Based on Apprendi v.New Jersey, facts used by the judge when determining the defendant's sentence must be decided by the:

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Apprendi v. New Jersey held that 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. This means that the trier of the facts (usually a jury) must decide any factual issues that could increase the defendant's sentence, rather than the judge or prosecutor making these decisions.

Based on Apprendi V