FILED: April 5, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

STEVEN MELVIN QUAMEN,

Appellant.

04CR0428FE; A124991

Appeal from Circuit Court, Douglas County.

Ronald Poole, Judge.

Submitted on record and briefs December 29, 2005.

Peter Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Walter J. Ledesma, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Erika L. Hadlock, Assistant Solicitor General, filed the brief for respondent.

Before Edmonds, Presiding Judge, and Landau and Wollheim,* Judges.

PER CURIAM

Affirmed.

*Wollheim, J., vice Richardson, S. J.

PER CURIAM

Defendant waived his right to a jury trial and was convicted in a trial to the court of robbery in the third degree, ORS 164.395, assault in the fourth degree, ORS 163.160, and theft in the third degree, ORS 164.043. On appeal, defendant challenges only the sentence for robbery in the third degree, arguing that, under 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), the trial court erred in imposing an upward departure sentence. He concedes that he did not advance such a challenge to the trial court, but argues that the sentence should be reviewed as plain error. Under similar circumstances, the same argument was rejected in State v. Gornick, 340 Or 160, 170, __ P3d__ (2006), which is controlling.

Affirmed.


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