                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0204n.06

                                            No. 09-1621                                   FILED
                                                                                       Apr 01, 2011
                             UNITED STATES COURT OF APPEALS
                                                                                 LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT

ROBERT DALGLIESH,                                  )
                                                   )
       Plaintiff-Appellant,                        )
                                                   )
                        v.                         )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
KENNETH MCKEE,                                     )   WESTERN DISTRICT OF MICHIGAN,
                                                   )   SOUTHERN DIVISION
       Defendant-Appellee.                         )
                                                   )
                                                   )
                                                   )
                                                   )

       BEFORE:         KEITH, MERRITT, and MARTIN, Circuit Judges.

       PER CURIAM. This case arises out of defendant Robert Dalgliesh’s guilty plea to the

charge of continuing criminal enterprise, MICH . COMP. LAWS § 750.159i(4), a felony punishable by

a maximum of twenty years of imprisonment. MICH . COMP. LAWS § 750.159j. Dalgliesh was

subsequently sentenced by the trial judge to a minimum of ten and a maximum of twenty years in

prison. Dalgliesh petitioned for a writ of habeas corpus, raising a number of claims all related to the

length of his sentence. Before the court today is only one issue: whether Dalgliesh’s sentence

violated the Sixth Amendment, based on the principles set out in Apprendi v. New Jersey, 530 U.S.

466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004). For the reasons discussed below, we

conclude that no constitutional violation occurred. Accordingly, we AFFIRM the district court’s

denial of Dalgliesh’s petition.


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No. 09-1621, Dalgliesh v. McKee

                                      FACTUAL BACKGROUND

       On November 9, 2006, Dalgliesh was charged with one count of solicitation to murder, a

felony punishable by life in prison. MICH . COMP. LAWS 750.157b(2). Dalgliesh was accused of

attempting to hire a prison inmate to murder a corrections officer. Dalgliesh allegedly acted on

behalf of his co-defendant Tammy Williams who had been married to the intended victim. On

December 21, 2006, Dalgliesh pled guilty to the solicitation charge with a sentence recommendation

by the prosecutor of four to twenty years. However, at the sentencing hearing on February 20, 2007,

the trial court disregarded the sentencing recommendation and imposed a prison sentence of ten to

twenty years. Dalgliesh was permitted to withdraw his plea because the trial court did not follow

the plea agreement.

       On March 21, 2007, Dalgliesh pled guilty to the charge of continuing criminal enterprise, a

felony punishable by a maximum of twenty years of imprisonment. In the pre-sentence report, the

probation officer calculated a range of thirty-six to sixty months under the sentencing guidelines and

recommended a sentence of five to twenty years. However, during the sentencing hearing on April

17, 2007, the trial court again departed upward from the sentencing guidelines and sentenced

Dalgliesh to a prison term of between ten and twenty years.

       Dalgliesh, after attempting to overturn his conviction and sentence on direct appeal, filed a

petition for habeas relief, arguing that his sentence violated his right to due process pursuant to the

United States Constitution. On April 2, 2009, the district court dismissed Dalgliesh’s petition

because “it fail[ed] to raise a meritorious federal claim” and denied his petition for a certificate of

appealability. Dalgliesh v. McKee, No. 1:09-cv-152, 2009 U.S. Dist. LEXIS 28359, *1-2 (W.D.


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No. 09-1621, Dalgliesh v. McKee

Mich. Apr. 2, 2009). Dalgliesh subsequently appealed the district court’s denial of his petition and

his request for a certificate of appealability. In support, Dalgliesh raised a number of arguments as

to why the state court’s sentence violated his right to due process. We granted Dalgliesh’s petition

solely as to the question of whether the sentence violated the Sixth Amendment as set out in

Apprendi and Blakely. We consider that question here.

                                      STANDARD OF REVIEW

       In a habeas case, a district court's legal conclusions are reviewed de novo, while its factual

findings are reviewed for clear-error. Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008).

Further, the state court's decision under review is entitled to deference pursuant to the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), codified at 28 U.S.C. § 2254. Section 2254(d)

provides:

       (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; or
       (2) resulted in a decision that was based on an unreasonable determination of the
       facts in light of the evidence presented in the State court proceeding.

       Under AEDPA, not every constitutional error in a state-court proceeding merits habeas relief.

Williams v. Taylor, 529 U.S. 362, 375 (2000). However, those that "undermine confidence in the

fundamental fairness of the state adjudication certainly justify the issuance of the federal writ." Id.




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No. 09-1621, Dalgliesh v. McKee

                                             ANALYSIS

       The sole question before the court upon review is whether the trial court's imposition of a

sentence of between ten and twenty years, despite the fact that the sentencing guidelines

recommended a sentence of between three and five years, violated the Sixth Amendment.

       In Apprendi v. New Jersey, the Supreme 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." 530 U.S. at 490. In Blakely

v. Washington, the Court, relying upon Apprendi, invalidated Washington State's sentencing regime

because it authorized a trial judge to depart from the ordinary sentencing range if he or she

independently concluded that the defendant acted with "deliberate cruelty." 542 U.S. at 298

(quotation marks and citation omitted). The Blakely Court explained that the "statutory maximum"

with which Apprendi was concerned was "the maximum sentence a judge may impose solely on the

basis of the facts reflected in the jury verdict or admitted by the defendant." Id. at 303 (quotation

marks and citations omitted).

       In this case, the maximum amount of time for which Dalgliesh could have been imprisoned

for his crime, under the statute, was twenty years. Michigan utilizes an "indeterminate” sentencing

scheme under which the judge specifies the minimum amount of time the defendant must be in

prison before becoming eligible for parole and also his mandatory release date. MICH . COMP. LAWS

§ 769.12(2). The guidelines determine the range from which the trial judge could select Dalgliesh's

minimum sentence – i.e., the minimum amount of time Dalgliesh must serve before becoming




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No. 09-1621, Dalgliesh v. McKee

eligible for parole. See MICH . COMP. LAWS §§ 777.61-69 (sentencing grids). The mandatory release

date was not dependent upon any factual findings, but rather is set by statute.

         Dalgliesh argues that his sentence is unconstitutional because the trial judge made factual

findings that increased the minimum amount of time he must spend imprisoned. Dalgliesh’s

argument misinterprets Apprendi and the Supreme Court’s subsequent jurisprudence. As explained

above, Apprendi and its progeny prohibit a judge from engaging in judicial fact-finding only if it

increases the maximum time the defendant must spend in jail. In this case, the statutory maximum

that Dalgliesh could face is twenty years. Dalgliesh’s sentence of ten to twenty years falls within this

range. The trial judge’s fact-finding only increased the minimum amount of time Dalgliesh would

have to serve – increasing it from anywhere between three and five years to ten years. Accordingly,

Dalgliesh’s sentence did not violate the Sixth Amendment principles set forth in Apprendi and

Blakely.

         Any doubt concerning this conclusion is vitiated by the fact that the Sixth Circuit has twice

recently rejected identical arguments by defendants to their sentences in Michigan state courts.

Montes v. Trombley, 599 F.3d 490 (6th Cir. 2010); Hudson v. Curtin, 371 F. App’x 607 (6th Cir.

2010).

                                            CONCLUSION

         Accordingly, we hereby AFFIRM the lower court’s denial of Dalgliesh’s petition for a writ

of habeas corpus.




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