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For purposes of the Double Jeopardy Clause, “[c]learly established federal law does not require the consideration of sentencing enhancements when determining if one offense is a lesser-included offense of another under the ‘same elements’ test.”

Smith appealed the district court’s denial of his petition for a writ of habeas corpus. In the petition, Smith claimed that his conviction of “assault with a deadly weapon (phone), with a special finding of great bodily injury involving domestic violence” was a lesser-included offense of his conviction of “infliction of corporal injury on a spouse, with special findings of great bodily injury involving domestic violence and use of a deadly weapon (phone).” Therefore, according to Smith, the judgment of conviction violated the Double Jeopardy Clause. The district court held that federal law did not clearly establish that a sentencing enhancement was an element under the “same elements” test established by Blockburger v. United States. That test provides that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” The Ninth Circuit affirmed, holding that the current federal law on double jeopardy as set out in Apprendi v. New Jersey, Texas v. Cobb, and Sattazahn v. Pennsylvania, did not individually or combined establish sentencing enhancements as an element for purposes of the Double Jeopardy Clause. The Court determined that the established cases dealt with convictions of lesser-included offenses and sentencing enhancements in death penalty cases. The Court did not consider whether sentencing enhancements that resulted in the death penalty would be considered an element of an offense. AFFIRMED.