After a trial to a jury, defendant was convicted of two counts of delivery of a Schedule II controlled substance, one count of possession of a Schedule II controlled substance, one count of felon in possession of a firearm, and one count of fleeing or attempting to elude a police officer. With respect to the convictions on two of the counts, the trial court imposed upward departure sentences based on its findings of persistent involvement in similar offenses, that the degree of harm was significantly greater than usual, that defendant was on probation at the time of the offense, and that supervision had failed to deter defendant’s conduct.
On appeal, defendant argues that the trial court’s imposition of departure sentences violated Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 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. Defendant did not advance that challenge below, but argues that the sentences should be reviewed as plain error. Under our decisions in State v. Thomas, 205 Or App 399, 134 P3d 1038 (2006), and State v. Ramirez, 205 Or App 113, 133 P3d 343 (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.