                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0427p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                               X
                                                -
 MANUEL ARIAS,
                                                -
                            Petitioner-Appellee,
                                                -
                                                -
                                                     No. 08-4513
          v.
                                                ,
                                                 >
                                                -
                     Respondent-Appellant. -
 STUART HUDSON, Warden,
                                                -
                                               N
                 Appeal from the United States District Court
                for the Northern District of Ohio at Cleveland.
                 No. 06-02220—Jack Zouhary, District Judge.
                                Argued: October 6, 2009
                        Decided and Filed: December 16, 2009
         Before: DAUGHTREY, SUTTON and McKEAGUE, Circuit Judges.

                                  _________________

                                      COUNSEL
ARGUED: Thelma T. Price, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellant. Kristopher A. Haines, OHIO PUBLIC DEFENDER’S
OFFICE, Columbus, Ohio, for Appellee. ON BRIEF: Thelma T. Price, OFFICE OF THE
OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Kristopher A. Haines,
OHIO PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellee.
                                  _________________

                                       OPINION
                                  _________________

       SUTTON, Circuit Judge. The warden appeals an order conditionally granting habeas
corpus to Manuel Arias on the ground that his sentence violates Blakely v. Washington, 542
U.S. 296 (2004). Arias’s sentence does not violate Blakely, however, because the judicial
fact-finding at issue merely increased his minimum sentence. We accordingly reverse.




                                            1
No. 08-4513          Arias v. Hudson                                                    Page 2


                                               I.

         In December 2003, an Ohio jury found Arias guilty of two counts of rape, three
counts of kidnapping, three counts of gross sexual imposition and one count of sexual
battery. Consistent with Ohio’s sentencing laws at the time, see O.R.C. §§ 2929.14(B), (C),
(E) (2003), the trial court made a number of factual findings that produced a sentence
totaling thirty years on the nine counts. Because six of the nine counts also carried “sexually
violent predator” specifications, Ohio law converted the thirty-year fixed sentence to an
indeterminate sentence with a minimum term of thirty years and a maximum term of life.
See O.R.C. § 2971.03(A)(3) (2003).

         While Arias’s state court appeal was pending, the United States Supreme Court
decided Blakely, holding that under the Sixth Amendment it is “within the jury’s province
to determine any fact (other than the existence of a prior conviction) that increases the
maximum punishment authorized for a particular offense.” Oregon v. Ice, 555 U.S. ___, 129
S. Ct. 711, 714 (2009); see Blakely, 542 U.S. at 313–14. After the Ohio Court of Appeals
affirmed his conviction, Arias moved to reopen the appeal, claiming that Ohio’s sentencing
procedure violated the Sixth Amendment and that he received ineffective representation in
the process because his attorneys failed to object to the violation at trial and on appeal. The
court of appeals denied his motion, reasoning (1) that “Blakely is . . . inapplicable to
Appellant’s sentence” and (2) that trial and appellate counsel could not be found ineffective
for missing an issue that could not have given him relief. He appealed this decision to the
Ohio Supreme Court, which declined to hear his case, as did the United States Supreme
Court.

         Arias petitioned the district court for a writ of habeas corpus, raising the same
Blakely and ineffective-assistance claims. The State answered that Arias had procedurally
defaulted his Blakely and ineffective trial counsel claims, that the Ohio courts had reasonably
rejected his ineffective appellate counsel claims and that in any event the indeterminate
sentence he received did not violate Blakely. The district court conditionally granted the
writ, reasoning that Arias had not procedurally defaulted his claim and that the trial court had
usurped the jury’s role by increasing his sentence based on the court’s own findings of fact.
The court rejected Arias’s ineffective-assistance claims. The State timely appealed.
No. 08-4513          Arias v. Hudson                                                    Page 3


                                              II.

        In the normal course, we first would address the State’s challenge to the district
court’s procedural-default ruling. But in this instance the merits of Arias’s Blakely claim
present a more straightforward ground for decision, prompting us to consider this issue at
the outset. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (allowing courts to skip
procedural-default issues and reject claims on the merits).

        Arias’s sentence arises from the overlap of three Ohio statutes. The first statute,
O.R.C. § 2929.14 (2003), implicates the kind of judicial fact-finding that Blakely prohibits,
as the Ohio Supreme Court has correctly determined. See State v. Foster, 845 N.E.2d 470,
494 (Ohio 2006) (finding §§ 2929.14(B) and (C) unconstitutional under Blakely). To
sentence Arias to ten years on each of the three sets of consolidated counts, for example, the
court had to find that Arias “pose[d] the greatest likelihood of committing future crimes.”
O.R.C. § 2929.14(C). In the absence of this finding (or other statutory ones like it), the
judge could have sentenced Arias only to three nine-year sentences totaling twenty-seven
years, not thirty. Had these procedures been the only ones at issue in Arias’s sentence, we
would have little difficulty concluding that the sentence violated Blakely. See Foster, 845
N.E.2d at 490.

        But a second statute, O.R.C. § 2971.03(A)(3) (2003), ultimately determined Arias’s
maximum sentence. Because the judge found that Arias was a “sexually violent predator”
on six of the nine counts, the sentence Arias otherwise would have received—thirty
years—became the minimum parole eligibility date of an indeterminate life sentence under
§ 2971.03(A)(3). As a result of this second statute, the judge’s fact-finding at issue here
merely set the lower bound of his sentence, not the upper bound of life imprisonment.

        That brings us to the third statute. Under O.R.C. § 2971.02 (2003), Arias had the
right to have a jury determine whether he was a “sexually violent predator” and thus whether
the life term of § 2971.03 would apply to him. But Arias explicitly waived his right to a jury
trial on that issue. In view of Arias’s decision to waive his right to a jury trial with respect
to this enhancement and in view of the trial judge’s subsequent finding on the point, judicial
fact-finding under § 2929.14—the first statute—could not have increased his maximum
sentence because § 2971.03—the second statute—would have added the same “life tail” at
No. 08-4513         Arias v. Hudson                                                   Page 4


the end of it no matter what the judge found under § 2929.14. Put another way, the
challenged fact-finding made a difference to Arias’s minimum sentence (from nine years to
thirty years), but it was the accepted fact-finding that determined whether Arias would
receive a maximum term of life imprisonment.

        This kind of sentence does not violate Blakely. The Sixth Amendment gives a
criminal defendant the right to have a jury find any fact that increases the maximum sentence
the defendant faces, not any fact that increases the minimum sentence. See McMillan v.
Pennsylvania, 477 U.S. 79 (1986). And although McMillan pre-dates the Apprendi line of
cases, see Apprendi v. New Jersey, 530 U.S. 466 (2000), this feature of Sixth Amendment
jurisprudence has remained intact. See United States v. Harris, 536 U.S. 545, 568 (2002)
(rejecting an effort to overrule McMillan in the aftermath of Apprendi). Blakely itself
recognized the point. Even as Blakely invalidated Washington’s sentencing system, it
distinguished that system from the one at issue in McMillan, noting that the latter imposed
only “a statutory minimum if a judge found a particular fact” and therefore did not violate
the Sixth Amendment. 542 U.S. at 304. Because the judicial fact-finding at issue here—like
the judicial fact-finding that McMillan upheld and unlike the judicial fact-finding that
Blakely struck down—increased Arias’s minimum term of imprisonment without affecting
his maximum term of imprisonment, his sentence does not violate the Sixth Amendment.
See Chontos v. Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009) (applying Harris to judicial
fact-finding that increased the minimum term of an indeterminate sentence).

        Today’s sentence presents one potential twist on Harris (and McMillan). In Harris,
the defendant was eligible for a fixed sentence, and the judge’s finding of fact increased the
minimum duration of his sentence. 536 U.S. at 551. Arias, by contrast, received an
indeterminate sentence of a number of years to life, and the challenged finding of fact
allowed the judge to increase the minimum number of years before he became eligible for
parole. Judicial fact-finding thus limited the range from which the judge could pick Harris’s
sentence, while it limited the range from which the parole board could pick Arias’s release
date. One perhaps could argue that the Sixth Amendment should forbid the latter even
though it permits the former.
No. 08-4513          Arias v. Hudson                                                    Page 5


        But we see no reason to treat this case differently from Harris. Here, § 2929.14
shifted some discretion over Arias’s ultimate release date from the parole board to the judge,
but—as in Harris—did not alter Arias’s maximum potential punishment. See Chontos, 585
F.3d at 1002 (“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.’” (quoting Harris, 536 U.S. at 566
(plurality) (quotation marks omitted))). The jury’s verdict, together with the approved fact-
finding under §§ 2971.02 and 2971.03, authorized a penalty up to and including life
imprisonment, and Arias will receive no more than life imprisonment—and that is all the
Sixth Amendment requires. See id.

        One other point. The continuing vitality of McMillan and Harris may be put to the
test in a pending case at the Supreme Court. See United States v. O’Brien, ___ U.S. ____,
130 S. Ct. 49 (2009) (granting certiorari in a case involving fact-finding that increased a
defendant’s minimum sentence). The case could be decided by overruling McMillan and
Harris, but it also could be decided on statutory grounds, as the First Circuit decided the case
below. See United States v. O’Brien, 542 F.3d 921, 924 (1st Cir. 2008). Regardless of what
happens in O’Brien, however, this Sixth Amendment reality remains: At the time the judge
imposed Arias’s sentence, the Supreme Court treated judicial fact-finding differently
depending on whether it affected the minimum sentence faced by a defendant or the
maximum sentence for which the defendant was eligible. Because the courts have not
treated Blakely or United States v. Booker, 543 U.S. 220 (2005), as changes in law that
should be applied retroactively to cases whose direct appeal concluded before their
announcement, we see little prospect that the courts will apply any such (potential) change
in the law retroactively to Arias. Cf., e.g., Duncan v. United States, 552 F.3d 442, 447 (6th
Cir. 2009) (holding that Booker does not apply retroactively to cases pending at the time of
Blakely).

        In the last analysis: McMillan and Harris were good law at the time of Arias’s
sentencing, and they remain so today; the two decisions allow judicial fact-finding that
increases a defendant’s minimum sentence; Arias waived his right to have the jury make any
findings of fact that might increase his maximum sentence; and an increase in the minimum
No. 08-4513         Arias v. Hudson                                                Page 6


term of this sentence is governed by Harris. All of this leaves Arias with no cognizable
basis for challenging his sentence.

                                           III.

        For these reasons, we reverse the judgment granting Arias’s petition for a writ of
habeas corpus and remand the case to the district court.
