STATE v. RODELO GONZALEZ (2007)

 Defendant was convicted of one count of possession of a controlled substance and one count of delivery of a controlled substance.   On appeal, he assigns error to the trial court's denial of his motion to suppress evidence and to the court's imposition of upward departure sentences.   We reject defendant's arguments concerning the suppression of evidence without discussion.   We agree, however, that the upward departure sentences were erroneously imposed.

At sentencing, the court imposed concurrent upward departure sentences of 30 months and 18 months, based on judicial findings concerning the “degree of organization and the sheer quantity.”   Defendant asserts that an enhanced sentence based on such judicial factfinding violates the rule of law announced in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).   We agree.   Defendant is entitled to resentencing because the court imposed an upward departure sentence based on facts not found by the jury or admitted by defendant.

Although defendant's challenge to his sentence is unpreserved, in State v. Ramirez, 205 Or.App. 113, 133 P.3d 343, adh'd to on recons., 207 Or.App. 1, 139 P.3d 981 (2006), rev. allowed, 342 Or. 256, 151 P.3d 930 (2007), we held that the imposition of a departure sentence under similar circumstances constituted plain error.   For the reasons set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated;  remanded for resentencing;  otherwise affirmed.

PER CURIAM.