         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON

                     STATE OF TENNESSEE v. JAMES AUSTIN

                   Direct Appeal from the Circuit Court for Shelby County
                          No. 00-04749 John P. Colton, Jr., Judge



                     No. W2004-00510-CCA-R3-CD - Filed April 14, 2005




DAVID G. HAYES, Judge, dissenting.


        The majority concludes that modification of the defendant’s sentence is required in light of
the Supreme Court’s decision in Blakely v. Washington, 542 U.S. ______, 124 S. Ct. 2531 (2004).
I must respectfully dissent.

         The majority’s analysis of the issue ends with the finding of Blakely error. Clearly, this was
not the import of the Supreme Court’s recent holding in U.S. v. Booker, 543 U.S. ___, 125 S. Ct. 738
(2005), wherein the Court opined that not “every [Blakely/Booker] appeal will lead to a new
sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential
doctrines determining, for example, whether the issue was raised below and whether it fails the
‘plain-error-test.’” No such test was performed in this case. After review, I find the evidence
overwhelmingly supports application of sentencing enhancement factors (3), leader in the
commission of the offense, and (11), the defendant committed a crime where the risk to human life
was high. In the midst of a crowd of thirty to fifty people, the defendant began firing his weapon.
Additionally, although not found by the trial court, the proof supports application of enhancement
factor (10), employment of a firearm. The Supreme Court has held that generally to establish “plain-
error,” the defendant must make a specific showing of prejudice. United States v. Cotton, 535 U.S.
625, 631, 122 S. Ct. 1781, 1785 (2002). Interestingly, the defendant does not contest factual
application of the enhancing factors. Thus, failure to perform plain-error review as contemplated
by the Supreme Court grants the defendant an undeserved windfall. I find that under plain-error
review, had a jury heard the sentencing proof, they would have found the above factors applicable.
For this reason, no prejudice is shown. Accordingly, I would affirm the sentence imposed by the trial
court.


                                                       _____________________________
                                                       David G. Hayes, Judge
