Problem of Discretion
Texas – lots of discretion because no guidelines and min/ax ranges very wide (ex. 2-99 years)
unwarranted disparity, lots of idiosyncrasies in process; efforts made to help
Appellate Review of Sentencing Considerations
Grayson – D gave tough sentence because believed D’s defense was fabricated
the judge talked, though … so run risk of appeal if reasons articulated
if quiet, immune from review
judge can use information about D’s character as long as sentence within min/max
note:  can’t be based on something unlawful, ex failure to take the stand
Rule:  Judge can look at all factors … “Kitchen Sink” approach
vindictiveness for appealing can play no part in sentencing (like Blackledge v. Perry)
maybe ok if bad behavior between 1st and 2nd trial, if 2nd jury not know about 1st trial or sentence, or if new judge on appeal so no vindictiveness