By: Derek Hawkins//July 11, 2016//
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: