STATE v. SKILES (2006)

 After a jury trial, defendant was convicted of felon in possession of a firearm and unlawful possession of a short-barreled shotgun.   At trial, the court admitted, over defendant's objection, a 9-1-1 tape recording of statements that his mother had made reporting that defendant had threatened to shoot himself.   At sentencing, the trial court imposed an upward departure sentence based on its own finding that, among other things, defendant had been involved in “criminal activity” of an “escalating nature.”

 On appeal, defendant first assigns error to the admission of the 9-1-1 tape recording.   He contends that admitting the recording violated his constitutional right of confrontation, as set out in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).   That assignment, however, is squarely controlled by the United States Supreme Court's recent decision in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 166 L.Ed.2d 224 (2006), in which the Court held that the admission of portions of a 9-1-1 recording did not violate the federal constitutional right to confront witnesses.   The recording in this case is not materially different from the portions held admissible in Davis.

 Defendant also assigns error to the trial court's imposition of a departure sentence based on its own findings of fact, in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).   Defendant acknowledges that he did not preserve that assignment, but he argues that we nevertheless should review it 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 WL 2002587 (2006), the sentence is plainly erroneous.   For the reasons set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated;  remanded for resentencing;  otherwise affirmed.

PER CURIAM.