This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Anthony Osborne Sr.,
Filed January 11, 2005
Reversed and remanded
Olmsted County District Court
File No. K0-01-3422
Mike Hatch, State Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Raymond F. Schmitz, Olmsted County Attorney, James P. Spencer, Daniel P.H. Reiff, Assistant Olmsted County Attorneys, 151 Southeast Fourth Street, Rochester, MN 55904 (for respondent)
Scott G. Swanson, Special Assistant State Public Defender, Marie Wolf, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Schumacher, Judge.
U N P U B L I S H E D O P I N I O N
On remand from the Minnesota Supreme Court for reconsideration of appellant’s sentence in light of Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531 (2004), the state contends that appellant’s sentence is constitutional, claiming the jury found sufficient facts to support an upward durational departure. Thus, the state argues that Blakely was inadvertently satisfied by the jury’s verdict. We conclude the aggravating factors supporting the upward durational departure were not found beyond a reasonable doubt by a jury. We reverse appellant’s sentence and remand for resentencing.
Appellant, Anthony Osborne Sr., was charged with 28 drug-related offenses. Following a trial, the jury returned guilty verdicts on all 28 counts. Appellant was subsequently convicted and sentenced for 22 of these offenses. In sentencing appellant, the district court departed from the presumptive sentence of 134 months on the conviction for conspiracy to commit a controlled substance crime in the first degree (Count 2). The court added 61 months onto the sentence for a total of 195 months. On Count 27, solicitation of a juvenile, the court added 41 months to the presumptive sentence of 79 months, sentencing appellant to 120 months. Finally, on Count 3, importing controlled substance across state borders, the court added 67 months to the presumptive sentence of 158 months, sentencing appellant to 225 months.
Appellant appealed his conviction and sentence, and this court affirmed in State v. Osborne, No. C1-03-253, 2004 WL 333469 (Minn. App. Feb. 24, 2004), review denied (Minn. May 18, 2004). Appellant subsequently petitioned for review, which was denied by the Minnesota Supreme Court. Shortly thereafter, Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531 (2004), was decided. Because appellant’s case was pending on direct review at the time the Blakely decision was released, the Minnesota Supreme Court remanded the matter to this court for reconsideration in light of Blakely.
D E C I S I O N
Appellant argues that the upward durational departure imposed on him, based on the district court’s aggravating factors, violates the Supreme Court’s holding in Blakely v. Washington, 124 S. Ct. 2531 (2004).
In Blakely, the Supreme Court held that the greatest sentence a judge can impose is “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 124 S. Ct. at 2537 (emphasis in original). The Court held that the defendant has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases the sentence above this maximum. Id. at 2543. The Court, therefore, reversed the 90-month “exceptional sentence” that had been imposed under the State of Washington’s determinate-sentencing scheme and “remanded for further proceedings not inconsistent with this opinion.” Id. In a dissenting opinion, Justice Sandra Day O’Connor stated that the Blakely majority opinion “casts constitutional doubt” over all state guidelines systems, including Minnesota’s. Id. at 2549.
The state argues that appellant should have preserved his challenge to his sentences based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) at the time of sentencing. The state contends that by not raising the issue before the district court, or thereafter, either on this first appeal to his court, or the supreme court, appellant has waived the issue. We disagree.
“[I]f a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, the defendant is entitled to benefit from that new rule.” State v. Fairbanks, 688 N.W.2d 333, 337 (Minn. App. 2004) (quoting O’Meara, 679 N.W.2d at 339. A case is no longer “pending” if the defendant’s judgment of conviction has been rendered, and all rights to appeal and certiorari have been exhausted. Id. Because this is a direct appeal, it is subject to the Supreme Court’s recent ruling, and appellant has squarely raised the issue in this appeal.
The district court found that numerous aggravating factors were present, and therefore departed upwardly on three of the counts under which appellant was convicted. The problem is, appellant’s sentence enhancement was based on facts found by the district court, not the jury. Under Blakely, the greatest sentence a judge can impose is “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 124 S. Ct. at 2537; see also State v. Saue, 688 N.W.2d 337, 341 (Minn. App. 2004) (stating that the aggravating factors supporting an upward durational departure under the Minnesota Sentencing Guidelines must be found by the jury and proved by the state beyond a reasonable doubt). Thus, under a Blakely analysis, appellant’s sentence violates the Sixth Amendment.
The state contends that by finding appellant guilty of all 28 charged offenses, the jury found facts sufficient to support the upward departure, and therefore appellant’s sentence should be affirmed because Blakely was “inadvertently satisfied” by the jury’s verdict. The state’s argument relies on language in Blakely indicating that a defendant’s constitutional rights are not violated if the jury has found the facts on which the district court relied in granting the upward departure. See Blakely, 124 S. Ct. at 2537 (stating that the greatest sentence a judge can impose is the maximum sentence that may be imposed solely on the basis of the facts reflected in the jury verdict). But elements that establish the offense cannot be used as factors to justify an upward departure. State v. Peterson, 329 N.W.2d 58, 60 (Minn. 1983). Therefore, appellant’s sentence would be constitutional, under Blakely, only if the aggravating factors used to justify the upward departure were submitted to the fact-finder (in this case, a jury) over and above the submission to the fact-finder of the essential elements of the offense. This, of course, was not done. The case was tried before Blakely came down.
Here, the jury found appellant guilty of the following different offenses: (1) solicitation of a minor; (2) controlled substance crime in the third degree; (3) controlled substance crime in the fifth degree; (4) controlled substance crime in the second degree; (5) failure to affix drug tax stamp; (6) controlled substance crime in the first degree; (7) using a person under 18 to import controlled substance across state borders; (8) importing controlled substance across state borders; (9) conspiracy to commit controlled substance crime in the first degree; (10) racketeering. The district court then imposed an upward durational departure from the presumptive sentence on three of appellant’s convictions, (1) conspiracy to commit controlled substance crime in the first degree; (2) solicitation of a minor; and (3) importing controlled substance across state borders.
In sentencing appellant to an upward durational departure for conspiracy to commit a controlled substance crime in the first degree conviction, the district court found that the following factors justified the upward departure: (1) crime committed by a group of three or more persons who all actively participated in the crime; (2) major controlled substance crime involving: (a) 3 or more separate transactions; (b) sale quantities larger than personal use; (c) high position in drug distribution hierarchy; and (d) high degree of sophistication/lengthy period of time. The record shows that the jury did not find the factors used by the district court to justify the upward departure. None of the crimes under which appellant was convicted contain elements supporting a jury finding that appellant committed the crime as part of a group of three or more persons who all actively participated in the crime. There is no specific finding, either by the jury or the district court, establishing how much contraband constitutes a quantity larger than for personal use. See State v. McIntosh, 641 N.W.2d 3, 9-10 (Minn. 2002) (stating that there must be specific findings to support a conclusion that a sale involved quantities substantially larger than for personal use). Also, the jury did not specifically find that appellant “was in a high position” in a drug distribution hierarchy. The jury did not specifically find that appellant’s “drug operation” was highly sophisticated. The state contends that some of these factors can be “inferred” from the jury’s verdict. We conclude “an inference” cannot satisfy the Blakely standard that a criminal defendant is entitled to the fact-finder’s determination, based on proof beyond a reasonable doubt, of the presence of aggravating factors used to increase the sentence. 124 S. Ct. at 2531. Following Blakely, the upward departure on appellant’s conviction for conspiracy to commit a controlled substance crime in the first degree violated his Sixth Amendment rights.
The district court also imposed an upward durational departure for appellant’s conviction of solicitation of a minor. In sentencing appellant to an upward durational departure for this offense, the district court cited the following aggravating factors as reasons justifying the upward departure: (1) crime committed by a group of three or more persons who all actively participated in the crime; (2) major controlled substance crime involving: (a) 3 or more separate transactions; (b) manufacture by others; (c) high position in drug distribution hierarchy; (d) high degree of sophistication/lengthy period of time; and (d) use of position/status; (3) position of authority, superiority, confidence or trust – father/son; and (4) victim was particularly vulnerable. Again, the judge, not the jury, found the factors used by the district court to justify its upward departure. It is clear from the record that appellant’s minor son, Anthony Osborne Jr., was involved in a “drug distribution scheme,” but, under Blakely, the use of appellant’s position of authority as father as an aggravating factor justifying an upward durational departure, requires a specific jury finding as to this factor. See 124 S. Ct. at 2531. Accordingly, under a Blakely analysis, we find the upward departure on appellant’s conviction for solicitation of a minor violated appellant’s Sixth Amendment rights.
Finally, the district court imposed an upward durational departure on appellant’s conviction for importing controlled substance across state borders. The district court provided the following aggravating factors as reasons justifying the upward departure: (1) committed crime as part of a group of three or more persons who all actively participated in the crime; (2) major controlled substance crime involving: (a) high position in drug distribution hierarchy; (b) high degree of sophistication/lengthy period of time; and (c) use of position/status. As stated above, the jury did not specifically find those factors that justified the upward durational departure, the court did. Again, under the Blakely analysis, we reverse appellant’s upward sentence on this count. We remand to the district court for resentencing.
Reversed and remanded.
 A more extensive overview of the facts of this case is contained in State v. Osborne, No. C1-03-253 (Minn. App. Feb. 24, 2004), review denied (Minn. May 18, 2004), order vacated, review granted, case remanded (Minn. Aug. 17, 2004).
 A case is pending until such time as the availability of appeal has been exhausted, the time for a petition for certiorari has elapsed, or a petition for certiorari with the Supreme Court has been filed and finally denied. O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).
 In Apprendi, the Supreme Court considered a New Jersey hate crime statute which authorized the district court to increase a defendant’s maximum prison sentence if it found by a preponderance of the evidence that in committing the crime the defendant acted with a purpose to intimidate because of the victim's race. 530 U.S. 466, 120 S. Ct. 2348 (2000). The Court concluded that the statute violated the defendant’s Fifth Amendment due process rights and Sixth Amendment right to a jury trial because “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S. Ct. at 2362-2363.
 The state also relies on two federal cases that held the defendants’ constitutional rights were not violated by the upward durational departure because the facts on which the district court relied in granting the upward departure were admitted by the defendants in their guilty pleas. See U.S. v. Saldivar-Trujillo, 380 F.3d 274, 279 (6th Cir. 2004); see also State v. Lucca, 377 F.3d 927, 934 (8th Cir. 2004).
 The Minnesota Sentencing Guidelines state that the commission of a “major controlled substance offense” may be considered an aggravating factor that justifies sentencing departure. Minn. Sent. Guidelines II.D.2.b(5). The Guidelines describe a “major controlled substance offense” as “an offense or series of offenses related to trafficking in controlled substances under circumstances more onerous than the usual offense,” occurring where two or more of the following factors are present:
(a) the offense involved at least three separate transactions wherein controlled substances were sold, transferred, or possessed with intent to do so; or
(b) the offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use; or
(c) the offense involved the manufacture of controlled substances for use by other parties; or
(d) the offender knowingly possessed a firearm during the commission of the offense; or
(e) the circumstances of the offense reveal the offender to have occupied a high position in the drug distribution hierarchy; or
(f) the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time or involved a broad geographic area of disbursement; or
(g) the offender used his or her position or status to facilitate the commission of the offense, including positions of trust, confidence or fiduciary relationships (e.g., pharmacist, physician, or other medical professional).
 Arguably, the jury found factor (a) because the jury found appellant guilty of more than 3 separate drug transactions. But to conclude that a controlled substance crime is a major controlled substance crime, two or more of the factors set forth in Minn. Sent. Guidelines II.D.2.b(5) must be present. Because none of the other factors set forth in Minn. Sent. Guidelines II.D.2.b(5) were specifically found by the jury, we need not address whether the jury found factor (a).