STATE v. BYRD (2006)

 After a trial to a jury, defendant was convicted of felon in possession of a firearm, ORS 166.270, resisting arrest, ORS 162.315, and unauthorized use of a vehicle, ORS 164.135.   On the conviction for felon in possession of a firearm, the court imposed an upward departure sentence of 36 months' imprisonment based on its finding that defendant had been persistently involved in similar offenses.   The court imposed a dispositional departure sentence of 13 months' imprisonment on the conviction for unauthorized use of a vehicle, based on a similar finding.

On appeal, defendant argues that the departure sentences violated his rights under the Sixth Amendment to the United States Constitution based on the principles articulated in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the sentences were based on facts that were not admitted by defendant or found by a jury.   Although defendant did not advance such a challenge below, he argues that the sentences should be reviewed as plain error.   Under our decision 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), the sentences are plainly erroneous.   For the reason set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated;  remanded for resentencing;  otherwise affirmed.

PER CURIAM.