Francisco Romero v. Charles Ryan , 693 F. App'x 580 ( 2017 )

FILED
NOT FOR PUBLICATION
JUL 05 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO JAVIER ROMERO, No. 15-15768
Petitioner-Appellant, D.C. No. 2:08-cv-00542-ROS
v.
MEMORANDUM*
CHARLES L. RYAN,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted February 16, 2017**
San Francisco, California
Before: W. FLETCHER, RAWLINSON, and FUENTES,** Circuit Judges.
Appellant Francisco Javier Romero (Romero) appeals the district court’s
decision denying his habeas petition. He asserts that his aggravated sentence was
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Julio M. Fuentes, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004). After killing
four people and injuring three others in a car accident, Romero was sentenced to 31
years’ imprisonment for four counts of manslaughter and three counts of
aggravated assault in violation of Ariz. Rev. Stat. §§ 13-1103, 1203, and 1204.
Romero contends that the trial judge erred under Blakely and violated the Sixth
Amendment by relying on facts not admitted by Romero or found by a jury beyond
a reasonable doubt to impose the aggravated sentence. The State concedes Blakely
error but argues that the error was harmless. We review a district court’s denial of
a habeas petition de novo. See Visciotti v. Martel, 839 F.3d 845, 856 (9th Cir.
2016).
We agree that the trial court’s Blakely error was harmless. See Estrella v.
Ollison, 668 F.3d 593, 598 (9th Cir. 2011) (explaining that an error is not harmless
“if we are in grave doubt that a jury would have found the relevant aggravating
factor beyond a reasonable doubt”) (citation and internal quotation marks omitted).
At the time of Romero’s offense, Ariz. Rev. Stat. § 12-703(C)(9)
enumerated as an aggravating factor the “physical, emotional and financial harm
caused to the victim or . . . the emotional and financial harm caused to the victim’s
immediate family.” At the sentencing hearing, Romero’s victims and their families
provided substantial testimony that they endured physical, emotional, and financial
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injury in the aftermath of the automobile accident. Accordingly, there is no “grave
doubt” that a reasonable juror would have found that the victims and their families
suffered physical, emotional, and financial injury due to Romero’s conduct.
Estrella, 668 F.3d at 598-99 (observing that the court may consider “evidence
presented at sentencing proceedings” in its harmless error analysis).
Under Arizona law, once the jury found this factor, Romero was exposed to
the aggravated sentencing range and the trial court had discretion to consider
additional factors relevant to sentencing. See State v. Martinez, 115 P.3d 618, 624
(Ariz. 2005) (en banc) (ruling that once a jury implicitly or explicitly establishes
one Blakely-compliant aggravating factor, the sentencing judge may consider
additional aggravating circumstances relevant to imposing a sentence up to the
statutory maximum). This court has previously upheld a similar sentencing
scheme under the Sixth Amendment. See Butler v. Curry, 528 F.3d 624, 643 (9th
Cir. 2008) (holding that “if at least one of the aggravating factors on which the
judge relied in sentencing . . . was established in a manner consistent with the Sixth
Amendment,” the sentence itself is constitutional); see also Alleyne v. United
States, 133 S. Ct. 2151, 2163 (2013) (explaining that once a fact that increases the
maximum possible sentence has been found by a jury, judges retain the discretion
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to engage in factfinding in determining where a defendant’s sentence falls within
that range).
Viewing the record as a whole, no reasonable juror would have failed to find
the trial court’s relied-upon factors beyond a reasonable doubt, and the court’s
Blakely error was harmless. See Estrella, 668 F.3d at 598.
AFFIRMED.
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