by a preponderance of the evidence). [¶23] Thus, if the court here had relied only on criminal conviction data in determining that a sentence in the upper tier was warranted, our analysis would end at this point. However, some of the information that the court relied on in setting the maximum sentence above twenty years went beyond the fact of a prior conviction. Following the United States Supreme Court’s decisions in Blakely, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, and Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, other courts have begun to consider whether a court violates the Sixth Amendment by relying on such additional nonconviction information to elevate a sentence into a higher tier. See, e.g., State v. Burdick, 209 Ariz. 452, 104 P.3d 183, 187 (Ct.App.2005) (<HOLDING>); United States v. Barnett, 398 F.3d 516,
holding that there is no sixth amendment right to jury sentencing holding that the sentencing court violated the sixth amendment when it elevated a sentence based on evidence of failed attempts to rehabilitate and a history of alcohol and drug abuse holding that californias indeterminate sentencing law which authorized the trial court judge to find facts exposing a defendant to an elevated upper term sentence violated the right to a jury trial holding that sentencing enhancements based on judicial factfinding even when based on acquitted conduct do not violate the sixth amendment holding that sixth amendment not violated when sentence enhanced based on prior convictions that were not charged in indictment or admitted by defendant