                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0392p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                               X
                                                -
 JOSEPH CHONTOS,
                                                -
                           Petitioner-Appellant,
                                                -
                                                -
                                                    No. 08-1031
         v.
                                                ,
                                                 >
                                                -
                      Respondent-Appellee. -
 MARY BERGHUIS,
                                                -
                                               N
                 Appeal from the United States District Court
                for the Eastern District of Michigan at Detroit.
              No. 06-13049—Victoria A. Roberts, District Judge.
                                 Argued: June 11, 2009
                        Decided and Filed: November 10, 2009
      Before: BATCHELDER, Chief Judge; BOGGS and COOK, Circuit Judges.

                                  _________________

                                      COUNSEL
ARGUED: Rosemary Gordon Pánuco, LAW OFFICE, Tucson, Arizona, for Appellant.
Janet A. Van Cleve, MICHIGAN ATTORNEY GENERAL’S OFFICE, Lansing, Michigan,
for Appellee. ON BRIEF: Rosemary Gordon Pánuco, LAW OFFICE, Tucson, Arizona,
for Appellant. Raina Korbakis, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee.
                                  _________________

                                       OPINION
                                  _________________

       COOK, Circuit Judge. A jury found Joseph Chontos guilty of violating several laws.
His most serious offense—first-degree criminal sexual conduct involving a person under the
age of thirteen—carried a maximum statutory penalty of “imprisonment for life or any term
of years.” Mich. Comp. Laws § 750.520b(2)(b). The Michigan trial court imposed a 40-




                                            1
No. 08-1031            Chontos v. Berghuis                                                        Page 2


year maximum sentence and a 225-month minimum. Chontos appealed his conviction and
                                                 1
sentence in Michigan’s courts to no avail.

         Chontos then turned to the federal courts, seeking a writ of habeas corpus on the
grounds that: (1) the Michigan trial court violated his Sixth Amendment jury trial right
by finding facts at sentencing that raised his minimum sentence; (2) the trial court
violated both his Fifth and Sixth Amendment rights by selecting a higher sentence
because he exercised his jury trial right and his right not to admit guilt.

         The district court denied Chontos’s petition but granted him a certificate of
appealability on the second claim, which this court expanded to include the first.
Chontos timely appealed, and we affirm. We adopt the district court’s sound reasoning
on Chontos’s second claim. As for his first claim, we apply de novo review2 and discern
no jury-trial-right violation because the judge-found facts did not increase Chontos’s
sentence beyond the statutory maximum for Apprendi purposes.

                                                     I.

         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.” 530 U.S. 466, 490 (2000).
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.” 542 U.S. 296,
303 (2004). Under these cases, judicial factfinding may not increase the maximum
penalty beyond that to which the jury’s verdict alone exposes the defendant.


         1
          The parties contest whether Chontos exhausted his state remedies—an issue we need not resolve
because we deny relief on the merits. 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus
may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available
in the courts of the State.”); see also White v. Mitchell, 431 F.3d 517, 526 (6th Cir. 2005) (exhaustion
requirement does not limit federal court’s jurisdiction).
         2
          Chontos says that AEDPA’s deferential standard of review applies to his Apprendi claim. But
he does not identify a state court decision adjudicating the merits of that claim, a prerequisite for AEDPA
deference. See 28 U.S.C. § 2254(d). Although Chontos may concede more ground than the law requires,
we bypass deciding whether AEDPA governs his Apprendi claim. Instead, we deny Chontos relief under
a de novo standard. See Rosencrantz v. Lafler, 568 F.3d 577, 584 n. 3 (6th Cir. 2009).
No. 08-1031           Chontos v. Berghuis                                                      Page 3


        Chontos argues that the Michigan trial judge violated Apprendi by finding facts
that raised his minimum sentence. But Harris v. United States tells us that Apprendi’s
rule does not apply to judicial factfinding that increases a minimum sentence so long as
the sentence does not exceed the applicable statutory maximum. 536 U.S. 545, 563–68
(2002) (plurality opinion); id. at 569–70 (Breyer, J., concurring); accord United States
v. Copeland, 321 F.3d 582, 602 n. 5 (6th Cir. 2003).

        By clarifying that minimum sentences fall outside Apprendi’s scope, Harris
forecloses Chontos’s claim. Chontos correctly observes that judge-found facts increased
his guidelines range, and that his range—absent a finding of substantial and compelling
reasons for a departure, Mich. Comp. Laws § 769.34(3)—required a minimum sentence
between 135 and 225 months. Nevertheless, focusing on Chontos’s minimum sentence
misses Apprendi’s point. 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.” Harris, 536
U.S. at 566 (quoting Apprendi, 530 U.S. at 498 (Scalia, J., concurring)). When Chontos
violated § 750.520b, he bargained that, if a jury found him guilty, he could receive a
maximum penalty of “any term of years.” And regardless of the ways that judicial
factfinding and Michigan’s guidelines affected his minimum sentence, Chontos got no
more than he bargained for. Chontos’s sentence therefore survives Sixth Amendment
scrutiny.3

        A final point. Although the Sixth Amendment permits judicial factfinding in
calculating Chontos’s minimum sentence, the judge-found facts may not contradict the
jury’s verdict. See United States v. Cockett, 330 F.3d 706, 711 (6th Cir. 2003). Chontos
maintains that relying on acquitted conduct to calculate his minimum sentence violates
this rule. But United States v. White defeats that argument with its recognition that the




        3
           We have no occasion to address the constitutionality of guidelines calculations within the
statutory category of “intermediate sentence.” Mich. Comp. Laws § 769.34(4)(a). Chontos does not argue,
and nothing suggests, that absent judge-found facts Chontos would have qualified for an intermediate
sanction under § 769.34(4)(a).
No. 08-1031        Chontos v. Berghuis                                             Page 4


differing standards of proof used by judges and juries accommodate the use of acquitted
conduct in sentencing. 551 F.3d 381, 385 (2008) (en banc).

                                           II.

       Chontos next argues that the Michigan trial court violated his Fifth and Sixth
Amendment rights by sentencing him more harshly for insisting on going to trial and for
not explicitly admitting his guilt. Because our review of the record, the applicable law,
and the parties’ briefs convinces us that the district court properly rejected this claim,
and because the district court’s memorandum opinion carefully and correctly set out the
facts and the governing law, we adopt as this court’s opinion the reasoning supplied by
part III, B of the district court’s opinion. Chontos v. Berghuis, No. 06-13049, 2007 WL
4326840, *4–7 (E.D. Mich. Dec. 10, 2007).

                                           III.

       For these reasons, we affirm.
