OPINION
MINZNER, Justice.{1} Defendant appeals from a judgment and sentence entered following a jury trial and a bench trial. Defendant was convicted on a total of seven counts, of which six were by the jury and the other by the trial judge. The jury convicted him on six counts: robbery, contrary to NMSA 1978, § 30-16-2 (1973); burglary, contrary to NMSA 1978, § 30-16-3 (1971); felony murder, contrary to NMSA 1978, § 30-2-1(A)(2) (1994); conspiracy to commit first degree (felony) murder and conspiracy to commit robbery, contrary to NMSA 1978, § 30-28-2 (1979); and tampering with evidence, contrary to NMSA 1978, § 30-22-5 (1963, prior to 2003 amendment). The court convicted him of the seventh count: possession of a firearm by a felon, contrary to NMSA 1978, § 30-7-16 (1987, prior to 2001 amendment). The Court aggravated the sentence for conspiracy to commit first degree murder by one-third. See NMSA 1978, § 31-18-15.1 (1993). We have jurisdiction pursuant to Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA 2005.
{2} Defendant has made two arguments on appeal. Defendant contends that the Sixth Amendment to the United States Constitution, which guarantees his right to a trial by jury, precludes the aggravation of his sentence for conspiracy to commit first degree murder. Defendant also argues that there was insufficient evidence to support some of his convictions. Relying on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), he argued that in aggravating his sentence for conspiracy pursuant to Section 31-18-15.1, the trial court exceeded its authority, because under the Sixth Amendment the maximum sentence a judge may impose is “the maximum he may impose without any additional findings.” Id. at 2537. Defendant argued that the “aggravating circumstances surrounding the offense or concerning the offender” to which Section 31-18-15.1 refers are “additional findings” under Blakely and that a jury rather than a judge must determine whether the State has proved the necessary facts to support these findings beyond a reasonable doubt.
{3} After Defendant’s appeal was submitted, following oral argument, the Court of Appeals held Section 31-18-15.1 unconstitutional in reliance on Blakely. See State v. Frawley, 2005-NMCA-017, 137 N.M. 18, 106 P.3d 580, cert. granted, 2005-NMCERT-002, 137 N.M. 266, 110 P.3d 74. While his appeal was pending, the United States Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, the United States Supreme Court concluded that the federal sentencing guidelines violated the Sixth Amendment. A majority of the Court concluded that the Sixth Amendment as construed in Blakely required that result. 125 S.Ct. at 755-56. In adopting a remedy, however, a different majority of the Court decided that only a portion of the guidelines needed to be severed and excised. Id. at 756-57. So modified, the Court construed them as advisory, requiring a sentencing court to “take them into account when sentencing.” Id. at 767. We scheduled additional oral argument in order to consider the combined effect of Booker and Blakely. We now affirm.
I
{4} Defendant and Ed Sedler worked at a Salvation Army location in Albuquerque. On Saturday, September 7, 1996, they borrowed a pickup truck from co-workers and went camping. The victim, Gilbert Bruce Stark, was over 70 years old and lived alone at his rural residence in Catron County, New Mexico. Sedler knew him. On Monday, September 9, Defendant and Sedler visited Stark, as they had done a day or two earlier. On the 9th, however, they intended to rob him. According to Defendant’s statement Sedler broke Stark’s neck and removed five hundi'ed dollars from his pockets, splitting the money with Defendant. Then the two took Stark to a well on his property and threw him into it. Sedler and Defendant covered the well, replaced the lid, and locked it.
{5} The well was about 20 feet deep and three or four feet in diameter. A pipe extended about two feet above and below the bottom of the well, in roughly the center. The pipe was capped with a tin can. A ladder ran from the bottom of the well to the ground surface. Stark had stacked lumber over the opening to the well, enclosed the well in a box, chained the lid shut, and locked it with a padlock.
{6} Defendant and Sedler then entered Stark’s residence and took two pistols and at least three long firearms. After driving away from the residence, they stopped and Defendant threw the long firearms into the woods a few miles from the residence. Either that night or the night of the 10th they returned to Albuquerque. On September 11 Sedler sold one of the pistols at a pawnshop. Defendant traded the other pistol for crack. The men were supposed to have returned the borrowed pickup truck on Sunday the 8th. When they did not, the truck was reported as embezzled. Later that week the truck was found undamaged in a church parking lot, and the police did not pursue a charge of embezzlement.
{7} On Wednesday, September 11, Robert Nelson, a neighbor and retired law enforcement officer, stopped by Stark’s residence. He became alarmed when he saw Stark’s Leatherman tool, a spotting scope, and numerous beer cans on the ground. Nelson looked for Stark that day, and he eventually asked another neighbor for help, who found Stark’s broken glasses on the ground. Nelson contacted the State Police but continued his search. The State Police contacted Stark’s family, and on Wednesday, September 11, Nelson and Stark’s son found him dead at the bottom of the well. The box over the well was chained and locked from the outside, and planks of wood covered the well.
{8} Dr. Patricia McFeely conducted an autopsy and later testified at trial. She stated that the cause of death was blunt trauma to the chest, abdomen, and extremities, with thickening of the arteries as a contributing factor. Stark’s neck was not broken. He had three broken ribs, a broken hip, an eight-inch cut on his hip, lacerations and bruising to his head, and a number of other bruises and abrasions. McFeely stated that Stark was alive when these injuries were inflicted because bruising and bleeding around the injuries indicated that blood circulated after infliction.
{9} McFeely said that the head injuries were consistent with striking by a blunt object, such as a fist or spotting telescope, but were not fatal. She said that the hip injuries and broken ribs were consistent with being thrown down the well and landing on the pipe topped with a can. When Stark was found, his left hip was adjacent to the pipe and can. Although she could not be precise, McFeely stated that he had likely been dead for a couple or several days before being found. Thus, he might have been alive in the well, and he might have survived his injuries had he received prompt care. In sum, Stark’s injuries were consistent with the State’s theory at trial that Sedler and Defendant inflicted the head wounds, threw Stark into the well while alive, that the wounds to the hip and ribs occurred when he fell, and that he survived for some time in the well.
{10} McFeely could not rule out several other possibilities. Stark might have died before he was thrown into the well, and all of the injuries might have been inflicted before he was thrown into the well. The spotting scope could have inflicted the cut to the hip, and something other than the fall down the well could have caused the hip fracture. Stark had a history of heart disease, and narrowing of the arteries was a contributing factor in his death. He could have suffered a heart attack, because if he died within an hour of such an attack there would be no discernable evidence of damage to the heart. A heart attack could have occurred before or after he was thrown into the well, although the observable injuries had to have been inflicted before the heart attack because there was bleeding and bruising around the injuries.
{11} The criminal investigation stalled until the spring of 1999, when the case was assigned to an inter-departmental unit that investigated old, unsolved crimes. Stark had kept a list of his firearms, including the serial numbers. Using this list, Jeff Campbell of the Attorney General’s Office determined that Sedler had sold one of the firearms at a pawnshop in Albuquerque on September 11, 1996. Campbell contacted the police in Albuquerque, who informed him that Sedler and Defendant appeared on a report about the embezzled pickup truck. Campbell brought Defendant to the Valencia County Sheriffs Office for questioning. Campbell made a recording of the interrogation, which was later introduced into evidence.
{12} The recording begins with Campbell questioning Defendant after advising him of his rights. Campbell’s questions focused on Defendant’s involvement in embezzling the pickup truck. Defendant was evasive, and he accused Campbell of tricking him. Defendant repeatedly denied any knowledge or recollection of the stolen vehicle or his employment by the Salvation Army in Albuquerque.
{13} The interview continued as Sargent Kindig of the State Police took over the questioning and Campbell observed. Kindig insisted that Defendant had worked at the Salvation Army and had borrowed the truck with Sedler. Kindig told Defendant that his fingerprints were found at the crime scene, although that was not true. Kindig repeatedly stated or implied that he thought Defendant was scared for his own life and that Sedler committed the murder. Kindig told Defendant that Sedler had made a statement, placing the blame on Defendant, but that he thought Sedler was lying.
{14} Defendant indicated that he had relevant information. For example, he said, “He’s the murderer,” meaning Sedler. At another point he said, “Ya, he killed that old man. He broke his fucking neck. It was over crack cocaine.” Defendant attempted to bargain with Kindig, seeking assurance that he was only a witness and that he would not be charged. He stated repeatedly that Kin-dig needed Defendant’s help and that he wanted help and assurance in return. Kin-dig continued to assert that Defendant was present, that Sedler had blamed Defendant, and that Kindig did not believe Sedler. Kin-dig repeatedly said that Defendant had a choice to make, that is, to make a statement, or Kindig would go to the prosecutor with the information Sedler had provided.
{15} Eventually, Defendant said, referring to Sedler, that “he got the old man by the neck and broke his neck.” He then provided a narrative of events. Defendant and Sedler borrowed the pickup truck and went camping in Catron County. They went back to Albuquerque to use crack cocaine. Returning to the mountains, Sedler had the idea to borrow money from Stark or sell the spotting scope to him. Sedler then suggested robbing him, to which Defendant replied, “Fuck it, let’s go for it.” When they arrived at Stark’s residence, Sedler grabbed him by the neck, took him down, twisted his neck and broke it. Defendant, scared for his own life, then asked Sedler, “Is it my turn,” meaning “my turn to be killed.” Sedler responded, “Are you going to help me or not?” In response, Defendant assisted Sedler in dragging Stark and throwing him into the well.
{16} In response to Kindig’s questions to clarify details, Defendant said that Sedler took five hundred dollars from Stark’s pocket before throwing him into the well. Defendant and Sedler split the money. Defendant also admitted taking two pistols, one of which he traded for crack, and some long firearms from Stark’s.residence, which he threw in the woods. Kindig began reviewing Defendant’s story, again asking for details. Defendant reiterated the story: their visit to the victim’s residence before the day of the murder; Sedler’s idea to rob the victim; Sedler’s murder of the victim; their “ransacking” of the victim’s residence and taking of the firearms; Sedler’s removal of the five hundred dollars from the victim’s pocket; and Defendant’s disposal of the long firearms in the woods. Defendant maintained that Stark was dead when he was thrown into the well. Throughout the interview, Defendant maintained that he did not kill Stark, that he was scared for his own life, and that he wanted to take a lie detector test and wanted Sedler to do so as well.
{17} After his confession, Defendant led law enforcement to the place where he had discarded the long firearms. At least two long firearms were recovered in the woods. The pistol which Defendant said he traded for crack had been previously recovered from an apartment where police suspected drugs were used or sold.
{18} Defendant was charged on an open count of murder, and the jury was instructed on first degree deliberate murder as well as felony murder. He was acquitted of first degree deliberate murder but was convicted of felony murder and the other counts with which he was charged. The district court sentenced Defendant to life imprisonment for felony murder, to fifteen years for conspiracy to commit first degree (felony) murder, to nine years for robbery, to three years for conspiracy to commit robbery, to eighteen months for tampering with evidence, to three years for burglary, and to eighteen months as a felon in possession. The court aggravated the sentence for conspiracy to commit murder, ordered the sentences for felony murder and conspiracy to commit murder to run consecutively, and ran the other sentences concurrently with the sentences for felony murder and conspiracy. See NMSA 1978, § 31-18-15 (1994, prior to 1999 amendment); § 31-18-15.1. On appeal, we first address Defendant’s claim that there was insufficient evidence to support his convictions.
II
{19} In his briefs, Defendant has set forth the underlying facts and the standard of review but he has not “identified with particularity the fact or facts which are not supported by substantial evidence,” contrary to Rule 12-213(A)(4) NMRA 2005. We are not persuaded that Defendant intended to waive his claim that there was insufficient evidence to support his convictions nor that we should refuse to consider it. Under Blakely, “the facts reflected in the jury verdict or admitted by the defendant ” are relevant in identifying the sentence the judge may impose “without any additional findings.” 124 S.Ct. at 2537. We conclude we should review the evidence not only in response to Defendant’s claim there was insufficient evidence but also to address fully Defendant’s Sixth Amendment argument.
{20} The standard of review for sufficiency of evidence claims requires us to “view all of the evidence in the light most favorable to support the jury’s verdict,” and to “determine whether any rational jury could find all elements of the crime based on the facts presented at trial.” State v. Montoya, 2003-NMSC-004, ¶ 26, 133 N.M. 84, 61 P.3d 793. Defendant conceded he committed several offenses, and we believe the evidence supports the concessions he made at trial.
{21} Defendant conceded in his opening and closing statement to the jury that he was guilty of conspiracy to commit robbery. He also conceded that he had committed the crimes of robbery, burglary, and tampering with evidence, but he contended that he should be acquitted of these charges because he did so under fear that Sedler would assault or kill him. The charges which Defendant vigorously defended were first degree murder and conspiracy to commit first degree murder. He contended that Sedler killed the victim without Defendant’s assistance or agreement and that Stark was dead when he helped Sedler throw him into the well.
{22} In response to Sedler’s idea to rob Stark, Defendant admitted he agreed. There was evidence that Defendant or Sedler or both assaulted Stark and split the money taken from the victim. This is sufficient evidence for the convictions of robbery, as principal or as an accessory, and for conspiracy to commit the robbery. See §§ 30-16-2; 30-28-2. Defendant also admitted that he and Sedler “ransacked”' the residence and removed at least two pistols and three long firearms. This is sufficient evidence for the conviction of burglary. See § 30-16-3. Finally, Defendant admitted that he assisted Sedler in throwing Stark into the well and that he threw the long firearms into the woods. The jury could infer that he committed these acts to avoid apprehension. This is sufficient evidence for the conviction of tampering with evidence. See § 30-22-5.
{23} For the conviction of felony murder, the State presented alternative theories: Defendant committed the crime of [r]obbery “under circumstances or in a manner dangerous to human life” and caused the death “during the commission of the robbery;” or Defendant was an accessory to such a robbery and “helped},] encouraged[,] or caused the killing to be committed.” Conviction of felony murder in New Mexico requires proof that a “defendant intended to kill, knew that his actions created a strong probability of death or great bodily harm ... or acted in a manner greatly dangerous to the lives of others.” State v. Griffin, 116 N.M. 689, 695, 866 P.2d 1156, 1162 (1993). In this case, the jury was instructed by the State that under either theory it needed to find Defendant “intended the killing to occur or knew that he was helping to create a strong probability of death -or great bodily harm.”
{24} Dr. McFeely testified that Stark sustained injuries from some combination of injuries sustained during the robbery and after being thrown into the well and that these injuries were the cause of death. The jury might have found Stark was alive when he was thrown into the well, that Defendant knew Stark was alive, and that in helping Sedler throw Stark into the well Defendant knew he helped create a strong probability of death or great bodily harm. We do not address the sufficiency of the evidence to support the State’s theory that Defendant was liable as a principal. That theory would have required the jury to find that Defendant committed the robbery in a manner that was inherently or foreseeably dangerous to human life. See State v. Duffy, 1998-NMSC-014, ¶¶ 27-28, 126 N.M. 132, 967 P.2d 807. We do not address the sufficiency of the evidence to support that theory, because “due process does not require a general verdict of guilt to be set aside so long as one of the two alternative bases for conviction is supported by sufficient evidence.” State v. Salazar, 1997-NMSC-044, ¶ 43, 123 N.M. 778, 945 P.2d 996.
{25} For the crime of conspiracy to commit first degree murder, the jury was instructed that the State had to prove Defendant agreed with another person, by words or acts, to commit first degree murder and that he and the other person intended to commit first degree murder. See § 30-28-2(A); UJI 14-2810 NMRA 2005. The jury’s verdict specifically found Defendant guilty of first degree (felony) murder. The jury’s verdict requires evidence of an agreement as well as of intent to commit felony murder. We are not certain that evidence sufficient to support a felony murder conviction when more than one offender is involved necessarily will be sufficient to support a conviction of conspiracy to commit felony murder. Cf. State v. Nieto, 2000-NMSC-031, ¶¶ 28-29, 129 N.M. 688, 12 P.3d 442 (affirming convictions of felony murder and conspiracy to commit first degree murder based on the same evidence). See generally 2 Wayne R. LaFave, Substantive Criminal Law § 12.2(c)(2), at 278 (2d ed.2003) (arguing “that there is no such thing as a conspiracy to commit a crime which is defined in terms of recklessly or negligently causing a result”). In this case, there was evidence from which the jury was entitled to infer that Defendant and Sedler formed the requisite intent to kill Stark during the robbery and that they threw him into the well while he was alive. The evidence that they carefully, deliberately, even painstakingly first opened, then covered, and finally re-sealed the well supports an inference that they reached an agreement to kill Stark in the course of the robbery and that both intended his death. We conclude the evidence in this case supports the jury’s verdict.
{26} At oral argument, Defendant noted that we have said “a conviction under a general verdict must be reversed if one of the alternative bases of conviction is legally inadequate.” State v. Olguin, 120 N.M. 740, 741, 906 P.2d 731, 732 (1995). We are not persuaded that this principle requires us to decide whether conspiracy to commit felony murder requires proof of intent to kill. Cf. State v. Foster, 1999-NMSC-007, ¶ 27, 126 N.M. 646, 974 P.2d 140 (discussing the principle in the context of an alternative basis that would violate the constitutional protection against double jeopardy). The application of this principle was not raised at trial, see Olguin, 120 N.M. at 742, 906 P.2d at 733 (Ransom, J., dissenting), and Defendant has not argued that the doctrine of fundamental error applies.
{27} For the crime of felon in possession of a firearm, the State had to prove that Defendant had been previously convicted of a felony and he possessed a firearm within ten years of completing his sentence for the prior felony conviction. Section 30-7-16; UJI 14-701 NMRA 2005. At the bench trial the parties stipulated to admission of all evidence admitted in the jury trial, including Defendant’s statement to police in which he admitted possessing a firearm. The primary issues at the bench trial were whether Defendant had a prior felony conviction and whether he had completed his sentence less than ten years earlier. The State contended that Defendant was convicted in 1988 and that his sentence of probation continued until 1991. The State submitted documentary evidence that Defendant was convicted of burglary in San Juan County in CR-86-0383-3. Two documents, the criminal information and the criminal complaint, listed his birth date and social security number. Another document, the repeat offender plea agreement and disposition agreement, listed his birth date, but a different social security number. The guilty plea and the judgment and sentence did not list either his birth date or social security number, but they did list his name and the same case number. The judgment and sentence was filed on November 3, 1988, and provided for three years probation.
{28} Based primarily on the documentary evidence, the court concluded that the State had satisfied its burden of proof and found Defendant guilty of possession of a firearm by a felon. The documentary evidence of a prior felony conviction and Defendant’s numerous statements during the interrogation that he possessed several of Stark’s firearms is sufficient evidence for the conviction of felon in possession of a firearm.
Ill
{29} We now turn to Defendant’s Sixth Amendment argument. Defendant did not make this argument at trial or sentencing, but both Booker and Blakely were decided after he was tried and sentenced. The same issue arises in other cases now pending before us. Defendant raises the same issue that arises in Frawley. We apply new rulings in criminal eases to all cases on direct review. See Duffy, 1998-NMSC-014, ¶ 26, 126 N.M. 132, 967 P.2d 807. We conclude Defendant is entitled to consideration of his Sixth Amendment issue on direct appeal. See Lopez v. People, 113 P.3d 713, 716 (Colo. 2005) (noting that Booker applied its holdings to all cases on direct review).
{30} We begin to consider whether Defendant’s sentence under Section 31-18-15.1 is consistent with the Sixth Amendment by quoting or summarizing relevant portions of the statutes and reviewing our analysis of the effect of the Sixth Amendment on our statutory scheme prior to Frawley. We then examine the significance of Blakely and Booker to our statutory scheme and analyze its effect on our scheme. Finally, we discuss the sentencing hearing in this case.
A
{31} The New Mexico Criminal Sentencing Act provides a “basic sentence” for all non-capital felonies. NMSA 1978, § 31-18-15 (2003). The Legislature has provided that “[t]he appropriate basic sentence of imprisonment shall be imposed upon a person convicted and sentenced pursuant to Subsection A of this section, tmless the court alters the sentence pursuant to the provisions of’1 one or more of four statutes. Id. § 31-18-15(B) (emphasis added). One of the four is the statute at issue in this appeal, Section 31-18-15.1, which provides
A. The court shall hold a sentencing hearing to determine if mitigating or aggravating circumstances exist and take whatever evidence or statements it deems will aid it in reaching a decision. The court may alter the basic sentence as prescribed in Section 31-18-15 NMSA 1978 upon a finding by the judge of any mitigating or aggravating circumstances surrounding the offense or concerning the offender. If the court determines to alter the basic sentence, it shall issue a brief statement of reasons for the alteration and incorporate that statement in the record of the case.
B. The judge shall not consider the use of a firearm or prior felony convictions as aggravating circumstances for the purpose of altering the basic sentence.
C. The amount of the alteration of the basic sentence for noncapital felonies shall be determined by the judge. However, in no case shall the alteration exceed one-third of the basic sentence; provided, that when the offender is a serious youthful offender or a youthful offender, the judge may reduce the sentence by more than one-third of the basic sentence.
{32} Another statute requires an increase in the basic sentence when a separate finding of fact shows that the defendant used a firearm while committing the crime. NMSA 1978, § 31-18-16 (1993). A third statute, NMSA 1978, § 31-18-16. 1 (1993), repealed by 2003 N.M. Laws, ch. 384, § 6, was replaced by the Hate Crimes Act, NMSA 1978, §§ 31-18B-1 to -5 (2003). Under that Act, when a separate finding of fact shows beyond a reasonable doubt that the offender was “motivated by hate” as defined in Section 31-18B-2, the court may increase the basic sentence. Section 31-18B-3. A fourth statute requires an increase in the basic sentence on proof of the existence of a prior felony or felonies. See NMSA 1978, § 31-18-17 (1993, prior to 2002 amendment).
{33} In Booker, the United States Supreme Court stated that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” 125 S.Ct. at 756. In making this statement, the Court rephrased a prior holding that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Booker noted that it “reaffirm[ed] our holding in Apprendi.” 125 S.Ct. at 756. In relying on these statements, Defendant contends, based on Blakely, that the statutory maximum is the basic sentence provided in Section 31-18-15. We reached a contrary conclusion in considering the effect of Apprendi on our sentencing scheme.
{34} Between Apprendi and Booker, our Court of Appeals considered Sections 31-18-15 and 31-18-15.1 in light of Apprendi’s holding. In State v. Wilson, 2001-NMCA-032, ¶¶ 18-20, 130 N.M. 319, 24 P.3d 351, the Court of Appeals reviewed the history of sentencing in New Mexico. New Mexico enacted determinate sentencing in 1977, when the Legislature provided sentence ranges within which a trial court could set a definite term of imprisonment. In 1979, the Legislature enacted the current system, replacing the ranges with basic sentences and allowing an increase or decrease of up to one-third. Id. ¶ 20. The Court of Appeals concluded that the authority of the sentencing court [had] not changed since “the 1977 amendment implemented determinate sentencing within a range of years and gave the trial court the authority to impose a sentence of a definite term of years within that range.” Id. ¶ 21. Every defendant convicted of a noncapital felony faced a sentence within the applicable range, and the judge had broad discretion to sentence within the range. Id. ¶ 29.
{35} The defendant in Wilson argued that the “basic sentence” established by Section 31-18-15 established the “maximum sentence authorized” for purposes of Apprendi. Id. ¶ 13. The Court rejected that challenge, holding that New Mexico’s sentencing statutes establish a range of sentences, and “the basic sentence}]” is the midpoint of each range. Id. ¶ 15. The Court observed that upon conviction, in every criminal case, without exception, the sentencing judge must hold a hearing to determine whether to decrease the defendant’s sentence below the midpoint, or increase it above it, showing there was no right to the basic sentence. Id. ¶¶ 15, 29. “The outer limits of sentencing, without additional specific fact-finding, is the basic sentence plus a one-third increase under Section 31-18-15.1.” Id. ¶16. This Court granted the defendant’s petition, heard oral argument, but then quashed our writ. See State v. Wilson, 130 N.M. 459, 26 P.3d 103 (2001) (granting); State v. Wilson, 132 N.M. 484, 51 P.3d 527 (2001) (quashing).
B
{36} Since Wilson, the Supreme Court has decided Blakely and Booker. Prior to Booker, the New Mexico Court of Appeals decided Frawley. The Court of Appeals concluded Blakely meant that Wilson “can no longer control or be considered controlling authority.” Frawley, 2005-NMCA-017, ¶ 13, 137 N.M. 18, 106 P.3d 580. After Booker, we are not persuaded Frawley was correctly decided. See People v. Black, 35 Cal.4th 1238, 29 Cal.Rptr.3d 740, 113 P.3d 534 (2005) (upholding California’s determinate sentencing scheme, which provides a presumptive term, a definite term above and a definite term below the presumptive term, and requires the sentencing judge to explain a sentence below or above the presumptive term).
{37} In Blakely, 124 S.Ct. at 2534-35, the Court reviewed the sentencing scheme in the State of Washington. Under that scheme, the defendant’s plea to a second degree felony involving domestic violence and a firearm authorized a sentence within a range of 49 and 53 months. The court made a finding of fact of deliberate cruelty, which was a specifically enumerated factor that authorized an increased sentence of 90 months. Under Washington’s sentencing scheme, a second degree felony was not subject to imprisonment exceeding ten years, and the State argued the relevant statutory maximum was ten years. Id. at 2537. The Supreme Court rejected the State’s argument, stating
[o]ur precedents make clear ... that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” and the judge exceeds his proper authority.
Id. (citations omitted). The Court noted that “the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.” Id. at 2538. The Court also noted that the judge could not have imposed the 90-month sentence on the basis of the plea. He would have been reversed had he done so. Id.
{38} Following Blakely, but prior to Booker, our Court of Appeals reconsidered Sections 31-18-15 and 31-18-15.1. Frawley, 2005-NMCA-017, ¶ 3, 137 N.M. 18, 106 P.3d 580. In Frawley, the defendant was convicted of two felonies for each of which the basic sentence was three years imprisonment. Id. ¶ 2. The district court increased the sentence for each felony by one year because the defendant lacked remorse, there had been only a short interval between the two felonies and a prior similar offense, the victims and their families had experienced pain and fear, and the defendant fled to avoid prosecution. Id. The Court of Appeals determined that the district court made findings of fact and that the Court had increased the sentence on the basis of those facts pursuant to a statute that was indistinguishable from the statutes at issue in Blakely. Frawley, 2005-NMCA-017, ¶¶ 7, 14, 137 N.M. 18, 106 P.3d 580. The Court reasoned that in rejecting Washington’s argument in Blakely that the relevant statutory maximum was ten years, the United States Supreme Court implicitly rejected the basis on which Wilson had rejected the defendant’s argument based on Apprendi. Frawley, 2005-NMCA-017, ¶ 8, 137 N.M. 18, 106 P.3d 580. Defendant makes a similar argument in this case.
{39} In Frawley, the Court stated,
We read Blakely to say: When the jury considers the facts relevant to the elements of an offense in determining guilt or innocence, the criminal sanctions for that offense cannot be increased after the verdict based on facts the jury has not specifically considered in connection with its finding of guilt, whether or not the facts are labeled “sentencing factors,” and even if the facts are not material to the statutory elements of the offense.
Id. ¶ 12. That reading limits the concept of a statutory maximum, consistent with the Supreme Court’s rejection of Washington’s argument in Blakely, but that reading seems contrary to another part of Blakely, which explicitly states:
Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion.
124 S.Ct. at 2540. Apprendi also stated that, when sentencing offenders, it is permissible “for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute.” Apprendi, 530 U.S. at 481, 120 S.Ct. 2348. Thus, Blakely appears to authorize some “judicial factfinding.” Further, Blakely did not change the Apprendi rule that a court can punish within a range. Blakely prohibits punishing in excess of the punishment authorized by law as a consequence of the jury’s verdict. 124 S.Ct. at 2537. The questions of what punishment a jury’s verdict can be said to authorize and when a jury’s verdict can be said to authorize punishment within a range as a judge may determine is appropriate are not easy to answer. Compare State v. Gomez, 163 S.W.3d 632, 661 (Tenn.2005) (upholding Tennessee’s sentencing scheme under Booker by a split decision) with Lopez, 113 P.3d at 726 (upholding Colorado’s sentencing scheme to the extent it is applied consistently with Blakely by an equally split decision).
{40} As Wilson recognized, Section 31-18-15.1 refers to- “circumstances” rather than “facts,” and imposes very few restrictions on what circumstances may be considered. Wilson, 2001-NMCA-032, ¶ 25, 130 N.M. 319, 24 P.3d 351. The statute requires a writing stating “reasons” rather than findings of fact. The purpose of the writing requirement is to ensure that the trial court did not consider impermissible circumstances, such as a defendant’s exercise of the right to silence. Cf. Black, 29 Cal.Rptr.3d 740, 113 P.3d at 543-44 (“The judge’s discretion to identify aggravating factors in a case is guided by the requirement that they be ‘reasonably related to the decision being made.’ ”) (quoting California court rules). This safeguard, which is to protect criminal defendants, may not be analogous to the statutory requirements that Apprendi and Blakely indicated must be submitted to a jury, although the judge’s reasons are characterized as “written findings” in Wilson. See Wilson, 2001-NMCA-032, ¶ 23, 130 N.M. 319, 24 P.3d 351. Cf. Black, 29 Cal.Rptr.3d 740, 113 P.3d at 536 (concluding that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms-under California law does not implicate a defendant’s Sixth Amendment right to a jury trial”). Apprendi indicates that the characterization given such determinations is not controlling, 530 U.S. at 492, 120 S.Ct. 2348, and that “ ‘the relevant inquiry is one not of form, but of effect.’ ” Black, 29 Cal.Rptr.3d 740, 113 P.3d at 543 (quoting Apprendi, 530 U.S. at 494, 120 S.Ct. 2348). “Nothing in ... Apprendi, Blakely, or Booker suggests that they apply to factual determinations that do not serve as the ‘functional equivalent’ of an element of a crime.” Black, 29 Cal.Rptr.3d 740, 113 P.3d at 549.
{41} Frawley indicates that judicial fact-finding is impermissible only if it results in “the criminal sanctions for that offense [being] increased after the verdict.” 2005-NMCA-017, ¶ 12, 137 N.M. 18, 106 P.3d 580. Frawley persuasively reasons that the construction of the statutory scheme in Washington controlled Blakely. Wilson concluded that the legislative history of Sections 31 — 18— 15 and 31-18-15.1 “strongly evinces a legislative intent that the two provisions be read together to prescribe a range of permissible sentences.” 2001-NMCA-032, ¶ 17, 130 N.M. 319, 24 P.3d 351. Frawley did not hold that the statutory construction in Wilson was incorrect, but concluded that the Washington sentencing scheme considered by Blakely was “not significantly dissimilar” to New Mexico’s. 2005-NMCA-017, ¶7, 137 N.M. 18, 106 P.3d 580. We think however, that the legislation Blakely considered is “significantly dissimilar” to the legislation at issue in this appeal.
{42} The California Supreme Court, like the Court of Appeals in Frawley, recognized that Blakely and Booker raise “questions about the permissible scope of judicial fact-finding under a variety of sentencing schemes.” Black, 29 Cal.Rptr.3d 740, 113 P.3d at 542. The New Jersey Supreme Court recently observed that “many modern legislative sentencing schemes place a ceiling on the sentence that can be imposed based on the jury verdict alone, but allow for judicial factfinding to increase the sentence up to the maximum allowed by the statute. Such schemes appear to be in conflict with the Constitution.” State v. Natale, 184 N.J. 458, 878 A.2d 724, 732 (2005) (footnote omitted) (listing in a footnote a number of jurisdictions in which the effect of Blakely and both Blakely and Booker on the state’s sentencing scheme has been considered).
{43} The California Supreme Court, however, reached a different conclusion on the constitutionality of its sentencing scheme. In Black, the court distinguished the Washington scheme on the basis that the judge had limited discretion to sentence Blakely to the maximum sentence of ten years because the facts he had admitted in pleading guilty had been “taken into account in establishing the standard range.” Black, 29 Cal.Rptr.3d 740, 113 P.3d at 541, 546. The court concluded the discretionary authority of a federal district court under the post -Booker federal guidelines were comparable to that provided under the California Penal Code to a trial judge.
Because an aggravating factor under California law may include any factor that the judge reasonably deems to be relevant, the determinate sentencing law’s requirement that an upper term sentence be imposed only if an aggravating factor exists is comparable to Booker’s requirement that a federal judge’s sentencing decision not be unreasonable.
Id. at 548.
{44} After reaffirming the propriety of judicial factfinding and discretion in indeterminate sentencing schemes, Blakely points out that facts thus determined by a sentencing judge “do not pertain to whether the defendant has a legal right to a lesser sentence — and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.” 124 S.Ct. at 2540. Blakely also emphasizes the word “right” in a later passage. “As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.” Id. at 2543.
{45} Unless convicted criminals in New Mexico have a right to receive only the basic sentence for their crimes, we are not persuaded a trial court’s finding of aggravating factors must be viewed as increasing the statutorily-authorized penalty for an offense. The statute requires a hearing concerning aggravating and mitigating factors in every case. Wilson, 2001-NMCA-032, ¶ 29, 130 N.M. 319, 24 P.3d 351. If it cannot be said that such a finding increases the sentence beyond the statutory maximum, then Frawley’s understanding of Blakely, even if correct, does not apply to the New Mexico sentencing scheme. If, on the other hand, Wilson was correct in concluding that the Legislature intended to and succeeded in creating ranges of permissible sentences, of which the basic sentence is the midpoint, and that a convicted criminal has no right to a sentence at the midpoint, then it would follow that a judicial finding under Section 31-18-15.1 does not increase the sentence beyond the statutory maximum.
{46} We perceive ambiguity within Blakely and Apprendi that has contributed to inconsistent opinions from the Court of Appeals. We believe that Booker provides a basis for believing Wilson was decided correctly. As the California Supreme Court has reasoned in Black, the United States Supreme Court cases ought not be viewed as “draw[ing] a bright line, but Booker makes clear that the concept of a discretionary sentencing decision is not limited to those decisions that involve complete, unguided, and unreviewable discretion.” Black, 29 Cal.Rptr.3d 740, 113 P.3d at 547.
C
{47} Both Booker and Blakely considered statutory schemes in which a range had been established but the sentencing judge was authorized or required to go above the maximum of the range if the judge found a specified fact or facts. In Blakely, the range was between 49 and 53 months. 124 S.Ct. at 2535. In Booker, the range was from 210-262 months. 125 S.Ct. at 746. In Blakely, the judge was authorized to exceed the maximum in the range if he or she made a finding of an aggravating factor from a list meant to be illustrative. 124 S.Ct. at 2535. In Booker, the judge was required to exceed the maximum in the range if he or she made findings that mandated a different range. 125 S.Ct. at 746. The federal sentencing guidelines and Washington sentencing scheme both appear to have involved initial sentencing ranges, based on factors such as prior criminal history and the particular offense reflected by the jury verdict. See Booker, 125 S.Ct. at 746; id. at 775 (Stevens, J., dissenting); State v. Nordby, 106 Wash.2d 514, 723 P.2d 1117, 1118 (1986) (en banc) (“The presumptive sentence range for this crime ... is determined by combining the seriousness level of vehicular assault with Nordby’s criminal history”).
{48} Statements made in Apprendi, Blakely, and Booker about the limiting effect of the facts reflected in the jury verdict or admitted by the defendant become less clear when viewed in light of the statutory scheme in which the statements were made. The statement “that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,” Blakely, 124 S.Ct. at 2537, might be read to mean the maximum of the initial range set by the respective statutes, or it might be read to mean the minimum of that range. Booker indicates that the former was intended. Justice Stevens states in his decision for the majority that “when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.” See Booker, 125 S.Ct. at 750. In his dissent, furthermore, he offers an example of a sentencing judge using her discretion “to sentence within ‘the defendant’s initial sentencing range’ and ‘rely[ing] upon factual determinations beyond the facts found by the jury.’” Id. at 775 (Stevens, J., dissenting).
{49} The statement in Blakely “that ‘the statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,” 124 S.Ct. at 2537, is ambiguous in another way. The word “solely” may mean “without additional factfinding” or it may mean “without taking into account his or her discretion within a range.” Booker, as discussed above, suggests the former was intended.
{50} There is a comparable sentence in Apprendi, reaffirmed in Booker, about the limitations imposed upon a sentencing judge by a jury’s verdict or a plea, which is less clear when taken out of context. That statement is: “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker, 125 S.Ct. at 756-57. That sentence might mean that a sentencing judge cannot sentence within a range but rather must sentence a defendant to the minimum of the range. Alternatively, the sentence might mean that the Legislature may not authorize exceeding the maximum of the range on the basis of a fact or facts found by the judge following a jury verdict or a guilty plea. The majority opinion by Justice Stevens indicates that the latter was intended.
{51} In addition, by adopting the remedy that the federal sentencing guidelines should be treated as advisory, the remedial majority in Booker has indicated that a sentencing judge may be given discretion to consider facts other than those that are implicit in the jury’s verdict or admitted by a defendant. Justice Breyer, writing for the remedial majority, severed and eliminated the portions of the federal sentencing statute that made the guidelines mandatory, as well as the provisions for appellate review, and authorized sentencing judges to exceed the initial sentencing range in light of other statutory concerns surrounding the circumstances of the offense and the offender. Booker, 125 S.Ct. at 756-57.
{52} The New Jersey Supreme Court adopted a similar remedy after considering that its sentencing scheme could not survive after Blakely. See Natale, 878 A.2d at 741 (eliminating presumptive terms from the New Jersey sentencing scheme and recognizing the top of the sentencing range as the statutory maximum authorized by the jury verdict). The North Carolina Supreme Court, on the other hand, rejected that remedy, on the ground “that the choice of remedy is properly within the province of the” Legislature. See State v. Allen, 359 N.C. 425, 615 S.E.2d 256, 272 (2005). The court also observed that until its decision “no two state supreme courts [had] resolved Blakely issues in the same manner.” Id. at 271 n. 7 (summarizing the results in a number of recent cases).
{53} We recognize that a majority of state supreme courts have reasoned as did the Court of Appeals in Frawley that Blakely’s discussion of the relevant statutory minimum within Washington’s sentencing scheme requires a state court to equate the presumptive sentence in a determinate sentencing scheme with the punishment authorized by the jury’s verdict. See, e.g., Natale, 878 A.2d at 737-38 (summarizing the varying conclusions); Smylie v. State, 823 N.E.2d 679, 682-84 (Ind.2005) (holding an increase in the sentence above the presumptive term in Indiana’s sentencing scheme unconstitutional under Blakely). We are more persuaded by the reasoning of the California Supreme Court in Black.
{54} In Black, the California Supreme Court was impressed that “Apprendi Blakely, and Booker all make clear that judicial factfinding is acceptable in the context of a discretionary sentencing decision.” 29 Cal. Rptr.3d 740, 113 P.3d at 547. The court also was impressed that Booker expressed, as a matter of policy, a concern that there was “ ‘a new trend in the legislative regulation of sentencing’ ” as a result of which legislatures selected facts that authorized greater punishment and permitted judges to find those facts after the jury had reached its verdict. Id. 29 Cal.Rptr.3d 740, 113 P.3d at 544 (quoting Booker, 125 S.Ct. at 751). The California Supreme Court concluded that the California sentencing scheme did not “implicate the concerns described in the majority opinion in Booker.” Black, 29 Cal.Rptr.3d 740, 113 P.3d at 544. The court viewed Booker and Blakely as having “established a constitutionally significant distinction between a sentencing scheme that permits judges” to exercise judicial discretion within a range and one “that assigns to judges the type of factfinding role traditionally exercised by juries in determining the existence or nonexistence of elements of an offense.” Id. 29 Cal.Rptr.3d 740, 113 P.3d at 542. The court believed its own sentencing scheme illustrated the former rather than the latter. Id. 29 Cal. Rptr.3d 740, 113 P.3d at 548.
{55} We similarly conclude that Wilson properly construed Section 31-18-15.1. Our Legislature did not intend to confer a right to a basic sentence but rather to limit the trial court’s discretion to punish within a range by taking into consideration a wide range of circumstances, and to provide for meaningful appellate review. We believe our sentencing scheme reflects an appropriate legislative deference to judicial discretion in sentencing as well as respect for the jury’s role in determining guilt or innocence of crimes defined by statute. The mandatory language of Section 31-18-15(B) and writing requirement of Section 31-18-15.1(A) were intended to limit the judge’s sentencing discretion by imposing a standard of reasonableness, rather than creating a right in defendants to be sentenced to the basic sentence. See Black, 29 Cal.Rptr.3d 740, 113 P.3d at 543-44. “[T]he upper term is the ‘statutory maximum’ for purposes of Sixth Amendment analysis,” and the judge’s sentence pursuant to Section 31-18-15.1 “will be upheld ‘as long as the judge exercises his or her discretion in a reasonable manner....’” Id. 29 Cal.Rptr.3d 740, 113 P.3d at 545. We believe New Mexico’s sentencing scheme, so construed, is consistent with Booker. We also conclude that neither Blakely nor Booker require us to depart from the conclusion in Wilson, based on this construction, that Section 31-18-15.1 is not unconstitutional. We conclude, as did the California Supreme Court in reviewing its state’s sentencing scheme, that New Mexico’s sentencing scheme illustrates an appropriate reliance on judicial discretion to sentence following a jury verdict, bench trial, or guilty plea.
D
{56} Although Defendant has not challenged the aggravation of his sentence for conspiracy, we discuss the sentencing hearing to illustrate the operation of Section 31-18-15.1. The State filed a notice that it would “seek aggravating circumstances” and “requests the court to alter the basic sentence.” At the sentencing hearing, the court heard the prosecutor state the sentence provided by Section 31-18-15 for each of Defendant’s convictions. The court then heard argument. The State contended that Defendant threw Stark into the well while he was alive, resulting in increased suffering for him and for his family, and that the jury had reached this conclusion. In addition, the State contended that Defendant had shown neither remorse nor recognition of guilt. The State argued for an upward alteration or aggravation of all six non-homicide counts. At the same time, and for the same reasons, the State argued that all seven sentences should run consecutively. Defendant argued that Sedler was the principal in the murder of the victim and that he assisted Sedler out of fear for his life. In addition, Defendant argued for a number of mitigating circumstances, including his mental capacity, the nature of his childhood, his unmet need for medication at the time of the crimes, and that the crime of murder was out of character because his prior crimes were offenses against property and committed to obtain money for drugs.
{57} The district court stated that Defendant’s crime was “a very egregious killing.” The court thought that the jury had concluded that the victim was alive when thrown in the well and thus suffered as the State had argued. The court first imposed the sentence provided in Section 31-18-15 for each count, then announced that the sentence for counts one and two would run consecutively, and that the sentences for the other five counts would run concurrent with one another and the sentences for counts one and two. Under Section 31-18-15.1, the court aggravated the sentence for conspiracy to commit first degree murder, the second count, by one-third. The Court indicated that it found aggravating circumstances. The court apparently found no mitigating circumstances or concluded they were outweighed by the aggravating circumstances. The Court apparently sentenced Defendant for conspiracy to commit felony murder as a second degree felony resulting in death because he aggravated a sentence of fifteen years to twenty years. See § 31 — 18—15(A)(2) (providing a fifteen year sentence for a second degree felony that results in death).
{58} The judge’s decision is consistent with our eases. Our cases have held that “[w]e will uphold the trial court’s aggravation of a sentence if the circumstances relied on are supported in the record and constitute proper factors to consider under the enhancement statute.” State v. Wilson, 117 N.M. 11, 19, 868 P.2d 656, 664 (Ct.App.1993). We believe the decision the judge made in imposing the sentence on Count II is consistent with that holding.
{59} This Court has held that a court may not aggravate a sentence based on “elements of either the offense for which the defendant was sentenced or a separate, but contemporaneous, conviction.” Swafford v. State, 112 N.M. 3, 16 & n. 10, 810 P.2d 1223, 1236 & n. 10 (1991) (distinguishing State v. Cawley, 110 N.M. 705, 799 P.2d 574 (1990) (affirming an aggravated sentence partially based on the age of the victims, which was an element of the offense of criminal sexual contact of a minor)). We implied, but did not state, that double jeopardy was the reason for the holding. Id.; see also State v. Kurley, 114 N.M. 514, 516, 841 P.2d 562, 564 (Ct.App.1992).
{60} Circumstances of the crime, even if closely related to the elements, may be the basis for an aggravated sentence. See, e.g., State v. Castillo-Sanchez, 1999-NMCA-085, ¶ 28, 127 N.M. 540, 984 P.2d 787 (affirming an aggravated sentence based on the length of the conspiracy); State v. Fuentes, 119 N.M. 104, 109-10, 888 P.2d 986, 991-92 (Ct.App.1994) (affirming an aggravated sentence based on Defendant’s repeated stabbing of victim, which went beyond the elements necessary for convictions of armed robbery and aggravated assault); Kurley, 114 N.M. at 515-16, 841 P.2d at 563-64 (affirming an aggravated sentence partially based on brutality of the defendant’s attack on the victim, when the brutality was used to show great bodily harm, an element of the conviction for aggravated battery causing great bodily harm).
{61} We believe our cases decided under Section 31-18-15.1 illustrate the discretion imposed in the judge at sentencing as well as distinguish the role of the jury in determining whether the State has proved the elements of a crime beyond a reasonable doubt. The factors or circumstances on which the trial judge relied in sentencing Defendant do not appear to us to be findings of fact within the meaning of Blakely and Apprendi. Because we are persuaded that Section 31-18-15.1 as construed in Wilson is constitutional, we believe the remaining question is whether the court abused the discretion the sentencing scheme as construed in Wilson entrusts to the court. We believe there was no abuse.
IV
{62} For these reasons, we affirm Defendant’s judgment and sentence. There was sufficient evidence to support his convictions. We hold that Section 31-18-15.1 is constitutional, based on the construction given that statute by Wilson, and therefore the aggravation of Defendant’s sentence does not violate the Sixth Amendment of the United States Constitution. We overrule Frawley, which holds to the contrary. We note that Defendant’s sentences for robbery, a third degree felony, and for conspiracy to commit robbery, a fourth degree felony, appear to be incorrect. See § 31-18-15 (providing a basic sentence of three years for a third degree felony and a basic sentence of eighteen months for a fourth degree felony). If there has been an error it may be corrected pursuant to Rule 5-113(B) NMRA 2005 or Rule 5-801 NMRA 2005.
{63} IT IS SO ORDERED.
WE CONCUR: RICHARD C. BOSSON, Chief Justice, PATRICIO M. SERNA, PETRA JIMENEZ MAES, Justices, and EDWARD L. CHÁVEZ, Justice (concurring in part and dissenting in part).. Prior to amendment in 2003, the italized portion read as follows: "of a first, second, third or fourth degree felony or a second or third degree felony resulting in the death of a human being, unless the court alters such.” NMSA 1978, § 31-18-15-B (1994, prior to 2003 amendment). Because we do not believe the change in wording changed our analysis, we analyze the statute in its present form.