STATE v. VAUGHN (2009)

 This case is before us on remand from the Supreme Court, which vacated our prior decision, State v. Vaughn, 196 Or.App. 782, 103 P.3d 1180 (2004) (Vaughn I ), in light of State v. Ramirez, 343 Or. 505, 173 P.3d 817 (2007), adh'd to as modified on recons., 344 Or. 195, 179 P.3d 673 (2008), and State v. Fults, 343 Or. 515, 173 P.3d 822 (2007).  State v. Vaughn, 345 Or. 316, 195 P.3d 64 (2008).   In Vaughn I, we vacated defendant's sentences and remanded for resentencing because the trial court had imposed departure sentences based on judicial findings that defendant had used a weapon when committing his offenses.   That factfinding constituted plain error, and we exercised our discretion to correct it.   The issue before us on remand is whether, in light of Ramirez and Fults, we properly exercised our discretion under Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991).   We conclude that our exercise of discretion in Vaughn I was erroneous.   Accordingly, we affirm.

Defendant was convicted by a jury of attempted aggravated murder, second-degree assault, and possession of a weapon by an inmate.   The trial court imposed a durational departure sentence on the attempted aggravated murder conviction based on the use of a weapon in the commission of the offense.   As noted, the jury convicted defendant of possession of a weapon by an inmate.   Accordingly, the jury necessarily found the departure fact that the court relied on in sentencing him on the attempted aggravated murder conviction.   See Ramirez, 343 Or. at 513, 173 P.3d 817 (setting out no “legitimate debate” standard for exercise of discretion to review unpreserved challenges to departure sentences based on judicial findings of fact).   Accordingly, we decline to exercise our discretion to review the assigned error.

Affirmed.

PER CURIAM.