State v. Gonzalez, 799 N.W.2d 402

Garrón Gonzalez pleaded guilty to two counts of gross sexual imposition (class A felonies) in January 2004.
Trial court sentenced him to five years with most suspended and placed on five years of supervised probation.
In November 2004, probation was petitioned for revocation due to probation violations; a February 2005 hearing followed.
Gonzalez admitted violations (marijuana use, sex offender treatment termination, unpaid fees, failure to register) and the court resentenced him to five years on each count, to run concurrently, with up to 30 months suspended.
After release, Gonzalez again began a five-year supervised probation term.
In December 2010, probation was petitioned again for revocation; a February 2011 hearing led to admission of contact with nine minors and possession of sexually explicit material, with the state dismissing the gross sexual imposition charge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the sentence relied on impermissible factors	Gonzalez argues the likelihood to re-offend was used improperly.	State contends factors cited were valid under statutory guidance.	No substantial reliance on impermissible factors; sentence within statutory limits.
Whether resentencing followed permissible discretion and is within range	Gonzalez asserts the court abused discretion by improper consideration.	Court properly exercised discretion within statutorily authorized ranges.	Sentence within statutorily prescribed limits; affirmed.

State v. Henes, 2009 ND 42 (N.D. 2009) (limits-and-impermissible-factor review for sentencing)
State v. Loh, 2010 ND 66 (N.D. 2010) (no power to review within-range sentencing discretion; focus on impermissible factors)
State v. Steinbach, 1998 ND 18 (N.D. 1998) (sentencing factors are not exclusive; explicit reference not required)
State v. Hatton, 535 N.W.2d 734 (N.D.1995) (list of factors not exclusive; explicit reference unnecessary)
State v. Bell, 540 N.W.2d 599 (N.D.1995) (trial court may rely on evidence and reasonable inferences in sentencing)
Halton, 535 N.W.2d 738 (N.W. 1995) (racial considerations barred in sentencing)