Javier Romero (Romero) appeals the district court’s

decision denying his habeas petition. He asserts that his aggravated sentence was



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Julio M. Fuentes, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004). After killing

four people and injuring three others in a car accident, Romero was sentenced to 31

years’ imprisonment for four counts of manslaughter and three counts of

aggravated assault in violation of Ariz. Rev. Stat. §§ 13-1103, 1203, and 1204.

Romero contends that the trial judge erred under Blakely and violated the Sixth

Amendment by relying on facts not admitted by Romero or found by a jury beyond

a reasonable doubt to impose the aggravated sentence. The State concedes Blakely

error but argues that the error was harmless. We review a district court’s denial of

a habeas petition de novo. See Visciotti v. Martel, 839 F.3d 845, 856 (9th Cir.

2016).

      We agree that the trial court’s Blakely error was harmless. See Estrella v.

Ollison, 668 F.3d 593, 598 (9th Cir. 2011) (explaining that an error is not harmless

“if we are in grave doubt that a jury would have found the relevant aggravating

factor beyond a reasonable doubt”) (citation and internal quotation marks omitted).

      At the time of Romero’s offense, Ariz. Rev. Stat. § 12-703(C)(9)

enumerated as an aggravating factor the “physical, emotional and financial harm

caused to the victim or . . . the emotional and financial harm caused to the victim’s

immediate family.” At the sentencing hearing, Romero’s victims and their families

provided substantial testimony that they endured physical, emotional, and financial


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injury in the aftermath of the automobile accident. Accordingly, there is no “grave

doubt” that a reasonable juror would have found that the victims and their families

suffered physical, emotional, and financial injury due to Romero’s conduct.

Estrella, 668 F.3d at 598-99 (observing that the court may consider “evidence

presented at sentencing proceedings” in its harmless error analysis).

      Under Arizona law, once the jury found this factor, Romero was exposed to

the aggravated sentencing range and the trial court had discretion to consider

additional factors relevant to sentencing. See State v. Martinez, 115 P.3d 618, 624

(Ariz. 2005) (en banc) (ruling that once a jury implicitly or explicitly establishes

one Blakely-compliant aggravating factor, the sentencing judge may consider

additional aggravating circumstances relevant to imposing a sentence up to the

statutory maximum). This court has previously upheld a similar sentencing

scheme under the Sixth Amendment. See Butler v. Curry, 528 F.3d 624, 643 (9th

Cir. 2008) (holding that “if at least one of the aggravating factors on which the

judge relied in sentencing . . . was established in a manner consistent with the Sixth

Amendment,” the sentence itself is constitutional); see also Alleyne v. United

States, 133 S. Ct. 2151, 2163 (2013) (explaining that once a fact that increases the

maximum possible sentence has been found by a jury, judges retain the discretion




                                           3
to engage in factfinding in determining where a defendant’s sentence falls within

that range).

      Viewing the record as a whole, no reasonable juror would have failed to find

the trial court’s relied-upon factors beyond a reasonable doubt, and the court’s

Blakely error was harmless. See Estrella, 668 F.3d at 598.

      AFFIRMED.




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