concurring.
I write separately only to note that Booker does not forbid all judicial fact-finding in sentencing, as a reader of the majority’s opinion here might infer. The Booker majority held:
If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.
United States v. Booker, 125 S.Ct. at 750 (Stevens, J.). After Booker, of course, the guidelines are merely advisory. Id. at 757 (Breyer, J.). Thus, post-Boo/cer, judges may enhance sentences based upon facts not found by the jury, provided they do not consider themselves required to do so. With this clarification, I concur.