Court Error

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WI Supreme Court

Case Name: State of Wisconsin v. Leopoldo R. Salas Gayton

Case No.: 2013AP646-CR

Focus: Court Error

Court did not rely on improper factor in sentencing.

“Other cases that Salas Gayton cites note the principle that sentencing courts may not constitutionally impose a sentence based on national origin——a principle that this court unquestionably embraces. See Alexander, 360 Wis. 2d 292, ¶23. But those cases nevertheless leave open the possibility that a sentencing court might consider a defendant’s relevant illegal conduct related to immigration without denying the defendant due process of law. See, e.g., Yemson v. United States, 764 A.2d 816, 819 (D.C. 2001) (“This does not mean . . . that a sentencing court, in deciding what sentence to impose, must close its eyes to the defendant’s status as an illegal alien and his history of violating the law, including any law related to immigration.”). Even the most inflexible of the cases that Salas Gayton cites——which holds that “immigration status per se is not relevant”——acknowledges that “circumstances that demonstrate a defendant’s unwillingness to conform his conduct to legal requirements, whether or not there are criminal consequences, may be” relevant to a sentencing determination. State v. Zavala-Ramos, 840 P.2d 1314, 1316 (Or. Ct. App. 1992). “Faced with the responsibility of sentencing . . . , the judge [cannot], and would . . . [be] remiss if he did, ignore the realities of the case.” United States v. Gomez, 797 F.2d 417, different than any other recent prior illegal act of any defendant being sentenced for any offense”).”

Affirmed

Concurring: BRADLEY, A. W., J. and ABRAHAMSON, J. concur (Opinion filed).

Dissenting:

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.