This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).

UNPUBLISHED OPINION

KLAPHAKE, Judge

Appellant Pedro Rodriguez pleaded guilty to four counts of controlled substance crime, one count of failing to affix a tax stamp, and one count of felon in possession of a firearm, arising out of activity that occurred between January 2003 and March 5, 2004. The district court sentenced appellant to 278 months for conspiracy to commit controlled substance crime, an upward durational departure; as well as 158 months for possession of a controlled substance with intent to sell, to be served concurrently; and 60 months for felon in possession of a firearm, to be served consecutively. Appellant challenges the sentence imposed by the district court.

Because the district court imposed a sentence that is an upward durational departure from the presumptive sentence based solely on judicially found facts, in violation of appellant's Sixth Amendment rights, we reverse and remand for resentencing in accordance with Blakely v. Washington, 124 S. Ct. 2531 (2004).

DECISION

The district court's sentencing departures are reviewed for an abuse of discretion. State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003). But a Blakely challenge raises a constitutional issue, which this court reviews de novo. See State v. Wright, 588 N.W.2d 166, 168 (Minn.App. 1998), review denied (Minn. Feb. 24, 1999).

In Blakely v. Washington, 124 S. Ct. 2531, 2536 (2004), the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum, which is the presumptive sentence under a sentencing guidelines scheme, must be submitted to a jury and proved beyond a reasonable doubt, or admitted by the defendant. The Minnesota Supreme Court has acknowledged the applicability of Blakely to the Minnesota Sentencing Guidelines. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004).

Although appellant waived his right to a jury trial on the issue of his guilt, he did not waive his right to a jury finding on sentencing. Waiver of a jury for sentencing purposes must be explicit and cannot be extrapolated from waiver of a jury trial on the issue of guilt. See State v. Fairbanks, 688 N.W.2d 333, 336 (Minn.App. 2004) (rejecting state's argument that waiver of trial by jury extended to sentencing proceedings), review granted (Minn. Jan. 20, 2005). In Fairbanks, this court based its decision on the principle that waiver of a jury trial right must be knowing, intelligent, and voluntary; a waiver is not knowing if the defendant is not aware that a trial waiver extends beyond the issue of guilt to sentencing proceedings. Id. Because appellant was not informed of his right to have a jury find facts beyond a reasonable doubt before he could be sentenced to an upward durational departure, he could not waive this right in a knowing and intelligent fashion.

Under Blakely, 124 S. Ct. at 2537, the district court may exceed the presumptive sentence "solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." We have stated that "[t]he effect of a defendant's admission to an aggravating [sentencing] factor is to waive the defendant's constitutional right to a jury trial on the sentencing issue." State v. Hagen, 690 N.W.2d 155, 158 (Minn.App. 2004). Because the waiver of a jury trial must be knowing, intelligent, and voluntary, "stipulations to facts constituting elements of the offense may no longer be accepted as effective but informal waivers of the jury-trial right without a full-scale, on-the-record oral or written waiver." Id. at 159. We concluded that stipulation to an aggravating sentencing factor is no different from stipulating to an element of the offense and therefore requires the same formality. Id.

The state argues that the United States Supreme Court's more recent decision in United States v. Booker, 125 S. Ct. 738 (2005), may have changed the impact of Blakely. In Booker, a sharply divided Court affirmed the holding of Blakely and extended it to the federal sentencing guidelines; in the remedial portion of the opinion, however, the Court excised the language from the guidelines that made them mandatory, in effect rendering the federal guidelines advisory. Id. at 756-57. Because this holding relies specifically on a severability analysis predicated on congressional intent, Booker's impact on the Minnesota guidelines is not clear. We therefore decline to extend its holding to the Minnesota guidelines.

Appellant also challenges the district court's use of a custody status point in determining his criminal history score, because he was no longer under the supervision of the court on the date of offense. He argues that the determination of whether he had a custody status point is a fact issue, which must be determined by a jury rather than a judge.

In State v. Brooks, 690 N.W.2d 160, 163 (Minn.App. 2004), review granted (Minn. Mar. 15, 2005), this court stated that determination of an offender's criminal history score, including custody status points, is "analogous to Blakely's exception for the fact of a prior conviction." We reasoned that custody status points are determined by the court's own records and are based on prior convictions; further, a presumptive sentence is meaningless without a criminal history score, and a jury's verdict does not determine the score. Id.

A custody status point may be assigned when the offender commits the "current offense within the period of the initial length of stay pronounced by the sentencing judge for a prior felony[.]" Minn. Sent. Guidelines II.B.2.c. The comment to the rule states:

The Commission believes that the potential for a custody status point should remain for the entire period of the initial length of stay pronounced by the sentencing judge. An offender who is discharged early but subsequently is convicted of a new felony within the period of the initial length of stay should still receive the consequence of a custody status point.

Minn. Sent. Guidelines cmt. II.B.201. Here, in 1998, appellant was given a sentence of 78 months, stayed for 40 years; in 2004, he was discharged from probation. Under the reasoning of the sentencing guidelines, because the initial stay of his sentence would have been 40 years, he could receive a custody status point.

Generally, the district court's determination of an offender's criminal history score will not be reversed absent an abuse of discretion. State v. Stillday, 646 N.W.2d 557, 561 (Minn.App. 2002), review denied (Minn. Aug. 20, 2002). Because there is a basis in the record for assignment of a custody status point, the district court did not abuse its discretion and may assign appellant a custody status point on resentencing.

Because appellant received an upward durational departure from the presumptive sentence based on judicially found facts, we reverse his sentence and remand for further proceedings consistent with this opinion.

Reversed and remanded.