
    Submitted on record and briefs July 28,
    sentences vacated; remanded for resentencing; otherwise affirmed August 31, 2005
    STATE OF OREGON, Respondent, v. JORGE ESPITIA-ARREQUIN, aka Jose Garcia-Perez, aka Jose Garcia Perez, Appellant.
    
    03C-40086; A121564
    118 P3d 833
    Peter A. 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 Christina M. Hutchins, Assistant Attorney General, filed the brief for respondent.
    Before Landau, Presiding Judge, and Schuman and Ortega, Judges.
    PER CURIAM
    
      
       Schuman, J., vice Richardson, S. J.
    
   PER CURIAM

Defendant was convicted of assault in the third degree, ORS 163.165, and driving under the influence of intoxicants, ORS 813.010. On the assault conviction, the trial court imposed an upward dispositional departure based on a finding of persistent involvement and a durational departure based on, among other things, multiple victims. On appeal, defendant challenges only that departure sentence, 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 court erred in imposing a departure sentence based on facts that defendant did not admit and that the court did not submit to a jury. 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. The state concedes that, under our decisions in State v. Gornick, 196 Or App 397, 102 P3d 734 (2004), rev allowed, 338 Or 583 (2005), and State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the sentence is plainly erroneous. We accept the state’s concession and, for the reasons discussed in those cases, exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.  