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Sentencing – Factors – Proof of, Generally

State v. James L. Montroy, 2005  WI App 230
For Montroy: Jay E. Heit; Stephanie L. Finn

Issue/Holding: Wisconsin discretionary guideline regime is not governed by the holdings of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005), ¶¶20-24. The latter cases are implicated only when a fact is utilized to support a sentence beyond the statutory maximum; the fact considered by the sentencing court in this instance was within the statutory limits. Further, sentencing facts not only need not be submitted to the jury but also need not be found beyond a reasonable doubt by the sentencing court.

The very remedy imposed by Booker was to make the federal sentencing guidelines discretionary, so that they operate like the Wisconsin scheme. If there’s a plausible argument that invalidates our scheme it’s not clear what it would be. Adverse result, in U.S. v. Grier, 3rd Cir No. 05-1698, 6/6/06 (“That a defendant does not enjoy the right to a jury trial under Booker ineluctably means that he or she does not enjoy the right to proof beyond a reasonable doubt.”)


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