                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

HAROLD KESSEE,                            No. 07-56153
             Petitioner-Appellee,            D.C. No.
               v.                       CV-06-03740-PSG
KATHY MENDOZA-POWERS, Warden,                 (MLG)
           Respondent-Appellant.
                                           OPINION

       Appeal from the United States District Court
           for the Central District of California
       Philip S. Gutierrez, District Judge, Presiding

                Argued and Submitted
           May 4, 2009—Pasadena, California

                   Filed June 23, 2009

  Before: John T. Noonan, Diarmuid F. O’Scannlain, and
             Susan P. Graber, Circuit Judges.

                 Opinion by Judge Graber




                           7519
7520            KESSEE v. MENDOZA-POWERS




                      COUNSEL

Rama R. Maline, Deputy Attorney General of the State of
California, Los Angeles, California, for the respondent-
appellant.
                     KESSEE v. MENDOZA-POWERS                       7521
Johanna S. Schiavoni, Latham & Watkins LLP, San Diego,
California, for the petitioner-appellee.


                              OPINION

GRABER, Circuit Judge:

   What is the scope of the “prior conviction” exception to the
general rule that a sentencing judge may not make factual
findings that increase the statutory maximum criminal pen-
alty? The Supreme Court has not yet answered that question.
Accordingly, the answer depends on what level of scrutiny we
apply to the sentencing decision. When we review de novo,
we make an independent determination of the scope of the
prior conviction exception, using our normal interpretative
methods. When our review is constrained by the Antiterro-
rism and Effective Death Penalty Act of 1996 (“AEDPA”),
though, we cannot grant habeas relief unless the state court’s
decision “was contrary to, or involved an unreasonable appli-
cation of, clearly established Federal law, as determined by
the Supreme Court.” 28 U.S.C. § 2254(d)(1). Thus, under
AEDPA, even if this court has reached a particular conclusion
about the scope of the prior conviction exception, our view
may not be the only reasonable one; if the state court’s inter-
pretation is also reasonable, we must deny habeas relief.

   Petitioner Harold Kessee was convicted of several crimes
in California state court. The sentencing judge made factual
findings that increased the statutory maximum penalty under
California’s determinate sentencing law. See generally Cun-
ningham v. California, 549 U.S. 270 (2007) (discussing Cali-
fornia’s determinate sentencing law). On direct appeal, the
California appellate court affirmed the sentence, holding that
the sentencing judge’s finding that Petitioner had committed
crimes while on probation fell within the “prior conviction”
exception.1 After exhausting his state-court remedies, Peti-
  1
   The California appellate court held that the sentencing judge’s finding
that Petitioner’s convictions were “increasingly serious” also fell within
7522                 KESSEE v. MENDOZA-POWERS
tioner filed a petition for writ of habeas corpus in federal dis-
trict court. The district court granted a conditional writ, and
the state timely appeals.

   [1] The Supreme Court has held that “ ‘any fact (other than
prior conviction) that increases the maximum penalty for a
crime must be charged in an indictment, submitted to a jury,
and proven beyond a reasonable doubt.’ ” Apprendi v. New
Jersey, 530 U.S. 466, 476 (2000) (quoting Jones v. United
States, 526 U.S. 227, 243 n.6 (1999)); see also Blakely v.
Washington, 542 U.S. 296, 303 (2004) (“[T]he ‘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.”); United
States v. Booker, 543 U.S. 220, 221 (2005) (holding that the
Federal Sentencing Guidelines violated the Sixth Amendment
because, “as in Blakely, ‘the jury’s verdict alone does not
authorize the sentence. The judge acquires that authority only
upon finding some additional fact.’ ” (quoting Blakely, 542
U.S. at 305)). The Supreme Court announced the prior con-
viction exception in Almendarez-Torres v. United States, 523
U.S. 224, 247 (1998), and discussed its scope to some extent
in fractured opinions in Shepard v. United States, 544 U.S. 13
(2005). But the task of determining the precise contours of
that exception has been left to the federal appellate courts.2

the prior conviction exception. We need not and do not reach the state
court’s holding concerning the sentencing judge’s “increasingly serious”
finding. See Butler v. Curry, 528 F.3d 624, 641 (9th Cir.) (“[U]nder Cali-
fornia law, only one aggravating factor is necessary to authorize an upper
term sentence. So the probation factor alone would suffice to render the
sentence constitutional were it found applicable in a manner consistent
with the Sixth Amendment.”), cert. denied, 129 S. Ct. 767 (2008).
   2
     See United States v. Allen, 446 F.3d 522, 531 (4th Cir. 2006)
(“Subsequent to Booker, in Shepard v. United States, the Court wrestled
with, but did not fully delineate, the scope of the prior conviction excep-
tion.”); United States v. Fagans, 406 F.3d 138, 141 (2d Cir. 2005) (“[T]he
exact scope of the phrase ‘fact of a prior’ conviction has yet to be deter-
                      KESSEE v. MENDOZA-POWERS                         7523
   [2] Consistently, we have provided a narrow interpretation
of the “prior conviction” exception. See Butler, 528 F.3d at
644 (“[W]e have been hesitant to broaden the scope of the
prior conviction exception . . . .”); Kortgaard, 425 F.3d 602,
610 (declining to “extend or broadly construe” the prior con-
viction exception); Tighe, 266 F.3d at 1194 (holding that the
prior conviction exception “should remain a ‘narrow excep-
tion’ to Apprendi” (quoting Apprendi, 530 U.S. at 490)).
Other courts have disagreed and have construed the prior con-
viction exception more broadly. See, e.g., Butler, 528 F.3d at
647 n.15 (“Some of our sister circuits have also taken a
broader view of the Almendarez-Torres exception, permitting
judicial factfinding as to facts that we have held do not come
within the Almendarez-Torres exception.”); Boyd v. Newland,
467 F.3d 1139, 1152 (9th Cir. 2006) (noting that some state
courts and at least three sister circuits disagree with our nar-
row interpretation of the exception in Tighe). When we
review de novo,3 our own interpretation controls, of course.
See generally Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003)
(en banc). For purposes of AEDPA review, however, a state
court’s determination that is consistent with many sister cir-
cuits’ interpretations of Supreme Court precedent, even if

mined . . . .”); see also Butler, 528 F.3d at 644 (“We are left, then, with
the task of determining the outer bounds of the ‘prior conviction’ excep-
tion . . . .”); United States v. Kortgaard, 425 F.3d 602, 610 (9th Cir. 2005)
(noting that the Supreme Court has not had “the occasion to redefine or
expand [the] scope” of the prior conviction exception); United States v.
Tighe, 266 F.3d 1187, 1193 (9th Cir. 2001) (holding that no Supreme
Court case “squarely tackles the question” whether certain facts “fall
within the ‘prior conviction’ exception to Apprendi’s general rule” and
that “we must inquire into the scope of the term ‘conviction’ as used by
the Supreme Court”).
   3
     We review de novo on direct appeal, Tighe, 266 F.3d at 1190, in cases
pre-dating the effective date of AEDPA, Gratzer v. Mahoney, 397 F.3d
686, 690 (9th Cir. 2005), and in cases in which the state court’s decision
otherwise violated AEDPA, and we must decide independently whether a
constitutional violation occurred, Frantz v. Hazey, 533 F.3d 724, 737 (9th
Cir. 2008) (en banc).
7524              KESSEE v. MENDOZA-POWERS
inconsistent with our own view, is unlikely to be “contrary to,
or involve an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court.” 28 U.S.C.
§ 2254(d)(1).

   For example, in Tighe, 266 F.3d at 1194-95, we held on de
novo review that “the ‘prior conviction’ exception does not
include nonjury juvenile adjudications.” Some years later, in
Boyd, 467 F.3d at 1151-52, we addressed a habeas claim,
under AEDPA standards, concerning a state court decision
that increased the statutory maximum sentence because of a
nonjury juvenile adjudication. We acknowledged our own
interpretation in Tighe, but we also observed that the Califor-
nia courts and the Third, Eighth, and Eleventh Circuits all
expressly disagreed with our interpretation. Id. We concluded:

       Although we are not suggesting that Tighe was
    incorrectly decided, as some of these varying inter-
    pretations of Apprendi suggest, the opinion does not
    represent clearly established federal law “as deter-
    mined by the Supreme Court of the United States.”
    28 U.S.C. § 2254(d)(1). In general, Ninth Circuit
    precedent remains persuasive authority in determin-
    ing what is clearly established federal law. See
    Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th
    Cir.1999) (stating that Ninth Circuit case law may be
    used to help determine clearly established federal
    law). But, in the face of authority that is directly con-
    trary to Tighe, and in the absence of explicit direc-
    tion from the Supreme Court, we cannot hold that
    the California courts’ use of Petitioner’s juvenile
    adjudication as a sentencing enhancement was con-
    trary to, or involved an unreasonable application of,
    Supreme Court precedent.

Boyd, 467 F.3d at 1152.

  [3] For the reasons that follow, we hold that the same rea-
soning applies to our holding in Butler, 528 F.3d at 647, that
                      KESSEE v. MENDOZA-POWERS                          7525
“the fact of being on probation at the time of a crime does not
come within the ‘prior conviction’ exception.” We therefore
hold that, although a defendant’s probationary status does not
fall within the “prior conviction” exception, a state court’s
interpretation to the contrary does not contravene AEDPA
standards.

   We reached our conclusion in Butler, reviewing de novo,
primarily by examining our own case law on the scope of the
“prior conviction” exception. Butler, 528 F.3d at 644-47. We
acknowledged that our holding conflicted with the holdings of
“several of our sister circuits.” Id. at 647. But we were unper-
suaded because the opposing rule could not “be squared with
this circuit’s case law.” Id. A number of courts have disagreed
with the interpretation that we gave in Butler concerning the
probationary status issue.4 Some of our sister circuits, while
   4
     See United States v. Corchado, 427 F.3d 815, 820 (10th Cir. 2005)
(“[T]he ‘prior conviction’ exception extends to ‘subsidiary findings’ such
as whether a defendant was under court supervision when he or she com-
mitted a subsequent crime.”); United States v. Williams, 410 F.3d 397, 402
(7th Cir. 2005) (“[T]he district court does not violate a defendant’s Sixth
Amendment right to a jury trial by making findings as to his criminal
record [including that the defendant was on probation when he committed
a previous crime, see Williams, 410 F.3d at 399] that expose him to greater
criminal penalties.”); State v. Jones, 149 P.3d 636, 640-41 (Wash. 2006)
(“In our judgment, the prior conviction exception encompasses a determi-
nation of the defendant’s probation status because probation is a direct
derivative of the defendant’s prior criminal conviction or convictions and
the determination involves nothing more than a review of the defendant’s
status as a repeat offender.”); State v. Fagan, 905 A.2d 1101, 1121 (Conn.
2006) (“[W]e conclude that the defendant’s status as to whether he law-
fully had been on release at the time of the offense for which he was con-
victed . . . was a question that also did not require a jury determination.”);
Ryle v. State, 842 N.E.2d 320, 323-25 (Ind. 2005) (holding that whether
the defendant “was on probation when he committed the present offense,
a fact reflected in the presentence investigation report,” was not a fact that
“needs to be proven before a jury”); State v. Allen, 706 N.W.2d 40, 48
(Minn. 2005) (“We believe that the fact a defendant is on probation at the
time of the current offense arises from, and is so essentially analogous to,
the fact of a prior conviction, that constitutional considerations do not
require it to be determined by a jury.”).
7526                  KESSEE v. MENDOZA-POWERS
not addressing the issue of probationary status precisely, gen-
erally have read the prior conviction exception more broadly
than Butler did.5

   [4] What we said in Boyd about Tighe’s holding applies
with equal force here, to Butler’s holding. Although we do not
suggest that Butler was decided incorrectly, Butler does not
represent clearly established federal law “as determined by
the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). Because the Supreme Court has not given
explicit direction and because the state court’s interpretation
is consistent with many other courts’ interpretations, we can-
not hold that the state court’s interpretation was contrary to,
or involved an unreasonable application of, Supreme Court
precedent.

   REVERSED and REMANDED with instructions to deny
the writ of habeas corpus.




  5
    See Fagan, 406 F.3d at 142 (“[T]he conviction itself and the type and
length of a sentence imposed seem logically to fall within this [prior con-
viction] exception.”); United States v. Kempis-Bonola, 287 F.3d 699, 703
(8th Cir. 2002) (“[I]t is entirely appropriate for judges to have the task of
finding not only the mere fact of previous convictions but other related
issues as well.” (internal quotation marks omitted)); United States v. Santi-
ago, 268 F.3d 151, 156 (2d Cir. 2001 (“Judges frequently must make fac-
tual determinations for sentencing, so it is hardly anomalous to require that
they also determine the ‘who, what, when, and where’ of a prior convic-
tion.”); see also Boyd, 467 F.3d at 1152 (collecting cases that disagree
with our holding in Tighe that nonjury juvenile adjudications do not fall
within the prior conviction exception).
