Whether a Blakely error is harmless when the jury returned a compromise verdict and the sentencing enhancement at issue required a subjective assessment of disputed facts and witness credibility

QUESTION PRESENTED In the decade since this Court ruled in Washington v. Recuenco, 548 U.S. 212 (2006), that errors under Blakely v. Washington, 542 U.S. 296 (2004), can be harmless, the lower courts have struggled to apply harmless-error analysis where the jury returned a compromised verdict, the sentencing enhancement at issue required a subjective assessment of the nature of the crime, and the application of the enhancement required the judge to resolve a disputed fact at trial. Here, a Tennessee jury returned a compromise verdict finding Lonnie Lee Owens guilty of second-degree murder, an offense punishable by 20 years in prison. He is serving 24. At sentencing, the judge enhanced Owens’s sentence by finding a disputed fact against Owens to conclude that his crime was exceptionally cruel. The state appellate court approved the enhancement, describing Owens’s argument that Blakely forbids this kind of judicial fact-finding as having “no merit.” The district court granted Owens’ habeas petition, holding that the state court’s decision was contrary to or an unreasonable application of Blakely and that the error was not harmless, but the Sixth Circuit reversed, holding that the jury doubtlessly would have agreed that Owens deserved the enhanced sentence. In finding the Blakely error harmless, the Sixth Circuit’s decision stands in conflict with decisions of several other courts. The question presented is: Whether a Blakely error is harmless when the jury returned a compromise verdict and the sentencing ii enhancement at issue required a_ subjective assessment of disputed facts and witness credibility. iii STATEMENT OF