Full opinion text
WESLEY, Circuit Judge: Petitioners Carlos Portalatin, William Phillips, and Vance Morris were separately convicted in state court and received sentences pursuant to New York’s persistent felony offender statute, N.Y. Penal Law § 70.10. Each petitioned for a writ of habeas corpus on the ground that the New York courts engaged in an unreasonable application of clearly established federal law in affirming their sentences. Specifically, they argue that the Sixth Amendment guarantee of the right to an impartial jury, as construed by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and its progeny, proscribes the long-used sentencing procedure in New York that results in judicially enhanced sentences for certain recidivist offenders. In the case of petitioner Portalatin, the United States District Court for the Eastern District of New York agreed, issuing a writ of habeas corpus from which the State now appeals. See Portalatin v. Graham, 478 F.Supp.2d 385, 386 (E.D.N.Y.2007) (Gleeson, J.). In the cases of petitioners Phillips and Morris, the United States District Court for the Southern District of New York separately declined to issue such writs. See Phillips v. Artus, No. 05 Civ. 7974, 2006 WL 1867386, at *1 (S.D.N.Y. June 30, 2006) (Crotty, /.); Morris v. Artus, No. 06 Civ. 4095, 2007 WL 2200699, at *1 (S.D.N.Y. July 30, 2007) (Sweet, /.). Petitioners appealed. In a consolidated appeal, a panel of this Court concluded that New York’s persistent felony offender sentencing scheme violates the Sixth Amendment, and that the New York courts unreasonably applied clearly established Supreme Court precedent in holding otherwise, but remanded the matters to the district court for consideration of whether those errors were harmless. See Besser v. Walsh, 601 F.3d 163, 189 (2d Cir.2010). A majority of judges in active service then called for this rehearing en banc. The Court now holds that the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions. Accordingly, the grant of the writ to Portalatin is reversed, and the denials of the writ to Phillips and Morris are affirmed. Background A. New York’s Recidivist Sentencing Scheme At issue in this case is the constitutionality of New York’s persistent felony offender (“PFO”) sentencing statute, which authorizes lengthy terms of imprisonment for certain recidivist offenders in New York. New York was the first state in the Union to enact a recidivist sentencing law; that is, one that punishes repeat offenders more harshly than first-time offenders. See generally Susan Buckley, Note, Don’t Steal a Turkey in Arkansas — -the Second Felony Offender in New York, 45 Ford-ham L.Rev. 76 (1976). New York provided for the enhancement of sentences for second-time offenders beginning in 1796. Act of March 26, 1796, ch. 30, 1789-1796 N.Y. Laws 669 (1887 ed.). It subsequently added a mandatory life sentence for fourth-time offenders, Act of July 19, 1907, ch. 645, 1907 N.Y. Laws 1494-95, which was later reduced to an indeterminate term of between fifteen years and life, Act of April 4, 1932, ch. 617, 1932 N.Y. Laws 1312. Ultimately, in revising the Penal Law in 1965, New York began to move away from that rigid mandatory framework — with respect to non-violent offenders — to permit judges more flexibility in selecting a sentence that is not unduly harsh in any given case: The primary objection to the existing New York provisions is the mandatory feature which requires the court to blind itself to all relevant sentencing criteria, such as the circumstances surrounding the crime for which sentence is to be imposed, the nature and circumstances of the previous crimes, and the history, character and condition of the offender. Comm. Staff Notes, reprinted in proposed New York Penal Law (Study Bill, 1964 Senate Int. 3918, Assembly Int. 5376), § 30.10 [now § 70.10], at 284. Accordingly, Article 70 of New York’s penal law now sets forth two categories of recidivists, or “persistent offenders.” A persistent violent felony offender is defined as a person who stands convicted of a violent felony (as defined in N.Y. Penal Law § 70.02) and has previously been convicted of two or more violent felonies (as defined in N.Y. Penal Law § 70.04(l)(b)). Such an individual is subject to an enhanced sentencing range, with a maximum term of life in prison, and a minimum term fixed, based on the category of the offense, anywhere from twelve to twenty-five years. N.Y. Penal Law § 70.08(2), (3). A judge does not have discretion to depart from that enhanced range: “[w]hen the court has found ... that a person is a persistent felony offender the court must impose an indeterminate sentence of imprisonment [as provided herein].” Id. § 70.08(2) (emphasis added). By contrast, subject to certain exceptions, a persistent felony offender is defined as a “person, other than a persistent violent felony offender ... who stands convicted of a felony after having previously been convicted of two or more felonies.” Id. § 70. lO(lXa). Once a defendant is determined to be a PFO, he may receive an indeterminate sentence corresponding to that of a class A-I felony, which ranges from a minimum of fifteen to twenty-five years, and a maximum of life in prison. Id. §§ 70.10(2); 70.00(3)(a)(i). However, unlike New York’s persistent violent felony offender statute, the PFO statute does not require the judge to impose a sentence within that elevated range. Instead, the decision whether to impose a class A-I sentence is within the judge’s discretion. Id. § 70.10(2). The PFO statute is therefore commonly referred to as the “discretionary” persistent felony offender statute. It permits, but does not require, a class A-I sentence for certain recidivist felons. The procedure by which a judge determines whether to impose a PFO sentence in a particular case is set forth in New York Criminal Procedure Law § 400.20. Pursuant to that provision, the prosecution must first prove beyond a reasonable doubt that the defendant is a PFO — that is, that he has previously been convicted of two or more qualifying felonies — before an enhanced sentence is authorized. See N.Y.Crim. Proc. Law § 400.20(1), (5). But the court is also directed to engage in a second inquiry, and to assess whether a PFO sentence is warranted before imposing such a sentence, taking into consideration the “history and character” of the defendant and the “nature and circumstances of his criminal conduct.” Id. If, in the court’s view, the undisputed allegations regarding the defendant’s background and the nature of his criminal conduct justify the imposition of the enhanced sentence, and the court is satisfied that the defendant either has no relevant evidence to the contrary or such evidence would not affect the court’s decision, then the court may impose a class A-I sentence (without a further hearing) pursuant to § 70.10(2). See id. § 400.20(8). Otherwise, the court may schedule a hearing at which the prosecution and defendant are given an opportunity to present evidence as to whether the A-I sentence is warranted. Id. § 400.20(9). And, at the conclusion of that hearing, [i]f the court both finds that the defendant is a persistent felony offender and is of the opinion that a persistent felony offender sentence is warranted, it may sentence the defendant in accordance with the provisions of [Section 70.10(2) ]. Id. Throughout the proceeding the prosecution bears the burden of proof. Id. § 400.20(5). If the sentencing court imposes a class A-I sentence, “the reasons for the court’s opinion shall be set forth in the record.” N.Y. Penal Law § 70.10(2). To illustrate: A defendant who stands convicted as a first-time offender of a class D felony is subject to an indeterminate sentence, with a minimum term of no less than one year and no more than two and one third years, and a maximum term of between three years and seven years. See id. § 70.00(2)(d), (3)(b). Following the defendant’s second conviction of a class D felony, he faces an indeterminate sentence with a minimum term of between two years and three and one half years, and a maximum term of between four years and seven years. See id. § 70.06(3)(d), (4)(b). A subsequent conviction of a class D felony triggers the PFO statute. Once the prosecution proves the fact of defendant’s two prior convictions beyond a reasonable doubt, the defendant is subject to a class A-I sentence, in the discretion of the court and pursuant to the procedure described above, with a minimum term of between fifteen and twenty-five years, and a maximum term of life in prison. See id. §§ 70.00(2)(a), (3)(a)(i), 70.10(2). B. Facts and Procedural History 1. Carlos Portalatin On July 12, 2002, Portalatin accosted a man at gunpoint and forced him to drive to an empty street in Brooklyn. Following a struggle, the victim managed to escape, and Portalatin drove away in the car. He was convicted of robbery in the first degree and kidnaping in the second degree, both class B violent felonies. See N.Y. Penal Law § 70.02(1). The prosecution asked the court to sentence Portalatin as a persistent felony offender. A sentencing hearing was held on April 28, 2003, at which the prosecution proved that Portalatin had been previously convicted of the following: (1) attempted burglary in the second degree in 1995; and (2) attempted criminal sale of a controlled substance in the fifth degree in 1998. Portalatin did not contest the existence of those convictions. The court concluded that Portalatin “appealed] to be eligible for discretionary persistent felony offender adjudication” based on those predicate offenses. Next, at step two, the court conducted an assessment to determine whether a class A-I sentence was warranted. The court considered the circumstances of the crimes for which he was convicted, and also examined the history and character of the defendant: [Ljooking back on the history of this defendant, and having read these reports ... [H]e began his criminal career in 1989, and we have beginning from that point on, the failure to take advantage of opportunities that might have provided drug treatment, that might have in some way assisted him. We have bench warrants repeatedly. We have parole revocations, and repeated parole revocations to the extent that it’s only when these sentences maxed out that he finally is released, and no sooner is he released than there is a new crime. He certainly has earned a persistent adjudication as I look at this Rap sheet and the circumstances of this offense and other offenses, and I’m going to adjudicate him a persistent felony offender. The court imposed two indeterminate sentences of eighteen years to life imprisonment, to run concurrently. Had the court elected not to sentence Portalatin as a PFO, he would have faced a determinate sentence of between ten and twenty-five years on each count. See N.Y. Penal Law § 70.04(3)(a). Portalatin appealed his conviction, contending that his sentence was imposed in violation of the Sixth Amendment, as construed by the Supreme Court in Apprendi. On May 16, 2005, the Appellate Division affirmed the judgment, People v. Portalatin, 18 A.D.3d 673, 674, 795 N.Y.S.2d 334, 335 (2d Dep’t 2005), and the New York Court of Appeals subsequently denied him leave to appeal, People v. Portalatin, 5 N.Y.3d 793, 793, 801 N.Y.S.2d 814, 835 N.E.2d 674 (2005). Portalatin then sought a writ of habeas corpus in the United States District Court for the Eastern District of New York, which was granted. Portalatin, 478 F.Supp.2d at 407. The State took this appeal. 2. William Phillips On March 13, 1999, Phillips and another man robbed a magazine store in midtown Manhattan. The evidence at trial established that Phillips entered the store with his accomplice, pulled a knife, and demanded money from the store manager. He was convicted following a jury trial of one count of second-degree robbery (at the time a class C violent felony). Following his conviction, the prosecution moved to have Phillips sentenced as a persistent felony offender pursuant to § 70.10. Phillips’s predicate felony offenses included: (1) in 1986, he was convicted of second-degree attempted robbery relating to an incident in which he and an accomplice “grabbed a man on a Bronx Street and forcibly stole his property”; (2) in 1987, he was convicted of third-degree burglary while awaiting sentencing on the 1986 Bronx conviction; (3) also in 1987, he was convicted of fourth-degree grand larceny arising from his theft of a wallet from an undercover police officer; (4) once again in 1987, he was convicted of third-degree burglary arising from his theft of merchandise from a card store; (5) in 1990, following the completion of his sentences for the above charges, he was convicted of third-degree attempted robbery; and (6) in 1994, he was convicted of attempted criminal sale of a controlled substance in the third degree. Phillips also had multiple misdemeanor offenses. A sentencing hearing was held on January 4, 2000, at which the court heard arguments on the prosecution’s § 70.10 motion. Phillips did not dispute the existence of his six prior felony convictions. Instead, he challenged the facts found by the jury in his case, maintained his innocence of the March 13, 1999, robbery, and attempted to persuade the court to exercise its discretion not to sentence him as a PFO. On January 13, 2000, the court issued its ruling. First, the court made the threshold determination that “defendant has been convicted of two or more previous felonies and is a persistent felony offender within the meaning of [§ 70.10].” The court then conducted a generalized assessment, and concluded that a class A-I sentence was warranted: Defendant has demonstrated time and again, throughout his entire adult life, that he cannot be trusted to function normally in society and that he is unwilling and unable to rehabilitate himself. The history and character of defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision are warranted to best serve the public interest. (citing N.Y.Crim. Proc. Law § 400.20(1); N.Y. Penal Law § 70.10). Phillips received an indeterminate sentence of sixteen years to life in prison. Had he not been sentenced as a PFO, he would have faced a determinate sentence of between seven and fifteen years. See N.Y. Penal Law §§ 70.02(1); 70.04(1), (3)(b). Following his sentence, Phillips exhausted his appeals in state court, see People v. Phillips, 2 A.D.3d 278, 279, 768 N.Y.S.2d 812, 812 (1st Dep’t 2003) (rejecting defendant’s Apprendi challenge); People v. Phillips, 3 N.Y.3d 645, 645, 782 N.Y.S.2d 417, 816 N.E.2d 207 (June 24, 2004), on reconsideration, 3 N.Y.3d 710, 710, 785 N.Y.S.2d 38, 818 N.E.2d 680 (Sep. 30, 2004) (denying leave to appeal), and then brought the instant petition for a writ of habeas corpus in the United States District Court for the Southern District of New York on the ground that his sentence was imposed in violation of the principle announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). On June 30, 2006, the district court rejected his Apprendi challenge and declined to issue a certificate of appealability. Phillips, 2006 WL 1867386, at *5-7. Phillips then moved for a certificate of appealability in this Court, which was granted. 3. Vance Morris Morris was convicted following a jury trial of sixteen counts of criminal contempt in the first degree, a class E felony. See N.Y. Penal Law § 215.51(b). Four final orders of protection had previously been issued against Morris when the police were called to his ex-girlfriend’s apartment on July 18, 2001. The woman informed the officers that Morris had come to her residence in violation of the orders of protection, repeatedly banged on her door, and threatened her. While the officers were still present, Morris twice called the apartment and left messages, each time threatening to kill the woman. Following Morris’s conviction, the State moved to sentence him as a persistent felony offender. At sentencing hearings held in April and July of 2002, Morris conceded various prior felony convictions, including: (1) a 1989 conviction for attempted robbery in the third degree; (2) a 1992 conviction for grand larceny in the fourth degree; (3) a 1992 conviction for attempted criminal possession of a controlled substance in the fifth degree; and (4) a 1994 conviction for robbery in the third degree. The court therefore concluded that Morris qualified as a persistent felony offender under Section 70.10. Next, at step two, the court evaluated whether or not Morris should be sentenced as a PFO. The sentencing judge described the defendant’s long history of “terrorizing” his ex-girlfriend, as well as several of her neighbors, who on several occasions felt it necessary to call the police for fear that “he’s going to kill us all.” In addition, while Moms was incarcerated at Riker’s Island during the pendency of the case, he called his ex-girlfriend on thirty-two separate occasions in violation of the orders of protection. The court considered the defendant’s other criminal history of violence toward women, which include numerous incidents in the subway, inter alia: firing a projectile in the face of a female passenger in 1986, twice snatching pairs of earrings from the ears of female passengers, slapping a [visibly] pregnant female in the face and snatching necklaces from her neck, twice engaging in public masturbation in the subway station in front of female witnesses and grabbing the buttocks of a female rider while threatening a sexual assault on her. The court concluded that Morris’s “criminal record, which spans nearly two decades, establishes his propensity to prey upon helpless women generally, and upon [the ex-girlfriend] in particular. It also serves to demonstrate his utter lack of self control and inability to be rehabilitated.” Morris was sentenced to sixteen indeterminate terms of fifteen years to life in prison, to be served concurrently. If Morris had not been sentenced as a PFO, he would have faced a determinate sentence of between one and one half years and four years on each of the sixteen counts. See N.Y. Penal Law § 70.06(3X4). On direct appeal, Morris asserted an Apprendi challenge to his sentence. The Appellate Division rejected that argument as unpreserved, as well as on its merits. See People v. Morris, 21 A.D.3d 251, 251, 800 N.Y.S.2d 6, 7 (1st Dep’t 2005). The New York Court of Appeals denied leave to appeal on September 27, 2005, People v. Morris, 5 N.Y.3d 831, 831, 804 N.Y.S.2d 45, 837 N.E.2d 744 (2005), and Morris submitted a petition for a writ of habeas corpus in federal court. On July 30, 2007, the United States District Court for the Southern District of New York denied that petition. Morris, 2007 WL 2200699, at *1. Morris brought this appeal. 4. The Consolidated Appeal and Panel Opinion Because the legal question presented by the three petitioners is identical — specifically, whether New York’s recidivist sentencing scheme runs afoul of the Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) — their appeals were consolidated by our Court. The case was argued in front of a three-judge panel on April 16, 2008, and on March 31, 2010, the panel answered that question in the affirmative. Besser v. Walsh, 601 F.3d 163, 169 (2d Cir.2010). According to the panel, the Sixth Amendment principle announced in Blakely “prohibits the type of judicial fact-finding resulting in enhanced sentences under New York’s PFO statute.” Id. We ordered this rehearing en banc and, for the reasons stated below, we conclude that the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent to conclude otherwise. Each of the petitions is therefore denied. Discussion A. Standard of Review We review de novo a district court’s decision to grant or deny a habeas corpus petition. See, e.g., Overton v. Newton, 295 F.3d 270, 275 (2d Cir.2002). Since the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), Pub.L. No. 104-132, 110 Stat. 1214, federal habeas review of state court convictions has been narrowly circumscribed, see Felker v. Turpin, 518 U.S. 651, 654, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (acknowledging that AEDPA “work[ed] substantial changes” to the ability of a federal tribunal to entertain a habeas petition). Where, as here, the challenged state court decision was adjudicated on the merits, the writ may not issue unless the state court proceeding: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). To qualify as “clearly established” for the purposes of federal habeas review, a rule of law must be embodied in the “holdings, as opposed to the dicta,” of Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). And, for a state court decision to be “contrary to,” or an “unreasonable application of,” that Supreme Court precedent, the decision must: (1) “arrive[] at a conclusion opposite to that reached by [the Supreme Court] on a question of law”; (2) “deeide[ ] a case differently than [the Supreme Court] on a set of materially indistinguishable facts”; or (3)“identif[y] the correct governing legal principle ... but unreasonably appl[y] that principle to the facts of the prisoner’s case.” See id. at 412-13, 120 S.Ct. 1495. If none of these conditions is met, even if the federal court would have reached a different conclusion on direct review, the petition must be denied. “As we have interpreted [the AEDPA] standard, we decide not whether the state court correctly interpreted the doctrine of federal law on which the claim is predicated, but rather whether the state court’s interpretation was unreasonable in light of the holdings of the United States Supreme Court at the time.” Policano v. Herbert, 507 F.3d 111, 115 (2d Cir.2007) (internal quotation marks omitted). To that end, “the range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow ... As a result, evaluating whether a rule application was unreasonable requires considering the rule’s specificity.” Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). B. “Clearly Established” Law: Apprendi, Ring, Blakely, and Cunningham In the seminal case of Apprendi v. New Jersey, the Supreme Court applied the Sixth Amendment’s guarantee to a trial by an impartial jury to a state law triggering enhanced sentencing ranges based on judicial factfinding. 530 U.S. at 490, 120 S.Ct. 2348. There, a New Jersey hate-crime statute permitted the trial judge to impose an “extended term” of imprisonment if the judge found, by a preponderance of the evidence, that the defendant committed the crime “with a purpose to intimidate an individual or group” based on certain enumerated characteristics. Id. at 468-69, 120 S.Ct. 2348. The Supreme Court struck down the statute as a violation of the Sixth Amendment. Id. at 497, 120 S.Ct. 2348. Because the hate-crime statute permitted a sentencing judge to enhance a defendant’s term of incarceration beyond the maximum otherwise authorized for the underlying offense, based on facts found by the judge by a preponderance of the evidence, the defendant was effectively being charged, convicted, and sentenced to a more serious crime without the protections of a jury trial. See id. at 483, 120 S.Ct. 2348. The Court in Apprendi set forth the rule and its exception, both now well settled: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348 (emphasis added). The exception for prior convictions preserved the Court’s earlier holding in Almendarez-Torres v. United States, which affirmed the constitutionality of the use of recidivism as a judicially determined “sentencing factor” authorizing an enhanced sentence. See 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). There, the Court rejected the argument that 8 U.S.C. § 1326(b)(2) violated a defendant’s right to a jury trial because it authorized an enhanced penalty for any alien caught reentering the United States after being deported, if the initial deportation “was subsequent to a conviction for commission of an aggravated felony.” 8 U.S.C. § 1326(b)(2); see id. at 226-28, 118 S.Ct. 1219. According to the Court, “the sentencing factor at issue here — recidivism — is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” Almendarez-Torres, 523 U.S. at 243, 118 S.Ct. 1219 (emphasis added). In reaffirming the constitutionality of the use of recidivism as a judicially-found sentencing factor, the Supreme Court has since emphasized that the existence of procedural safeguards embedded in prior criminal proceedings, as well as the lack of dispute or uncertainty as to the “fact” of a prior conviction, “mitigate[] the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing the punishment beyond the maximum of a statutory range.” Apprendi 530 U.S. at 488, 120 S.Ct. 2348. To be sure, “[t]he Court’s repeated emphasis on the distinctive significance of recidivism leaves no question that the Court regarded that fact as potentially distinguishable for constitutional purposes from other facts that might extend the range of possible sentencing.” Jones v. United States, 526 U.S. 227, 249, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); see also Parke v. Raley, 506 U.S. 20, 26, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (acknowledging that recidivism has formed the basis for sentencing enhancements “dat[ing] back to colonial times,” and that recidivist sentencing laws were “currently ... in effect in all 50 states”). The rule of Apprendi was later reinforced in Ring v. Arizona, in which the Supreme Court struck down a capital sentencing scheme that vested the trial judge with the discretion to determine the presence or absence of statutorily enumerated aggravating factors required for the imposition of a death sentence. 536 U.S. 584, 588, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Under the Arizona law, a defendant could not be sentenced to death unless the judge found at least one “aggravating circumstance.” Id. at 592-93, 122 S.Ct. 2428. Absent that factual finding, the defendant faced a maximum sentence of life in prison. Id. at 597, 122 S.Ct. 2428. The result was therefore presaged by Apprendi : “[bjecause Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ the Sixth Amendment requires that they be found by a jury.” Id. at 609, 122 S.Ct. 2428 (quoting Apprendi, 530 U.S. at 494 n. 19,120 S.Ct. 2348). That Arizona dubbed those findings “aggravating factors” altered the analysis no more than New Jersey’s use of the term “sentencing enhancement,” because “[t]he dispositive question ... is one not of form, but effect.” Ring, 536 U.S. at 602, 122 S.Ct. 2428 (internal quotation marks omitted). In Blakely v. Washington, the Supreme Court expanded on the principle announced in Apprendi when it was presented with a challenge to a sentence imposed pursuant to Washington’s Sentencing Reform Act. 542 U.S. at 313-14, 124 5.Ct. 2531. Blakely was convicted of “second-degree kidnaping involving domestic violence and use of a firearm,” which carried a statutory maximum sentence of ten years. Id. at 298-99,124 S.Ct. 2531 (citing Wash. Rev.Code §§ 9A.40.030(1), 10.99.020(3)(p), 9.94A.125). However, pursuant to other statutory provisions, a sentencing judge was required to impose a “standard” sentence of between forty-nine and fifty-three months unless the judge found “substantial and compelling reasons justifying an exceptional sentence.” Id. at 299, 124 S.Ct. 2531 (quoting Wash. Rev. Code § 9.94A.120(2)). An illustrative list of aggravating factors was set forth in the Act, and the sentencing judge was required to set forth findings of fact and conclusions of law supporting a so-called “exceptional” sentence. Id. at 299, 124 S.Ct. 2531. The trial judge decided to give Blakely an exceptional sentence of ninety months, based on the fact that he had acted with “deliberate cruelty,” one of the enumerated grounds for departure. Id. at 300, 124 S.Ct. 2531. The Supreme Court reversed the sentence. The Court first restated the familiar rule (and exception) of Apprendi: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum, must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 301, 124 S.Ct. 2531 (emphasis added). But the Blakely court went further, and clarified that the relevant “statutory maximum” may not necessarily coincide with the maximum penalty prescribed by the penal code. Instead, “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. ” Id. at 303, 124 S.Ct. 2531 (emphasis in original). For Blakely, the relevant “Apprendi maximum” was fifty-three months: Because the judge was powerless to sentence Blakely to anything more than fifty-three months based solely on his conviction and the facts admitted pursuant to his guilty plea, the statutory maximum was “no more 10 years ... than it was 20 years in Apprendi (because that is what the judge could have imposed upon finding a hate crime) or death in Ring (because that is what the judge could have imposed upon finding an aggravator).” Id. at 304, 124 S.Ct. 2531. Moreover, Blakely clarified that a sentencing scheme can violate the Sixth Amendment even if those “facts” that a sentencing judge is required to find are not specifically enumerated by statute. Id. at 305, 124 S.Ct. 2531. That the list of aggravating circumstances in the Washington statute was “illustrative rather than exhaustive” did not elide the constitutional flaw: “Whether the judge’s authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as [in Blakely ]),” id., the authority is derivative of an unconstitutional source. Because Blakely’s ninety-month sentence could not have been imposed but for the judge’s finding of “deliberate cruelty,” it was imposed in violation of the Sixth Amendment. Id. Thus, Blakely settled that the Apprendi maximum is the sentence that is authorized based solely on those factual predicates that are found within the constraints of the Sixth Amendment. That is, those facts that are: (1) proven to a jury beyond a reasonable doubt; (2) admitted by the defendant; or (3) findings of recidivism. Lastly, in Cunningham v. California, the Supreme Court addressed the validity of California’s determinate sentencing law (“DSL”) in light of Apprendi, Ring and Blakely. Cunningham v. California, 549 U.S. 270, 274, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). Under the DSL, most substantive offenses were assigned three tiers of determinate sentences: a lower-, a middle-, and an upper-term sentence. Id. at 277, 127 S.Ct. 856. But the discretion of the trial judge to select either the upper-term or lower-term sentence was circumscribed: the statute provided that “the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” Id. (quoting Cal.Penal Code § 1170(b)) (emphasis added). Circumstances in aggravation were defined as “facts which justify the imposition of the upper prison term,” which were to be “established by a preponderance of the evidence” and “stated orally on the record.” Id. at 278, 127 S.Ct. 856 (quoting Cal. Jud. Council Rules 4.405(d), 4.420(b), 4.420(e)) (emphasis in original). Hence, the middle term was the default sentence absent further factual findings. Cunningham was convicted of “continuous sexual abuse of a child” under the age of fourteen, for which the prescribed terms were six, twelve, and sixteen years, respectively. Id. at 275, 127 S.Ct. 856. At a post-trial sentencing hearing, the judge found by a preponderance of the evidence six aggravating circumstances including, inter alia, the “particular vulnerability” of his victim. Id. Cunningham was sentenced to the upper term of sixteen years. Id. at 276, 127 S.Ct. 856. The Supreme Court held that the DSL violated the Sixth Amendment. In rejecting the State’s argument that the Apprendi maximum was the upper-term sentence — for Cunningham, sixteen years— the Court reaffirmed the principle announced in Blakely that a sentence must be fully authorized by factual predicates obtained in compliance with the Constitution: “If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.” Id. at 290, 127 S.Ct. 856. Because the judge was required to make a factual finding in order to impose the upper-term sentence, the Apprendi maximum was not the upper term, but the middle term, and the use of judicial factfinding to impose the upper term violated the Sixth Amendment. Id. at 292-93,127 S.Ct. 856. Because Cunningham was decided well after the conviction of each petitioner became final, it is urged by the State that we cannot consider it in our analysis. To the contrary, a Supreme Court holding is generally operative retroactively in a collateral proceeding so long as it does not announce a “new rule” within the meaning of Teague. See, e.g., Beard v. Banks, 542 U.S. 406, 411, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004). “[ A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at 301, 109 S.Ct. 1060 (emphasis added, internal citations omitted). Similarly, under AEDPA, “clearly established federal law” is “law that is dictated by Supreme Court precedent existing at the time the defendant’s conviction became final.” McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir.2003) (internal quotations and brackets omitted). Thus, if the holding of a case was “dictated” by extant Supreme Court precedent at a particular time, the constitutional rule embodied in that case was necessarily “clearly established” at that time. In that light, we have no trouble concluding that the identification of a Sixth Amendment violation in Cunningham was dictated at the time that the petitioners’ convictions became final on direct review. Specifically, the decision in Blakely can be said to have compelled the result in Cunningham, because Blakely left no doubt that the Apprendi maximum is the highest sentence authorized by constitutionally-obtained factual predicates alone: those contained in the jury verdict, those admitted by the defendant, and those respecting recidivism. See Blakely, 542 U.S. at 305, 124 S.Ct. 2531. Thus, it should have been “apparent to all reasonable jurists,” Lambrix v. Singletary, 520 U.S. 518, 527-28, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997), that the demise of California’s DSL was portended by the holding of Blakely. The State offers no persuasive analytical distinction between the sentencing schemes in Blakely and Cunningham, nor can we discern any. See Butler v. Curry, 528 F.3d 624, 636 (9th Cir.2008) (noting that the Court in Cunningham “simply applied the rule of Blakely to a distinct but closely analogous sentencing scheme”). Because Cunningham did not extend the principle announced in Blakely, but merely applied it to a new set of facts, we hold that Cunningham constitutes “clearly established law” for the petitioners. Nevertheless, for reasons discussed in the remainder of this opinion, we conclude that neither Cunningham nor any other clearly established Supreme Court precedent supports the petitioners’ position. C. Apprendi and New York’s PFO Statute 1. The operative interpretation: Rosen, Rivera and Quinones The New York Court of Appeals has interpreted the PFO statute on three occasions since the Supreme Court’s decision in Apprendi, each time affirming its constitutionality in response to Sixth Amendment challenges. See People v. Quinones, 12 N.Y.3d 116, 131, 879 N.Y.S.2d 1, 906 N.E.2d 1033 (2009); People v. Rivera, 5 N.Y.3d 61, 71, 800 N.Y.S.2d 51, 833 N.E.2d 194 (2005); People v. Rosen, 96 N.Y.2d 329, 336, 728 N.Y.S.2d 407, 752 N.E.2d 844 (2001). Of course, we do not defer to that court’s interpretation of federal law, but we are bound by its construction of New York law in conducting our analysis. We examine each case in turn. In Rosen, the New York Court of Appeals rejected for the first time an Apprendi challenge to New York’s PFO statute. See 96 N.Y.2d at 335, 728 N.Y.S.2d 407, 752 N.E.2d 844. The court acknowledged the familiar rule of Apprendi: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 334, 728 N.Y.S.2d 407, 752 N.E.2d 844 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348). But the court went on to hold that the only “fact” necessary to impose a PFO sentence under § 70.10 is the “fact” of recidivism, placing the PFO statute squarely within the exception to the rule: “It is clear from the ... statutory framework that the prior felony convictions are the sole determinant] of whether a defendant is subject to enhanced sentencing as a persistent felony offender.” Id. at 335, 120 S.Ct. 2348 (emphasis added). Only after that finding is made will a court look to the defendant’s “history and character,” and the “nature and circumstances of his criminal conduct,” to determine where, within this now expanded sentencing range, a sentence should be imposed. See id. To that end, “the sentencing court is thus only fulfilling its traditional role— giving due consideration to agreed-upon factors — in determining an appropriate sentence within the permissible statutory-range.” Id. In Rivera, the New York Court of Appeals revisited the constitutionality of § 70.10 in light of Blakely and Ring, and repeated its conclusion that recidivism findings are the only necessary factual predicates to impose a PFO sentence. Because “[t]he statute authorizes indeterminate sentencing once the court finds persistent felony offender status,” Rivera, 5 N.Y.3d at 66, 800 N.Y.S.2d 51, 833 N.E.2d 194 (emphasis added), the court held, “the predicate felonies are both necessary and sufficient conditions for imposition of the authorized sentence for recidivism; that is why we pointedly called the predicate felonies the ‘sole’ determinant [in Rosen ],” id. at 68, 800 N.Y.S.2d 51, 833 N.E.2d 194 (quoting Rosen, 96 N.Y.2d at 335, 728 N.Y.S.2d 407, 752 N.E.2d 844). The court acknowledged that the statute, as written, is susceptible to a construction that would pose an Apprendi problem: We could have decided Rosen differently by reading the statutes to require judicial factfinding as to the defendant’s character and criminal acts before he became eligible for a persistent felony offender sentence. If we had construed the statutes to require the court to find additional facts about the defendant before imposing a recidivism sentence, the statutes would violate Apprendi. Id. at 67, 800 N.Y.S.2d 51, 833 N.E.2d 194 (emphasis in original). But, as the court explained, the statutes raise no constitutional concern because we did not read the law that way. Under our interpretation of the relevant statutes, defendants are eligible for persistent felony offender sentencing based solely on whether they had two prior felony convictions. Id. (emphasis in original). In thus reiterating its construction of the PFO statute in Rosen, the court in Rivera clearly construed state law to provide for an expanded range of authorized sentences once a defendant is adjudged a persistent felony offender, at which point the trial judge is directed to exercise discretion in determining where within that newly expanded range to impose a sentence: The statutory language requiring the sentencing court to consider the specified factors and to articulate the reason for the chosen sentence grants defendants a right to an airing and an explanation, not a result. [A] defendant adjudicated as a persistent felony offender has a statutory right to present evidence that might influence the court to exercise its discretion to hand down a sentence as if no recidivism finding existed, while the People retain the burden to show that the defendant deserves the higher sentence. Id. at 68, 800 N.Y.S.2d 61, 833 N.E.2d 194. In other words, according to New York’s highest court, the maximum “range” of available sentences is established once the defendant is proven to have two prior qualifying felonies: The judge may impose a sentence within the range permitted for an A-I felony, or may instead impose a lower sentence within the range permitted for a second felony offense. Rivera also addressed the statute’s “mandatory consideration and articulation” of those factors that a trial judge finds relevant in determining what sentence to impose. Id. at 69, 800 N.Y.S.2d 51, 833 N.E.2d 194. The court interpreted that legislative directive to serve two distinct functions. First, it provides a defendant with notice and an opportunity to respond to those factors that the court deems relevant to the exercise of its sentencing discretion within the ranges authorized by the PFO statute. “The statutory language requiring the sentencing court to consider the specified factors and to articulate the reason for the chosen sentence grants defendants a right to an airing and an explanation, not a result.” Id. at 68, 800 N.Y.S.2d 51, 833 N.E.2d 194; cf. Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (“Confidence in a judge’s use of reason underlies the public’s trust in the judicial institution. A public statement of those reasons helps provide the public with the assurance that creates that trust.”). And second, the judge’s articulation of reasoning facilitates an appellate review function that is distinct from the issue of whether the PFO sentence was lawfully imposed. In New York, intermediate appellate courts are vested with the capacious authority to review and modify criminal sentences in the interests of justice. See N.Y. Crim. Proc. Law § 470.15(3)(c). Notably, that oversight power is unrelated to the legality of the sentence; the power to reverse or modify a sentence based on a legal error is addressed separately in the statute. See id. § 470.15(3)(a). Even absent legal error, it rests within the discretion of the Appellate Division to modify a sentence in the interest of justice if it is deemed to be “unduly harsh or severe.” In that light, Rivera notes, a sentencing judge should set forth those considerations deemed relevant to the imposition of a PFO sentence for the benefit of an appellate court that must later determine whether the sentence was too severe. Rivera explains: [Ojnce a defendant is adjudged a persistent felony offender, a recidivism sentence cannot be held erroneous as a matter of law, unless the sentencing court acts arbitrarily or irrationally. The court’s opinion is, of course, subject to appellate review, as is any exercise of discretion. The Appellate Division, in its own discretion, may conclude that a persistent felony offender sentence is too harsh or otherwise improvident. In this way, the Appellate Division can and should mitigate inappropriately severe applications of the statute. A determination of that kind, however, is based not on the law but as an exercise of the Appellate Division’s discretion in the interest of justice as reserved uniquely to that Court. 5 N.Y.3d at 68-69, 800 N.Y.S.2d 51, 833 N.E.2d 194 (emphasis added) (citing N.Y.Crim. Proc. Law § 470.20(6)). Rivera thus concluded that the PFO statute does not violate the principle announced in Blakely, because it simply creates a recidivist sentencing scheme: the only factual predicates necessary for a judge to impose a class A-I sentence are those respecting the defendant’s criminal history, and it therefore falls within the carve-out of Almendarez-Torres. Id. at 67, 800 N.Y.S.2d 51, 833 N.E.2d 194. Most recently, in Quinones, the New York Court of Appeals reaffirmed the validity of the PFO statute in light of the Supreme Court’s decision in Cunningham, which it found readily distinguishable. It reiterated much of the reasoning of Rivera, concluding that the New York sentencing scheme, after a defendant is deemed eligible to be sentenced as a persistent felony offender, requires that the sentencing court make a qualitative judgment about, among other things, the defendant’s criminal history and the circumstances surrounding a particular offense in order to determine whether an enhanced sentence, under the statutorily prescribed sentencing range, is warranted. Stated differently, New York’s sentencing scheme, by requiring that sentencing courts consider defendant’s “history and character” and the “nature and circumstances” of defendant’s conduct in deciding where, within a range, to impose an enhanced sentence, sets the parameters for the performance of one of the sentencing court’s most traditional and basic functions, i.e., the exercise of sentencing discretion. 12 N.Y.3d at 130, 879 N.Y.S.2d 1, 906 N.E.2d 1033. 2. Brown I and Brown II Our Court has examined the PFO statute on two prior occasions. Each was presented in the posture of a habeas petition, and in both cases we denied relief. In Brown I, we deemed it a reasonable conclusion by the state court that “the judicial finding of at least two predicate felony convictions comported with the dictates of Apprendi,” and noted that the second-prong inquiry called for under the PFO statute “is of a very different sort” from the judicial factfinding proscribed by Apprendi. 409 F.3d at 534. “It is a vague, amorphous assessment of whether, in the court’s ‘opinion,’ ‘extended incarceration and life-time supervision’ of the defendant ‘will best serve the public interest.’ ” Id. (quoting N.Y. Penal Law § 70.10(2)). In sum, “[w]e [could not] say the New York Court of Appeals unreasonably applied Apprendi when it concluded that this second determination is something quite different from the fact-finding addressed in Apprendi and its predecessors.” Id. at 534-35. In Brown II, we revisited the issue in light of the Supreme Court’s holding in Ring, and found the PFO statute to be distinguishable from the Arizona capital sentencing scheme invalidated in Ring. Brown II, 451 F.3d at 59. We noted that “Ring did not expound upon the rule announced in Apprendi in a way that is significant to the disposition of this case.” Id. “Each case involved a statute that required the sentencing judge to find some specified fact before imposing an enhanced sentence.” Id. Thus, we concluded that it was not unreasonable for the state court to identify a crucial distinction between the unconstitutional factfinding required under the statutes at issue in both Ring and Apprendi, and the discretionary assessment called for by the PFO statute. Id. But neither Brown I nor Brown II speaks to the question that we face today: In light of the New York Court of Appeals’ construction of the PFO statute in Rivera, and the Supreme Court holdings in Blakely and Cunningham, does the PFO statute suffer from a constitutional defect that the state courts were objectively unreasonable to overlook? We hold that it does not. D. The Neio York courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the petitioners’ sentences. Petitioners rely principally on two distinct, though related, arguments to support their contention that the PFO statute requires sentencing judges in New York to engage in unconstitutional factfinding. First, they urge that the step two determination under the PFO statute violates the Sixth Amendment because a sentencing judge is required to make factual findings beyond those respecting the predicate felony convictions before imposing a class A-I sentence. Second, they argue that even if a judge may impose a PFO sentence based solely on the defendant’s predicate felony convictions, the step two determination nonetheless entails unconstitutional fact-finding because a judge is required to form a qualitative judgment about the defendant’s criminal history before imposing a PFO sentence, an inquiry that necessarily implicates facts beyond the purview of Almendarez-Torres. Petitioners’ first contention is that the step two determination under the PFO statute (whether a class A-I sentence is warranted) consists of impermissible fact-finding under Blakely because it requires the judge to hold a hearing and set forth findings of fact, beyond those of the prior convictions, before she may impose a PFO sentence. For the reasons that follow, we cannot say that the state courts were unreasonable to reject this argument. Whether the step two determination under the PFO statute entails unconstitutional factfinding hinges not on its nature, but its effect. A core principle has guided this aspect of the Supreme Court’s jurisprudence in the wake of Apprendi: judicial factfinding violates a defendant’s right to a jury trial when it results in a sentence in excess of the Apprendi maximum for a given offense. The Apprendi maximum, in turn, is the apogee of potential sentences that are authorized based on factual predicates obtained in compliance with the Sixth Amendment: those found by the jury, those admitted by the defendant, and findings of recidivism. In contrast, judicial factfinding that is undertaken to select an appropriate sentence within an authorized range — up to and including the Apprendi maximum — does not offend the Sixth Amendment. For “the Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power.” Blakely, 542 U.S. at 308, 124 S.Ct. 2531. “The Sixth Amendment question, the Court has said, is whether the law forbids a judge to increase a defendant’s sentence unless the judge finds facts that the jury did not find (and the offender did not concede).” Rita, 551 U.S. at 352, 127 S.Ct. 2456 (citing Blakely, Cunningham and Booker) (emphases in original). Our analysis must therefore begin with the PFO statute to determine the Apprendi maximum for each petitioner. That assessment is necessarily guided by the construction placed on the statute by the New York Court of Appeals, which, with some emphasis, has interpreted the statute to authorize a class A-I sentence based on the defendant’s predicate felony convictions alone: “The statute authorizes indeterminate sentencing once the court finds persistent felony offender status,” and “defendants are eligible for persistent felony offender sentencing based solely on whether they had two prior convictions.” Rivera, 5 N.Y.3d at 66, 67, 800 N.Y.S.2d 51, 833 N.E.2d 194 (emphasis in original). Rivera emphasized that “the predicate felonies [are] the ‘sole’ determinant” for whether a judge is authorized to impose a PFO sentence, and that “no additional factfinding beyond the fact of two prior felony convictions is required” to impose the enhanced sentence. Id. at 68, 70, 800 N.Y.S.2d 51, 833 N.E.2d 194 (emphasis in original). In essence, Rivera construed the statutory directive that a sentencing judge articulate the reasons for imposing a class A-I sentence as one of procedure: the explanation itself satisfies the statutory requirement, regardless of whether it contains any facts beyond those respecting the defendant’s predicate felonies. Accordingly, any other facts upon which the sentencing judge chooses to rely cannot properly be understood as “elements” of the underlying offense in terms of Apprendi, because they are not necessary factual predicates to the imposition of the sentence. Instead, they simply inform the judge’s discretion to select an appropriate sentence within those ranges authorized by statute. Petitioners assert that Rivera’s construction of the PFO statute is belied by its text, specifically the provision stating that “[s]uch sentence may not be imposed unless ... [the court] is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct [warrant the sentence.]” N.Y.Crim. Proc. Law § 400.20(1) (emphasis added). If, as petitioners contend, those findings as to the defendant’s history and character are factual predicates essential to the imposition of the A-I sentence, the PFO statute would violate the Sixth Amendment. The New York Court of Appeals acknowledged as much: “If we had construed the statutes to require the court to find additional facts about the defendant before imposing a recidivism sentence, the statutes would violate Apprendi.” Rivera, 5 N.Y.3d at 67, 800 N.Y.S.2d 51, 833 N.E.2d 194. But, as we have already observed, the court plainly stated that it “did not read the law that way.” Id. Whether our Court agrees or disagrees with the Court of Appeals’ construction of New York law is of no moment. As the Supreme Court has long held, “state courts are the ultimate expositors of state law,” Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and “[njeither this Court nor any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the State.” Johnson v. Fankell, 520 U.S. 911, 916, 117 S.Ct. 1800, 138 L.Ed.2d 108 (1997). More, it would be perverse for a federal court to discourage a state court from searching for “every reasonable construction” of a state statute to “save [the] statute from unconstitutionality.” Skilling v. United States, — U.S. - & n. 41, 130 S.Ct. 2896, 2929-30 & n. 41, 177 L.Ed.2d 619 (2010) (quoting Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 39 L.Ed. 297 (1895)); see also United States v. Magassouba, 544 F.3d 387, 404 (2d Cir.2008) (collecting cases discussing rule of constitutional avoidance); In re Jacob, 86 N.Y.2d 651, 667, 636 N.Y.S.2d 716, 660 N.E.2d 397 (1995) (same). Of course, we recognize that we are bound only by the New York Court of Appeals’ interpretation of what the terms of the statute mean, and that we are not similarly constrained by that court’s pronouncement of the statute’s “operative effect” for constitutional purposes. See Wisconsin v. Mitchell, 508 U.S. 476, 483-84, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993). Yet the decision in Rivera was not merely a characterization of the PFO statute’s practical operation, but an exposition of its terms. Under Rivera, the statute authorizes a class A-I sentence once the court establishes the defendant’s status as a persistent felony offender, and a judge may impose an enhanced sentence based on the defendant’s criminal history alone. Rivera, 5 N.Y.3d at 66, 70-71, 800 N.Y.S.2d 51, 833 N.E.2d 194. We must presume that the New York Court of Appeals meant what it said: the statutory directive to consider the history and character of the defendant, and the nature and circumstances of his crime, is a procedural requirement that is only triggered once a judge is already authorized to impose the class A-I sentence. According to Rivera, it would not be an error of law for a sentencing judge to impose a class A-I sentence based solely on the recidivism findings alone. “Once a defendant is adjudged a persistent felony offender, a recidivism sentence cannot be held erroneous as a matter of law, unless the sentencing court acts arbitrarily or irrationally.” Id. at 68, 800 N.Y.S.2d 51, 833 N.E.2d 194. Lower courts in New York, as they must, consistently rely upon that construction in sentencing. Compare People v. Bazemore, 52 A.D.3d 727, 728, 860 N.Y.S.2d 602, 603 (2d Dep’t 2008) (noting that lower court’s “conclusory recitation” insufficient to comply with procedural requirements of the PFO statute), and People v. Murdaugh, 38 A.D.3d 918, 919—20, 833 N.Y.S.2d 557, 559 (2d Dep’t 2007) (same), with People v. Tucker, 41 A.D.3d 210, 212, 839 N.Y.S.2d 15, 18 (1st Dep’t 2007) (affirming PFO sentence based solely on lower court’s evaluation of defendant’s criminal history), and People v. Young, 41 A.D.3d 318, 319-20, 838 N.Y.S.2d 550, 551-52 (1st Dep’t 2007) (same). Petitioners also observe that in Rivera, the Court of Appeals reaffirmed that at step two of New York’s PFO scheme, “the People retain the burden to show that the defendant deserves a higher sentence,” see 5 N.Y.3d at 68, 800 N.Y.S.2d 51, 833 N.E.2d 194, and argue that this shows that the effect of the statute is to require additional factfinding before an A-I sentence may be lawfully imposed. We disagree with this characterization, for again, it misconstrues the effect of the facts found at this step. Rivera’s reference to the State’s “burden” notwithstanding, the court made clear that “Criminal Procedure Law § 400.20, by authorizing a hearing on facts relating to the defendant’s history and character, does not grant defendants a legal entitlement to have those facts receive controlling weight in influencing the court’s opinion.” Id. (emphasis added); see also id. (indicating similarly that “a defendant adjudicated as a persistent felony offender has a statutory right to present evidence that might influence the court to exercise its discretion to hand down a sentence as if no recidivism finding existed” (emphasis added)). Thus, while the meaning of Rivera’s reference to the State’s “burden” is not entirely clear — it might, for example, mean that the State is obligated to prove by a preponderance of the evidence any of the facts it introduces in an attempt to persuade the sentencing judge, or might merely refer in an informal sense to the notion that it typically will be incumbent upon the State to oppose sentencing arguments advanced by defendants — the Court of Appeals was emphatic that the statute does not impose an overarching evidentiary burden upon the State that must be satisfied before the sentencing court may lawfully impose an A-I sentence. In other words, although the sentencing judge, in considering whether to impose the statutorily authorized A-I sentence or instead a lesser sentence, “may implicitly rule on those facts he deems important to the exercise of his sentencing discretion,” the facts in question “do not pertain to whether the defendant has a legal right to a lesser sentence,” a distinction that “makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.” Blakely, 542 U.S. at 309, 124 S.Ct. 2531 (emphasis in original). In sum, because the New York Court of Appeals has interpreted step two of the PFO sentencing scheme as a procedural requirement that informs only the sentencing court’s discretion, the New York courts were not unreasonable to conclude that this consideration is unlike the factfinding requirements invalidated in Blakely and Cunningham. Here, under the New York Co