                      FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

SANTOS L. REYES,                                   No. 00-57130
             Petitioner-Appellant,
               v.                                    D.C. No.
                                                  CV-00-00608-VAP
JILL BROWN,* Warden,
                                                     OPINION
             Respondent-Appellee.
                                             
         Appeal from the United States District Court
             for the Central District of California,
         Virginia A. Phillips, District Judge, Presiding

                    Argued and Submitted
              March 7, 2002—Pasadena, California
              Submission Withdrawn April 2, 2002
                  Resubmitted April 17, 2003

                       Filed March 4, 2005**

       Before: Harry Pregerson, Raymond C. Fisher and
             Richard C. Tallman, Circuit Judges.

                   Opinion by Judge Pregerson;
                    Dissent by Judge Tallman

   *Jill Brown is substituted for J.S. Woodford, her predecessor as Warden
of San Quentin State Prison. See Fed. R. App. P. 43(c)(2).
   **This case was originally the subject of a memorandum disposition
filed December 29, 2003. See Reyes v. Woodford, 83 Fed. Appx. 985 (9th
Cir. 2003). On January 12, 2004, Reyes filed a petition for panel rehearing
and rehearing en banc. In an order filed contemporaneously with this opin-
ion, we grant the petition for panel rehearing; withdraw the December 29,
2003, memorandum disposition; and deny the petition for rehearing en
banc as moot.

                                  2629
                      REYES v. BROWN                   2631


                        COUNSEL

Gretchen Fusilier, Carlsbad, California, for the petitioner-
appellant.

David Delgado-Rucci, Deputy Attorney General, San Diego,
California, for the respondent-appellee.
2632                       REYES v. BROWN
                              OPINION

PREGERSON, Circuit Judge:

   California state prisoner Santos L. Reyes brought this 28
U.S.C. § 2254 habeas action challenging his sentence under
California’s “Three Strikes” law. Reyes was convicted of per-
jury for making misrepresentations on a California Depart-
ment of Motor Vehicles (“DMV”) driver’s license
application. The perjury conviction was Reyes’ third strike.
He was sentenced to twenty-six years to life. Reyes contends
that his punishment violates the Eighth Amendment’s prohibi-
tion on cruel and unusual punishment. The district court
denied Reyes’ habeas petition. Because we conclude that the
facts necessary to evaluate Reyes’ petition were not suffi-
ciently developed before the district court — and, therefore,
are not sufficiently developed in the record before us — we
vacate the district court’s denial of Reyes’ petition and
remand to the district court for further proceedings.

                                    I.

   On September 18, 1997, Reyes entered the DMV on Water-
man Avenue in San Bernardino, California. He purportedly
filled out an application for a driver’s license under the name
of his cousin, Miguel Soto, who purportedly knew how to
drive but not how to read. Reyes signed the application, which
purportedly stated that the information was being provided
under penalty of perjury.1 After Reyes signed the application,
   1
     The parties dispute whether the application Reyes signed was in
English or Spanish and whether it stated that the information being pro-
vided was under penalty of perjury. For example, the State maintains that
Reyes “filled out an English language application . . . . which stated the
information was being provided under penalty of perjury.” See Appellee’s
Br. at 4-5, available at 2001 WL 34355184. In contrast, Reyes maintains
that the application “was in Spanish,” that he “did not know that he was
signing under penalty of perjury,” that he “did not know what ‘perjury’
meant,” and that “nothing on” the Spanish application says “ ‘I have read
and understood the above.’ ” See Appellant’s Opening Br. at 5-6, 8, avail-
able at 2001 WL 34355185. We need not resolve this dispute because it
is not germane to our resolution of the instant appeal.
                        REYES v. BROWN                     2633
DMV employee Debra Alexander gave Reyes two copies of
the written driver’s license test. Alexander suspected that
Reyes was cheating on the exam by using a “crib sheet.” She
confiscated the two tests from Reyes and began filling out
paperwork related to Reyes’ alleged cheating. Meanwhile,
Reyes left the DMV building.

   Alexander contacted California Highway Patrol Officer
José Lopez, who was stationed at the DMV. Officer Lopez
followed Reyes, who was walking away. After catching up
with Reyes, Officer Lopez patted-down Reyes and handcuffed
him. Reyes cooperated with Officer Lopez and voluntarily
admitted that he had attempted to take the written driver’s
license test for Soto. The encounter was without violence.

   On March 2, 1998, Reyes was arraigned on an Amended
Information, charging him with one count of perjury in viola-
tion of California Penal Code § 118. Reyes qualified for the
Three Strikes enhancement because of two prior convictions:
one as a juvenile in 1981 for residential burglary in violation
of California Penal Code § 459; and one in 1987 for armed
robbery in violation of California Penal Code § 211.

   The State offered Reyes a deal of four years imprisonment
in exchange for a guilty plea to the perjury charge, but Reyes
rejected the plea deal and exercised his constitutional right to
a jury trial. On March 5, 1998, a jury convicted Reyes of the
perjury charge and found the Three Strikes special allegations
true. On April 2, 1998, the trial court sentenced Reyes to an
indeterminate term of twenty-six years to life.

   Reyes appealed the judgment, claiming, among other
things, that his sentence violated the Eighth Amendment’s
prohibition on cruel and unusual punishment. On June 9,
1999, the California Court of Appeal affirmed Reyes’ convic-
tion and sentence. On September 1, 1999, the California
Supreme Court denied Reyes’ petition for review.
2634                        REYES v. BROWN
   On July 26, 2000, Reyes filed a 28 U.S.C. § 2254 habeas
petition in the United States District Court for the Central Dis-
trict of California. On September 21, 2000, Magistrate Judge
Charles F. Eick issued a report and recommendation urging
that Reyes’ petition be dismissed with prejudice. On October
12, 2000, District Judge Virginia Phillips adopted the report
and recommendation and dismissed Reyes’ petition.

   On October 31, 2000, Reyes timely filed a notice of appeal
and a request for certificate of appealability. On May 2, 2001,
we granted Reyes a certificate of appealability on the limited
issue whether his Three Strikes sentence violated the Eighth
Amendment.2

                                   II.

   We review de novo a district court’s decision to grant or
deny a 28 U.S.C. § 2254 habeas petition. See Rios v. Garcia,
390 F.3d 1082, 1084 (9th Cir. 2004). The provisions of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub L. No. 104-132, 110 Stat. 1214, govern
Reyes’ habeas petition. Under AEDPA, habeas relief is proper
if the state court’s adjudication of the merits of the habeas
claim 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.’ ” Rios, 390 F.3d at 1084 (quoting 28 U.S.C.
§ 2254(d)). “A state court’s decision is ‘contrary to’ clearly
established federal law if it ‘applies a rule that contradicts the
governing law set forth in [Supreme Court] cases[,]’ or (2)
‘confronts a set of facts that are materially indistinguishable
from a [Supreme Court] decision and nevertheless arrives at
a [different] result.’ ” Id. (quoting Williams v. Taylor, 529
U.S. 362, 405-06 (2000)). “A state court’s decision is an
  2
   Reyes subsequently filed two requests to broaden the certificate of
appealability. We deny those requests in a separate unpublished order filed
contemporaneously with this opinion.
                            REYES v. BROWN                            2635
unreasonable application of clearly established federal law if
‘the state court identifies the correct governing legal principle
from [Supreme Court] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.’ ” Id. (quoting
Williams, 529 U.S. at 413).

                                   III.

   [1] Applying AEDPA in Ramirez v. Castro, 365 F.3d 755
(9th Cir. 2004), we recognized that Eighth Amendment chal-
lenges to Three Strikes sentences remain viable in certain “ex-
ceedingly rare” cases. Id. at 756, 770; see also id. at 763
(noting that the Eighth Amendment’s “ ‘proportionality prin-
ciple’ . . . is applicable ‘only in the “exceedingly rare” and
“extreme” case’ ” (quoting Lockyer v. Andrade, 538 U.S. 63,
72-73 (2003))).3 We applied the Supreme Court’s analysis in
Solem v. Helm, 463 U.S. 277 (1983), to examine as an initial
matter “whether [the petitioner’s] extreme sentence is justi-
fied by the gravity of his most recent offense and criminal his-
tory.” Ramirez, 365 F.3d at 768 (holding that this inquiry
gives rise to an inference of gross disproportionality, which
then calls for intrajurisdictional and interjurisdictional analy-
ses).

    [2] We concluded that Ramirez’ sentence did not match the
gravity of the triggering offense, given that his most recent
offense consisted of the nonviolent shoplifting of a VCR. See
id. Our reasoning that Ramirez’ conduct did not “threaten[ ]
. . . grave harm to society” applies here, id. (quoting Harmelin
v. Michigan, 501 U.S. 957, 1003 (1991) (Kennedy, J., concur-
  3
   We note that the California Attorney General declined to seek further
review of our decision in Ramirez, stating that he was acting in “the inter-
est of justice” and calling Ramirez an “exceedingly rare case.” Henry
Weinstein, Lockyer Gives Up Three-Strikes Case, L.A. TIMES, Apr. 30,
2004, at B6, available at 2004 WL 55909787.
2636                        REYES v. BROWN
ring)), where Reyes’ act of falsifying a driver’s license appli-
cation was not a crime targeted at another individual.4

   We next considered Ramirez’ criminal history to determine
whether the extreme sentence matched his prior offenses. See
id. at 768-769. Ramirez had been twice convicted of “second-
degree robbery, i.e., willfully and unlawfully taking personal
property ‘by means of force and fear’ in violation of Califor-
nia Penal Code §§ 211, 212.5(c), and 213(a)(2), a ‘serious fel-
ony’ under § 1192.7(c)(19).” Id. at 757. The first strike
involved shoplifting from a grocery store, after which a get-
away car driven by a third person ran over the store security
guard’s foot. See id. at 757, 768. In the second offense,
Ramirez pushed a security guard away with his open hand as
he ran out of K-Mart with stolen goods. See id. at 757, 768.
Ramirez was found to have committed these offenses with
“force” and was prosecuted for and convicted of “second-
degree robbery,” as opposed to “petty theft” (Cal. Penal Code
§§ 484, 488) or “second-degree commercial robbery” (Cal.
Penal Code §§ 459-61) because of the physical contact with
the security guards. Id. at 768. Ramirez served very little time
in prison for these two offenses. See id. at 769.
  4
    Signing someone else’s name on a driver’s license application is spe-
cifically proscribed by the California legislature as a misdemeanor. See
Cal. Veh. Code § 20 (“It is unlawful to use a false or fictitious name, or
to knowingly conceal any material fact in any document filed with the
[DMV].”); id. § 40000.5 (classifying a Vehicle Code § 20 violation as a
misdemeanor). The offense does not, however, preclude prosecution of the
defendant under Penal Code § 118 for felony perjury, instead of the mis-
demeanor Vehicle Code section that more accurately proscribed Reyes’
conduct, see People v. Molina, 5 Cal. App. 4th 221, 231 (1992) (holding
that “Vehicle Code section 20 does not preclude perjury prosecutions for
those filing false license applications under oath at the DMV”), and in this
case, Reyes was convicted after trial of felony perjury. The fact that the
California legislature deemed making false statements on a driver’s
license application to be a misdemeanor reflects that Reyes’ offense “is
viewed by society as among the less serious offenses.” Solem, 463 U.S.
at 296 (internal quotations omitted).
                             REYES v. BROWN                            2637
   [3] In the instant case, Reyes earned his first strike for resi-
dential burglary, in violation of California Penal Code § 459,
when he was seventeen years old. He was sentenced to two
years at the California Youth Authority and was paroled after
one year. Reyes’ age and the fact that the offense appeared to
be nonviolent5 — for which he was only required to serve two
years at California Youth Authority — weigh against finding
this to be a “grave” offense sufficient to justify his twenty-six
years to life sentence.

   [4] The sticking point in this case comes from Reyes’ 1987
conviction for armed robbery in violation of California Penal
Code § 211. He was sentenced to nine years of which he
served five.6 The record does not reveal the circumstances
under which this felony was committed.7 This conviction rep-
  5
     The little detail in the record suggests that Reyes was “at some guy’s
house with some friends and . . . walked out with a radio that didn’t belong
to” him. 3/4/98 Trial Tr. at 120:8-9.
   6
     Reyes also has a history of “non-strike” offenses including petty theft;
being under the influence of a controlled substance; misdemeanor DUI;
and misdemeanor battery. None of these offenses appear to have involved
violence, and unlike the criminal histories of the defendant in Ewing v.
California, 538 U.S. 11 (2003), and the petitioner in Andrade, 538 U.S.
63, Reyes’ criminal history became indisputably less serious over time,
see Ramirez, 365 F.3d at 765-767 (describing Ewing’s and Andrade’s
criminal histories).
   7
     The paucity of detail in the record indicates that this offense may have
been non-violent. Compare 3/4/98 Trial Tr. at 120:17-24 (suggesting that
Reyes “was stealing” — “not robbing” but “had a knife” on his person),
with Rios, 390 F.3d at 1086 (distinguishing Ramirez because, during the
commission of his triggering offense, “Rios struggled with the loss pre-
vention officer and tried to avoid apprehension” and, during his prior rob-
bery “strikes,” Rios’ “cohort used a knife” (emphasis added)).
   The dissent argues that we are being unfaithful to Ramirez because
Ramirez “focuses on the presence of a weapon, not whether, how, or
where it was or was not used” and “Reyes . . . himself, carried the weap-
on.” Dissent at 2641 n.1 (emphasis in original). With respect to our able
colleague, we believe that he is misreading Ramirez. Ramirez never refers
to “the presence of a weapon.” Rather, each time Ramirez refers to weap-
2638                        REYES v. BROWN
resents a point of departure from Ramirez, given the nature of
the offense and the nine-year prison term to which Reyes was
sentenced.

   However, in Ramirez, even though the defendant was con-
victed of two “serious felonies,” we considered the factual
specifics of Ramirez’ conduct. Ramirez, 365 F.3d at 767
(looking past the definitions of the crimes of which Ramirez
was convicted to determine whether Ramirez’ conduct
involved violence or was particularly serious). Although
Ramirez was twice convicted of robbery “by force,” we mini-
mized the gravity of the offenses by noting that in the first
strike offense a third person had run over the security guard’s
foot, resulting in a “minor injury.” Id. And in the second
strike offense, Ramirez pushed away the security guard with
his hand on his way out the door. See id.

ons, it refers exclusively to whether weapons were “involved.” 365 F.3d
at 757, 768, 775; see also Rios, 390 F.3d at 1086 (noting that Ramirez’
“prior convictions were for non-violent robberies in which no weapons
were involved” (emphasis added)). We understand Ramirez’ use of the
word “involved” to mean “engaged or employed.” Webster’s Encyclope-
dic Unabridged Dictionary of the English Language 1005 (rev. ed. 1996)
(defining “involve” as “to engage or employ”). Surely, involving, engag-
ing, or employing a weapon constitutes more than the mere presence of
an unused weapon.
   The dissent also asserts that “Rios arguably weighs in favor of finding
Reyes’ punishment justified” because “in Rios . . . Rios’ cohort used a
weapon,” whereas here “Reyes . . . himself, carried the weapon.” Dissent
at 2641 n.1 (emphasis added). We think our colleague misses the point.
If Reyes (or an accomplice, if any) actually used a knife in the commission
of his 1987 robbery, “an inference of gross disproportionality” would not
be raised because it is the use of a weapon that “ ‘threaten[s] to cause
grave harm.’ ” Ramirez, 365 F.3d at 765, 768 (quoting Harmelin, 501 U.S.
at 1002 (Kennedy, J., concurring)). Would our dissenting colleague hold
that a shoplifter caught with a small pocket-knife in his pocket necessarily
committed a violent crime? In this case, the record is entirely unclear as
to whether the conduct underlying Reyes’ 1987 conviction involved any-
thing more.
                             REYES v. BROWN                            2639
   In Solem, the Supreme Court found an Eighth Amendment
violation where the habeas petitioner was sentenced to life
without parole for “uttering” a false check under a recidivist
statute. 463 U.S. at 279-80. He had a history of six nonviolent
felonies, including three separate third-degree burglaries,
obtaining money under false pretenses, grand larceny, and
driving while intoxicated. See id. In considering the gravity of
his offenses, the Court noted that “nonviolent crimes are less
serious than crimes marked by violence or the threat of vio-
lence.” Id. at 292-93. The Court concluded that “his prior
offenses, although classified as felonies, were all relatively
minor. All were nonviolent and none was a crime against a
person.” Id. at 296-97 (emphasis added).8

   [5] In the instant case, but for Reyes’ armed robbery con-
viction, Reyes would appear to have a plausible case for relief
under Ramirez.9 Unfortunately, the circumstances under
which Reyes committed the robbery are not sufficiently
developed in the record for us to determine whether the
offense was a “crime against a person” or involved violence.
Moreover, given that Reyes’ first strike was earned as a juve-
   8
     The dissent labels Reyes a “career criminal” whose “criminal history
reflects the very type and degree of recidivism the Supreme Court recog-
nizes Three Strikes laws were properly intended to address.” Dissent at
2642 (citing Rummel v. Estelle, 445 U.S. 263, 284-85 (1980)). But Reyes
is no more a career criminal than the petitioner in Solem, who the Supreme
Court held was entitled to habeas relief under the Eighth Amendment.
Compare Dissent at 2642 (noting that, between 1981 and 1997, Reyes
committed six crimes) with Solem, 463 U.S. at 279-80 (discussing Solem’s
six convictions for third-degree burglary, obtaining money under false pre-
tenses, grand larceny, and driving while intoxicated).
   9
     Our suspicion that Reyes’ twenty-six years to life sentence may be
grossly disproportionate to the gravity of his triggering offense and crimi-
nal history is also supported by the fact that the State offered Reyes a deal
of four years imprisonment in exchange for a guilty plea to the triggering
perjury charge. By offering Reyes such a heavily discounted sentence, an
inference may properly be raised that the State did not view Reyes as a
“danger to society” and that the State did not feel “the need to counter his
threat with incapacitation.” Andrade, 538 U.S. at 81 (Souter, J., dissent-
ing).
2640                    REYES v. BROWN
nile, the gravity of his offenses in total rests heavily on his
1987 armed robbery conviction. More facts, such as those on
which we relied in Ramirez, would help determine the true
weight of the offense beyond the label of the crime (“armed
robbery”) of which Reyes was convicted. Accordingly, we
vacate the district court’s denial of Reyes’ habeas petition and
remand for the district court to develop the record further and
to determine in the first instance whether Reyes is entitled to
relief under Ramirez.

  The panel shall retain jurisdiction over this matter.

  VACATED and REMANDED.



TALLMAN, Circuit Judge, dissenting:

   In Ewing and Andrade, the United States Supreme Court
found that California Three Strikes sentences at issue did not
violate the Eighth Amendment prohibition on cruel and
unusual punishment. Lockyer v. Andrade, 538 U.S. 63 (2003),
Ewing v. California, 538 U.S. 11 (2003). In its opinions, the
Court allowed for the remote possibility of finding a statutory
punishment unconstitutional when it is “grossly dispropor-
tionate.” Andrade, 538 U.S. at 73; see also Ewing, 538 U.S.
at 23 (noting that the Eighth Amendment contains a narrow
“proportionality principle that applies to noncapital sen-
tences”) (internal quotations and citations omitted). The Court
did not elaborate what types of violations this exception might
encompass, but warned that “it is applicable ‘only in the
exceedingly rare and extreme case.’ ” Ramirez v. Castro, 365
F.3d 755, 763 (9th Cir. 2004) (discussing Andrade, 538 U.S.
at 72-73). This is not one of them.

  After the Court’s decisions in Ewing and Andrade, the
Ninth Circuit quickly found such an exceedingly rare case in
Ramirez. Although Ramirez is now the law of the circuit for
                             REYES v. BROWN                              2641
habeas challenges to Three Strikes sentences, its analysis is
less than ideal. The Ramirez opinion sets forth what is, at best,
a nebulous balancing test for analyzing whether a lengthy
Three Strikes sentence violates the proportionality principle:
whether the sentence is “justified by the gravity of [the peti-
tioner’s] most recent offense and criminal history.” Ramirez,
365 F.3d at 768; see also Ewing, 538 U.S. at 29 (noting that,
when considering the gravity of the offense, the court “must
place on the scales not only his current felony,” but also his
criminal history).

   In determining the gravity of the triggering offense and
criminal history, Ramirez instructs courts to examine the
“core conduct” of the crimes and consider: (1) whether the
crime involved the use of force; (2) whether weapons were pres-
ent;1 (3) whether the crime was violent in nature; and (4) the
length and type of sentence imposed. See Ramirez, 365 F.3d
at 768-69 (discussing the factors of Ramirez’s triggering
offense and criminal history that were relevant in determining
whether the sentence was justified).2
  1
     The panel majority attempts to distinguish Reyes from Rios v. Garcia,
390 F.3d 1082 (9th Cir. 2004), by focusing on the fact that Rios’ cohort
used a weapon. This sort of parsing is unpersuasive in distinguishing the
two cases and also illustrates the difficulties of following precedent such
as Ramirez. First, as unworkable as Ramirez is, it focuses on the presence
of a weapon, not whether, how, or where it was or was not used. Second,
even Rios arguably weighs in favor of finding Reyes’ punishment justi-
fied; in Rios, the court found his punishment justified simply because
Rios’ cohort had a weapon. Reyes has no such excuse because he, himself,
carried the weapon. Finally, Rios and the majority opinion here foretell
what is to come in the wake of Ramirez: inconsistent outcomes in cases
depending on whether individual panels choose to focus on the presence
versus the use versus the involvement of a weapon. Surely the Eighth
Amendment analysis must rely on more substantive distinctions. All three
cases err in ignoring the key point that the Three Strikes Statute punishes
recidivism, not subtle differences between the nature of the triggering
offense or prior offenses.
   2
     Ramirez did not explicitly list a set of factors to consider when making
this inquiry, nor did it explicitly state that this was a balancing test, leav-
ing future panels with the unfortunate task of gleaning clear guidelines
from the opinion.
2642                    REYES v. BROWN
   The court here declares that Reyes potentially presents
another one of these exceptionally rare cases, and that an evi-
dentiary hearing is required in order to determine whether
Reyes’ punishment violated the proportionality principle.
Based on Supreme Court and Ninth Circuit precedent, I dis-
agree with both of these propositions. However much individ-
ual judges chafe at the Supreme Court’s decisions in Ewing
and Andrade or the electorate’s continuing and clear expres-
sion of support for tough treatment of repeat offenders, our
obligation is to apply the law which the Supreme Court
upheld in Andrade and Ewing.

   Reyes does not present an “extraordinary” rare case; he is
a career criminal. Between 1981 and 1997, he committed six
crimes and spent almost seven years behind bars, five of
which were passed in state prison. His criminal history
reflects the very type and degree of recidivism the Supreme
Court recognizes Three Strikes laws were properly intended
to address. Rummel v. Estelle, 445 U.S. 263, 284-85 (1980)
(rejecting an Eighth Amendment challenge to Texas’ recidi-
vist statute). Furthermore, even if a narrow class of cases exist
that might constitute an unusual exception, Ramirez’s crimi-
nal history pales in comparison to Reyes’ sixteen years of on-
again, off-again criminality. I would not characterize the
nature of Reyes’ prior convictions as charitably as does the
majority, particularly where Reyes has been convicted of bat-
tery, armed robbery, and driving while under the influence, all
of which pose a potential of seriously injuring other people.

   There is no need for an evidentiary hearing. While the
Ramirez balancing test is admittedly vague, at least two of the
four factors that the Ramirez court considered relevant weigh
heavily in favor of finding Reyes’ sentence justified. First,
Reyes was convicted of armed robbery; contrary to the panel
majority’s inferences, this strike certainly involves at least the
presence of a weapon during the commission of a violent
crime. Second, Reyes served five years of a nine-year state
prison sentence for his armed robbery conviction. Not only is
                        REYES v. BROWN                      2643
this a lengthy sentence, but Ramirez explicitly noted that a
critical consideration in determining whether a sentence is
proportionate is whether the petitioner has ever “been sen-
tenced to [or] served any time in state prison prior to commit-
ting” the triggering offense. Ramirez, 365 F.3d at 769
(emphasis added). These facts strongly distinguish Reyes’
case from Ramirez and justify the Three Strikes sentence
imposed.

   It is unclear what sorts of facts the court here anticipates
will be revealed during the evidentiary hearing, or what dif-
ference they will make in the proportionality inquiry. It is also
unclear what facts the district court on habeas review is per-
mitted to revisit in its “core conduct” inquiry in the face of a
final state criminal judgment that Reyes committed a robbery
while armed. Because Ramirez sets forth a balancing test, the
district court must simply determine that, in consideration of
the four factors, and particularly his pattern of continuing
criminal behavior, Reyes’ prior time spent in state prison and
his earlier conviction for armed robbery render his Three
Strikes sentence for perjury justified under controlling
Supreme Court precedent. There is no need for an evidentiary
hearing to reach that conclusion on the record already before
us.

  I would deny Reyes’ petition for rehearing and petition for
rehearing en banc. Accordingly, I DISSENT from this futile
remand.
