                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 05 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RAY MCKINLEY BOWEN,                              No. 08-16353

               Petitioner - Appellant,           D.C. No. 1:07-CV-00366-DLB

  v.
                                                 MEMORANDUM *
DARRELL G. ADAMS,

               Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Dennis L. Beck, Magistrate Judge, Presiding

                          Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       California state prisoner Ray McKinley Bowen appeals from the district

court’s denial of his 28 U.S.C. § 2254 petition challenging his jury-trial conviction

for kidnapping, making a criminal threat, and inflicting corporal injury on a spouse




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
or cohabitant, for which he was sentenced to 23 years, four months in prison. We

have jurisdiction under 28 U.S.C. § 2253(a), and we affirm.

      Bowen contends that the trial court’s selection of an upper-term sentence on

the kidnapping count violated his Sixth and Fourteenth Amendment rights as

established in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v.

Washington, 542 U.S. 296 (2004). See Cunningham v. California, 549 U.S. 270,

288-89, 293 (2007) (holding that California’s determinate sentencing law,

permitting imposition of an upper-term sentence on the basis of aggravating

circumstances not found by the jury, “violates Apprendi’s bright-line rule”).

      It is unnecessary to decide whether Bowen’s kidnapping sentence was

imposed in violation of Apprendi because any error was harmless in light of

Bowen’s undisputed history of parole and probation violations, on which the trial

court relied in part in setting Bowen’s sentence. See Butler v. Curry, 528 F.3d 624,

642, 648 (9th Cir. 2008) (“Any Apprendi error [is] harmless if it is not prejudicial

as to just one of the aggravating factors at issue[,]” as the presence of one such

factor serves to “set the upper term as the statutory maximum.”). In determining

harmlessness, the question is not, as Bowen suggests, whether the trial court would

have imposed an upper-term sentence on the basis of just one aggravating factor; it

is rather whether the jury would likely have found one such factor beyond a


                                           2                                    08-16353
reasonable doubt. See Butler, 528 F.3d at 648-49. Because there can be no

question that the jury would have found Bowen’s history of parole and probation

violations established beyond a reasonable doubt, any Apprendi error did not have

a “substantial and injurious effect” on Bowen’s sentence. See Brecht v.

Abrahamson, 507 U.S. 619, 638 (1993).

      AFFIRMED.




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