You Are Defending a Client Accused of Committing a Hate

Multiple Choice

You are defending a client accused of committing a hate crime. Apparently, he got into a bar fight and uttered a racial slur during the altercation. The man he punched was in fact an African-American. Sadly, the man your client punched ended up dying from head injuries caused by the punch. Assume that your client is found guilty of manslaughter, and answer the following questions about what happens next.
-The trial judge wishes to impose a "hate crime" penalty enhancement to your client's sentence based on his utterance of a racial slur during the commission of the crime. This addition would move the sentence beyond the statutory-defined maximum sentence. Which of the following is true?

A) Your best avenue of appeal is to assert a First Amendment right to utter racial slurs.
B) A potentially successful avenue of appeal is to cite Apprendi v. New Jersey, where the Supreme Court suggested that a sentence enhancement for commission of a "hate crime" can only occur if a jury-not a judge-finds that essential element.
C) You have little recourse to protest, because Apprendi v. New Jersey says that a judge can impose a "hate crime" enhancement based on his or her own finding of probable cause-and the racial slur in this case provides that.
D) You would have successful grounds for appeal only if this occurred in a federal court.