                                    PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
               ______

                 No. 09-3586
                   ______

        NAKIA WILLIAM GARRUS,

                               Appellant

                      v.

 *SECRETARY OF THE PENNSYLVANIA
   DEPARTMENT OF CORRECTIONS;
   THE DISTRICT ATTORNEY OF THE
     COUNTY OF PHILADELPHIA;
  THE ATTORNEY GENERAL FOR THE
      STATE OF PENNSYLVANIA

   *Pursuant to Rule 43(c), Fed. R. App. P.
                   ______

On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
            (D.C. No. 2-07-cv-00187)
 District Judge: Honorable Timothy J. Savage
                    ______

        Argued En Banc May 30, 2012
   Before: McKEE, Chief Judge, SLOVITER, SCIRICA,
        RENDELL, AMBRO, FUENTES, SMITH,
     FISHER, CHAGARES, JORDAN, HARDIMAN,
   GREENAWAY, JR. and VANASKIE, Circuit Judges.

                (Filed: September 21, 2012)

David R. Fine
Anthony R. Holtzman (ARGUED)
K&L Gates
17 North Second Street, 18th Floor
Harrisburg, PA 17101
       Counsel for Appellant

Thomas W. Dolgenos (ARGUED)
David C. Glebe
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107
      Counsel for the Secretary of the
      Pennsylvania Department of
      Corrections, the District Attorney of the
      County of Philadelphia and the Attorney
      General for the State of Pennsylvania

Robert M. Wolff
Pennsylvania Department of Corrections
Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050
       Counsel for the Secretary of the


                              2
      Pennsylvania Department of
      Corrections

Robert M. Falin
Montgomery County Office of District Attorney
P.O. Box 311
Norristown, PA 19404
       Counsel for the District Attorney of the
       County of Philadelphia and the Attorney
       General for the State of Pennsylvania
                            ______

                OPINION OF THE COURT
                        ______

FISHER, Circuit Judge, joined by McKEE, Chief Judge, and
SLOVITER, SCIRICA, RENDELL, AMBRO, FUENTES,
SMITH, and JORDAN, Circuit Judges.

       William Garrus (“Garrus”), a Pennsylvania state
prisoner, seeks federal habeas relief under 28 U.S.C. § 2254,
as amended by the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). Garrus was found guilty in
state court of voluntary manslaughter in 2001. At sentencing,
the judge increased his sentence beyond the statutory
maximum based on 42 Pa. Cons. Stat. § 9714, Pennsylvania‟s
“three strikes” law. In order to do so, the judge made a
judicial finding that Garrus had previously been convicted of
burglarizing an occupied building, when, in fact, he had only
pled guilty to, and been convicted of, second degree burglary
(which, under Pennsylvania law, necessarily requires that the


                             3
burglarized building was unoccupied). In the habeas petition
now before us, Garrus argues that this judicial factfinding
violated the rule of Apprendi v. New Jersey, requiring 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.” 530 U.S. 466, 490 (2000). The
District Court denied the petition on the basis that the highest
state court determination upholding Garrus‟s sentence was
not contrary to or an unreasonable application of clearly
established Federal law.

        Key to our determination is a single question:
whether, pursuant to AEDPA, the state court unreasonably
applied Apprendi by allowing Garrus to be sentenced beyond
the statutory maximum based on a judicial finding that Garrus
burglarized an occupied building, despite his plea to the
contrary.1 For the reasons set forth below, we hold that the
state court determination upholding Garrus‟s sentence was
objectively unreasonable, and that Garrus is entitled to habeas
relief. Accordingly, we will reverse the order of the District
Court.


       1
         We agree with Judge Hardiman that the order for
rehearing en banc misstated the issue. Dissenting Op. of
Hardiman, J. at Part I; Order at 1-2, Garrus v. Secretary of the
Pa. Dep’t of Corr., No. 09-3586 (3d. Cir. Feb. 24, 2012).
Nonetheless, the parties have briefed and argued, and we now
analyze, the proper question in this case, which is stated
above.


                               4
                                   I.

        On February 10, 2000, Garrus was at the home of his
girlfriend, Toi Bryant, with whom he has a daughter, when
Bryant‟s ex-boyfriend, Charles Goode, showed up at the
residence. Shortly after Goode arrived, an argument ensued
between him and Bryant involving their child. As the
argument escalated, Garrus took his daughter upstairs. He
later returned downstairs to the kitchen where Goode and
Bryant were arguing. After Garrus and Goode exchanged
some heated words, a fight broke out between the two men.
Garrus picked up a kitchen knife and stabbed Goode several
times in the chest area. Goode broke away from Garrus and
ran upstairs to the bathroom. Garrus left the home. When
police arrived, both Goode and Bryant identified Garrus as
the attacker. Goode later died from his injuries.

       Following a jury trial in the Philadelphia County Court
of Common Pleas, Garrus was convicted on March 9, 2001,
of voluntary manslaughter and possession of an instrument of
crime. A conviction for voluntary manslaughter carries a
maximum sentence of 20 years of imprisonment. 18 Pa.
Cons. Stat. §§ 1103, 2503(c). However, the Commonwealth
of Pennsylvania (the “Commonwealth”) notified the trial
court that it would seek a sentencing enhancement under
Pennsylvania‟s “three strikes” law, which requires a judge to
sentence a defendant to a minimum term of 25 years‟
imprisonment (and a maximum of up to life imprisonment) if
the defendant was previously convicted of two or more
separate “crimes of violence.” 42 Pa. Cons. Stat. § 9714.
“Crimes of violence” may include first degree burglary
(defined as, inter alia, burglary of an occupied structure), but

                               5
do not include second degree burglary (defined as, inter alia,
burglary of an unoccupied structure).2

       On April 30, 2001, the trial court held the first of two
sentencing hearings. The Commonwealth offered evidence

       2
          A burglary is only a “crime of violence” when it is
“burglary of a structure adapted for overnight accommodation
in which at the time of the offense any person is present[.]”
42 Pa. Cons. Stat. § 9714. Under Pennsylvania law, second-
degree and first-degree burglary are mutually exclusive.
Second-degree burglary is burglary that occurs where the
structure “is not adapted for overnight accommodation and
. . . no individual is present at the time of entry[.]” 18 Pa.
Cons. Stat. § 3502(c)(2). First-degree burglary, on the other
hand, occurs where the structure is adapted for overnight
accommodation, or if an individual is present at the time of
entry. 18 Pa. Cons. Stat. § 3502. By definition, then, first-
degree burglary that includes both factors (structure adapted
for overnight accommodation and an individual present) is a
“crime of violence,” but second-degree burglary is not a
“crime of violence.” See Commonwealth v. Ausberry, 891
A.2d 752, 756 n.3 (Pa. Super. Ct. 2006) (“[T]he definition of
a crime of violence . . . corresponds to the definition of first
degree burglary as set forth in section 3502(c)(1) and
3502(c)(2).” (quoting Commonwealth v. Guilford, 861 A.2d
365, 375 (Pa. Super. Ct. 2004))); Guilford, 861 A.2d at 375
(“[T]he section 9714(g) definition of burglary as a crime of
violence corresponds to the definition of burglary as a first
degree felony,” and thus, second-degree burglary “is not a
crime of violence pursuant to section 9714(g).”).


                               6
that Garrus had three prior convictions for “crimes of
violence:” (1) a January 1995 conviction for first-degree
robbery; (2) a February 1995 conviction for first-degree
robbery; and (3) a February 1997 plea and conviction for
second-degree burglary. The Commonwealth argued that
although Garrus had only pled guilty to second degree
burglary in 1997, the trial court should consider a police
report and witness statements regarding that burglary to find
instead that the building Garrus had burglarized in 1997 was
occupied. On the basis of the police report and witness
statements, the trial court found at the second sentencing
hearing on May 8, 2001, that Garrus‟s prior 1997 conviction
for second-degree burglary constituted a crime of violence
under § 9714. Commonwealth v. Garrus, June Term 2000
No. 0092, slip op. at 17 (Phila. Cnty. Ct. Com. Pl. Jan. 16,
2002). Additionally, it found that the two 1995 robberies
constituted two separate crimes of violence, and that his
conviction for voluntary manslaughter was his fourth crime of
violence. Id. The trial court sentenced Garrus to a term of 25
to 50 years‟ imprisonment. Id.

        Garrus appealed his conviction and sentence to the
Superior Court of Pennsylvania.3 He argued that, by
definition, his 1997 second-degree burglary conviction did
not constitute a “crime of violence” under Pennsylvania‟s
“three strikes” law. The Superior Court of Pennsylvania

      3
        On appeal in this Court, Garrus challenges only his
sentence under Pennsylvania‟s “three strikes” law.
Accordingly, we refer solely to the prior resolution of this
claim.


                              7
adopted the trial court‟s opinion in its entirety.
Commonwealth v. Garrus, No. 2592 EDA 2001 (Pa. Super.
Ct. Oct. 18, 2002). The Supreme Court of Pennsylvania
granted Garrus‟s petition seeking allocatur on the sole issue
of Garrus‟s sentence, Commonwealth v. Garrus, 817 A.2d
455 (Pa. 2003), but later dismissed the appeal in September
2003 as having been improvidently granted. Commonwealth
v. Garrus, 832 A.2d 1063 (Pa. 2003).

       In April 2004, Garrus filed a pro se petition for post-
conviction relief in the Philadelphia County Court of
Common Pleas, pursuant to Pennsylvania‟s Post Conviction
Relief Act (“PCRA”), 42 Pa. Cons. Stat. § 9541 et seq.,
challenging his sentence. He argued that the trial court, at
sentencing, violated his constitutional rights, as articulated in
Apprendi, 530 U.S. at 476, by relying on the police report and
victim statement to determine that his 1997 burglary
conviction was a “crime of violence” under Pennsylvania‟s
“three strikes” law. Garrus also asserted that state law
required his two 1995 robbery convictions to be considered as
one “crime of violence” under the “three strikes” law. As a
result, Garrus claimed that he had, at most, one prior
conviction for a “crime of violence,” rendering him ineligible
for the 25-year mandatory minimum sentence he had
received.

       Garrus‟s PCRA petition was dismissed in February
2005. A month later, the Supreme Court rendered a decision
in Shepard v. United States, 544 U.S. 13 (2005), in which the
Court held that a sentencing court is not permitted to consider
police reports in determining whether a prior conviction
constituted a “violent crime” under the Armed Career

                               8
Criminal Act (“ACCA”), 18 U.S.C. § 924, a federal
recidivism statute. Id. at 16, 26.

       On appeal from the denial of his PCRA petition,
Garrus argued that the sentencing court‟s consideration of the
police report and victim statement, with respect to his 1997
burglary conviction, violated his rights under Apprendi and
Shepard, and he again argued that his two 1995 robbery
convictions constituted one “crime of violence.”           The
Superior Court of Pennsylvania affirmed the denial of his
PCRA petition. Commonwealth v. Garrus, No. 961 EDA
2005 (Pa. Super. Ct. Apr. 18, 2006). In its opinion, the
Superior Court acknowledged that Apprendi requires 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.” Id. at 8-9 (quoting Apprendi, 530 U.S. at
476). However, it determined that the prior conviction
exception permitted the sentencing judge to find that Garrus
had burglarized an occupied building despite his plea to the
contrary, and to sentence him beyond the statutory maximum
accordingly. The Superior Court also determined that the
Supreme Court‟s decision in Shepard did not affect the
validity of the prior conviction exception established in
Apprendi. Finally, on the basis that the 1997 burglary
constituted a “crime of violence,” the Superior Court declined
to reach the issue of whether the two 1995 robberies
constituted separate crimes.        The Supreme Court of
Pennsylvania denied Garrus‟s petition seeking further
appellate review. Commonwealth v. Garrus, 906 A.2d 639
(Pa. Aug. 29, 2006) (table).


                              9
       On January 16, 2007, Garrus filed a petition for writ of
habeas corpus in the United States District Court for the
Eastern District of Pennsylvania, pursuant to 28 U.S.C.
§ 2254. Garrus raised the same challenges to both his 1997
burglary conviction and the two 1995 robbery convictions.
The Magistrate Judge denied Garrus‟s petition, Garrus v.
Mazurkiewicz, No. 07-187 (E.D. Pa. May 28, 2008), and
concluded that it was precluded from granting federal habeas
relief because the sentencing court‟s consideration of the
police report and victim statement in determining whether
Garrus had two prior convictions for crimes of violence under
Pennsylvania‟s “three strikes” law was not contrary to, or an
unreasonable application of, clearly established Supreme
Court precedent. Id. at 38-39.

       The Magistrate Judge also concluded that Garrus‟s
argument that his two 1995 robbery convictions should be
considered as one for purposes of the recidivism statute was
therefore moot, as Garrus still had at least two prior
convictions for crimes of violence – the 1997 burglary
conviction and at least one of the 1995 robbery convictions.
In any event, the Magistrate Judge reasoned, Garrus‟s
challenge to the 1995 robbery convictions involved an
interpretation of state law and could not be considered by
federal courts in a habeas petition.

      Nevertheless, the Magistrate Judge recommended that
the District Court issue a certificate of appealability to this
Court, limited to the issue involving the 1997 burglary
conviction. The District Court adopted the Magistrate
Judge‟s recommendation, with the exception that it rejected
the Magistrate Judge‟s determination that sufficient grounds

                              10
existed to issue a certificate of appealability. Garrus v.
Johnson, No. 07-187 (E.D. Pa. Aug. 18, 2009). Garrus
appealed, and on March 12, 2010, we granted a certificate of
appealability to consider the issue of whether the state
sentencing court violated Garrus‟s constitutional rights by
labeling the 1997 second-degree burglary conviction a “crime
of violence” for purposes of applying Pennsylvania‟s “three
strikes” law.

                               II.

       The District Court had jurisdiction to consider
Garrus‟s habeas petition pursuant to 28 U.S.C. § 2254, as the
claim raised in the petition has been properly exhausted in the
state courts. See Alston v. Redman, 34 F.3d 1237, 1242 (3d
Cir. 1994).4 We have jurisdiction to review the District
       4
          Our review of Garrus‟s claim is not barred by the
adequate and independent state ground doctrine. See Harris
v. Reed, 489 U.S. 255, 262 (1989). In its PCRA opinion, the
Pennsylvania Superior Court noted that Garrus might have
“three strikes” against him even without counting the
burglary charge as a “crime of violence,” but it failed to
clearly decide the issue, relying instead on the finding that the
burglary charge comprised one of the three necessary strikes.
Commonwealth v. Garrus, No. 961 EDA 2005, slip op. at 10-
11 (Pa. Super. Ct. Apr. 18, 2006). That opinion was the last
state court decision on the merits, see Greene v. Fisher, 132
S. Ct. 38, 43-45 (2011), and because it did not “clearly
express[] . . . reliance on an adequate and independent state-
law ground, we may address [the] federal issue considered by
the state court.” Harris, 489 U.S. at 263.

                               11
Court‟s judgment pursuant to 28 U.S.C. §§ 1291 and 2253.
We exercise de novo review over a District Court‟s denial of
habeas relief, Vega v. United States, 493 F.3d 310, 314 (3d
Cir. 2007), and apply the highly deferential AEDPA standard,
which, in this case, precludes us from granting habeas relief
unless the challenged state court decision was “contrary to, or
involved an unreasonable application of, clearly established
Federal law[.]” 28 U.S.C. § 2254(d)(1).

                             III.

       Core to a criminal defendant‟s constitutional rights is
the principle that “criminal convictions [must] rest upon a
jury determination that the defendant is guilty of every
element of the crime with which he is charged, beyond a
reasonable doubt.” United States v. Gaudin, 515 U.S. 506,
510 (1995); see also In re Winship, 397 U.S. 358, 364 (1970).
In Apprendi, the Supreme Court held that this same right
applies to a sentencing factor that would increase a
defendant‟s sentence beyond the statutory maximum because,
like an element of a separate crime, such a sentencing factor
results in a higher sentence than that which could be
prescribed for the original crime. 530 U.S. at 476, 490.
Thus, there is no “principled basis” for treating such a
sentencing factor differently than an element of a crime. Id.
at 476. The exception is that a judge can increase the
sentence beyond the statutory maximum based on “the fact of
a prior conviction” because a prior conviction has already
been established through procedural safeguards. Id. at 488-
90; Jones v. United States, 526 U.S. 227, 249 (1999) (“[A]
prior conviction must itself have been established through


                              12
procedures satisfying the fair notice, reasonable doubt, and
jury trial guarantees.”).

       These precepts are “rooted in longstanding common-
law practice[.]” Cunningham v. California, 549 U.S. 270,
281 (2007). Apprendi recounted their historical context,
noting that early on in our history, judges had “very little
explicit discretion in sentencing.” 530 U.S. at 479. Any
“circumstances mandating a particular punishment” had to be
charged to the jury in the indictment; there was “[no]
distinction between an „element‟ of a felony offense and a
„sentencing factor[.]‟” Id. at 478, 480. In the 19th century,
this idea began to shift, “from statutes providing fixed-term
sentences to those providing judges discretion within a
permissible range[.]” Id. at 481. Crucially, this shift “has
been regularly accompanied by the qualification that [such
judicial] discretion was bound by the range of sentencing
options prescribed by the legislature.” Id.

       By the late 20th century, the Supreme Court began to
address state laws that increased a defendant‟s punishment
based on factors found at sentencing, rather than based on
factors found at trial. In McMillan v. Pennsylvania, 477 U.S.
79 (1986), the Supreme Court, “for the first time, coined the
term „sentencing factor‟ to refer to a fact that was not found
by a jury but that could affect the sentence imposed by the
judge.” Apprendi, 530 U.S. at 485 (construing McMillan).
Consistent with longstanding constitutional principles,
McMillan held that a “sentencing factor” must at times be
found by a jury because “(1) constitutional limits exist to
States‟ authority to define away facts necessary to constitute a
criminal offense, and (2) . . . a state scheme that keeps from

                              13
the jury facts that „expos[e] [defendants] to greater or
additional punishment,‟ may raise serious constitutional
concern[s].” Apprendi, 530 U.S. at 486 (quoting McMillan,
477 U.S. at 85-88) (internal citations omitted).

       A decade later, the Supreme Court decided
Almendarez-Torres v. United States, 523 U.S. 224, 242-47
(1998), a case in which the defendant was convicted for his
presence in the United States after being deported, a violation
which normally carried a maximum of two years‟
imprisonment. 523 U.S. at 227. Prior to his initial
deportation, Almendarez-Torres was convicted of three
aggravated felonies, and according to the sentencing statute,
where the original deportation had occurred subsequent to an
aggravated felony, the court could impose a maximum
sentence of up to twenty years‟ imprisonment. Id. at 227,
229. Almendarez-Torres argued that he could not be subject
to more than two years‟ imprisonment, because his indictment
had not mentioned his earlier aggravated felony convictions.
Id. at 227. Importantly, there was no contention that the
defendant had not been convicted of the three aggravated
felonies, but only that the fact of his prior convictions should
have been included in the indictment and charged to the jury.
Id. Thus, Almendarez-Torres had earlier been convicted of
the facts necessary for the sentencing enhancement, “pursuant
to proceedings with substantial procedural safeguards of their
own[.]” Apprendi, 530 U.S. at 488. In other words, by
judicially finding that Almendarez-Torres‟s three prior
convictions existed, the sentencing judge did not “change a
pre-existing definition of a well-established crime, nor . . .
„evade‟ the Constitution, either by „presuming‟ guilt or


                              14
„restructuring‟ the elements of an offense.”      Almendarez-
Torres, 523 U.S. at 246.

       The Supreme Court found that the fact of Almendarez-
Torres‟s prior convictions did not have to be charged to the
jury because the constitutional limitations articulated in
McMillan did not apply.5 Almendarez-Torres, 523 U.S. at
228, 242-43. As the Supreme Court later explained in
Apprendi: “[b]oth the certainty that procedural safeguards
attached to any „fact‟ of prior conviction, and the reality that
Almendarez-Torres did not challenge the accuracy of that
„fact‟ in his case, mitigated the due process and Sixth
Amendment concerns otherwise implicated in allowing a
judge to determine a „fact‟ increasing punishment beyond the
maximum of the statutory range.” 530 U.S. at 488.

       A year after Almendarez-Torres, the Supreme Court
explained that Almendarez-Torres‟s recidivism exception was
permitted because “a prior conviction must itself have been
established through procedures satisfying the fair notice,
reasonable doubt, and jury trial guarantees.” Jones, 526 U.S.
at 249. In Jones, the trial court gave the defendant a sentence
beyond the statutory maximum based on a judicial finding

       5
        Judge Greenaway asserts that the Almendarez-Torres
rule “remains . . . amorphous and undefined[.]” Dissenting
Op. of Greenaway, J. at Part III. However, as explained
above, even in Almendarez-Torres itself, the Supreme Court
did not allow carte blanche factfinding related to recidivism.
523 U.S. at 242-46. Thus, the holding of Almendarez-Torres
has never been as broad as Judge Greenaway suggests.


                              15
that the carjacking offense he was convicted of involved
“serious bodily injury.” Id. at 230-31. The Supreme Court
found that the carjacking statute required a jury, rather than a
judge, to determine whether the crime involved “serious
bodily injury,” citing “grave” constitutional questions that
would arise if the statute were to be interpreted otherwise. Id.
at 231, 239. Although Jones did not actually reach the
constitutional issue, its explanation of Almendarez-Torres and
its constitutional discussion were significant, especially given
that Apprendi explicitly “confirm[ed] the opinion . . .
expressed in Jones[,]” 530 U.S. at 490, that “under the Due
Process Clause of the Fifth Amendment and the notice and
jury trial guarantees of the Sixth Amendment, 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.” 530 U.S. at 476
(quoting Jones, 526 U.S. at 243 n.6).

        Against this historical backdrop, the Supreme Court
decided Apprendi, where a defendant pled guilty to unlawful
possession of a weapon, a second-degree offense punishable
by up to ten years‟ imprisonment. Despite the defendant‟s
plea and conviction for a second-degree offense, the trial
court sentenced him to twelve years‟ imprisonment, a
“punishment identical to that . . . provide[d] for crimes of the
first degree,” based on a judicial finding pursuant to a New
Jersey hate crime sentencing enhancement, “that the
defendant‟s „purpose‟ for unlawfully possessing the weapon
was „to intimidate‟ his victim on the basis of a particular
characteristic the victim possessed.” 530 U.S. at 468-69, 471,
491. The Apprendi Court began by stating that “[a]t stake in


                              16
this case are constitutional protections of surpassing
importance: the proscription of any deprivation of liberty
without „due process of law,‟ Amdt. 14, and the guarantee
that „[i]n all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury[.]‟”
530 U.S. at 476-77. It then discussed several centuries of
precedent, summarizing that a criminal defendant may not be
“expose[d] . . . to a penalty exceeding the maximum he would
receive if punished according to the facts reflected in the jury
verdict alone.” Id. at 482-83.

        Apprendi explained that Almendarez-Torres was “at
best an exceptional departure from . . . historic practice” and a
“limited” and “narrow” exception based on “unique facts[.]”
Id. at 487, 488 n.14, 489-90. Twice in its opinion, the
Apprendi Court emphasized that Almendarez-Torres was
different because “Almendarez-Torres had admitted the three
earlier convictions for aggravated felonies[,]” and those prior
convictions “had been entered pursuant to proceedings with
substantial procedural safeguards of their own[.]” Id. at 488;
see also id. (reiterating the same points). Thus, “no question
concerning the right to a jury trial or the standard of proof
that would apply to a contested issue of fact was before the
Court.” Id.

      Having explained the historical principles and the
Almendarez-Torres exception, the Apprendi Court
summarized the law as follows, in the now-famous Apprendi
rule:

       “[O]ur reexamination of our cases in this area,
       and of the history upon which they rely,

                               17
      confirms the opinion that we expressed in
      Jones. Other 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. With that exception, we
      endorse the statement of the rule set forth in the
      concurring opinions in that case: „[I]t is
      unconstitutional for a legislature to remove
      from the jury the assessment of facts that
      increase the prescribed range of penalties to
      which a criminal defendant is exposed. It is
      equally clear that such facts must be established
      by proof beyond a reasonable doubt.‟”

Id. at 490 (quoting Jones, 526 U.S. at 252-53 (Stevens, J.,
concurring); citing id. at 253 (Scalia, J., concurring)).
Applying this newly articulated rule, the Apprendi court ruled
that it was unconstitutional for the sentencing judge to
increase Apprendi‟s sentence beyond the statutory maximum
based on a judicial finding that the crime to which Apprendi
pled guilty constituted a hate crime. In doing so, it compared
Almendarez-Torres, reiterating that:       “there is a vast
difference between accepting the validity of a prior judgment
of conviction entered in a proceeding in which the defendant
had the right to a jury trial and the right to require the
prosecutor to prove guilt beyond a reasonable doubt, and
allowing the judge to find the required fact under a lesser
standard of proof.” Apprendi, 530 U.S. at 496.




                             18
                             IV.

       Based on these constitutional principles, Garrus
requests habeas relief under AEDPA. Specifically, he claims
that the trial court violated his Sixth Amendment and Due
Process rights by finding that his prior 1997 conviction
constituted a “crime of violence” and argues that the state
appellate court decisions affirming that finding were
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States” in Apprendi. See 28
U.S.C. § 2254(d)(1).

       AEDPA “„imposes a highly deferential standard for
evaluating state-court rulings‟ and „demands that state-court
decisions be given the benefit of the doubt.‟” Felkner v.
Jackson, 131 S. Ct. 1305, 1307 (2011) (quoting Renico v.
Lett, 130 S. Ct. 1855, 1862 (2010)). We must use habeas
corpus as a “„guard against extreme malfunctions in the state
criminal justice systems,‟ not a substitute for ordinary error
correction through appeal.” Harrington v. Richter, 131 S. Ct.
770, 786 (2011). Thus, we may grant habeas relief under
AEDPA only if the state court‟s adjudication of a 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[,]”
or “resulted in a decision that was based on an unreasonable




                             19
determination of the facts in light of the evidence presented in
the State court proceeding.”6 28 U.S.C. § 2254(d).

       Because the state court identified and relied on the
correct governing legal rule established by Apprendi, we must
apply AEDPA‟s “unreasonable application” standard.7 See
Williams v. Taylor, 529 U.S. 362, 407-08 (2000). Under
AEDPA‟s “unreasonable application” standard, we “may not
issue the writ [if we merely] conclude[] . . . that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 411. “Rather, that
application must be „objectively unreasonable.‟” Renico, 130
S. Ct. at 1862 (quoting Williams, 529 U.S. at 409). In other

       6
         Judge Hardiman computes the frequent rate at which
the Supreme Court has reversed habeas decisions of the
Courts of Appeals based on failure to afford appropriate
deference to state court judgments. Dissenting Op. of
Hardiman, J. at Part I. Such statistics cannot dispose of the
instant case, especially in light of the Supreme Court‟s recent
reminder that “[j]udges must be vigilant and independent in
reviewing petitions for the writ[.]” Harrington, 131 S. Ct. at
780 (emphasis added).
       7
         We consider the last state court adjudication on the
merits, Greene, 132 S. Ct. at 44-45, which was the
Pennsylvania Superior Court‟s PCRA decision, found at
Commonwealth v. Garrus, No. 961 EDA 2005 (Pa. Super. Ct.
Apr. 18, 2006).       See Greene, 132 S. Ct. at 43-45
(Pennsylvania Supreme Court‟s denial of petition for appeal
is not considered an adjudication on the merits).


                              20
words, we must consider whether the state court‟s
“determination can[] be reconciled with any reasonable
application of the controlling standard[.]”           Panetti v.
Quarterman, 551 U.S. 930, 953 (2007) (emphasis added).
Garrus must show that “the state court‟s ruling . . . was so
lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 131 S. Ct. at 786-87.

       This case turns on the meaning of the “unreasonable
application” standard. Garrus argues that the state court
unreasonably applied Apprendi and its prior conviction
exception by permitting the trial court to determine at
sentencing that Garrus‟s prior 1997 conviction for
burglarizing an unoccupied building (second-degree burglary)
actually involved burglarizing an occupied building. In
response, the Commonwealth argues that Garrus cannot meet
his burden of proving that the state court‟s application of
Apprendi was objectively unreasonable because neither
Apprendi nor any case since has explicitly defined the scope
of “the fact of a prior conviction” exception. However, our
determination is not dependent on a fully delineated
interpretation or application of “the fact of a prior conviction”
exception, only a reasonable one. Panetti, 551 U.S. at 953
(“That the standard is stated in general terms does not mean
the application was reasonable.”). The AEDPA standard is
not so “myopic” nor “constrained” that it requires the full
scope of all clearly established laws to be precisely defined.
Jamison v. Klem, 544 F.3d 266, 273 (3d Cir. 2008); see also
id. (noting that if a Supreme Court decision must precisely
resolve a given issue under AEDPA, only the “contrary to”


                               21
standard would exist, and the “unreasonable application”
standard would be rendered meaningless). Rather, AEDPA
requires that if a clearly established rule or principle is stated,
however general, state courts must adhere to a reasonable
application of that rule.8 Panetti, 551 U.S. at 953.


       8
          Our dissenting colleagues appear to agree that the
focus of our inquiry should be on the “unreasonable
application” prong of AEDPA.              Dissenting Op. of
Greenaway, J. at Part I; Dissenting Op. of Hardiman, J. at
Part I. Judge Greenaway also concedes that “Apprendi is at
the forefront of our inquiry,” and that Apprendi limited and
narrowed Almendarez-Torres. Dissenting Op. of Greenaway,
J. at Part II. At the same time, Judges Greenaway and
Hardiman fault us for not identifying a case “expounding on
the contours of the amorphous prior-conviction exception.”
Id. at ¶ 2; Dissenting Op. of Hardiman, J. at Part I.

        AEDPA, however, does not require clearly established
federal law to be further elucidated by additional precedent
before an application of that law may be unreasonable. See
Panetti, 551 U.S. at 953 (“AEDPA does not „require state and
federal courts to wait for some nearly identical factual pattern
before a legal rule must be applied.‟” (quoting Carey v.
Musladin, 549 U.S. 70, 81 (2006))). Instead, under AEDPA,
“even a general standard may be applied in an unreasonable
manner.” Id. (citing Williams, 529 U.S. 362). Thus, our task
is to review the Pennsylvania Superior Court‟s application of
Apprendi, the clearly established federal law we do have, to
Garrus‟s claim.


                                22
        Apprendi clearly requires that any fact “other than the
fact of a prior conviction” must be submitted to a jury if it
will increase the penalty beyond the statutory maximum. 530
U.S. at 490. Under AEDPA there is undoubtedly a broad
spectrum of reasonable applications of this rule, but a fact that
actually defies and contradicts a prior conviction falls
squarely outside the spectrum of reasonable interpretations.
Cf. Wilson v. Knowles, 638 F.3d 1213, 1215 (9th Cir. 2011)
(“Courts may reasonably disagree about some of the precise
boundaries of the exception. . . . But that does not mean that
Apprendi is amorphous. . . . The judge‟s fact-finding seven
years after the 1993 conviction extended beyond any
reasonable interpretation of the prior conviction exception.”).
We can find no reasonable basis for applying Apprendi to
allow judicial finding of a fact that is inconsistent with and
contradicts the facts established through constitutional
procedures. The very reason for the exception is to recognize
facts that have already “been established through procedures
satisfying the fair notice, reasonable doubt, and jury trial
guarantees.” Jones, 526 U.S. at 249. The phrase “fact of a


        By contrast, the rationale of our dissenting colleagues
would render the Apprendi rule meaningless. It would, in
effect, shift this case to the “contrary to” prong of AEDPA,
preserving the “unreasonable application” prong of AEDPA
in name only. Such an analysis is particularly inappropriate
here because the Pennsylvania Superior Court correctly
“identified controlling Supreme Court precedent.” Dissenting
Op. of Greenaway, J. at Part I (citing Williams, 529 U.S. at
406).


                               23
prior conviction” might be reasonably construed to allow
judicial factfinding of a fact underlying a prior conviction or a
fact consistent with a prior conviction. However, absent case
law authorizing some type of paradoxical interpretation, “fact
of a prior conviction” cannot reasonably be interpreted to
allow judicial factfinding of a fact contradicting a prior
conviction or a fact inconsistent with a prior conviction.9




       9
          Judge Greenaway faults our opinion for an alleged
internal inconsistency:      we rely on Apprendi, a case
concerned with the Sixth Amendment right to a jury trial, to
require the sentencing judge to determine that Garrus‟s prior
conviction was not a crime of violence. Dissenting Op. of
Greenaway, J. at Part III. But Apprendi does not prohibit a
judge from finding facts that do not increase a sentence
beyond the statutory maximum. Rather, Apprendi only
prohibits judicial factfinding that increases a sentence beyond
the statutory maximum. 530 U.S. at 490.


                               24
       No existing precedent so much as hints that a
paradoxical interpretation of Apprendi might be reasonable.10
Thus, under Apprendi, it was objectively unreasonable for the
state court to allow Garrus to be sentenced beyond the
statutory maximum based on a mere allegation that actually
defied and contradicted his prior conviction.            The
Commonwealth proffers several cases, which it argues could
have supported the state court‟s decision to apply the prior
conviction exception in Garrus‟s case, but its attempts fall
flat.

       Despite the Commonwealth‟s attempts to paint it as
such, Almendarez-Torres is not a panacea allowing
recidivism-related judicial factfinding, or supporting the state
court‟s determination that Apprendi‟s prior conviction
exception permitted the sentencing judge to find that Garrus
had burglarized an occupied building despite his plea to the
contrary. Apprendi cited Almendarez-Torres as the “limited”
       10
          Judge Greenaway counters that “no Supreme Court
precedent suggests that the majority‟s interpretation is the
only reasonable interpretation.”      Dissenting Op. of
Greenaway, J. at Part III. This argument implies that Judge
Greenaway would defer to an objectively unreasonable state
court judgment as long as there were more than one possible
reasonable application of a Supreme Court precedent. While
AEDPA mandates a highly deferential standard, it does not
go as far as Judge Greenaway suggests. Instead, the test is
whether the state court judgment “can[] be reconciled with
any reasonable application of the controlling standard[.]”
Panetti, 551 U.S. at 953.


                              25
and “narrow” exception to the Apprendi rule, 530 U.S. at 488
n.14, 489-90, and explained that the constitutionality of that
exception rested on (1) “the certainty that procedural
safeguards attached to any „fact‟ of prior conviction,” and
(2) “the reality that Almendarez-Torres did not challenge the
accuracy of that „fact‟ in his case[.]” Id. at 488. In fact,
Apprendi emphasized these factors at least twice, and it is
important to note that neither factor is present in this case.
Regarding the first factor, the only “fact” judicially found by
the sentencing court in Almendarez-Torres was the actual fact
that the defendant was convicted, and that “fact” had
previously been established through a conviction process
applying procedural safeguards. In contrast, Garrus was only
accused of – not convicted of – the violent crime of
burglarizing an occupied building (which would have been
first-degree burglary). More importantly, Garrus only pled
guilty and was convicted of burglarizing an unoccupied
building (second-degree burglary).          Thus, unlike the
Almendarez-Torres defendant, whose sentence was enhanced
based on actual prior convictions, Garrus‟s sentence was
enhanced beyond the statutory maximum without a basis in
any jury determination or plea admission. Because the “fact”
of which Garrus was accused was never found by a jury nor
was it an element of the crime for which he pled guilty, no
procedural safeguards attached to the finding of this “fact.”

       As to the second factor, Garrus makes clear in his
reply brief that, unlike Almendarez-Torres, he did not
concede or admit the fact at issue. In fact, at the sentencing
hearing, he questioned the judicial finding that his 1997
conviction was a “crime of violence.” (Sentencing Hr‟g Tr.


                              26
28, May 8, 2001, see App. at 177a.) A defendant waives his
Apprendi rights only if he “either stipulates to the relevant
facts or consents to judicial factfinding.”           Blakely v.
Washington, 542 U.S. 296, 310 (2004) (citing Apprendi, 530
U.S. at 488; Duncan v. Louisiana, 391 U.S. 145, 158 (1968)).
Thus, neither of the two factors that allowed Almendarez-
Torres to stand as a narrow exception to Apprendi apply in
this case. As Apprendi explained, “there is a vast difference
between accepting the validity of a prior judgment of
conviction entered in a proceeding in which the defendant had
the right to a jury trial and the right to require the prosecutor
to prove guilt beyond a reasonable doubt,” as occurred in
Almendarez-Torres, and “allowing the judge to find the
required fact under a lesser standard of proof[,]” as occurred
in both Apprendi and here in Garrus‟s case. See 530 U.S. at
496. Therefore, it was objectively unreasonable for the state
court to find that Almendarez-Torres authorized the
application of Apprendi‟s prior conviction exception in this
case.

        Had Garrus been convicted of first-degree burglary in
1997 (based on a jury finding or plea establishing that he
burglarized a building that was occupied and adapted for
overnight accommodation), we do not doubt that under
Almendarez-Torres, the court sentencing him for his later
manslaughter conviction could have taken note of the earlier
first-degree burglary conviction and held that it qualified as a
crime of violence under Pennsylvania‟s “three strikes” law.
However, Garrus was convicted of second-degree burglary.

      Given the highly deferential AEDPA standard, it is
even possible that if Pennsylvania merely had a generic

                               27
burglary statute that did not differentiate between burglarizing
an occupied or unoccupied building, a reasonable application
of the “fact of a prior conviction” exception might have
permitted the judge to look at facts underlying the prior
burglary conviction to determine whether Garrus was
convicted of burglarizing an occupied building.11 See, e.g.,
United States v. Santiago, 268 F.3d 151, 153, 157 (2d Cir.
2001) (finding that Apprendi allows a sentencing judge to
find “not only the mere fact of previous convictions but
[certain] other related issues as well”);12 cf. Taylor v. United




       11
          We do not make any determination regarding this
hypothetical issue; rather, we raise it to highlight the narrow
scope of the issue before us today.
       12
          The Dissents urge us to follow Santiago. Dissenting
Op. of Greenaway, J. at Part III; Dissenting Op. of Hardiman,
J. at Part II. There, the issue was whether, under the federal
recidivism statute, Apprendi required a jury to find beyond a
reasonable doubt that the defendant‟s three predicate
convictions were committed on separate occasions. Santiago,
268 F.3d at 152-53. Then-Judge Sotomayor ruled that
Apprendi did not prohibit sentencing judges from
“determin[ing] the „who, what, when, and where‟ of a prior
conviction.” Id. at 156. But the Second Circuit declined to
extend this exception to the Apprendi rule “to all issues
related to recidivism[.]” Id.


                              28
States, 495 U.S. 575, 602 (1990) (holding that under a federal
“three strikes” law, the sentencing judge may only find facts
that were necessary to the prior conviction). However, the
sentencing judge in this case looked at the previous
conviction for burglarizing an unoccupied building, and
nonetheless found facts supporting exactly the opposite
proposition: that the building had been occupied. Because
Garrus was convicted of burglarizing an unoccupied building,
the finding that the building was occupied was simply not a
“fact of a prior conviction.” The finding that the building was
occupied could be viewed as a fact of a prior accusation of
first-degree burglary, or as a fact contradicting a prior


        Santiago is not controlling here. As an initial matter,
Santiago is not “existing precedent” for AEDPA purposes.
See Harrington, 131 S. Ct. at 785 (“Federal habeas relief may
not be granted for claims subject to [28 U.S.C. § 2254(d)(1)]
unless it is shown that the earlier state court‟s decision . . .
involved an unreasonable application” of “federal law then
clearly established in the holdings of the Supreme Court.”)
(citations and internal quotations omitted). More importantly,
permitting a sentencing judge to determine facts related to the
“who, what, when, and where” of a prior conviction is
altogether different from allowing judicial factfinding that
completely contradicts a prior conviction.          Here, the
sentencing court found as a “fact” related to Garrus‟s prior
conviction an allegation that was contained in a police report
and victim statement and that was irreconcilable with his plea
agreement. The Second Circuit‟s reasoning in Santiago
cannot be stretched to these facts.


                              29
conviction for second-degree burglary. Either way, it cannot
be reasonably interpreted as a “fact of a prior conviction.”

       We likewise disagree with the Commonwealth‟s
convoluted argument that Shepard somehow supports the
state court‟s determination because it was decided on a
statutory basis rather than a constitutional one. As a threshold
matter, we note that Garrus contends that Shepard supports
him rather than the Commonwealth. However, because
Shepard‟s holding was limited to a federal statute that is
inapplicable here and its constitutional discussion was mere
dicta, Garrus cannot rely on it for relief. See Carey, 549 U.S.
at 74 (“„[C]learly established Federal law‟ in § 2254(d)(1)
„refers to the holdings, as opposed to the dicta, of th[e]
[Supreme] Court‟s decisions as of the time of the relevant
state-court decision.‟” (quoting Williams, 529 U.S. at 412)).13
Nevertheless, we will address the Commonwealth‟s argument
that Shepard somehow made the state court‟s application of
Apprendi reasonable. Cf. Price v. Vincent, 538 U.S. 634, 643
and n.2 (2003) (even cases that are not binding might be
relevant to the consideration of whether a state court decision
is objectively unreasonable).

       Shepard involved a sentencing enhancement pursuant
to 18 U.S.C. § 924, which applies where a defendant has been

       13
           We need not reach the issue of whether Teague‟s
retroactivity inquiry also precludes Garrus from relying on
Shepard for relief. See Horn v. Banks, 536 U.S. 266, 272
(2002) (noting that Teague‟s retroactivity inquiry remains
relevant post-AEDPA).


                              30
previously convicted of violent felonies, including burglaries
of buildings. 544 U.S. at 15-16. Shepard had previously
been convicted of burglary four times, but he was convicted
of burglarizing structures under Massachusetts law, and thus
it was unclear from his convictions whether he had
burglarized buildings or some other types of structures such
as vehicles. Id. at 16-17; see also id. at 31 (O‟Connor, J.,
dissenting). The Supreme Court held, based on principles of
statutory interpretation, that the sentencing court was not
permitted to look at police reports in order to determine
whether the structures the defendant had burglarized were
buildings. Id. at 16-22. It ruled that the sentencing court was
“limited to the terms of the charging document, the terms of a
plea agreement or [the terms of the] transcript of [the plea]
colloquy . . . or to some comparable judicial record of this
information.” Id. at 26.

       The Commonwealth suggests that the state court could
have gleaned support from Shepard by finding that because
Shepard‟s holding was not constitutionally based, the use of
police reports for judicial factfinding was constitutionally
permissible. However such non sequitur reasoning is
objectively unreasonable. The Shepard Court did nothing
more than employ the classic doctrine of constitutional
avoidance by deciding the case on a statutory basis. It is
entirely unreasonable to read constitutional avoidance as
indicative that a practice is constitutionally permissible. In
fact, if anything can be read into the Shepard Court‟s
discussion of the Constitution in dicta, it is that the majority
of the Court expressed grave constitutional concerns: four
justices cited concerns that looking at police reports


                              31
underlying a prior conviction posed “serious risks of
unconstitutionality” under Apprendi, and Justice Thomas
would have gone further and found the entire “fact of a prior
conviction” exception to be unconstitutional. See id. at 25
(plurality); id. at 26-28 (Thomas, J., concurring in part and
concurring in the judgment).

       Even assuming for purposes of this analysis that the
Supreme Court expressed constitutional uncertainty about
Apprendi‟s application in Shepard, it does not follow that
Apprendi‟s application here is unclear. In fact, nothing in
Shepard supports the Commonwealth‟s argument that “the
fact of a prior conviction” might be reasonably construed to
mean a fact contradicting a prior conviction because Shepard
simply did not involve a fact contradicting a prior conviction.
Crucially, Shepard had four times been convicted of
burglarizing structures, and the police reports did not
contradict this fact. Rather, the police reports supported the
conviction for burglary of structures, and merely explained
specifically that the types of structures involved were
buildings. As the plurality noted, the factual allegations in
the Shepard police reports might have been permitted by
Apprendi as “a fact about a prior conviction[.]” Shepard, 544
U.S. at 25 (plurality) (emphasis added). The Shepard
dissent‟s argument also highlights this distinction by stating
that sentencing judges should be able to refer to “internally
consistent parts of the record from the earlier conviction.” Id.
at 31 (O‟Connor, J., dissenting). In contrast, the police report
alleging that Garrus burglarized an occupied building cannot
reasonably be interpreted as a fact consistent with or a fact



                              32
about Garrus‟s conviction for burglarizing an unoccupied
building.

       Rather than supporting the Commonwealth‟s
argument, Shepard demonstrates that even judicial factfinding
that is consistent with a prior conviction might be
unconstitutional. By no means does it support the proposition
that Apprendi‟s “fact of a prior conviction” exception might
be reasonably interpreted to allow judicial factfinding that
contradicts a prior conviction.

       Finally, the Commonwealth strains to argue that some
Circuit court cases show that the state court‟s application of
Apprendi was reasonable. See Kessee v. Mendoza-Powers,
574 F.3d 675 (9th Cir. 2009); United States v. Smith, 474
F.3d 888, 892 (6th Cir. 2007), abrogation on other grounds
recognized by United States v. Johnson, 640 F.3d 195, 205
(6th Cir. 2011); Boyd v. Newland, 467 F.3d 1139 (9th Cir.
2006); United States v. Hollingsworth, 414 F.3d 621 (6th Cir.
2005); United States v. Williams, 410 F.3d 397 (7th Cir.
2005); United States v. Camacho-Ibarquen, 410 F.3d 1307
(11th Cir. 2005); United States v. Kempis-Bonola, 287 F.3d
699 (8th Cir. 2002); Santiago, 268 F.3d at 151. We disagree;
none of these cases demonstrates that it was reasonable for
the state court to apply Apprendi to sentence a defendant
beyond the statutory maximum based on a fact contradicting a




                             33
prior conviction.14 In short, none of these cases involves a
judicial finding of fact that contradicted the defendant‟s prior

       14
          Contrary to Judge Hardiman‟s argument, there is no
circuit split on this issue, and our decision here does not
create one. Dissenting Op. of Hardiman, J. at Part II. Neither
Portalatin v. Graham, 624 F.3d 69 (2d Cir. 2010), nor United
States v. Davis, 260 F.3d 965 (8th Cir. 2001), addresses the
question in this case. For this reason, we express no view on
whether these cases were decided correctly, nor do we
question the fairmindedness of those jurists.

       In Portalatin, the petitioners were sentenced under
New York‟s recidivism statute. 624 F.3d at 72. Pursuant to
that law, a defendant is subject to an increased sentencing
range as a repeat offender “based solely on whether [he] [has]
two prior convictions.” Id. at 88 (quoting People v. Rivera,
833 N.E.2d 194, 198 (N.Y. 2005) (original emphasis)). After
a sentencing court determines that a defendant is a repeat
offender and that an increased sentencing range applies, it
considers “the history and character of the defendant, and the
nature and circumstances of his crime,” before selecting a
sentence within the increased range. Id. at 90. In Portalatin,
the Second Circuit first agreed with the New York Court of
Appeals that if the recidivism statute were construed “to
require the court to find additional facts about the defendant
before imposing a recidivism sentence, the statute[] would
violate Apprendi.” Id. at 89 (quoting Rivera, 833 N.E.2d at
198) (emphasis added). But the Portalatin court also
concluded that a sentencing court could consider subsidiary
facts about a defendant‟s prior convictions before imposing a

                              34
repeat offender sentence without violating Apprendi. Id. at
92. Nonetheless, the important point here is that the Second
Circuit did not discuss whether the sentencing court could
find or consider underlying facts that contradict an offender‟s
prior conviction. The failure to address this subject is
unsurprising as the Portalatin petitioners did not dispute their
underlying convictions. Id. at 75-78.

        Similarly, in Davis, the appellant, sentenced as a repeat
offender under federal law, argued that due process required a
jury to conclude beyond a reasonable doubt that his prior
convictions were qualifying felonies under the recidivism
statute. 260 F.3d at 967-69. The Eighth Circuit held only
that, under Apprendi and Almendarez-Torres, the “fact of
prior conviction includes . . . a determination of whether a
conviction is one of the enumerated types qualifying for the
sentence enhancement under [18 U.S.C. § 3559].” Id. at 969
(citation omitted). Conspicuously absent from the Davis
decision is any indication that the Eighth Circuit would have
held it reasonable for the state court, in making its
determination, to find facts precluded by the prior conviction.


                               35
conviction.15 In fact, at least one of the cases did not even
involve judicial factfinding that increased the penalty beyond




       15
          Only Garrus cites to a case that is close to being on
point: Wilson, 638 F.3d 1213. Wilson was convicted by a
jury of driving under the influence with a prior felony
conviction. Id. at 1214. At sentencing, the judge found that
Wilson‟s conviction was his third strike under California‟s
“three strikes” law, and enhanced his sentence accordingly.
In order to find that one of the previous convictions counted
as a strike under California‟s “three strikes” law, the
sentencing judge had to make several findings of fact that
were not necessary for the conviction. Id. at 1215. The issue
for the Ninth Circuit was whether such judicial findings “fell
within the prior conviction exception.” Id. The Ninth Circuit
started by noting that “[c]ourts may reasonably disagree about
some of the precise boundaries of the exception . . . [b]ut that
does not mean that Apprendi is amorphous.” Id. It went on
to find that the judicially found facts – such as the extent of
the victim‟s injuries – were disputed and not found by a jury
or in any way necessary to the conviction. Id. “The judge . . .
speculated as to how a [previous] jury . . . might have
evaluated the evidence if the evidence had been offered and if
a jury had been impaneled to evaluate it.” Id. Thus, the
judge‟s factfinding “extended beyond any reasonable
interpretation of the prior conviction exception.” Id.


                              36
the prescribed statutory maximum. See Smith, 474 F.3d at
892.

       Upon a thorough and circumspect examination of the
potential arguments or theories that “supported or . . . could
have supported, the state court‟s decision[,]” we believe that
no “fair-minded jurist could disagree that those arguments or




       Just as in Wilson, Garrus‟s sentencing judge made
judicial findings of fact that were not necessary to his prior
conviction, and then speculated as to how a jury might have
evaluated the evidence had it been offered, or whether Garrus
might have admitted to the evidence at his plea hearing. The
Commonwealth tries to distinguish Wilson on the basis that
the facts here in Garrus‟s case are “less controversial” than
the judicially found facts in Wilson, but we find such a
distinction unavailing; regardless of how controversial the
facts were in Wilson, the determinative issue was that such
facts were not necessary to the verdict, and were never
determined by a jury nor pled to by the defendant. Id. at
1215-16. If anything, Garrus‟s case is stronger than Wilson‟s
because in Garrus‟s case the facts actually contradicted his
prior conviction, whereas in Wilson‟s case, the facts were
simply not necessary to the prior conviction.


                             37
theories are inconsistent with the holding in” Apprendi.16
Harrington, 131 S. Ct. at 786; see also Panetti, 551 U.S. at
953 (The “record . . . cannot, under any reasonable
interpretation of the controlling legal standard, support [the
state‟s] legal ruling.”). In fact, no fairminded jurist could
disagree that the state court‟s paradoxical interpretation of the
prior conviction exception renders an absurd result under
Apprendi, allowing a judge that applies the “three strikes”
statute to make the very factual finding that an earlier judge
would have been prohibited from making. As we noted
above, Apprendi pled guilty to unlawful possession of a
weapon, a second-degree offense punishable by a maximum
of ten years‟ imprisonment, but the judge increased the
sentence beyond the statutory maximum based on the finding
of an additional factor, effectively imposing punishment on
the defendant for a first-degree offense. Apprendi, 530 U.S.

       16
           Judge Greenaway accuses us of wasting “pages
examining Supreme Court precedent” without “grappl[ing]
with precedent that undermines” our position. Dissenting Op.
of Greenaway, J. at Part II. We agree that it would have been
simpler for us to prove the reasonableness of our own
interpretation of Apprendi. But we recognize that under
AEDPA, we “must determine what arguments or theories
supported or . . . could have supported the state court‟s
decision; and then [we] must ask whether it is possible
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision
of [the Supreme] Court.” Harrington, 131 S. Ct. at 786. Our
analysis comports with this standard.


                               38
at 491. Thus, under Apprendi, it is clear that a judge applying
the initial sentence for second-degree burglary (under
Pennsylvania law) cannot enhance the sentence beyond the
statutory maximum based on the finding that the defendant
burglarized an occupied building, effectively imposing
punishment on the defendant for a first-degree offense. The
Commonwealth today would have us believe that Apprendi
may be reasonably applied to allow a later judge sentencing a
defendant to look back at the defendant‟s initial conviction
and make the factual finding that the initial sentencing judge
was prohibited from making. Apprendi cannot be reasonably
construed or applied to allow this absurd result.

       Accordingly, we conclude that it was objectively
unreasonable for the state court to apply Apprendi‟s prior
conviction exception to allow judicial factfinding based on an
allegation that actually defied and contradicted the elements
of the prior conviction. The rule of Apprendi and the prior
conviction exception simply cannot be reconciled with the
state court decision. In sum, Garrus has shown that “the state
court‟s ruling . . . was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
Harrington, 131 S. Ct. at 786-87.

       We recognize the rarity of today‟s determination;
seldom does a state court‟s decision fail to withstand
AEDPA‟s highly deferential standard.         However, our
conclusion that the state court unreasonably applied clearly
established law by relying on a narrow and inapplicable
exception is not unprecedented.        See Abdul-Kabir v.
Quarterman, 550 U.S. 233, 258 (2007) (finding that the state

                                39
court unreasonably applied clearly established law by relying
on an inapplicable “narrow holding” and “ignoring the
fundamental principles established by [the Supreme Court‟s]
most relevant precedents”); Williams, 529 U.S. at 397
(finding that the state court unreasonably applied clearly
established law by relying on an “inapplicable” exception to
the law clearly established by Strickland). AEDPA severely
constrained our ability to review state court decisions, but it
did not render our review void or meaningless. See, e.g.,
Harrington, 131 S. Ct. at 786 (“§ 2254(d) stops short of
imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings.”); Jamison, 544
F.3d at 273 (the “unreasonable application” standard is not
meaningless). We must use our habeas authority only to
“guard against extreme malfunctions in the state criminal
justice systems,” Harrington, 131 S. Ct. at 786, and today, we
exercise our authority to do so.

                              V.

       We conclude that the District Court erred in
determining that § 2254(d)(1) prevented it from granting
Garrus habeas relief. The state court unreasonably applied
Apprendi by allowing Garrus to be sentenced beyond the
statutory maximum based on a judicial finding that he
burglarized an occupied building when he was actually
convicted of burglarizing an unoccupied building.

      Having determined that AEDPA does not bar federal
habeas relief, we must also consider whether the state court
determination had a “substantial and injurious effect” on
Garrus‟s sentence. Fry v. Pliler, 551 U.S. 112, 116-20

                              40
(2007); see also Horn, 536 U.S. at 272 (“none of our post-
AEDPA cases have suggested that a writ of habeas corpus
should automatically issue if a prisoner satisfies the AEDPA
standard”).     There is no doubt that the state court‟s
determination relied on its application of Apprendi to uphold
the trial court‟s decision to increase the length of Garrus‟s
sentence, and that Garrus has therefore shown a “substantial
and injurious effect.” We conclude that the District Court
erred in failing to grant habeas relief under these
circumstances. We will reverse the order of the District
Court, and remand with directions that a writ of habeas
corpus be conditionally granted, providing that petitioner be
resentenced or released from custody within 120 days, unless,
within that time, the Commonwealth of Pennsylvania
determines that petitioner qualifies for the sentencing
enhancement based on his two 1995 robbery convictions.




                             41
Garrus v. Sec’y PA Dept. of Corrections
No. 09-3586

HARDIMAN, Circuit Judge, dissenting, joined by
CHAGARES, GREENAWAY, JR., and VANASKIE, Circuit
Judges.

       Judge Greenaway has succinctly explained how the
Court has gone astray in this case, and I join his dissent in its
entirety. I write separately because I think the reason why the
majority has erred illuminates how it has done so.

                                I

       Since its enactment in 1996, no law has so vexed the
United States Courts of Appeals as the Antiterrorism and
Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. In
twelve years, the Supreme Court has granted certiorari in
ninety-four cases arising under AEDPA, forty-six of which
involved questions of federal court deference to decisions of
state courts. 1 Thirty-four of those cases (approximately
       1
         See Parker v. Matthews, 132 S. Ct. 2148 (2012);
Coleman v. Johnson, 132 S. Ct. 2060 (2012); Lafler v.
Cooper, 132 S. Ct. 1376 (2012); Howes v. Fields, 132 S. Ct.
1181 (2012); Hardy v. Cross, 132 S. Ct. 490 (2011); Bobby v.
Dixon, 132 S. Ct. 26 (2011); Cavazos v. Smith, 132 S. Ct. 2
(2011); Bobby v. Mitts, 131 S. Ct. 1762 (2011); Cullen v.
Pinholster, 131 S. Ct. 1388 (2011); Felkner v. Jackson, 131
S. Ct. 1305 (2011); Harrington v. Richter, 131 S. Ct. 770
(2011); Premo v. Moore, 131 S. Ct. 733 (2011); Berghuis v.
Thompkins, 130 S. Ct. 2250 (2010); Renico v. Lett, 130 S. Ct.
1855 (2010); Berghuis v. Smith, 130 S. Ct. 1382 (2010);
Wood v. Allen, 130 S. Ct. 841 (2010); Smith v. Spisak, 130




                               1
seventy-four percent) have been reversed because the court of
appeals failed to afford sufficient deference to the state court. 2


S. Ct. 676 (2010); McDaniel v. Brown, 130 S. Ct. 665 (2010);
Porter v. McCollum, 130 S. Ct. 447 (2009); Knowles v.
Mirzayance, 556 U.S. 111 (2009); Waddington v. Sarausad,
555 U.S. 179 (2009); Wright v. Van Patten, 552 U.S. 120
(2008); Panetti v. Quarterman, 551 U.S. 930 (2007); Fry v.
Pliler, 551 U.S. 112 (2007); Uttecht v. Brown, 551 U.S. 1
(2007); Schriro v. Landrigan, 550 U.S. 465 (2007); Brewer v.
Quarterman, 550 U.S. 286 (2007); Abdul-Kabir v.
Quarterman, 550 U.S. 233 (2007); Carey v. Musladin, 549
U.S. 70 (2006); Rice v. Collins, 546 U.S. 333 (2006); Kane v.
Garcia Espitia, 546 U.S. 9 (2005); Rompilla v. Beard, 545
U.S. 374 (2005); Miller-El v. Dretke, 545 U.S. 231 (2005);
Brown v. Payton, 544 U.S. 133 (2005); Holland v. Jackson,
542 U.S. 649 (2004); Yarborough v. Alvarado, 541 U.S. 652
(2004); Middleton v. McNeil, 541 U.S. 433 (2004); Mitchell
v. Esparza, 540 U.S. 12 (2003); Yarborough v. Gentry, 540
U.S. 1 (2003); Wiggins v. Smith, 539 U.S. 510 (2003);
Lockyer v. Andrade, 538 U.S. 63 (2003); Woodford v.
Visciotti, 537 U.S. 19 (2002); Early v. Packer, 537 U.S. 3
(2002); Bell v. Cone, 535 U.S. 685 (2002); Ramdass v.
Angelone, 530 U.S. 156 (2000); Williams v. Taylor, 529 U.S.
362 (2000).
       2
         See Parker, 132 S. Ct. 2148; Coleman, 132 S. Ct.
2060; Howes, 132 S. Ct. 1181; Hardy, 132 S. Ct. 490; Dixon,
132 S. Ct. 26; Cavazos, 132 S. Ct. 2; Mitts, 131 S. Ct. 1762;
Pinholster, 131 S. Ct. 1388; Felkner, 131 S. Ct. 1305;
Harrington, 131 S. Ct. 770; Premo, 131 S. Ct. 733;
Thompkins, 130 S. Ct. 2250; Renico, 130 S. Ct. 1855; Smith,
130 S. Ct. 1382; Spisak, 130 S. Ct. 676; McDaniel, 130 S. Ct.




                                2
Remarkably, twenty-two of those cases—almost fifty
percent—were reversed without dissent. 3



665; Knowles, 556 U.S. 111; Waddington, 555 U.S. 179;
Wright, 552 U.S. 120; Uttecht, 551 U.S. 1; Schriro, 550 U.S.
465; Carey, 549 U.S. 70; Rice, 546 U.S. 333; Kane, 546 U.S.
9; Payton, 544 U.S. 133; Holland, 542 U.S. 649; Yarborough,
541 U.S. 652; Middleton, 541 U.S. 433; Mitchell, 540 U.S.
12; Gentry, 540 U.S. 1; Lockyer, 538 U.S. 63; Woodford, 537
U.S. 19; Early, 537 U.S. 3; Bell, 535 U.S. 685.
       3
         See Parker, 132 S. Ct. at 2155 (holding that the Sixth
Circuit erred by following its own precedent rather than that
of the Supreme Court in determining what is “clearly
established Federal law”); Coleman, 132 S. Ct. at 2062
(holding that the Third Circuit “failed to afford due respect to
the role of the jury and the state courts of Pennsylvania”);
Hardy, 132 S. Ct. at 495 (reversing the Second Circuit and
stating, “[T]he deferential standard of review set out in 28
U.S.C. § 2254(d) does not permit a federal court to overturn a
state court’s decision on the question of unavailability merely
because the federal court identifies additional steps that might
have been taken. Under AEDPA, if the state-court decision
was reasonable, it cannot be disturbed.”); Dixon, 132 S. Ct. at
27 (“Because it is not clear that the Ohio Supreme Court erred
at all, much less erred so transparently that no fairminded
jurist could agree with that court’s decision, the Sixth
Circuit’s judgment must be reversed.”); Mitts, 131 S. Ct. at
1765 (holding that the Sixth Circuit erred in finding that the
state court’s jury instructions were contrary to clearly
established federal law); Felkner, 131 S. Ct. at 1307 (“The
state appellate court’s decision was plainly not unreasonable.




                               3
There was simply no basis for the Ninth Circuit to reach the
opposite conclusion, particularly in such a dismissive
manner.”); Harrington, 131 S. Ct. at 778 (“[The Ninth
Circuit’s] opinion shows an improper understanding of
§ 2254(d)’s unreasonableness standard and operation in the
context of a Strickland claim.”); Premo, 131 S. Ct. at 746
(holding that the Ninth Circuit erred in granting habeas relief
because the state court’s decision was not an unreasonable
application of Strickland v. Washington, 466 U.S. 668
(1984)); Berghuis, 130 S. Ct. at 1392 (finding that the Sixth
Circuit erred in granting habeas relief because the state
court’s decision was consistent with Duren v. Missouri, 439
U.S. 357 (1979)); Spisak, 130 S. Ct. at 684 (holding that the
Sixth Circuit erred in granting habeas relief because the state
court’s upholding of jury instructions and verdict forms
regarding the weighing of aggravating and mitigating factors
was not “contrary to, or . . . an unreasonable application of,
clearly established Federal law” (citation and internal
quotation marks omitted)); McDaniel, 130 S. Ct. at 672
(holding that the Ninth Circuit erred in granting habeas relief
because the state court’s rejection of the defendant’s
insufficiency-of-the-evidence claim was not unreasonable
under AEDPA); Knowles, 556 U.S. at 114 (finding that the
Ninth Circuit erred because the state court’s decision that the
defendant was not deprived of effective counsel was not
“contrary to, or . . . an unreasonable application of, clearly
established Federal law” (citation and internal quotation
marks omitted)); Wright, 552 U.S. at 126 (reversing the
Seventh Circuit and stating, “because our cases give no clear
answer to the question presented, let alone one in [the
defendant]’s favor, it cannot be said that the state court
unreasonably applied clearly established Federal law.”




                              4
(citation and internal quotation marks omitted)); Carey, 549
U.S. at 72 (holding that the Ninth Circuit improperly granted
habeas relief because the state court’s decision that it was not
inherently prejudicial when court spectators wore buttons
depicting the murder victim was not contrary to or an
unreasonable application of clearly established federal law);
Rice, 546 U.S. at 334 (finding that the Ninth Circuit
improperly granted habeas relief because it was not
unreasonable for the state trial court to “credit the
prosecutor’s race-neutral explanations for the [defendant’s]
Batson challenge”); Kane, 546 U.S. at 10 (holding that the
Ninth Circuit improperly granted habeas relief because there
exists no clearly established right under federal law to access
a law library while in jail); Holland, 542 U.S. at 652
(concluding that the Sixth Circuit erred because the state
court’s application of Strickland was not unreasonable under
AEDPA); Middleton, 541 U.S. at 437–38 (holding that the
Ninth Circuit erred because the state appellate court’s
conclusion that one incorrect statement in jury instructions
did not render the instructions likely to mislead the jury was
not unreasonable); Mitchell, 540 U.S. at 13 (finding that the
Sixth Circuit’s decision “ignore[d] the limits imposed on
federal habeas review by 28 U.S.C. § 2254(d)”); Gentry, 540
U.S. at 11 (noting that the Ninth Circuit gave “too little
deference to the state courts that have primary responsibility
for supervising defense counsel in state criminal trials”);
Woodford, 537 U.S. at 20 (holding that the Ninth Circuit’s
decision “exceed[ed] the limits imposed on federal habeas
review by 28 U.S.C. § 2254(d)”); Early, 537 U.S. at 4
(finding that the state appellate court’s determination that the
trial court’s comments did not coerce the jury was not
contrary to clearly established federal law).




                               5
       The Supreme Court decisions catalogued in the margin
echo a common mistake: the failure to adhere to AEDPA’s
extraordinarily deferential standard of review. Our Court
makes that same mistake today.

       The majority’s fundamental error is manifest in the
question we presented to the parties: “whether the district
court erred in considering the defendant’s 1997 conviction for
second-degree burglary in determining whether the defendant
should be sentenced under Pennsylvania’s ‘three strikes’ law,
42 Pa. Cons. Stat. § 9714.” This was the wrong question to
ask in an AEDPA case that originated in state court. As the
Commonwealth of Pennsylvania correctly argued, “[u]nder
the federal habeas statute, ‘the only question that matters [is]
whether [the] state court decision is contrary to, or involved
an unreasonable application of, clearly established federal
law.’” Appellee’s Supp. Br. 1 (emphasis added) (quoting
Lockyer v. Andrade, 538 U.S. 63, 71 (2003)). Indeed, “a state
prisoner must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–
87 (2011). Even petitioner Garrus acknowledged—albeit in
somewhat apologetic fashion—that the question we presented
invited argument under the wrong legal standard:

       The question presented is somewhat ambiguous
       because the district court did not “consider” the
       1997 burglary conviction for purposes of
       “determining whether the defendant should be
       sentenced under Pennsylvania’s ‘three strikes’
       law.” Instead, applying 28 U.S.C. § 2254(d)(1),
       the district court analyzed whether the




                               6
       Pennsylvania Superior Court unreasonably
       applied clearly established U.S. Supreme Court
       precedent when it upheld the state sentencing
       court’s decision to rely on police reports and
       witness statements to make findings of fact
       about the 1997 burglary conviction, only to rely
       on those findings to impose an enhanced
       sentence under the Three Strikes Law.

Appellant’s Br. 1 n.1.

       Instead of posing a question that circumvented
AEDPA’s deferential standard of review, we should have
asked whether any Supreme Court decision directly prohibits
a state court judge from looking to the facts underlying a
defendant’s prior conviction when considering a recidivism
enhancement. The answer to that question is “no.”

                              II

       Central to the state court’s decision was the issue of
who—judge or jury—should find facts regarding prior
convictions when assessing a defendant’s history of
recidivism. Because recidivism “‘does not relate to the
commission of the offense, but goes to the punishment only,
[it] therefore . . . may be subsequently decided’” by the
sentencing judge. Almendarez-Torres v. United States, 523
U.S. 224, 244 (1998) (quoting Graham v. West Virginia, 224
U.S. 616, 629 (1912)). Garrus did not even attempt to explain
why his case does not fall squarely within the recidivism
exception announced in Almendarez-Torres. Instead, he
relied entirely on Apprendi v. New Jersey, 530 U.S. 466
(2000). But as then-Judge Sotomayor wrote for the Court of
Appeals for the Second Circuit, in a case not subject to




                              7
AEDPA’s deferential standard of review, “recidivism has
long been considered a distinct issue,” and “[n]othing in
Apprendi itself—as it involved a hate crime statute enhancing
sentences based on the motivation underlying the crime—
calls that distinction into question.” United States v.
Santiago, 268 F.3d 151, 156 (2d Cir. 2001).             Judge
Sotomayor then clearly explained why Apprendi is of no help
to habeas petitioners such as Garrus:

      Almendarez-Torres explains why recidivism
      requires special treatment, and absent an
      explicit Supreme Court ruling to the contrary,
      we decline to institute a policy that runs counter
      to the principles set forth in that opinion. In
      short, we read Apprendi as leaving to the judge
      . . . the task of finding not only the mere fact of
      previous convictions but other related issues as
      well. Judges frequently must make factual
      determinations for sentencing, so it is hardly
      anomalous to require that they also determine
      the “who, what, when, and where” of a prior
      conviction.

Id.

        If this were not a case governed by AEDPA and the
question presented was whether what befell Garrus violated
the rule of Apprendi, the majority’s decision might well be
correct. It is no secret that Almendarez-Torres is one of the
most tenuous precedents of the Supreme Court; three of the
five sitting justices who participated in Apprendi have openly




                              8
criticized Almendarez-Torres. 4 Nevertheless, I am convinced
that even critics of Almendarez-Torres would be hard-pressed
to hold that the state court in this case violated the rule of
Apprendi when it found facts pursuant to a state recidivist
statute.

       The existence of a circuit split demonstrates that it is
wrong to conclude that “‘fairminded jurists could [not]
disagree’ on the correctness of the state court’s decision” in
this case. Harrington v. Richter, 131 S. Ct. 770, 786 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The Courts of Appeals for the Second and Eighth Circuits
have found no constitutional violation in circumstances
similar to those presented in this appeal. See Portalatin v.
Graham, 624 F.3d 69 (2d Cir. 2010) (en banc); United States
v. Davis, 260 F.3d 965 (8th Cir. 2001).

      In Portalatin, the Second Circuit consolidated the
habeas petitions of three prisoners who had been sentenced
under New York’s persistent felony offender (PFO) statute.
The petitioners argued that the statute was unconstitutional
because it required a sentencing judge to assess the nature,
       4
          See Apprendi, 530 U.S. at 489–90 (Scalia, Thomas,
Ginsburg, JJ., joining the majority) (“[I]t is arguable that
Almendarez-Torres was incorrectly decided, and that a logical
application of our reasoning today should apply if the
recidivist issue were contested.”); id. at 520–21 (Thomas, J.,
concurring) (“[O]ne of the chief errors of Almendarez-
Torres—an error to which I succumbed—was to attempt to
discern whether a particular fact is traditionally (or typically)
a basis for a sentencing court to increase an offender’s
sentence. . . . [T]his approach just defines away the real
issue.”).




                               9
rather than the mere fact of, predicate felony convictions
before imposing a PFO sentence. They urged the court to
construe the Almendarez-Torres exception to Apprendi
narrowly so as to prevent a sentencing judge from considering
the facts underlying a defendant’s prior conviction when
forming an opinion about his criminal history. Finding “no
clear holding of the Supreme Court to command such a
result,” the Second Circuit explained that, “‘[g]iven the lack
of holdings from th[e] [Supreme Court]’ construing the
recidivism exception as narrowly as petitioners urge, ‘it
cannot be said that the state court unreasonably applied
clearly established federal law.’” Id. at 92 (quoting Carey v.
Musladin, 549 U.S. 70, 77 (2006)). Commenting on the “lack
of guidance as to the precise scope of the recidivism
exception,” the court concluded:

      It might well be constitutionally significant
      whether a sentencing judge is required to find,
      for example, that a defendant’s criminal history
      is “especially violent” before imposing a
      sentence, or whether, as in New York, a
      sentencing judge simply must find that the
      nature of his criminal history justifies “extended
      incarceration and life-time supervision.” . . .
      The Supreme Court may answer that question at
      some future time. But, if our Court cannot
      divine a clear answer from the Court’s existing
      holdings, AEDPA prevents us from faulting a
      state court for selecting one reasonable
      conclusion over another.




                             10
Id. at 93; see also United States v. Snype, 441 F.3d 119, 148
(2d Cir. 2006) (noting that while the continued viability of
Almendarez-Torres has been questioned, the Supreme Court
has not reversed that decision).

        The Eighth Circuit reached a similar result in Davis.
There, the appellant had been sentenced to a term of life
imprisonment as a repeat offender following a federal
conviction for attempted armed bank robbery, an offense that
carried a statutory maximum of twenty-five years. He argued
that the question of whether his past robbery convictions were
qualifying felonies for purposes of the recidivist statute
should have been decided by the jury, not by the sentencing
judge. The court disagreed, finding that the “fact of prior
conviction includes not only the fact that a prior conviction
exists, but also a determination of whether a conviction is one
of the enumerated types qualifying for the sentence
enhancement.” Davis, 260 F.3d at 969. Conceding that
Apprendi casts doubt on the viability of Almendarez-Torres,
the Eighth Circuit nonetheless concluded that its role was “to
apply Supreme Court precedent as it stands, and not as it may
develop.” Id.

       Adverse to the Second Circuit’s decision in Portalatin
and the Eighth Circuit’s decision in Davis stands the opinion
of the Ninth Circuit in Wilson v. Knowles, 638 F.3d 1213 (9th
Cir. 2011). After a 1993 car accident, Wilson pleaded no
contest to gross vehicular manslaughter while driving under
the influence of alcohol and to proximately causing bodily
injury while driving under the influence of alcohol. When
sentencing Wilson for a separate 2000 conviction for driving
under the influence with a prior felony, a California judge
relied on the information and preliminary hearing transcripts
from Wilson’s 1993 convictions to find numerous additional




                              11
facts about the earlier offenses, including that Wilson
personally inflicted bodily injury, that the bodily injury was
great, and that his victim was not an accomplice. These
factual findings led the judge to conclude that Wilson’s 1993
convictions qualified as two predicate offenses for purposes
of California’s Three Strikes Law, and Wilson received an
enhanced sentence of 25-years to life.

        The Ninth Circuit held that the state court’s factfinding
was an unreasonable application of Apprendi. See id. at 1215
(“It would be unreasonable to read Apprendi as allowing a
sentencing judge to find the kinds of disputed facts at issue
here. . . . The judge’s fact-finding seven years after the 1993
conviction extended beyond any reasonable interpretation of
the prior conviction exception.”). Chief Judge Kozinski
dissented, stating: “The Supreme Court hasn’t straightened all
this out. . . . AEDPA deference can be a bitter pill to swallow.
In some habeas cases, we must reject what appear to be valid
constitutional claims because petitioner’s rights have not yet
been clearly established by the Supreme Court.” Id. at 1217
(Kozinski, C.J., dissenting) (citations omitted).

       Although it is possible that Wilson was correctly
decided while Portalatin, Davis, and Chief Judge Kozinski’s
dissent in Wilson were all in error, it is immaterial for
AEDPA purposes which line of analysis is correct. The mere
fact of a difference of opinion among courts of appeals leads
ineluctably to the conclusion that a state court cannot run
afoul of AEDPA regardless of which of these two paths it
chooses.

      Stated differently, I am loath to conclude that the
United States Court of Appeals judges who decided
Portalatin and Davis are not “fairminded.” Yarborough, 541




                               12
U.S. at 664. Indeed, the intersection of criminal procedure
and constitutional law often presents difficult questions upon
which reasonable minds can differ. 5 And while it is true that
no Supreme Court decision explicitly authorized the state
judge to delve into Garrus’s prior conviction, the fact that no
decision of the Court prohibited her from doing so is
dispositive under AEDPA. Unless and until the Supreme
Court overrules or modifies Almendarez-Torres, state courts
cannot properly be held to have violated the Constitution
when they find facts at sentencing to determine whether a
recidivist statute applies. For that reason, I respectfully
dissent.




      5
        See, e.g., Melendez-Diaz v. Massachusetts, 557 U.S.
305 (2009) (5-4 decision); Apprendi, 530 U.S. 466 (5-4
decision); Almendarez-Torres, 523 U.S. 224 (5-4 decision).




                              13
GREENAWAY, JR., Circuit Judge, dissenting, joined by
CHAGARES, HARDIMAN, and VANASKIE, Circuit
Judges.


        Under the Anti-Terrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Congress vested the Supreme
Court — and only the Supreme Court — with the authority to
determine clearly established law for purposes of analyzing
an inmate‟s federal challenge to a state court judgment.
Today, the majority feigns fidelity to this enduring tenet of
AEDPA jurisprudence. In the process, the majority assumes
the role of legislator, rewriting AEDPA to add this Court,
along with the Supreme Court, as the two judicial bodies
capable of delineating clearly established law. Armed with
this newly created authority, the majority wades through
murky Supreme Court precedent and emerges with what it
purports to be an unassailable legal principle: that the prior-
conviction exception enshrined in Apprendi v. New Jersey,
530 U.S. 466 (2000), forbids a sentencing court from finding
facts inconsistent with a prior conviction when applying a
state recidivism statute.

       Unlike the majority, I cannot discern any principle in
Apprendi or other authoritative Supreme Court precedent that
would render this interpretation of the prior-conviction
exception objectively unreasonable, the deferential standard
by which we must judge the state court‟s determination.
Indeed, the majority identifies not one Supreme Court case
expounding on the contours of the amorphous prior-
conviction exception. This lack of clarity coupled with the
inherent tension between Apprendi and Almendarez-Torres v.
United States, 523 U.S. 224 (1998) — a controlling case the
majority brushes aside as having limited relevance — belies




                              1
the majority‟s triumphant conclusion that the state court‟s
determination was objectively unreasonable.

       I do not disagree that the majority‟s interpretation of
the prior-conviction exception is a reasonable and even
favorable one, preventing an otherwise seemingly inequitable
result. Of course, our task is not to simply choose the
preferred reading of an ambiguous legal phrase. Absent
guidance from the Supreme Court, we are left to determine
whether the state court‟s interpretation was objectively
unreasonable. Given that this area of law is, at best, in a state
of flux, AEDPA “demands that [the] state-court decision[] be
given the benefit of the doubt.” Renico v. Lett, --- U.S. ---,
---, 130 S. Ct. 1855, 1862 (2010) (internal quotation marks
and citation omitted). For this reason, I am compelled to
respectfully dissent.

     I. AEDPA Imposes a High Threshold

        While the majority outlines the basic AEDPA
framework governing our inquiry, AEDPA‟s prominent role
in this case requires further elaboration.

       As amended by AEDPA, 28 U.S.C. § 2254 provides,
in pertinent part: “[A] circuit judge . . . shall entertain an
application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C. § 2254(a).
“[W]ith respect to any claim that was adjudicated on the
merits in State court proceedings,” the writ shall not issue
unless the adjudication of the claim “resulted in a decision
that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the




                               2
Supreme Court of the United States” or was “based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” Id. §
2254(d)(1)-(2).

        A state court decision is “contrary to” Supreme Court
precedent “if the state court applies a rule that contradicts the
governing law set forth in [Supreme Court] cases,” or “if the
state court confronts a set of facts that are materially
indistinguishable from a decision of th[e] Court and
nevertheless arrives at a result different from [the Court‟s]
precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
A state court decision involves an unreasonable application of
federal law “if the state court identifies the correct governing
legal rule from [the Supreme] Court‟s cases but unreasonably
applies it to the facts of the particular state prisoner‟s case.”
Id. at 407. To qualify as an “unreasonable application” of
clearly established federal law, the state court‟s application
must be objectively unreasonable. Id. at 409. That the state
court decision was incorrect or erroneous is insufficient if the
error was nonetheless objectively reasonable. Id. at 410; see
also Renico, 130 S. Ct. at 1862 (“[A]n unreasonable
application of federal law is different from an incorrect
application of federal law.” (quoting Williams, 529 U.S. at
410)). “Indeed, „a federal habeas court may not issue the writ
simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.‟” Renico,
130 S. Ct. at 1862 (quoting Williams, 529 U.S. at 411).

       As a result, the “contrary” and “unreasonable
application” thresholds are “highly deferential . . . for
evaluating state-court rulings, which demand[] that state-court
decisions be given the benefit of the doubt.” Cullen v.




                               3
Pinholster, --- U.S. ---, ---, 131 S. Ct. 1388, 1398 (2011)
(quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per
curiam)). These standards are “„difficult to meet,‟ because
the purpose of AEDPA is to ensure that federal habeas relief
functions as a „guard against extreme malfunctions in the
state criminal justice systems,‟ and not as a means of error
correction.” Greene v. Fisher, --- U.S. ---, ---, 132 S. Ct. 38,
43 (2011) (quoting Harrington v. Richter, --- U.S. ---, ---, 131
S. Ct. 770, 786 (2011)).

        I agree with the majority that the focus of our inquiry
is on the “unreasonable” prong because the state court
identified controlling Supreme Court precedent.             See
Williams, 529 U.S. at 406 (“[A] run-of-the-mill state-court
decision applying the correct legal rule from our cases to the
facts of a prisoner‟s case would not fit comfortably within §
2254(d)(1)‟s „contrary to‟ clause.”). As such, we can grant
Garrus‟s petition only if the sentencing court‟s application of
Pennsylvania‟s recidivism statute transcended the bounds of
this undeniably deferential framework.

    II. Majority’s Discussion         of    Supreme      Court
       Precedent Falls Short

       It is undeniable that the majority‟s interpretation of
Apprendi‟s prior-conviction exception cannot stand in the
absence of clearly established law. See Howes v. Fields, ---
U.S. ---, ---, 132 S. Ct. 1181, 1187 (2012) (rejecting a circuit
court‟s determination that Supreme Court precedent clearly
established a categorical rule regarding custodial
interrogations of inmates). Recognizing its obligation, the
majority spends pages examining Supreme Court precedent.
Yet nowhere in that examination does the majority grapple
with precedent that undermines its position. This principled




                               4
avoidance is the only means by which the majority can reach
the conclusion that Supreme Court precedent clearly
establishes that it would be objectively unreasonable to
interpret the phrase “the fact of a prior conviction” as the state
court did in this case.

       I do not disagree with the majority that Apprendi is at
the forefront of our inquiry. I do disagree, however, with the
majority‟s perception that Apprendi is the be-all and end-all
of our inquiry. The majority‟s singular focus is apparent at
the beginning of its opinion, stating that the “[k]ey” to
resolving this case involves answering “whether, pursuant to
AEDPA, the state court unreasonably applied Apprendi.”
(Majority Op. at 3.) However, as the majority acknowledges,
Garrus was sentenced under 42 Pa. Cons. Stat. § 9714,
Pennsylvania‟s recidivism statute. Despite this admission,
Almendarez-Torres — a critical Supreme Court case
examining a sentencing court‟s power to engage in
factfinding when applying a recidivism statute — plays
second fiddle to Apprendi in the majority‟s opinion. And
when the majority does address Almendarez-Torres, it
sidesteps the very logic in Almendarez-Torres that casts even
the slightest doubt on the notion that the majority‟s
interpretation of the prior-conviction exception is clearly
established.

       Almendarez-Torres involved a federal statute that
permitted an enhanced penalty for any person unlawfully in
the United States who had previously been deported after
being convicted of an aggravated felony. 523 U.S. at 226.
The defendant pled guilty to being in the United States,
without permission, after being deported. Id. At sentencing,
the defendant argued that the enhancement should not apply
because his three previous convictions for aggravated




                                5
felonies, which the defendant did not contest, were not
charged in the current indictment. Id. at 227. The district
court rejected this argument, found the existence of the prior
convictions, and applied the sentence enhancement. Id. The
Fifth Circuit affirmed. Id. at 227-28.

        The Supreme Court held that the district court properly
treated the defendant‟s prior convictions as a sentencing
factor and not a separate offense. Id. at 235. The Court
repeatedly stressed that its analysis was predicated on the
unique role recidivism plays at sentencing. See id. (“At the
outset, we note that the relevant statutory subject matter is
recidivism. That subject matter — prior commission of a
serious crime — is as typical a sentencing factor as one might
imagine.”); id. (“With recidivism as the subject matter in
mind . . . .”); id. at 241 (“[The statute at issue] involves one of
the most frequently found factors that affects sentencing —
recidivism.”); id. at 243 (“[T]he sentencing factor at issue
here — recidivism — is a traditional, if not the most
traditional, basis for a sentencing court‟s increasing an
offender‟s sentence.”). The Court noted that, historically,
recidivism operated outside of the general framework
requiring elements of an offense be submitted to a jury
because “recidivism „does not relate to the commission of the
offense, but goes to the punishment only, and therefore . . .
may be subsequently decided.‟” Id. (quoting Graham v. West
Virginia, 224 U.S. 616, 624 (1912)).

      Two years after Almendarez-Torres, the Supreme
Court rendered a decision in what we have described as its
“seminal case” on sentencing — Apprendi. Reinhold v.
Rozum, 604 F.3d 149, 152 (3d Cir. 2010). In Apprendi, the
defendant received an enhanced sentence of twelve years for
weapon offenses punishable by a statutory maximum of ten




                                6
years, based on a determination by the sentencing court, not
the jury, that the crime was racially motivated. 530 U.S. at
470-71. Rejecting this approach, the Court pronounced that
the Sixth Amendment required 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.”
Id. at 490. Central to the Court‟s determination was the fact
that the hate crime enhancement required a finding that the
defendant‟s purpose was to intimidate on the basis of race —
an inquiry into the defendant‟s mens rea, an element of the
offense. Id. at 492-93.

       The Court attempted to dispel any apparent tension
between the rule announced in Apprendi and the Court‟s
decision in Almendarez-Torres. “Whereas recidivism „does
not relate to the commission of the offense‟ itself, New
Jersey‟s biased purpose inquiry goes precisely to what
happened in the „commission of the offense.‟” Id. at 496
(quoting Almendarez-Torres, 523 U.S. at 230). But the Court
was cognizant that “it is arguable that Almendarez-Torres was
incorrectly decided” based on a “logical application” of the
Court‟s analysis in Apprendi. Id. at 489. In the end, the
Court reasoned that Almendarez-Torres “represents at best an
exceptional departure” from Apprendi. Id. at 487. While the
Apprendi Court provided less than unbridled support for
Almendarez-Torres, it is clear that Almendarez-Torres had
continuing vitality after Apprendi.

       The majority devotes no attention to the integral role
recidivism played in Almendarez-Torres, instead trying to
minimize     Almendarez-Torres‟s    significance    entirely.
Quoting Apprendi, the majority refers to Almendarez-Torres
as having “limited” and “narrow” application. (Majority Op.




                             7
at 15 (quoting Apprendi, 530 U.S. at 488 n.14, 489).) Put in
its proper light, however, this characterization in no way
subverts the importance of Almendarez-Torres to Garrus‟s
case.

       Apprendi did not involve the application of a
recidivism statute. Instead, Apprendi addressed a hate crime
enhancement that inquired as to the defendant‟s mens rea,
which the Court iterated was “as close as one might hope to
come to a core criminal offense „element.‟” 530 U.S. at 493.
By contrast, Almendarez-Torres expressly excluded
recidivism as an exception to the nascent legal principle
enshrined three years later in Apprendi. Almendarez-Torres,
523 U.S. at 244 (“[T]o hold that the Constitution requires that
recidivism be deemed an „element‟ of petitioner‟s offense
would mark an abrupt departure from a longstanding tradition
of treating recidivism as going to the punishment only.”
(internal quotation marks and citation omitted)). As a result,
it is unsurprising that Apprendi ensured that Almendarez-
Torres did not apply outside the recidivism context.
However, recidivism is squarely at issue in this case, belying
the majority‟s attempt to minimize Almendarez-Torres‟s
relevance.

        As much as the majority would like to forget
Almendarez-Torres, there is little debate that Almendarez-
Torres remains binding precedent. After Apprendi cast doubt
on the continuing vitality of Almendarez-Torres, we
addressed whether Almendarez-Torres‟s viability had been
short-lived. Because the Apprendi Court expressly declined
to overrule Almendarez-Torres, we unsurprisingly applied
Almendarez-Torres and held that predicate offenses under a
recidivism statute need not be charged in an indictment and
submitted to the jury. See United States v. Weaver, 267 F.3d




                              8
231, 250 (3d Cir. 2001) (“Recently, in Apprendi[], the Court
upheld the validity of Almendarez-Torres . . . .”). We have
since reaffirmed the viability of Almendarez-Torres and have
not retreated from this determination. United States v.
Arrelucea-Zamudio, 581 F.3d 142, 157 n.15 (3d Cir. 2009)
(“Although several Supreme Court decisions have cast doubt
on the statute‟s continuing constitutional viability post-
Apprendi, . . . we are bound by Almendarez-Torres . . . .”);
United States v. Ordaz, 398 F.3d 236, 241 (3d Cir. 2005)
(“The holding in Almendarez-Torres remains binding
law . . . .”).1 The Supreme Court continues to recognize the
separate treatment afforded prior convictions in Almendarez-
Torres. See United States v. O’Brien, --- U.S. ---, ---, 130 S.
Ct. 2169, 2174 (2010).




1
  Every other circuit court to have considered the issue has
agreed that Almendarez-Torres remains good law. See United
States v. Gonzalez, 682 F.3d 201, 204 (2d Cir. 2012); United
States v. Salazar, 682 F.3d 953, 958 n.2 (11th Cir. 2012);
United States v. Farrell, 672 F.3d 27, 37 n.12 (1st Cir. 2012);
United States v. Nigg, 667 F.3d 929, 935-36 (7th Cir. 2012);
United States v. Ruiz-Apolonio, 657 F.3d 907, 921 (9th Cir.
2011); United States v. McMurray, 653 F.3d 367, 371 (6th
Cir. 2011); United States v. Beckstrom, 647 F.3d 1012, 1020
(10th Cir. 2011); United States v. Smith, 640 F.3d 358, 369
(D.C. Cir. 2011); United States v. Olalde-Hernandez, 630
F.3d 372, 377 (5th Cir. 2011); United States v. Mason, 628
F.3d 123, 134 (4th Cir. 2010); United States v. Alston, 625
F.3d 397, 406 (8th Cir. 2010).




                              9
   III. State Court’s Determination Was Objectively
       Reasonable

       Against this proper legal backdrop, there can be no
doubt that, for purposes of sentencing under Pennsylvania‟s
recidivism statute, the state court‟s determination that
Garrus‟s second-degree burglary conviction could be treated
as a first-degree offense was not objectively unreasonable.
Almendarez-Torres established that a sentencing court
applying a recidivism statute that carries with it a sentence
above the statutory maximum is permitted to engage in
judicial factfinding regarding the defendant‟s prior
convictions. In Apprendi, the Court clarified that such
judicial factfinding was impermissible, except that relating to
“the fact of a prior conviction.” 530 U.S. at 490. In other
words, the exact undefined judicial factfinding permitted by
Almendarez-Torres.

        Apprendi provides no guidance regarding the scope or
meaning of the prior-conviction exception. For good reason,
Apprendi‟s true import is not the establishment of the
exception to the rule but the rule itself — that a judge cannot
find facts regarding an element of the offense where the
defendant faces a sentence above the statutory maximum.
Apprendi did not need to expound on the scope of the prior-
conviction exception because Apprendi was not, contrary to
Almendarez-Torres, a recidivism case. The prior-conviction
exception remains as amorphous and undefined as the day
Apprendi was decided. See Kessee v. Mendoza-Powers, 574
F.3d 675, 676 (9th Cir. 2009) (“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 penalty? The Supreme Court
has not yet answered that question.”).




                              10
       I do not deny that the majority‟s reading of the prior-
conviction exception — prohibiting a sentencing court from
applying a recidivism statute and finding a fact inconsistent
with a prior conviction — is a reasonable interpretation.2
Under AEDPA, that the majority‟s reading was reasonable
does not ipso facto render all other readings patently
unreasonable. See id. (noting that, under AEDPA, just
because an appellate court‟s own interpretation of the prior-
conviction exception is reasonable does not mean that the
state court‟s reading was unreasonable). “Because AEDPA
authorizes federal courts to grant relief only when state courts
act unreasonably, it follows that „the more general the rule‟ at
issue — and thus the greater the potential for reasoned
disagreement among fair-minded judges — „the more leeway
state courts have in reaching outcomes in case-by-case
determinations.” Renico, 130 S. Ct. at 1864 (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In my
view, the prior-conviction exception is sufficiently general
and undefined, such that we must, under AEDPA, defer to the

2
   I concede that the state court‟s decision in this case
produced a seemingly inequitable result. We have recognized
that a guilty plea binds a defendant “to the accuracy of the
facts set forth in the indictment.” United States v. Parker,
874 F.2d 174, 177 n.1 (3d Cir. 1989). The state court‟s
determination would appear to run counter to this principle
because Garrus was not held to the facts he pled to as part of
the judicial process related to his 1997 burglary conviction.
However, Almendarez-Torres simply treats recidivism
differently. While there is no doubt that the majority‟s moral
compass is well-aligned, morality cannot trump our duty to
faithfully apply Supreme Court precedent.




                              11
state court. Given the logic of Almendarez-Torres and the
fact that the Supreme Court has yet to clarify the scope of the
prior-conviction exception, I simply cannot subscribe to the
majority‟s finding that the state court‟s decision here was
objectively unreasonable.

       A few additional points bear mentioning. First, the
majority opinion suffers from an internal inconsistency.
Relying as it does on Apprendi, a case founded on the Sixth
Amendment right to a jury trial, one would expect the
majority to require that a jury determine whether or not
Garrus‟s prior conviction for burglary qualifies as a crime of
violence. Yet the majority does the opposite, requiring that
the judge determine that Garrus‟s prior conviction was
necessarily not a crime of violence.

       Second, the majority notes that “[n]o existing
precedent so much as hints that [the state court‟s] paradoxical
interpretation of Apprendi might be reasonable.” (Majority
Op. at 20.) This point suffers from two flaws. One could
easily reverse the logic of this statement and assert that no
Supreme Court precedent suggests that the majority‟s
interpretation is the only reasonable interpretation. Under
AEDPA, that is sufficient to uphold the state court‟s
determination.

      More importantly, the proposition is simply inaccurate.
The majority makes clear that it is troubled by the fact that
Garrus pled guilty to second degree burglary only to have a
judge find facts years later inconsistent with that prior
conviction and without affording Garrus procedural
safeguards. In United States v. Santiago, 268 F.3d 151 (2d
Cir. 2001), then-Judge Sotomayor, writing for the court,
addressed whether the requirement under the federal




                              12
recidivism statute, the Armed Career Criminal Act, that the
defendant have three predicate convictions “committed on
occasions different from one another,” is a factual issue that
must be submitted to a jury under Apprendi. Id. at 152. In
resolving the issue in the negative, Judge Sotomayor stressed
that courts make determinations all the time in the context of
recidivism for which the Apprendi procedural safeguards do
not attach. See id. at 156 (“The determination of „the fact of a
prior conviction‟ implicitly entails many subsidiary findings,
not the least of which is that the defendant being sentenced is
the same defendant who previously was convicted of those
prior offenses, a fact that could be quite controversial indeed.
Determination of this question would not necessarily come
with the „procedural safeguards‟ noted in Apprendi.”). Judge
Sotomayor went on to conclude:

              In short, we read Apprendi as
              leaving to the judge, consistent
              with due process, the task of
              finding not only the mere fact of
              previous convictions but other
              related issues as well. Judges
              frequently must make factual
              determinations for sentencing, so
              it is hardly anomalous to require
              that they also determine the „who,
              what, when, and where‟ of a prior
              conviction.

Id. Santiago refutes the majority‟s unyielding interpretation
of the phrase “the fact of a prior conviction,” which is even
more meaningful considering that Santiago was not a case
decided under the highly deferential AEDPA framework.




                              13
       Finally, there is little doubt that Almendarez-Torres‟s
continuing vitality is in jeopardy. See Shepard v. United
States, 544 U.S. 13, 27-28 (2005) (Thomas, J., concurring)
(“Almendarez-Torres . . . has been eroded by this Court‟s
subsequent Sixth Amendment jurisprudence, and a majority
of the Court now recognizes that Almendarez-Torres was
wrongly decided. . . . [I]n an appropriate case, this Court
should consider Almendarez-Torres‟ continuing viability.”).
However, we must apply Almendarez-Torres until the
Supreme Court holds otherwise. See Hohn v. United States,
524 U.S. 236, 252-53 (1998) (“Our decisions remain binding
precedent until we see fit to reconsider them, regardless of
whether subsequent cases have raised doubts about their
continuing vitality.”); Rodriguez de Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of
this Court has direct application in a case, yet appears to rest
on reasons rejected in some other line of decisions, the Court
of Appeals should follow the case which directly controls,
leaving to this Court the prerogative of overruling its own
decisions.”).

       For these reasons, I respectfully dissent.




                               14
