a sentence, and of the judicial power to impose it, are the elements of the crime for the purposes of the constitutional analysis.” Harris v. United States, 536 U.S. 545, 567,122 S.Ct. 2406, 2419, 153 L.Ed.2d 524, 544 (2002); see also Ring v. Arizona, 536 U.S. 584, 605, 122 S.Ct. 2428, 2441, 153 L.Ed.2d 556, 574 (2002) (stating government’s “characterization of a fact or circumstance as an ‘element’ or a ‘sentencing factor’ is not determinative” of what constitutional protections apply). More recently, the Court defined what the “statutory maximum” penalty was for purposes of determining whether a fact considered at sentencing was an “element” required to be submitted to the jury. See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. , 125 S.Ct. 738, 749, 160 L.Ed.2d 621, 642-43 (2005) (<HOLDING>). IV. Discussion. The State challenges the
holding that there is no sixth amendment right to jury sentencing holding that the mandatory nature of the united states sentencing guidelines resulted in violations of the sixth amendment right to a jury trial and rendering the guidelines advisory holding federal sentencing guidelines are subject to jury trial requirements of sixth amendment holding the sixth amendment right to a jury trial applies to the states through the fourteenth amendment holding that if a jury is to be provided the defendant at capital sentencing regardless of whether the sixth amendment requires it the jury must stand impartial and indifferent to the extent commanded by the sixth amendment