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State v. Mosley4/19/2005
d second degree murder by two years and enhancement of his aggravated assault sentence by one year.
The majority rejects enhancement factor (10), not because it does not exist, but because it violates Blakely. As noted above, the Booker Court observed that this should not end the inquiry, however, as the reviewing court is expected to determine whether the sentence fails the "plain-error" test. The record demonstrates that the defendant has failed to establish prejudice in order to satisfy the "affecting substantial rights" requirement of the "plain-error" test, Rule 52(b). See Cotton, 535 U.S. at 1786, 122 S.Ct. at 633 (affirming enhancement of the defendant's sentence following plain error analysis notwithstanding presence of Apprendi error). For these reasons, I would affirm the sentences as imposed by the trial court.
David G. Hayes, Judge
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