                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            MAR 17 2017
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BRANDON M. LONG,                                 No.   16-35033

               Petitioner-Appellant,             D.C. No. 2:13-cv-02139-SB

          v.
                                                 MEMORANDUM*
RICHARD COURSEY, Superintendent,
Eastern Oregon Correctional Institution,

               Respondent-Appellee.

                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                             Submitted March 8, 2017**
                                 Portland, Oregon

Before: O’SCANNLAIN, FISHER and FRIEDLAND, Circuit Judges.

      Brandon Long appeals the district court’s denial of his 28 U.S.C. § 2254

habeas corpus petition. We have jurisdiction under 28 U.S.C. § 2253, and we

affirm.


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      Brandon Long was convicted of one count of attempted first-degree rape in

violation of OR. REV. STAT. §§ 163.375, 161.405; two counts of attempted first-

degree sodomy in violation of OR. REV. STAT. §§ 163.405, 161.405; and two

counts of attempted first-degree sexual abuse in violation of OR. REV. STAT. §§

163.427, 161.405. On two of these counts, the state court found upward departure

sentences were warranted based on certain aggravating factors, including that Long

violated court orders. Long argues that the court violated his right to jury

factfinding under Blakely v. Washington, 542 U.S. 296 (2004), when it imposed

upward departure sentences and that he was denied constitutionally effective

assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), when

his attorney allegedly failed to advise him of his Blakely rights.

      “We review de novo the district court’s denial of a petition for writ of

habeas corpus.” Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014). Under the

Antiterrorism and Effective Death Penalty Act, a petitioner seeking habeas relief

must demonstrate that the state court’s decision on the merits was contrary to, or

involved an unreasonable application of, clearly established federal law under

United States Supreme Court precedent, or that the decision was based on an

unreasonable determination of the facts. See 28 U.S.C. § 2254(d).




                                           2
      1. Assuming arguendo Long’s Blakely rights were violated, the violation

was harmless. See Washington v. Recuenco, 548 U.S. 212, 215, 218 (2006)

(holding Blakely violations are subject to harmless error review); United States v.

Salazar-Lopez, 506 F.3d 748, 752 (9th Cir. 2007) (same). The inquiry under the

harmless error standard is whether “in light of the record as a whole,” the error

“had substantial and injurious effect or influence in determining the jury’s verdict.”

Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (quoting Kotteakos v. United

States, 328 U.S. 750, 776 (1946)). Under that test, habeas relief is appropriate only

if the court is “in grave doubt as to whether a jury would have found the relevant

aggravating factors beyond a reasonable doubt.” Butler v. Curry, 528 F.3d 624,

648 (9th Cir. 2008) (quoting O’Neal v. McAninch, 513 U.S. 432, 436 (1995)).

      Under Oregon law, a court may base an upward departure sentence on a

single aggravating factor. See State v. Barrett, 894 P.2d 1183, 1185 (Or. Ct. App.

1995); State v. Williams, 883 P.2d 918, 919 (Or. Ct. App. 1994). Where, as here, a

court makes clear that each of the aggravating factors independently justified the

departure, a Blakely error will be harmless if it is not prejudicial as to at least one

of the cited factors. See Barrett, 894 P.2d at 1185.

      The record shows Long violated court orders by failing to enroll in sex

offender treatment for longer than a week and by having contact with his children.


                                            3
Long suggests no reason why the jury would not have found these violations

beyond a reasonable doubt. On this record, therefore, there is no grave doubt the

jury would have found one or both of these aggravating factors.

      2. Assuming arguendo Long’s trial counsel’s alleged failure to advise him

of his Blakely rights fell below an objective standard of reasonableness, no

prejudice resulted. See Strickland, 466 U.S. at 694. There is no reasonable

probability Long’s sentence would have been different but for his counsel’s error,

because the record shows a jury would have found Long violated court orders, and

thus that an aggravating factor was satisfied.

      AFFIRMED.




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