The sentencing court didn’t erroneously exercise its discretion by relying in part on Gayton’s immigration status or by failing to explain its reasons for imposing the maximum term of initial confinement and the DNA surcharge.
¶18 A sentencing court may not base a sentence on a defendant’s race, nationality or color. See United States v. Gomez, 797 F.2d 417, 419 (7th Cir. 1986). A circuit court may, however, consider immigration status, see United States v. Flores-Olague, 717 F.3d 526, 535 (7th Cir. 2013), as long as the circuit court does not make “unreasonably inflammatory, provocative, or disparaging” comments. United States v. Tovar-Pina, 713 F.3d 1143, 1148 (7th Cir. 2013). In addition, the circuit court “may not impose a more severe sentence than he would have otherwise based on unfounded assumptions regarding an individual’s immigration status or on his personal views of immigration policy.” United States v. Velasquez Velasquez, 524 F.3d 1248, 1253 (11th Cir. 2008).
¶19 …[T]he circuit court did not improperly rely on Gayton’s status as an alien. Rather, the circuit court noted that Gayton’s choice to come to the United States illegally was a “minor factor” that went to his character. The circuit court also noted that resources were available to help Gayton with his drinking problem. This was fair comment because, as the circuit court noted, Gayton’s willingness to violate this country’s immigration laws was a reflection of his character, although, as the circuit court also opined, it was nowhere near dispositive.
A concurring judge agrees that the sentencing transcript as a whole shows no error here, but notes the increasing number of sentencing appeals based on “the sentencing court’s multiple referrals to a defendant’s race, ethnicity, or immigration status” (¶23) and warns that “[s]entencing courts should be cognizant that defendants may perceive judicial impropriety in sentencing when multiple comments based on race, ethnicity or immigration status are made. When the perception of bias reasonably exists, the perception of fairness suffers, to the detriment of the judicial system as a whole.” (¶25).
The circuit court also adequately explained the reasons for imposing the fifteen-year maximum term of initial confinement as required by State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197. “It found the maximum necessary because of the serious nature of the crime, the need to punish Gayton, and to deter others from getting behind the wheel drunk by sending a message to others about the consequences of driving drunk. The circuit court also considered the statements of those who spoke for the victim. The circuit court applied the material factors in a reasonable way and it did not erroneously exercise its discretion.” (¶17). Its reasons for imposing the DNA surcharge were also sufficient:
¶22 …. Gayton never objected at sentencing that he could not pay either the restitution or the surcharge; thus the circuit court did not have an opportunity to explore the issue further. Moreover, the circuit court did note that Gayton had “sporadic employment,” and Gayton’s trial lawyer told the circuit court that Gayton “has always worked.” Additionally, Gayton’s trial lawyer noted that Gayton was able to be self-sufficient for himself and presumably his family when he added that Gayton “has never received or applied for any help from the government, government aide or any other community resources.” Thus, this case is akin to State v. Ziller, 2011 WI App 164, ¶11, 338 Wis. 2d 151, 157–158, 807 N.W.2d 241, 245, where, in addition to considering the appropriate factors, the circuit court noted that Ziller “had previously been employed.” This, as Ziller also opined, was sufficient to “indicate that he had the ability to compensate [the] victims.” Id., 2011 WI App 164, ¶11…. Further, Gayton’s period of extended supervision is in the future and it is speculative that once he is released he could not get any work and thus would be unable to pay the surcharge. The circuit court considered the appropriate applicable factors as the case was presented to it and did not erroneously exercise its discretion in directing that Gayton pay a DNA surcharge.