In what circumstances will the Court review the sentencing of a defendant who failed to produce a jury verdict?

The dissent tries to compare this case to one involving prosecutorial misconduct during trial. Since such misconduct would be reviewed for its effect on the jury under the harmless error standard, see Hayes v. Brown, 399 F.3d 972, 984 (9th Cir.2005), and the prosecutor in this case did not even commit misconduct, the dissent asks us to conclude there must be review for harmless error here too. That argument does not come to grips with the problem in this case, which is the absence of any jury verdict to support the sentencing.