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BUTLER v. CURRY

No. 07-56204.

528 F.3d 624 (2008)

Frank BUTLER, Petitioner-Appellee, v. Ben CURRY, Respondent-Appellant.

United States Court of Appeals, Ninth Circuit.

Filed June 9, 2008.

Attorney(s) appearing for the Case

Davina T. Chen, Deputy Federal Public Defender, Los Angeles, CA, for the petitioner.

William H. Shin, Deputy Attorney General, Los Angeles, CA, for the respondent.

Before: CYNTHIA HOLCOMB HALL, SUSAN P. GRABER, MARSHA S. BERZON, Circuit Judges.

BERZON, Circuit Judge:

Frank Butler alleged in his petition for writ of habeas corpus that his Sixth Amendment rights were violated when the California state trial court imposed an "upper term" sentence based on two aggravating factors not proved to a jury beyond a reasonable doubt. The district court, relying on Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), agreed, and granted the writ. The State contends that Cunningham...

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