                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 10a0073p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                X
                                                 -
 OSCAR MONTES,
                                                 -
                           Petitioner-Appellant,
                                                 -
                                                 -
                                                     No. 08-2521
          v.
                                                 ,
                                                  >
                                                 -
                      Respondent-Appellee. -
 JAN TROMBLEY, Warden,
                                                 -
                                                N
                  Appeal from the United States District Court
                for the Eastern District of Michigan at Bay City.
             No. 06-14539—Thomas L. Ludington, District Judge.
                               Submitted: March 10, 2010
                          Decided and Filed: March 17, 2010
         Before: DAUGHTREY, GILMAN, and KETHLEDGE, Circuit Judges.

                                  _________________

                                       COUNSEL
ON BRIEF: Laura Kathleen Sutton, LAW OFFICE, Manchester, Michigan, for Appellant.
Laura Graves Moody, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for
Appellee.
                                  _________________

                                       OPINION
                                  _________________

       RONALD LEE GILMAN, Circuit Judge. A Michigan jury found Oscar Montes
guilty of kidnapping. He was sentenced to a term of 30 to 60 years of imprisonment. After
a series of appeals and remands in the Michigan state-court system, Montes’s conviction and
sentence were affirmed. Montes then filed a petition for a writ of habeas corpus in federal
court, arguing, among other things, that his sentence exceeded the “statutory maximum” and
therefore violated the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution.




                                            1
No. 08-2521         Montes v. Trombley                                                   Page 2


The district court denied his petition. For the reasons set forth below, we AFFIRM the
judgment of the district court.

                                   I. BACKGROUND

        The following factual background, as set forth by the Michigan Court of Appeals,
is undisputed for the purposes of this appeal:

                 On April 13, 1999, the four-year old victim and her nine-year-old
        sister walked from their home in Detroit to the corner store, approximately
        three houses away. As the girls entered the store, the victim’s sister saw
        [Montes] turn his truck around on McGraw Street and drive toward the store.
        As the girls walked out of the store, [Montes] approached the girls on foot
        and offered the victim some chewing gum. [Montes] then grabbed the
        victim’s sister, who kicked and fought until she escaped [Montes’s] grip.
        However, [Montes] was able to grab the victim and put her into the front
        seat of the truck, through the driver’s side door. [Montes] then entered the
        truck and sped away as the victim stood up and began scratching and hitting
        the back window of the truck.
                Ramon and Esther Hernandez were driving past the store as the
        incident occurred and saw [Montes] grab the victim and put her in his truck.
        They followed [Montes’s] truck as he tried to drive towards the freeway, and
        were able to pursue him as he then drove at high speeds through a red light
        at Michigan Avenue and toward a truck yard on John Kronk Street. Esther
        Hernandez testified that the victim was screaming and crying inside the
        truck. During the pursuit, the Hernandez’ saw a police car and Ramon
        Hernandez beeped his car horn and Esther Hernandez began screaming to
        get the officer’s attention. Esther Hernandez told the officer that [] the
        driver of the truck in front of them had kidnapped a young girl. The officer
        pulled up beside the truck and saw the victim crying through the passenger
        window. At first, [Montes] ignored the officer’s flashers and gestures to pull
        over. However, [Montes] eventually pulled into a gas station and, thereafter,
        was placed under arrest. When police searched defendant, they noticed that
        the zipper of his pants was open and that he was carrying candy, gum, and
        climax control lotion. [Montes] testified that he picked up the victim merely
        to help her find her mother.

People v. Montes, No. 223539, 2002 WL 484613, at *1 (Mich. Ct. App. Mar. 22, 2002),
vacated and remanded on a state-law sentencing issue, No. 121502, 673 N.W.2d 104 (Mich.
Oct. 3, 2003) (unpublished table decision).

        The State charged Montes with one count of kidnapping in violation of § 750.349
of the Michigan Compiled Laws (MCL). Montes, 2002 WL 484613, at *1. At the
No. 08-2521         Montes v. Trombley                                                  Page 3


conclusion of his trial, the jury found Montes guilty of kidnapping. Id. The trial judge then
sentenced Montes to 360 to 720 months (30 to 60 years) of imprisonment. Id. at *4.
Although the high end of Montes’s sentence (720 months) fell below the statutory maximum
of life imprisonment, see MCL § 750.349(3), the low end of his sentence (360 months)
exceeded the minimum sentencing range of 81 to 135 months of imprisonment prescribed
by Michigan’s sentencing guidelines, Montes, 2002 WL 484613, at *4.

        The trial court’s determination was appealed and remanded for resentencing twice
on the basis of a state law requiring the trial judge to make certain findings on the record
before exceeding the minimum guidelines-mandated term of imprisonment. See People v.
Montes, No. 121502, 673 N.W.2d 104 (Mich. Oct. 3, 2003) (unpublished table decision);
People v. Montes, No. 223539 (Mich. Ct. App. Feb. 17, 2004); People v. Montes, No.
223539, 2004 WL 2389995 (Mich. Ct. App. Oct. 26, 2004). Ultimately, the Michigan Court
of Appeals concluded that the trial court had sufficiently explained its above-guidelines
minimum sentence on the second remand and therefore affirmed the judgment below.
People v. Montes, No. 223539 (Mich. Ct. App. Feb. 28, 2005). The Michigan Supreme
Court declined to review the case. People v. Montes, No. 128523, 705 N.W.2d 127 (Mich.
Oct. 31, 2005) (unpublished table decision).

        Montes, represented by counsel, then filed a petition for habeas relief pursuant to
28 U.S.C. § 2254. He raised two claims:

        [1.]    Whether Mr. Montes’ sentence exceeded the Blakely [v.
                Washington, 542 U.S. 296 (2004)] “statutory maximum” sentence
                by 18.75 years based on facts determined by the judge and not found
                by the jury contrary to the Fifth, Sixth, and Fourteenth Amendments.
                                               ....
        [2.]    Whether the trial court’s failure to instruct the jury that the
                prosecution had the burden of proving the lack of consent and the
                court’s instruction to the jury indicating that petitioner had the
                burden of raising a reasonable doubt as to consent, improperly
                shifted the burden of proof to petitioner, denying him due process of
                law[.]

        The district court denied relief on both claims, concluding that (1) the first claim
failed on the merits, and (2) the second claim was procedurally defaulted. Montes v.
No. 08-2521          Montes v. Trombley                                                   Page 4


Trombley, No. 1:06-cv-14539, 2008 WL 4613062, at *4-*8 (E.D. Mich. Oct. 14, 2008). In
addition, the court declined to issue Montes a Certificate of Appealability (COA). Id. at *8-
*9. Montes timely appealed. This court then granted a COA on Montes’s first claim,
reasoning that “this court has not yet determined, in a reasoned published opinion, whether
Blakely applies to Michigan’s indeterminate sentencing scheme.”

                                       II. ANALYSIS

A.      Standard of review

        “In a habeas corpus appeal, we review the district court’s legal conclusions de novo,
but will not set aside its factual findings unless they are clearly erroneous.” Ivory v. Jackson,
509 F.3d 284, 291 (6th Cir. 2007). “The standard for reviewing state-court determinations
on habeas, by contrast, is governed by the Antiterrorism and Effective Death Penalty Act
(AEDPA), codified at 28 U.S.C. § 2254(d).” Id. AEDPA provides that

        a federal court may not grant a writ of habeas to a petitioner in state custody
        with respect to any claim adjudicated on the merits in state court unless (1)
        the state court’s decision “was contrary to, or involved an unreasonable
        application of, clearly established Federal law, as determined by the
        Supreme Court,” or (2) the state court’s decision “was based on an
        unreasonable determination of the facts in light of the evidence presented in
        the State court proceedings.”

Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002) (citation omitted) (quoting 28 U.S.C.
§ 2254(d)).

        A state-court decision is considered “contrary to . . . clearly established Federal law”
if the two are “diametrically different, opposite in character or nature, or mutually opposed.”
Williams v. Taylor, 529 U.S. 362, 405 (2000) (internal quotation marks omitted) (quoting
Webster’s Third New International Dictionary 495 (1976)). Alternatively, to be deemed an
“unreasonable application of . . . clearly established Federal law,” a state-court decision on
the merits must be “objectively unreasonable,” not simply incorrect. Id. at 409-12. The state
court’s findings of fact are presumed to be correct unless they are rebutted by clear and
convincing evidence. Benge v. Johnson, 474 F.3d 236, 241 (6th Cir. 2007).

        But there are exceptions to the requirement of AEDPA deference. For one, if a claim
is fairly presented to the state courts, but those courts fail to adjudicate the claim on the
No. 08-2521         Montes v. Trombley                                                Page 5


merits, then the pre-AEDPA standards of review apply. Cone v. Bell, 129 S. Ct. 1769, 1784
(2009). Under such review, questions of law, including mixed questions of law and fact, are
reviewed de novo, and questions of fact are reviewed under the clear-error standard. Brown
v. Smith, 551 F.3d 424, 430 (6th Cir. 2008).

B.      Arguments of the parties

        Montes argues that the guidelines create a scheme in which a mandatory sentence
is determined through judicial factfinding in violation of Blakely and Apprendi v. New
Jersey, 530 U.S. 466 (2000). In response, the State asserts that Michigan’s sentencing laws
create an indeterminate-sentencing scheme. Under this scheme, the state trial judges
determine the applicable minimum sentence pursuant to the sentencing guidelines, but the
applicable maximum sentence is set by statute.

        Montes’s Blakely claim does not appear to have been adjudicated on the merits by
the Michigan courts during his state-court appeals, and the State does not argue that this
claim is procedurally defaulted. We therefore consider Montes’s Blakely claim under pre-
AEDPA standards, reviewing questions of law de novo and questions of fact under the clear-
error standard. See Brown, 551 F.3d at 430.

C.      The Blakely-Apprendi rule

        In Blakely, 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.” Blakely, 542 U.S. at
301 (emphasis added) (quoting Apprendi, 530 U.S. at 490). This rule is limited by its own
terms to judicial factfinding that increases the penalty beyond the maximum permitted by the
relevant statute. See id. And, as the Court explained, “the relevant ‘statutory maximum’ is
not the maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings.” Id. at 303-04 (emphasis in
original).

        The Blakely-Apprendi rule does not prohibit all judicial factfinding in the sentencing
context. It does not, for example, apply to laws that set the maximum sentence by statute but
that permit a judge to determine the minimum sentence through judicial factfinding. See,
No. 08-2521         Montes v. Trombley                                                      Page 6


e.g., Harris v. United States, 536 U.S. 545, 568-69 (2002) (holding that the Constitution
permits a trial judge to find facts giving rise to a defendant’s mandatory minimum sentence);
United States v. Cox, 565 F.3d 1013, 1017 (6th Cir. 2009) (“Apprendi does not apply where
a fact ‘increases a defendant’s mandatory minimum sentence but does not increase the
maximum statutory range.’” (emphasis in original) (quoting United States v. Copeland, 321
F.3d 582, 602 (6th Cir. 2003))). And it does not preclude a judge from utilizing the
preponderance-of-the-evidence standard when finding facts related to sentencing. United
States v. Conatser, 514 F.3d 508, 528 (6th Cir. 2008) (explaining that “judicial fact-finding
in sentencing proceedings using a preponderance of the evidence standard . . . does not
violate either Fifth Amendment due process rights, or the Sixth Amendment right to trial by
jury” (citation and internal quotation marks omitted)).

        The Supreme Court in Blakely itself concluded that indeterminate-sentencing
schemes do not violate a defendant’s Sixth Amendment rights:

        [T]he Sixth Amendment by its terms is not a limitation on judicial power,
        but a reservation of jury power. It limits judicial power only to the extent
        that the claimed judicial power infringes on the province of the jury.
        Indeterminate sentencing does not do so. It increases judicial discretion, to
        be sure, but not at the expense of the jury’s traditional function of finding the
        facts essential to lawful imposition of the penalty. Of course indeterminate
        schemes involve judicial factfinding, in that a judge (like a parole board)
        may implicitly rule on those facts he deems important to the exercise of his
        sentencing discretion. But the facts do not pertain to whether the defendant
        has a legal right to a lesser sentence—and that makes all the difference
        insofar as judicial impingement upon the traditional role of the jury is
        concerned.

Blakely, 542 U.S. at 308-09 (emphasis in original).

D.      Michigan’s sentencing scheme

        Michigan has adopted a sentencing scheme based in part on statutorily defined
sentencing ranges and in part on sentencing guidelines. See People v. Drohan, 715 N.W.2d
778, 790 (Mich. 2006). The maximum penalty is set by statute, but the minimum penalty
is determined by the sentencing court and must fall within a mandated guidelines range. See
id. As explained by the Michigan Supreme Court:
No. 08-2521           Montes v. Trombley                                                   Page 7


          [In] all but a few cases [not implicated in Drohan or in the present case], a
          sentence imposed in Michigan is an indeterminate sentence. The maximum
          sentence is not determined by the trial court, but rather is set by law.
          Michigan’s sentencing guidelines, unlike the Washington guidelines at issue
          in Blakely, create a range within which the trial court must set the minimum
          sentence. However, a Michigan trial court may not impose a sentence
          greater than the statutory maximum. While a trial court may depart from the
          minimum guideline range on the basis of “substantial and compelling
          reason[s],” MCL 769.34(3); [People v. Babcock, 666 N.W.2d 231, 256-58
          (Mich. 2003)], such departures, with one exception, are limited by statute to
          a minimum sentence that does not exceed “2/3 of the statutory maximum
          sentence.” MCL 769.34(2)(b). Thus, the trial court’s power to impose a
          sentence is always derived from the jury’s verdict, because the
          “maximum-minimum” sentence will always fall within the range authorized
          by the jury’s verdict.

Drohan, 715 N.W.2d at 790 (third alteration in original) (footnotes omitted). The Michigan
Supreme Court’s interpretation of Michigan’s sentencing laws is binding on the federal
courts.     See Brown v. Cassens Transp. Co., 546 F.3d 347, 363 (6th Cir. 2008) (“In
construing questions of state law, a federal court must apply state law in accordance with the
controlling decisions of the highest court of the state.”).

          Two characteristics of Michigan’s sentencing regime are critical to the proper
disposition of the issue before us, as explained in greater detail in Part II.E. below. First,
Michigan’s maximum-minimum sentencing scheme is indeterminate because it sets a
sentence “of an unspecified duration.” See Drohan, 715 N.W.2d at 786 n.10, 790 (quoting
Black’s Law Dictionary (8th ed. 2004)). Second, the sentencing guidelines define only the
minimum applicable sentence and do not set or increase the maximum sentence. See id. at
790.

E.        Whether Michigan’s sentencing laws violate the Blakely-Apprendi rule

          Montes argues on appeal that Michigan’s sentencing guidelines create
          a legislatively mandated judicial factfinding process that leads to a specific
          numeric cell sentence which then becomes a legislatively mandated sentence
          that must be served. For Blakely purposes, a mandatory sentence is a
          mandatory sentence and it matters not if the mandatory aspect is an alleged
          “minimum” or an alleged “maximum” term, or both.
No. 08-2521         Montes v. Trombley                                                 Page 8


        But Montes reads Blakely and Apprendi too broadly. Courts interpreting Apprendi
have recognized the distinction between mandatory minimums and mandatory maximums,
with the distinction having constitutional significance. See, e.g., Harris, 536 U.S. at 568-69;
Cox, 565 F.3d at 1017. This is demonstrated by the Supreme Court’s description in Blakely
of the Apprendi line of cases: “In each case, we concluded that the defendant’s constitutional
rights had been violated because the judge had imposed a sentence greater than the
maximum he could have imposed under state law without the challenged factual finding.”
Blakely, 542 U.S. at 303. This court’s recent decision in Chontos v. Berghuis, 585 F.3d 1000
(6th Cir. 2009), likewise explained that “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.” Id. at 1002 (citations omitted).

        Under Michigan law, a person convicted of violating the State’s kidnapping statute
may be punished “by imprisonment for life or any term of years or a fine of not more than
$50,000.00, or both.” MCL § 750.349(3). The statutorily permissible punishments for
kidnapping thus range from a monetary fine to life imprisonment. See id. This means that
the trial judge in the present case had the authority to sentence Montes to life imprisonment
based solely on the jury’s verdict. See id. Compare Blakely, 542 U.S. at 305 (concluding
that a state’s sentencing laws violate the Sixth Amendment where “the judge’s authority to
impose an enhanced sentence depends on [a] finding [of fact],” and “the jury’s verdict alone
does not authorize the sentence,” but “[t]he judge acquires that authority only upon finding
some additional fact”). Accordingly, Montes does not have “a legal right to a lesser
sentence.” See id. at 309 (emphasis deleted). The trial judge’s sentencing of Montes to 360
to 720 months of imprisonment therefore does not violate the due process protections of the
Fifth and Fourteenth Amendments or the jury trial right of the Sixth Amendment. See id. at
309-10; see also Chontos, 585 F.3d at 1002 (reaching the same conclusion regarding a
sentence imposed under Michigan’s sentencing guidelines for first-degree criminal sexual
conduct involving a person under the age of thirteen); United States v. Conatser, 514 F.3d
508, 528 (6th Cir. 2008) (explaining that a judge may utilize the preponderance-of-the-
evidence standard when finding facts related to sentencing).

        Moreover, Michigan’s sentencing scheme, with the exception of a few circumstances
not relevant here, is properly described as “indeterminate.” See Drohan, 715 N.W.2d at 790.
No. 08-2521          Montes v. Trombley                                              Page 9


A criminal defendant in Michigan is sentenced to a minimum and a maximum permissible
term of imprisonment. Id. The minimum sentence is not a fixed, “determinate” sentence
because an incarcerated person is “always subject to serving the maximum sentence provided
for in the statute that he or she was found to have violated.” Id. at 791. And, “the parole
board retains the discretion to keep a person incarcerated up to the maximum sentence
authorized by the jury’s verdict.” Id. Thus, “there is no guarantee that an incarcerated
person will be released from prison after the person has completed his or her minimum
sentence.”    Id.   Compare Cunningham v. California, 549 U.S. 270, 276-77 (2007)
(describing California’s prior sentencing regime as “indeterminate” because “courts imposed
open-ended prison terms (often one year to life), and the parole board—the Adult
Authority—determined the amount of time a felon would ultimately spend in prison”).
Michigan’s sentencing laws similarly create an indeterminate-sentencing scheme. And
because this scheme is indeterminate, it does not violate Montes’s due process rights or his
right to a jury trial. See Blakely, 542 U.S. at 309-10.

        We wish to emphasize, however, that our holding today does not extend to aspects
of Michigan’s sentencing regime that had no application to Montes’s sentence. In particular,
this case does not require us to address the constitutionality of Michigan’s “intermediate
sanction” rule, which instructs the sentencing court to impose an intermediate sanction—not
to exceed a 12-month jail term—when the upper limit of the defendant’s guidelines range
does not exceed 18 months, unless the court identifies a “substantial and compelling reason”
for a harsher penalty. See MCL § 769.34(4)(a). Montes does not argue that, absent judge-
found facts, he would have qualified for an intermediate sanction.

        In sum, Michigan’s substantive kidnapping statute provides a statutory range of
permissible punishments for Montes. See MCL § 750.349(3). The statute defines the
statutory maximum as life imprisonment. Id. Michigan’s sentencing guidelines then provide
the basis for determining Montes’s minimum sentence. See MCL § 769.34(2). These
guidelines mandate that Montes’s minimum sentence be determined by a judicial factfinding
process. See MCL § 769.34. Because this procedure relates only to the minimum sentence
applicable to Montes as part of an indeterminate sentencing scheme, it does not violate
Montes’s due process rights or Montes’s right to a jury trial. See Blakely, 542 U.S. at 309-
No. 08-2521         Montes v. Trombley                                              Page 10


10; Harris, 536 U.S. at 568-69. The district court therefore properly denied Montes’s
petition for a writ of habeas corpus.

                                   III. CONCLUSION

        For all of the reasons set forth above, we AFFIRM the judgment of the district court.
