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KESSEE v. MENDOZA-POWERS

No. 07-56153.

569 F.3d 1000 (2009)

Harold KESSEE, Petitioner-Appellee, v. Kathy MENDOZA-POWERS, Warden, Respondent-Appellant.

United States Court of Appeals, Ninth Circuit.

Filed June 23, 2009.

Attorney(s) appearing for the Case

Rama R. Maline, Deputy Attorney General of the State of California, Los Angeles, CA, for the respondent-appellant.

Johanna S. Schiavoni, Latham & Watkins LLP, San Diego, CA, for the petitioner-appellee.

Before: JOHN T. NOONAN, DIARMUID F. O'SCANNLAIN, and SUSAN P. GRABER, Circuit Judges.

GRABER, Circuit Judge:

What is the scope of the "prior conviction" exception to the general rule that a sentencing judge may not make factual findings that increase the statutory maximum criminal penalty? The Supreme Court has not yet answered that question. Accordingly, the answer depends on what level of scrutiny we apply to the sentencing decision. When we review de novo, we make an independent determination of the scope of the prior conviction exception, using...

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