                   IN THE SUPREME COURT OF TENNESSEE
                              AT NASHVILLE
                                     Heard at Knoxville
                                   January 4, 2005 Session

      STATE OF TENNESSEE v. EDWIN GOMEZ and JONATHAN S.
                          LONDONO

                  Appeal by Permission from the Court of Criminal Appeals
                            Criminal Court for Davidson County
                        No. 2001-A-280    Cheryl Blackburn, Judge



                     No. M2002-01209-SC-R11-CD - Filed April 15, 2005


We granted this appeal to determine whether the defendants are entitled to relief on their claim that
admission of testimony about a co-defendant’s oral statement violated their Sixth Amendment right
to confrontation and whether the defendants’ sentences were imposed in violation of their Sixth
Amendment right to trial by jury. We conclude that admission of testimony about a co-defendant’s
oral statement violated the defendants’ Sixth Amendment right to confrontation because the
defendants had no prior opportunity to cross-examine the co-defendant. See Crawford v.
Washington, __ U.S. __, 124 S. Ct. 1354 (2004). Nevertheless, we conclude that Gomez is not
entitled to relief on this claim because he has failed to preserve it for review and has failed to
establish the prerequisites for obtaining relief via plain error review. Although Londono preserved
the issue for plenary appellate review, we conclude that he is not entitled to relief because the
constitutional error is harmless beyond a reasonable doubt. Finally, we conclude that the defendants’
sentences were not imposed in violation of their Sixth Amendment right to jury trial. See United
States v. Booker, __ U.S. __, 125 S. Ct. 738 (2005); Blakely v. Washington, __ U.S. __, 124 S. Ct.
2531 (2004). Thus, the defendants are not entitled to relief on this claim. Accordingly, the judgment
of the Court of Criminal Appeals is affirmed.

         Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Affirmed

FRANK F. DROWOTA , III, C.J., delivered the opinion of the court, in which JANICE M. HOLDER, and
WILLIAM M. BARKER, JJ., joined. E. RILEY ANDERSON, J., filed a concurring and dissenting opinion,
in which ADOLPHO A. BIRCH, JR., J., joined.

Glenn R. Funk and Cynthia M. Fort, Nashville, Tennessee, attorneys for Appellant, Edwin Gomez.

David A. Collins, Nashville, Tennessee, and James Stafford, Houston, Texas, Attorneys for
Appellant, Jonathan S. Londono.
Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Gordon W.
Smith, Associate Solicitor General; Victor S. (Torry) Johnson III, District Attorney General; and Bret
Gunn and Roger Moore, Assistant District Attorneys General, for the Appellee, State of Tennessee.

David L. Raybin, Nashville, Tennessee and Wade V. Davies, Knoxville, Tennessee, for Amicus
Curiae, The Tennessee Association of Criminal Defense Lawyers.


                                                     OPINION

                                     I. Factual Background
        On March 16, 1999, Carlyle & Company Jewelers, (“Carlyle & Company”), a retail store
located in the Green Hills Mall of Nashville, put on a special one-day “trunk” showing of
approximately 100 Rolex watches with an estimated value of $750,000. The sales event had been
advertised throughout the Nashville area. The next day, March 17, 1999, security guards Roy Rogers
(“Rogers”) and Eugene Nagele (“Nagele”) arrived at the store shortly before 9:00 a.m to retrieve and
transport the watches to another store in the Nashville area for a similar event. For transport, the
watches were stored in metal boxes, which were then stacked onto a luggage cart. Shortly after 9:00
a.m., Rogers and Nagele pushed the luggage cart from the store into the adjoining Green Hills Mall
parking garage, where they had parked. Before they arrived at their vehicle, assailants attacked
Rogers and Nagele from behind and stole the watches.1 Nagele testified that he heard the sound of
footsteps “rushing” toward him, but before he could turn toward the assailants, he sustained a blow
to the back of his head. Before losing consciousness, Nagele heard a gunshot. When he regained
consciousness, Nagele heard someone calling for him. Realizing that Rogers had been shot, Nagele
rushed to assist him. Twenty-one days later, Rogers died as a result of complications from a single
gunshot wound. Although Nagele was unable to identify any of the assailants, he recalled hearing
them speaking a language other than English.

        Deborah Sloan (“Sloan”) testified that she arrived with her two young children at Green Hills
Mall between 9:10 and 9:15 a.m. on March 17, 1999. After parking in the garage adjoining the mall,
but before exiting her minivan, Sloan “heard a bang, a loud bang, and a lot of running and rustling
and things like that.” Turning toward this noise, Sloan saw one man lying on the ground, a second
man “on his hands and knees fac[ing] away from [her],” and three other men “just running around[.]”
Two of these men carried away the metal boxes containing the watches, and the third man “lean[ed]
over beside the man who was lying on the ground and pick[ed] up a gun.” The three men then
departed in a “very nice” “deep red” or “purplish-maroon” Chrysler minivan. Sloan described the
three men as young, in their “twenties,” with “dark skin, dark hair,” and “fairly-average height and
weight.” When shown photographic arrays prior to trial, Sloan identified Edwin Gomez (“Gomez”)




       1
           The assailants also stole Nagele’s Colt pistol valued at $1,500.

                                                          -2-
and Jonathan S. Londono2 (“Londono”) (collectively “the defendants”) as two of the men she had
seen take the boxes and gun and depart in the minivan on March 17, 1999. She again identified
Gomez and Londono at trial.

       Christina Hudson (“Hudson”), a Carlyle & Company employee, testified that she had arrived
and parked in the Green Hills Mall parking garage shortly before 9:00 a.m. on the day of the robbery
and shooting. While waiting in her car for a co-worker to arrive, Hudson noticed a dark-skinned
male, whom she described as either Hispanic or African-American, enter the passenger side of a
purplish-colored minivan. When the man opened the van door, Hudson saw three other men
slouched down in the back of the vehicle. Hudson was unable to identify any of the men in the van.

        Barbara Franklin (“Franklin”), also an employee of Carlyle & Company, testified that two
Hispanic men had come into the store on the afternoon before the robbery. Franklin recalled that the
shorter of the two men had asked many questions about the watches and about which merchandise
would remain in the store after the one-day event. This man had “spoke[n] English very haltingly”
as if “English [were] not his first language,” and the taller man had not spoken at all.3

        After hearing news reports about the crime, Michelle Nicholson (“Nicholson”) contacted the
police and told them that she had noticed a maroon van with Florida license plates traveling toward
Nashville on Interstate 40 shortly after 8:00 a.m. on March 17, 1999. Nicholson observed the van
“weaving in and out of traffic” and saw four men seated in the vehicle, all of whom she described
as Hispanic with “dark hair.” Nicholson recalled that the van later exited Interstate 440 onto
Hillsboro Road going toward Green Hills Mall.

        Based on Nicholson’s tip and information which witnesses had provided at the scene,
investigators canvassed hotels and motels along the interstate highways, westbound to the Davidson
County line, seeking information concerning Hispanic men traveling in a maroon van. On March
18, 1999, investigators discovered that four Hispanic men, driving a white van and a maroon van,
had rented two rooms at the Howard Johnson’s Motel at Interstate 40 and Charlotte Pike. Security
videotapes from the motel showed two men at the front desk, a maroon van and a white van in the
motel parking lot, and persons coming and going from the vans. Although the tapes were not
sufficiently clear to identify these persons, the front desk clerk at the motel identified Londono4 from
photographic arrays.




         2
         She also identified co-defendant Bryant Guartos (“Gu artos”), who was tried separately and convicted of
conspiracy to commit aggravated robbery, felony murder of Rogers, especially aggravated robbery of Rogers, and
aggravated robbery o f Nagele.

         3
          Franklin later identified co-defendant Guartos as the shorter man, but she failed to identify the taller man who
had acco mpa nied G uartos.

         4
             The clerk also identified G uartos but wa s unab le to identify Gomez.

                                                             -3-
        Investigators obtained additional evidence from the motel rooms. Inside the closet of Room
204, investigators found ammunition consistent with the bullet that struck the victim. Investigators
recovered from inside this ammunition box a fingerprint, which later was matched to Londono’s
right middle finger. Investigators found another fingerprint on the telephone extension in Room 204,
which later was matched to Gomez’s right middle finger.5 Housekeepers also discovered in Room
204 a seat that had been removed from a 1996 or 1997 Chrysler minivan, and this seat was turned
over to police investigators.

        Telephone records revealed that a call had been made on March 14, 1999, from the motel to
a pay telephone located outside a restaurant “[a]bout a block-and-a-half” down the street from the
Green Hills Mall. Another call had been made on March 16, 1999, at 7:10 a.m. from the motel to
a pay telephone located inside the mall, directly across from and facing Carlyle & Company. On
March 15 and 16, 1999, a calling card had been used to place telephone calls from the motel room
and from a Nashville restaurant to two different numbers in Bogota, Columbia. The same calling
card was used on the afternoon of March 17, 1999, to place a call from Montgomery, Alabama, to
Miami, Florida and was used again on the morning of March 18, 1999, to place a call to Bogota,
Colombia from Gomez’s home telephone number in Miami, Florida.

         Julie Jimenez (“Jimenez”), who had lived with Londono in Miami in the spring of 1999,
testified that Londono and Gomez lived in the same apartment complex and that Gomez visited
Londono’s apartment daily. Londono told Jimenez that he and Gomez were cousins. Before leaving
town for “[s]even or ten days” in the spring of 1999, Londono told Jimenez that he was going
somewhere to make some money, but he refused to tell her where he was going. Jimenez recalled
that Londono left Miami with Gomez, Bryant Guartos (“Guartos”), Guartos’ wife Maria Sierra, and
three other Hispanic men whose names Jimenez did not know. The group left Miami in two
vehicles, a white van and a maroon van. Shortly before he returned to Miami, Londono telephoned
Jimenez, telling her that he had been to Tennessee, that he had Rolex watches, and that he planned
to give her a Rolex watch. Jimenez heard Gomez’s voice in the background during this
conversation.

         When Londono returned to Miami, he gave Jimenez some Nashville postcards and a report
of the trip. Londono told Jimenez the group had stolen Rolex watches from a jewelry store in a
shopping mall in Tennessee. Londono said the group had drawn their guns and instructed everyone
to lie on the floor. When a security guard lying on the floor reached for his gun, Londono kicked the
man and grabbed his gun. According to Londono, someone else shot the security guard because the
security guard had seen Londono’s face.

       Jimenez recalled that Londono received his share of the money from the sale of the watches
a few days after returning to Miami. On April 4, 1999, Jimenez and Londono used the money for
a shopping spree, spending approximately $3,000 cash on furniture, a television, and other items for


       5
           Investigators also discovered Guartos’s fingerprint on the telephone inside this room.

                                                          -4-
Londono’s apartment. Concerned that someone would be looking for him, Londono insisted that
Jimenez purchase everything in her name.

        On April 25, 1999, Detective Gerard Starkey of the Miami-Dade Police Department arrested
Londono on unrelated charges. Detective Starkey searched Londono’s burgundy van and found a
postcard of the Nashville riverfront area. Thereafter, Detective Starkey located Gomez at his
apartment in the Fontainebleau Milton complex and arrested him on unrelated charges. Detectives
found $19,600 in cash concealed between the kitchen counter and the dishwasher in Gomez’s
apartment. Detectives also discovered a furniture receipt for $570, dated March 25, 1999, and three
money transfer receipts, evidencing money transfers totaling $6,000 from Gomez and his roommate
to persons in Bogota, Columbia. The telephone numbers of the persons to whom the money had
been sent matched the telephone numbers to which calls had been placed from the motel and
restaurant in Nashville. Two of the money transfers occurred on March 23, 1999. The date on the
third receipt was indiscernible.

        Detectives from Nashville questioned Londono and Gomez in Miami about their involvement
in the March 17, 1999, robbery and shooting at Green Hills Mall. Both men denied ever being in
Nashville. These detectives also interviewed Guartos in Miami, and he confessed to his involvement
in the crime, providing an oral statement. Guartos later denied making this statement. However, at
the Gomez-Londono trial, the detectives were allowed to testify about what Guartos said to them
about the crime. Detective Harold Haney testified as follows:

       [Guartos] stated that he and others were in Nashville. They used two rented vans
       which they got from someone in Miami. One was a wine colored or red. [sic] The
       other was white. They stayed at the Howard Johnson Motel and used two rooms. He
       and a woman took the seat out of the white van at the motel because they needed
       more room. He stated that they got two-hundred-thirty-thousand dollars
       ($230,000.00) for the watches from the robbery and he used his share of forty-
       thousand dollars ($40,000.00) to buy his home in Miami.6

       Gomez and Londono were indicted and tried on the following charges: Count I, conspiracy
to commit aggravated robbery; Count II, felony murder of Rogers; Count III, especially aggravated
robbery of Rogers; and Count IV, aggravated robbery of Nagele. The jury convicted the defendants
of conspiracy, as charged in Count I. As to each of the remaining charges, the jury found the
defendants guilty of the following lesser-included offenses: facilitation of felony murder, facilitation
of especially aggravated robbery, and facilitation of aggravated robbery. The defendants each

       6
           Detective N orris Tarkington summ arized G uartos’ statement as follows:

       [Guarto s] stated that he and the o thers were in N ashville. T hey stayed at the Ho ward John son’s and
       they. . . came to Nashville in two rented vans. One was a wine color or red color and the other one
       was white, and they took the seat out of one of the vans because they needed more room, and he stated
       they sold the watches for two-hundred-thirty-tho usand dollars ($2 30,0 00.0 0) in M iami, and his
       proceeds from that, his take of that was forty-thousand dollars ($40,000.00 ).

                                                         -5-
received the maximum sentence within the range for each conviction: six years for conspiracy,
twenty-five years for facilitation of felony murder, twelve years for facilitation of especially
aggravated robbery, and six years for facilitation of aggravated robbery. The trial judge ordered
consecutive service of the sentences for an effective forty-nine year sentence.

         Gomez and Londono appealed, and the Court of Criminal Appeals affirmed the judgment
of the trial court. Thereafter, this Court granted the defendants’ applications for permission to
appeal.

                                       II. Admission of Guartos’ Statement

                                    A. Crawford v. Washington
        As noted previously, Guartos, who had been separately tried and convicted before the
Gomez-Londono trial, provided an oral statement to the police regarding the crime. Because Guartos
invoked his Fifth Amendment privilege against self-incrimination at the Gomez-Londono trial, the
prosecution sought to admit testimony as to his statement under the hearsay exception for statements
against penal interest. See Tenn. R. Evid. 804(b)(3)7. Londono objected, arguing that admitting the
statement would violate his Sixth Amendment right to confront Guartos. Gomez also initially
objected to the statement’s admission, but he withdrew the objection after the prosecution agreed
not to seek admission of a certain part of the oral statement. After confirming that Gomez had
withdrawn his objection, the trial court carefully considered Londono’s objection. Ultimately, the
trial court allowed the detectives to testify about interviewing Guartos and to testify about his oral
statement, but the detectives did not testify about the portion to which Gomez had objected.
Detective Haney testified as follows:

        [Guartos] stated that he and others were in Nashville. They used two rented vans
        which they got from someone in Miami. One was a wine colored or red. [sic] The
        other was white. They stayed at the Howard Johnson Motel and used two rooms. He
        and a woman took the seat out of the white van at the motel because they needed
        more room. He stated that they got two-hundred-thirty-thousand dollars

        7
            Rule 804 (b)(3 ) provides, in pertine nt part:

                    (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the
                    declarant is unavailable as a witness:
                                                           . . . .

                    (3) Statement Against Interest. A statement which was at the time of its making so
                    far contra ry to the d eclarant’s pecuniary or proprietary intere st, or so far tende d to
                    subject the declarant to civil or criminal liability or to render invalid a claim by the
                    declarant against another, that a reaso nable person in the decla rant’s positio n wou ld
                    not have made the statement unless believing it to be true.

Rule 804(a) delineates the situations in which a declarant is “unavailable as a witness.” The defendants have never
contended that the trial court erred by finding Guartos unavailable as a witness for purposes of Rule 804(b)(3).

                                                               -6-
       ($230,000.00) for the watches from the robbery and he used his share of forty-
       thousand dollars ($40,000.00) to buy his home in Miami.

Immediately after each detective testified, the trial court provided a cautionary instruction, which
limited jury consideration of Guartos’ statement to the issue of whether the conspiracy charged in
Count I existed. The cautionary instruction expressly forbade jury consideration of Guartos’
statement as to Gomez’s and Londono’s participation in the conspiracy.

         Both in his motion for new trial and on appeal to the Court of Criminal Appeals, Londono
challenged the trial court’s ruling as violative of his Sixth Amendment right to confront the
witnesses against him. The intermediate appellate court applied Ohio v. Roberts, 448 U.S. 56
(1980), abrogated by Crawford v. Washington, 541 U.S. 36 (2004), the then-controlling precedent
for analyzing challenges based on the Confrontation Clause. In Roberts, the United States Supreme
Court held that out-of-court statements made by a nontestifying declarant are constitutionally
admissible against an accused at trial only if the prosecution demonstrates that the declarant is
unavailable and establishes either that the statements fall within a firmly- rooted hearsay exception
or that the statements possess “particularized guarantees of trustworthiness.” Id. at 66. Applying
this test, the Court of Criminal Appeals concluded that the trial court had properly admitted
testimony summarizing Guartos’ oral statement. Although it did not fall within a firmly-rooted
exception to the hearsay rule, the Court of Criminal Appeals concluded that the testimony “was
nonetheless supported by sufficient guarantees of trustworthiness” to justify its admission. In an
opinion filed February 18, 2004, the Court of Criminal Appeals thus rejected Londono’s Sixth
Amendment claim.

        Less than one month later, however, the United States Supreme Court rendered its decision
in Crawford v. Washington,124 S. Ct. 1354 (2004), which abrogated the two-prong test of Roberts.
The Court in Crawford held that “testimonial” out-of-court statements by a nontestifying declarant
may be admitted only if the declarant is unavailable to testify and the defendant had a prior
opportunity to cross-examine the declarant. Crawford, 124 S. Ct. at 1374. The Crawford Court
declared cross-examination to be the “constitutionally prescribed method of assessing reliability”
of testimonial statements in criminal trials. Id. at 1370. Upon surveying the historical record, the
Court derived “two inferences about the meaning of the Sixth Amendment.” Id. at 1363. “First, the
principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal
procedure, and particularly its use of ex parte examinations as evidence against the accused.” Id.
Second, “the Framers would not have allowed admission of testimonial statements of a witness who
did not appear at trial unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” Id. at 1365. The Court concluded by reiterating its holding:

       Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’
       design to afford the States flexibility in their development of hearsay law–as does
       Roberts, and as would an approach that exempted such statements from
       Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue,
       however, the Sixth Amendment demands what the common law required:

                                                -7-
       unavailability and a prior opportunity for cross-examination. We leave for another
       day any effort to spell out a comprehensive definition of “testimonial.” Whatever
       else the term covers, it applies at a minimum to prior testimony at a preliminary
       hearing, before a grand jury, or at a former trial; and to police interrogations. These
       are the modern practices with closest kinship to the abuses at which the
       Confrontation Clause was directed.

Id. at 1374 (footnote omitted). The Court used “the term ‘interrogation’ in its colloquial, rather than
any technical legal [] sense” and explained that a “recorded statement, knowingly given in response
to structured police questioning, qualifies under any conceivable definition.” Id. at 1365 n.4.

        Relying upon Crawford, both Londono and Gomez now argue that the introduction of
Guartos’ statement violated their Sixth Amendment right of confrontation. The State acknowledges
that, had Crawford been decided prior to the Gomez-Londono trial, Guartos’ statement would have
been inadmissible; nonetheless, the State asserts that the defendants are not now entitled to relief on
this basis. In particular, the State argues that Gomez either affirmatively waived or procedurally
forfeited plenary appellate review of this issue. As to Londono, the State asserts that any error was
harmless beyond a reasonable doubt.

        We begin by accepting the State’s concession that Crawford would have precluded admission
of Guartos’ statement had Crawford governed the trial court’s analysis of this issue. The statement,
a product of police interrogation, qualifies as “testimonial” evidence, and the defendants had no prior
opportunity to cross-examine Guartos. Thus, were Gomez and Londono tried today, Crawford
would bar admission of Guartos’ statement. What is not clear, however, is whether Crawford
entitles Gomez or Londono to relief in this appeal.


                                       B. Griffith v. Kentucky
         The answer to this question begins with Griffith v. Kentucky, 479 U.S. 314 (1987). In
Griffith, the United States Supreme Court held that “a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases . . . pending on direct review or not yet final
. . . .” Griffith, 479 U.S. at 328. By abrogating the two-prong test of Roberts and reshaping the
analysis courts must apply when evaluating the admissibility of evidence under the Confrontation
Clause, Crawford announced a new rule within the meaning of Griffith. See Graham v. Collins, 506
U.S. 461, 467 (1993) (“[T]here can be no dispute that a decision announces a new rule if it expressly
overrules a prior decision . . . .”); see also State v. Dedman, 102 P.3d 628, 636 (N. M. 2004)
(recognizing that Crawford announced a new rule); Commonwealth v. Gray, 867 A.2d 560, 574 (Pa.
Super. 2005) (recognizing that Crawford announced a new rule insofar as it overruled Ohio v.
Roberts). Furthermore, this appeal qualifies as a case “pending on direct review” at the time
Crawford announced the new rule. At first glance, then, Griffith would seem to require us to apply
the Crawford rule in this appeal, without regard to whether the issue has been preserved for review.
Closer analysis reveals, however, that Griffith mandates plenary retroactive application of new rules



                                                  -8-
to cases pending on direct review only if a defendant has timely raised and properly preserved the
issue to which the new rule relates.

        In mid-1985 the defendants in Griffith petitioned the Supreme Court for certiorari while their
convictions were still pending on direct review. Griffith, 479 U.S. at 318. On April 30, 1986, while
the Griffith petition was pending, the United States Supreme Court decided Batson v. Kentucky, 476
U.S. 79 (1986). Griffith, 479 U.S. at 318. In Batson, the Court rejected a portion of the reasoning
of Swain v. Alabama, 380 U.S. 202 (1965). In particular, the Court rejected Swain to the extent that
it had defined a prima facie case in the context of discriminatory selection of the jury venire as
requiring proof that the prosecution had in a series of cases repeatedly exercised peremptory
challenges to strike black jurors. Batson, 476 U.S. at 96-100. Abrogating this requirement, the
Batson Court concluded that to establish a prima facie case a defendant need only show that the
prosecution had used peremptory challenges to strike members of the defendant’s race from the
venire in the defendant’s case. Id. at 93, 96-97.

       On June 2, 1986, the Supreme Court granted certiorari in Griffith on the limited issue of
whether Batson could be applied retroactively to cases on direct appeal. Griffith, 479 U.S. at 320.
In United States v. Johnson, 457 U.S. 537 (1982), partially abrogated by Griffith v. Kentucky, 479
U.S. 314 (1987), the Court had held that a new rule of criminal procedure constituting a “clear
break” with past precedent was not to be applied retroactively to cases pending on direct review.
Because Batson had been a clear break with Swain,8 its retroactive application to direct review cases
was foreclosed by Johnson. Griffith, 479 U.S. at 326.

        Notably, each of the Griffith defendants had objected prior to Batson in the trial court to the
prosecutor’s racially discriminatory exercise of peremptory challenges. Furthermore, the Griffith
defendants had preserved their objections at each stage of their direct appeals, even though they
clearly had failed to satisfy Swain’s prima facie showing requirement. Griffith, 479 U.S. at 316-20
(discussing procedural history of the two cases under review). Not surprisingly, the Griffith
defendants lost at every stage because every court applied Swain and held the defense proof of
discrimination inadequate. Griffith, 479 U.S. at 316-22. Nonetheless, the Griffith defendants
continued to press and to preserve their claims that the prosecutor had exercised peremptory
challenges in a racially discriminatory manner.

        Perseverance paid off for the Griffith defendants when the United States Supreme Court
granted their certiorari petitions, discarded Johnson’s “clear break” rule, and applied Batson
retroactively to their appeal. Griffith, 479 U.S. at 326-28. Citing fairness considerations for
defendants “similarly situated” to Batson, the Supreme Court reversed the Griffith defendants’
convictions. Like the defendant in Batson, the Griffith defendants had properly presented and
tenaciously preserved their constitutional challenge at trial and on appeal. Importantly, the Griffith
defendants had raised and preserved this issue before the Supreme Court decided Batson, and had
done so in the face of controlling precedent unfavorable to their position.

       8
           See Allen v. Hardy, 478 U.S. 255 (1986).

                                                      -9-
        Having thus reviewed its factual and procedural background, we conclude that Griffith does
not mandate plenary retroactive application of new rules to pending direct review cases without
regard to whether the claim of error has been properly preserved. Instead, Griffith simply overruled
precedent which had precluded retroactive application of new rules to pending direct review cases.9
Where, as here, a new rule is announced while a criminal case is pending on direct review, Griffith
mandates plenary application of the new rule only if the issue to which the new rule relates has been
timely raised and properly preserved. A criminal defendant who has failed to properly preserve the
relevant issue is limited to seeking relief via plain error review.


         9
           Our reading of Griffith is supported by a more recent case which recognizes the important distinction between
issues that have been preserved and issues which have not been preserved. The issue in United States v. Cotton, 535 U.S.
625, 627 (200 2), was “whether the omission from a federal indictment of a fact that enhances the statutory maximum
sentence justifies a court of appeals’ vacating the enhanced sentence, even though the defendant did not object in the trial
court.” Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), Cotton argued that his sentence should be vacated
because the enhancing fact had been neither alleged in the indictment nor submitted to the jury. Cotton, 535 U.S. at 629-
30. Reviewing his claim for plain error, the Court affirmed Cotton’s sentenc e, explaining that “[t]he rea l threat . . . to
the ‘fairness, integrity, and public reputation of judicial proceedings’ would be if [Cotton], despite the overwhelming
and uncontroverted evidence that [he had been] involved in a vast drug conspiracy, were to receive a sentence prescribed
for those com mitting less substantial drug offenses because of an error that was never objected to at trial.” Id. at 634
(citing Johnson, 520 U.S. at 470).

          W hile not controlling the pro per application of new fed eral constitutional rules, we note that this Court has
regularly limited re troactive application of new rules to only those cases pending on direct review in which the issue has
been timely raised and properly p reserved. See, e.g., Hill v. City of Germantown, 31 S.W .3d 234 (T enn. 200 0); Alcazar
v. Hayes, 982 S.W .2d 8 45 (Tenn. 19 98); City of White House v. Whitley, 979 S.W .2d 2 62 (Tenn. 19 98); McC lung v.
Delta Square Ltd. P’ship, 937 S.W .2d 891 (T enn. 1996); Perez v. McConkey, 872 S.W .2d 8 97 (Tenn. 19 94); Bro adwell
ex rel. Broadwell v. Holmes, 871 S.W.2d 471 (Te nn. 19 94); Cook ex rel. Uithoven v. Spinnaker’s of Rivergate, Inc.,
846 S.W .2d 8 10 (Tenn. 19 93); McIntyre v. Balentine, 833 S.W.2d 52 (T enn. 1992 ); Hataway v. McK inley, 830 S.W.2d
53 (Tenn. 19 92). Adams v. State, 547 S.W .2d 5 53 (Tenn. 19 77); Farris v. State, 535 S.W .2d 6 08 (Tenn. 19 76).

          Despite the dissent’s assertio ns to the contra ry, Farris and Adams are excellent illustrations of this regular
practice. Farris involve d several defendants, but, in the trial court, Mr. Farris had challenged only the first paragraph
of a statute which, in other sections, required jury instructions on parole eligibility. Although this Court ultim ately
invalidated that portion of the statute which required jury instructions on parole eligibility, the statutory provision Mr.
Farris had challenged remained valid after this Court’s decision. After this Court denied Mr. Farris relief, he filed a
petition to rehear, arguing that he had timely raised and properly preserved his constitutional challen ge. This Court
denied rehearing, explaining, “[t]his Court operates on the basis of errors assigned for our consideration and we have
neither the disposition nor the duty to search the record and decide cases and controversies on the basis of unassigned
error.” 535 S.W .2d at 622. In Adam s, 547 S.W.2d at 556, the defendant challenged the constitutionality of the relevant
statutory provision, but he did not base his challenge upon the constitutional ground that ha d garnered a majority in
Farris. Instead , Mr. Adams argued that the statute was unconstitutionally vague, a constitutional challenge which in
Farris Chief Justice Fones and Justice Henry found to have merit. This Court held that by challenging the
constitutionality of the relevant statute, Adams had su fficiently preserved the issue, even though he had not raised the
precise ground upon which the majority in Farris rested its decision. In so holding, the Court applied Farris “to those
cases wherein the conviction has not be com e final and where appropriate assignments have been mad e.” Id. Like Mr.
Adam s, Londono is entitled to full plenary review of his Confrontation Clause claim because he timely raised and
properly preserved his constitutional challenge to the admission of Guartos’ statement. On the other hand, Gomez failed
to mount a constitutional challenge to the adm ission of Guartos’ statem ent; thus, he is only entitled to plain error review
on this issue.

                                                           -10-
        Furthermore, even those criminal defendants who properly preserve such issues are not
automatically entitled to relief. After the United States Supreme Court concluded in Shea v.
Louisiana, 470 U.S. 51, 59 (1985), that the new rule which it had announced in Edwards v. Arizona,
451 U.S. 477 (1981), applied to cases pending on direct review, the Court explained that retroactive
application of the new rule was “subject, of course, to established principles of waiver, harmless
error, and the like.” Shea, 470 U.S. at 58 n.4. Thus, a defendant may be entitled to plenary appellate
review but not be entitled to relief on his claim.


                                   C. Plain Error Review - Gomez
        Gomez initially objected to the statement’s introduction, but his objection was not based on
the Sixth Amendment. Guartos told the police that the group had “used two rented vans which they
got from someone in Miami for twenty-five-hundred dollars ($2,500.00),” and Gomez objected to
allowing the detectives to testify about the amount paid for the rented van, in particular, the words
“for twenty-five-hundred dollars ($2,500.00).” The prosecution agreed not to introduce testimony
about this portion of the oral statement. In responding to questions from the trial court, Gomez
confirmed that his objection had been limited as described above and also confirmed that his
objection was withdrawn in light of the prosecution’s willingness not to introduce that testimony.
Gomez did not challenge the statement’s admission in his motion for new trial or in his appeal to the
Court of Criminal Appeals. Having failed to preserve the issue in the courts below, Gomez is
limited in this Court to seeking relief via plain error review.

        Rule 52(b) of the Tennessee Rules of Criminal Procedure provides that “[a]n error which has
affected the substantial rights of an accused may be noticed at any time, even though not raised in
the motion for a new trial or assigned as error on appeal, in the discretion of the appellate court
where necessary to do substantial justice.” (emphasis added); see also Tenn. R. App. P. 36 (b) (“A
final judgment . . . shall not be set aside unless, considering the whole record, error involving a
substantial right more probably than not affected the judgment or would result in prejudice to the
judicial process.”) (emphasis added). Plain error review extends only to a clear, conspicuous, or
obvious error which affects the substantial rights of the defendant. United States v. Olano, 507 U.S.
725, 732 (1993) (analyzing the substantially similar Federal Rule of Criminal Procedure 52(b)).
Whether an error is “plain” or “obvious” is determined by reference to the law existing as of the time
of appellate consideration. United States v. Johnson, 520 U.S. 461, 468 (1997). Moreover, relief
is warranted only if the plain error prejudiced the defendant by affecting the outcome of the trial
court proceedings. Id. at 732-37; State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005). Although very
similar to harmless error analysis, plain error review places on the defendant the burden of
persuasion, whereas the State bears the burden of persuasion when an appellate court conducts a
harmless error analysis. Olano, 507 U.S. at 732-37.

        The substantive standards for plain error review are difficult to satisfy. An appellate court
will reverse for plain error only if:

       (a) the record . . . clearly establish[es] what occurred in the trial court;

                                                 -11-
         (b) a clear and unequivocal rule of law [has] been breached;
         (c) a substantial right of the accused [has] been adversely affected;
         (d) the accused did not waive the issue for tactical reasons; and
         (e) consideration of the error is “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994)). All five factors must be established, and an appellate court need
not consider all five factors if any one factor indicates that relief is not warranted. Smith, 24 S.W.3d
at 283.

        Consideration of factor (d) indicates that Gomez is not entitled to relief. The record clearly
establishes what occurred in the trial court: Gomez withdrew his objection to Guartos’ statement,
and he did so for tactical reasons.10 Here, Gomez did not simply fail to object. Instead Gomez
objected to testimony indicating that the group had rented the vans for $2,500 from a person in
Miami. Gomez withdrew his objection when the prosecution agreed not to elicit such testimony.
The information about the price paid for the rental van did not directly implicate Gomez.
Nevertheless, this information, considered in conjunction with the receipt police found in Gomez’s
apartment for a $2,500 money transfer from Gomez’s roommate in Miami to an individual in
Bogota, Columbia, reveals the tactical nature of Gomez’s objection and his willingness to withdraw
it. Having failed to satisfy at least one of the plain error review factors, Gomez is not entitled to
relief on this claim.


                    D. Harmless Error Analysis or Structural Error - Londono
         As previously noted, Londono has consistently argued that the admission of testimony about
Guartos’ statement violated his Sixth Amendment right to confront the witnesses against him. He
has preserved the issue to which Crawford’s new rule relates and is entitled to plenary appellate
review of this issue. The State concedes, and we agree, that admitting testimony summarizing
Guartos’ “testimonial” statement violated the rule announced in Crawford because Londono had no
prior opportunity to cross-examine Guartos. Having found that Londono’s constitutional right to
confront Guartos was violated, the next question is whether his conviction must be reversed because
of this error.


         10
              As the State points out, the United States Supreme Court has drawn a distinction between “forfeiture” and
“waiver.”

                    W hereas forfeiture is the failure to make the timely assertion of a right, waiver is
                    the “intentional relinquishment or abandonment of a known right.” Whether a
                    particular right is waivable . . . [and] whether the defendant’s choice must be
                    particularly informed or voluntary, all depend on the right at stake.

Olano, 507 U .S. at 733 (citations omitted). Although it is debatable whethe r Go mez’s action constitutes waive r or merely
forfeiture, we need not discuss this distinction here. Assuming that the plain error standard applies, Gomez is nonetheless
ineligible for relief for the reasons herein explained.

                                                           -12-
        To answer this question, we must first determine whether Crawford errors are structural
errors that defy harmless error analysis or are instead trial errors that are subject to harmless error
analysis. The historical development of the harmless error doctrine and its general application to
constitutional errors has been thoroughly documented by this Court. See, e.g., Momon v. State, 18
S.W.3d 152 (Tenn. 1999); State v. Williams, 977 S.W.2d 101, 104 (Tenn. 1998). Significant to this
case is the established principle that only a very limited class of “structural defects” require
automatic reversal. Momon, 18 S.W.3d at 165-66. Such errors deprive defendants of basic
protections and compromise the integrity of the trial process itself. Id. at 165; see also Johnson, 520
U.S. at 468-69 (citing examples of cases involving structural error, including Sullivan v. Louisiana,
508 U.S. 275 (1993) (defective reasonable-doubt instruction); Waller v. Georgia, 467 U.S. 39 (1984)
(denial of public trial); Vasquez v. Hillery, 474 U.S. 254 (1986) (racial discrimination in selection
of grand jury); McKaskle v. Wiggins, 465 U.S. 168 (1984) (denial of self-representation at trial);
Gideon v. Wainwright, 372 U.S. 335 (1963) (complete denial of the assistance of counsel); Tumey
v. Ohio, 273 U.S. 510 (1927) (biased trial judge)).

         The United States Supreme Court and this Court have held that violations of the
Confrontation Clause are subject to harmless error review. See, e.g., Coy v. Iowa, 487 U.S. 1012,
1021 (1988) (holding that denial of face-to-face confrontation is subject to harmless error analysis);
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (“[W]e hold that the constitutionally improper
denial of a defendant’s opportunity to impeach a witness for bias, like other Confrontation Clause
errors, is subject to Chapman harmless-error analysis.”); State v. Sayles, 49 S.W.3d 275, 280-81
(Tenn. 2001); State v. Howell, 868 S.W.2d 238, 253 (Tenn. 1993). Crawford does not suggest
otherwise. Those justices—including Justice Scalia, the author of the Crawford opinion— who
disagreed with the Court's pre-Crawford conclusion in Lilly v. Virginia, 527 U.S. 116 (1999), that
the admission of an accomplice’s confession did not violate the Confrontation Clause, nonetheless
concurred in the judgment because they believed that harmless error review applied to the perceived
violation. See Lilly, 527 U. S. at 143 (Scalia, J., concurring in part and concurring in the judgment)
(stating that admission of accomplice’s statement against defendant violated Confrontation Clause,
but that case should be remanded for harmless-error review); id. at 148 (Rehnquist, C.J., concurring
in the judgment, joined by O’Connor and Kennedy, JJ.), see also id. at 143 (Thomas, J., concurring
in part and concurring in the judgment) (joining plurality in remanding for harmless error review).
Although Crawford preserves a criminal defendant’s constitutional right to confront adverse
witnesses, evidence admitted in violation of Crawford is an error in the trial process and not a defect
affecting the framework within which the trial proceeds. Johnson, 520 U.S. at 468. Thus, like other
Confrontation Clause violations, we conclude that a Crawford error is subject to harmless error
analysis and does not constitute structural error requiring automatic reversal.

        Furthermore, we conclude that the Crawford error in this case is harmless beyond a
reasonable doubt. Guartos’ statement did not directly implicate Londono or Gomez. Immediately
after each detective testified about the statement, the trial court provided a cautionary instruction to
the jury, limiting the jury’s consideration of the testimony about the statement to the issue of whether
the conspiracy existed and forbidding its consideration as to whether a particular defendant joined
in the charged conspiracy. Jurors are presumed to follow the instructions of the trial court. State v.

                                                 -13-
Robinson, 146 S.W.3d 469, 494 (Tenn. 2004). Moreover, the other properly-admitted evidence of
guilt was substantial. An eyewitness, Sloan, identified Londono from a photographic array and again
at trial, testifying that she was “very sure” of the identification. Fingerprint evidence placed
Londono at the motel room where various other incriminating items were found linking Londono
to the crime. Londono’s girlfriend, Jimenez, with whom he had lived in Miami at the time of the
crime, testified extensively about Londono’s involvement in the crime and about how they spent
Londono’s share of the money from the crime. Accordingly, in light of the vague nature of the
statement, the trial court’s limiting instruction, and the other substantial evidence of guilt, we
conclude that the error in admitting testimony about Guartos’ statement was harmless beyond a
reasonable doubt.


                                       III. Sentencing Issues
        Gomez and Londono have asserted in this Court that their sentences were imposed in a
manner that violated their Sixth Amendment right to a trial by jury.11 In particular, the defendants
complain that enhancement factors found by a judge by a preponderance of the evidence were used
to impose maximum sentences for each of their convictions. Relying upon the United States
Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), the defendants assert
that they were constitutionally entitled to receive the presumptive minimum sentence as defined in
Tennessee Code Annotated section 40-35-210(c) (2003).

                                A. Plenary Versus Plain Error Review
        The defendants did not raise this constitutional challenge at their April 4, 2002, sentencing
hearing or in their motions for new trial, nor did they raise it in the Court of Criminal Appeals. The
defendants first raised this constitutional challenge in this Court.12 The State initially argues that,
by failing to raise this issue in the courts below, the defendants have forfeited plenary appellate
review and are now limited to seeking relief via plain error review. The defendants counter that
Blakely, decided on June 24, 2004, announced a new rule and that they mounted their constitutional
challenge as soon as possible after Blakely was decided.13 The defendants maintain that penalizing
them for failing to raise the constitutional issue sooner would be inappropriate in light of this Court’s

         11
              Neither defendant contends that the imposition of consecutive sentence s violated their right to a jury trial.

         12
           Gomez raised the issue by filing a supplement to his application for permission to appeal. Londono has
included a d iscussion of this issue in his initial brief.

         13
           This Court has endeavored to resolve exp editiou sly the important issues presented in this appeal. As stated
above, Blakely was issued on June 24, 2004. On August 2, 2004, the United States Supreme Court granted certiorari
in United States v. Booker, 04-104 and United States v. Fanfan, 04-105. On September 2, 2004, Gomez filed a motion
to supplement authorities, relying upon Blakely. On October 4, 2004, the United States Supreme Court heard argument
in Booker and Fanfan. Also o n Oc tober 4, 20 04, this C ourt granted the defendants’ app lications for permission to appeal
and expedited these Nashville cases for hearing in Knoxville during the January 2005 co urt session. This Court heard
oral argum ent on January 4, 2005, and the United States Supreme Co urt issued its decision in Booker and Fanfan on
January 12, 2005. Gomez, Londono, and the State were then given until February 14, 200 5 to file supp lemental briefs
addressing Booker, and until February 24, 2005 to file replies to these sup plemental briefs.

                                                            -14-
decision in Graham v. State, 90 S.W.3d 687 (Tenn. 2002). In Graham, we rejected a constitutional
challenge similar to the one now under consideration, holding that the Sixth Amendment does not
preclude trial judges from finding enhancement factors by a preponderance of the evidence and from
considering such factors when selecting the appropriate sentence within a statutory range. Id. at 692.
The defendants contend that because Graham had rejected such a constitutional challenge, their
failure to raise earlier and preserve properly the constitutional challenge they now bring is excusable.
However, we find each of the defendants’ arguments unpersuasive and conclude that plain error
review applies to their Sixth Amendment challenge.

        First, we are of the opinion that Blakely did not announce a new rule. Admittedly, the United
States Supreme Court has not squarely addressed this issue. However, the Court has suggested that
Blakely was applying a previously recognized principle of law, rather than announcing a new rule.
For example, in United States v. Booker, 125 S. Ct. 738 (2005), the Court at the outset refers to “our
Apprendi line of cases,” making it clear that Apprendi, not Blakely, established the operative rule
of law. Booker, 125 S. Ct. at 747. Furthermore, the Court in Booker expressly confirmed that the
result which the majority reached in Blakely had been dictated by precedent, stating, “[f]or reasons
explained in Jones v. [United States, 526 U.S. 227 (1999)], Apprendi, and Ring v. [Arizona, 536
U.S. 584 (2002)], the requirements of the Sixth Amendment were clear. The application of
Washington’s sentencing scheme violated the defendant’s right to have the jury find the existence
of ‘any particular fact’ that the law makes essential to his punishment.” Booker, 125 S. Ct. at 749
(quoting Blakely, 124 S. Ct. at 2536). The Court in Booker concluded:

         Accordingly, we reaffirm our holding in Apprendi: Any fact (other than a prior
         conviction) which is necessary to support a sentence exceeding the maximum
         authorized by the facts established by a plea of guilty or a jury verdict must be
         admitted by the defendant or proved to a jury beyond a reasonable doubt.

Booker, 125 S. Ct. at 756. Thus, the language of Booker demonstrates that the United States
Supreme Court does not regard Blakely as having announced a new rule of law.14 See also Apprendi,
530 U.S. at 490 (describing its holding as “foreshadowed by” Jones v. United States, 526 U.S. 227
(1999)); Blakely, 124 S. Ct. at 2536 (applying “the rule [we] expressed in Apprendi”).

        Although some other courts and jurists have concluded that Blakely announced a new rule,
the United States Supreme Court is the final arbiter of this issue. Cf. Beard v. Banks, __ U.S.__, 124
S. Ct. 2504 (2004) (reversing the federal circuit court of appeals and holding that Mills v. Maryland,
486 U.S. 367 (1988) announced a new rule). In our view, United States Supreme Court decisions

         14
            The dissent asserts that Blakely must have announced a new rule because “Booker, which was merely an
application of Bla kely, stated a new rule. . . .” In our view, the new rule of Booker was the Court’s holding that the
Federal Sentencing Guidelines violated the Sixth Amendment, the Court’s excision of the mandatory portions of the
Guide lines, and the Court’s application of the excised Guid elines. See Humphress v. United States, 398 F.3d 855, 861
(6th Cir. 20 05). The Sixth Amendme nt principle necessitating the Co urt’s hold ing was not new and was the same
principle discussed in Jones v. United States, 526 U.S. 227 (1999) and clearly “expressed in Apprendi.” Blakely, 124
S. Ct. at 2536.

                                                        -15-
provide authoritative insight on how this question ultimately will be answered. Having carefully
considered these authorities, we conclude that Blakely did not announce a new rule.

         Nonetheless, even had Blakely announced a new rule of law, our conclusion that the
defendants are not entitled to plenary appellate review of this issue would have been the same. As
previously explained, Griffith mandates plenary review in direct review, “pipeline” cases only if the
issue to which the new rule relates has been preserved for review. 479 U.S. at 328. Neither Gomez
nor Londono preserved a Sixth Amendment challenge to the imposition of their sentences. This
constitutional challenge was raised for the first time in this Court after Blakely was decided. Thus,
the defendants are limited to seeking relief on their Sixth Amendment claim via plain error review.
See Booker, 125 S. Ct. at 769 (“[W]e 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.”); Cotton, 535 U.S. at 627 (applying plain error review to an alleged Apprendi error that had
not been raised in the district court).

        Although the defendants are correct in pointing out that we rejected a similar constitutional
challenge in Graham, this fact does not excuse the defendants’ failure to raise their Sixth
Amendment claim. To the contrary, Graham illustrates that Tennessee defendants could have
asserted Blakely-type challenges long before the United States Supreme Court decided Blakely. To
the extent that the defendants are suggesting that Graham deterred them from raising their Sixth
Amendment claim, they are factually mistaken because Graham was released seven months after the
defendants were sentenced and six months after the trial court denied the defendants’ motions
requesting a new trial.

         Furthermore, had Graham been released before the defendants were sentenced, our
conclusion would be the same. At the risk of stating the obvious, this Court is not the final arbiter
of the United States Constitution. See, e.g., Seals v. State, 23 S.W.3d 272, 277 (Tenn. 2000) (noting
that this Court is the final arbiter of the Tennessee Constitution, not the United States Constitution).
Like all Tennessee courts, this Court is bound by the United States Supreme Court’s interpretation
of the United States Constitution.15 Defendants dissatisfied with this Court’s interpretation of the
United States Constitution can and often do seek review in the United States Supreme Court. See,
e.g., Rogers v. Tennessee, 532 U.S. 451 (2001); Payne v. Tennessee, 501 U.S. 808 (1991). Because
such review is available, criminal defendants routinely raise and preserve for federal review issues
this Court has previously rejected. See, e.g., State v. Dellinger, 79 S.W.3d 458, 472 (Tenn. 2002)
(“We have repeatedly rejected this argument in prior cases and decline to revisit the issue here.”);
Harris v. State, 947 S.W.2d 156, 176 (Tenn. Crim. App. 1996) (“The appellant raises numerous
constitutional challenges to Tennessee’s death penalty statute . . . in order to preserve the issues for
later review by the federal appellate courts.”)




         15
          See, e.g., State v. Carruthers, 35 S .W .3d 5 16, 5 61 (Tenn. 20 00); Strouth v. State, 999 S.W.2d 759, 765 n.9
(Tenn. 1999 ); State v. McKay, 680 S.W .2d 4 47, 4 50 (Tenn. 19 84).

                                                         -16-
        Moreover, nothing in our decision in Graham precluded the defendants from raising Blakely-
type challenges in future cases. Admittedly, Graham’s existence meant that such claims would likely
have been unsuccessful, but the defendants could have raised and preserved such issues for review
by this Court and by the United States Supreme Court. Indeed, a defendant is never precluded from
raising an issue simply because a prior decision has rejected it. As our previous discussion of
Griffith makes clear, courts often reconsider arguments that have been previously rejected. See also
Engle v. Isaac, 456 U.S. 107, 130 (1982) (“Even a state court that has previously rejected a
constitutional argument may decide, upon reflection, that the contention is valid.”). Ring v. Arizona,
536 U.S. 584 (2002) well illustrates this point. In Ring, the Court overruled Walton v. Arizona, 497
U.S. 639 (1990), “to the extent that it allows a sentencing judge, sitting without a jury, to find an
aggravating circumstance necessary for imposition of the death penalty.” Ring, 536 U.S. at 609.
The defendant in Ring preserved his argument under Apprendi even though that very argument
appeared to be foreclosed by Walton. Adverse precedent neither bars a defendant from raising and
preserving an issue for review nor excuses a defendant’s failure to do so. Thus, because the
defendants failed to raise and to preserve for review their Sixth Amendment challenge, the
defendants are limited to seeking relief via plain error review.16

         16
             Limiting the defendants to seeking relief via plain error review, rather than affording them p lenary appe llate
review, is not at all dependent upo n our view that Blakely did no t announce a new rule. Defendants ordinarily are not
entitled to plenary appellate review unless claims have been timely raised and properly preserved. Likewise, a defendant
is not entitled to plenary appellate review of a claim based upon a new rule unless the defendant has timely raised and
properly preserved the issue to which the new rule relates. The dissent’s quarrel with our application of this rule to the
defenda nts’ Blakely claim is curiou s, given the dissenting justices’ conc urrence with o ur application of this rule to
Go mez’s Crawford claim. On the one hand, the dissenting justices conclude that plenary appellate review applies to the
defenda nts’ unpreserved Sixth Amendment claims because Blakely announced a new rule; on the other hand, the
dissenting justices conclude that plain e rror re view ap plies to Gomez’s unpreserved Confrontation Clause claim, which
is based upon the new rule announced in Crawford. The dissenting justices thus express fundamentally inconsistent
conclusions as to the review which co urts should apply to unpreserv ed claims which are based upon ne w rules.

         Furthermore, as a practical matter, defendants raising Blakely claims are not entitled to relief, regardless of
whether plenary or plain error review is applied. As hereinafter explained, the Tennessee Criminal Sentencing Reform
Act does not authorize a sentencing procedure which violates the Sixth Amendme nt right to jury trial. W e recognize that
some defendants will choose to raise and to p ursue S ixth Am endment Blakely-type claims in the hope that the United
States Supreme Co urt will ultimately disagree with our determination of this issue, and nothing in this decision precludes
them from doing so.

          Finally, we are co nstrained to p oint ou t that, in addition to being irrelevant in this direct review appeal, the
dissent’s suggestion that a petitioner will be able to rely upon Blakely as a ground for reopening a post-conviction
petition under Tennessee Co de Annotated section 40-30-117(a)(1), is erroneous. Reopening is appropriate under section
-117(a)(1) , “[i]f the claim is based upon a final ruling of an appellate court establishing a constitutional right that was
not recognized as existing at the time o f trial, if retrospective application o f that right is req uired.” As to whether
“retrospective application . . . is required,” Tennessee Code Annotated section 40-30-122 provides that

         [a] new rule of constitutional criminal law shall not be applied retroactively in a post-conviction
         proceeding unless the new rule places primary, private individual conduct beyond the power of the
         criminal law-making authority to proscribe or requires the observance of fairness safeguards that are
         implicit in the concep t of ord ered liberty.
                                                                                                         (continued...)

                                                           -17-
                              B. Plain Error Review - The Record on Appeal
         As previously explained, this Court will reverse for plain error only if
         (a) the record . . . clearly establish[es] what occurred in the trial court;
         (b) a clear and unequivocal rule of law [has] been breached;
         (c) a substantial right of the accused [has] been adversely affected;
         (d) the accused did not waive the issue for tactical reasons; and
         (e) consideration of the error is “necessary to do substantial justice.”

Smith, 24 S.W.3d at 282 (quoting Adkisson, 899 S.W.2d at 641-42). An appellate court need not
consider all five factors if consideration of any one factor indicates that relief is not warranted.
Smith, 24 S.W.3d at 283.

        In this case, factor (a) is satisfied. The record clearly establishes what occurred in the trial
court. Gomez and Londono were convicted of: (1) conspiracy to commit aggravated robbery, a Class
C felony which carries a three to six year sentence; (2) facilitation of felony murder, a Class A
felony, which carries a fifteen to twenty-five year sentence; (3) facilitation of especially aggravated
robbery, a Class B felony, which carries an eight to twelve year sentence; and (4) facilitation of
aggravated robbery, a Class C felony, which carries a three to six year sentence. The trial court
found and applied two enhancement factors as to all four convictions: “[t]he defendant has a
previous history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range;” and “[t]he defendant was a leader in the commission of the offense
involving two (2) or more criminal actors.” Tenn. Code Ann. § 40-35-114(2), (3) (2003). As to the
defendants’ conviction for facilitation of felony murder, the trial court applied an additional
enhancement factor—“[t]he defendant possessed or employed a firearm, explosive device or other
deadly weapon during the commission of the offense.” Id. at (10). As to each defendant and all
convictions, the trial judge imposed the maximum sentence within the range: (1) six years for
conspiracy to commit aggravated robbery; (2) twenty-five years for facilitation of felony murder; (3)
twelve years for facilitation of especially aggravated robbery; and (4) six years for facilitation of
aggravated robbery. The trial court stated that, in selecting the maximum sentence as the appropriate


         16
             (...continued)
This standa rd wo uld no t perm it, much less requ ire, Blakely’s retroactive application in a post-conviction proceeding.
Indeed, applying a standard virtually identical to section -122, the United States Supreme Court has already concluded
that the new rule announced in Ring requiring jury findings o f aggravating circumstances in capital cases d oes not qualify
for retroactive application to sentences that were final before Ring was decide d. See Schriro v. Sum merlin, __ U.S. __,
124 S. Ct. 2519 (2004) (concluding that Ring announced a new rule by overruling W alton, but, applying a standard
virtually identica l to section -122, refusing to apply Ring retroactively to cases already final ). Given the Court’s holding
in Schriro, there is no reason to believe that Blakely would be afforded retroactive ap plication to final co nviction s should
the United States Sup reme Court ultimately conclude that Blakely announced a new rule. See United States v. Price,
400 F.3d 844 , 849 (10th Cir. 2005 ) (con cluding that Blakely announced a new rule but that the new rule do es not apply
retroactively); cf. Hum phress, 398 F.3d at 862-63 (concluding that the new rule announced in Booker does not ap ply
retroa ctively to conviction s alread y final); Varela v. United States, 400 F.3d 86 4 (11th Cir. 2005) (same). Thus, seeking
reopening under section -117 based on Blakely would be a futile endeavor. Conspicuously absent from the dissenting
opinion is any authority supporting the dissent’s assertion that this Court may retroactively apply a federal constitutional
rule which the U nited S tates Suprem e Co urt has refused to apply retroactively.

                                                            -18-
sentence, it had afforded “great weight” to the first factor, the defendants’ previous history of
criminal convictions. At the time of the sentencing hearing, Gomez had been convicted of “Theft
from Interstate Shipment, April 14, 1999, United States District Court, Northern District of Texas,
Fort Worth Division,” and Londono had been convicted of “Manslaughter, April 12, 2000, Houston,
Texas Criminal Court.”

           C. Plain Error Review - Violation of a Clear and Unequivocal Rule of Law
        Having determined that the record clearly establishes what occurred in the trial court, we
must next determine whether the defendants’ sentences were imposed in violation of a “clear and
unequivocal rule of law.” As previously explained, plain error review extends only to clear,
conspicuous, or obvious error. Olano, 507 U.S. at 732.17 Whether an error is “plain” or “obvious”
is determined by reference to the law existing as of the time of appellate consideration. Johnson, 520
U.S. at 468.

        Although this Court has not previously addressed the constitutional claim raised by the
defendants, in many decisions addressing this issue, the Court of Criminal Appeals has concluded
that Tennessee’s sentencing procedures violate the Sixth Amendment right to jury trial as explained
in Blakely. In this appeal the State agrees with the defendants that the presumptive sentence
established by Tennessee Code Annotated section 40-35-210(c) (2003) is the maximum sentence


          17
            The dissent faults us for creating what the dissent terms “a new course” by which “all decisions are now
retroactive, whethe r they co nstitute a ne w constitutional rule or not. The only questio n is whether or not the defendant
properly preserved the issue, entitling him to plenary review, or whether the defendant failed to preserve the issue,
entitling him only to plain error review .” Th is course is not new. As explained in section II. B o f this opinion, as to
direct review cases, the only relevant question since Griffith is whether the de fendant is entitled to plenary appe llate
review or plain error review. New rules apply to cases pending on direct review when the new rule is announced.
However, like other unpreserved claims of error, when a defendant fails to raise and to preserve the claim to which the
new rule relates, the defendant is limited to seeking relief via plain error re view. Johnson v. United States, supra, is an
excellent illustration of this principle. Johnson involved a federal perjury prosecution in which the element of materiality
had been decided by the judge rather than sub mitted to the jury. The defendant failed to object to this procedure at trial
because “near-uniform precedent both from this Court [the United States Supreme Co urt] and the Court of Appeals” had
held that the element of materiality could be decid ed by the judge. Johnson, 520 U.S. at 468. After Johnson had been
convicted, but before her appeal became final, the United States Supreme Court decided United States v. Gaudin, 515
U.S. 506 (1995), which held that materiality of a statement must be submitted to the jury rather than decided by the trial
judge. Johnson argued on appeal that the failure to submit materiality to the jury rendered her conviction invalid under
Gaudin. The Eleventh Circuit Court of Appeals reviewed Johnson’s unpreserved claim for plain error and denied relief.
The United States Supreme Court affirmed. In do ing so, the Court first acknowledged that Gaudin had announced a new
rule and that under Griffith the new rule ap plied to Johnson’s direc t review case. Johnson, 520 U.S. at 467.
Neve rtheless, the Court reviewed Johnson’s unpreserved claim for plain error and denied relief. In applying plain error
review, the Court explained that “where the law at the time of trial was settled and clearly contrary to the law at the time
of appeal – it is enough that an error be “plain” at the time of appellate consideration.” Johnson, 520 U .S. at 468. T hus,
Johnson supports our conclusion that the relevant question is whether a defendant has preserved a claim of error,
regardless of whether the claim is ba sed upon a new rule or upon autho rity existing at the time o f trial. Simply put, plain
error review applies to all unpreserved claims of error, regardless of whether such claims are based upon new rules. That
the dissent fails to grasp these aspects of plain error review is troubling, particularly in light of the fact that the dissenting
justices concurred in section II. B of this opinion, which includes a detailed discussion of plain error review and the
analysis which it entails.

                                                              -19-
which a judge can constitutionally impose because, in the State’s view, the presumptive sentence is
the only sentence authorized by the jury verdict. Moreover, because the trial judge in this case found
enhancement factors (other than the fact of the defendants’ prior convictions) and selected a sentence
other than the presumptive sentence, the State concedes that the defendants’ sentences were imposed
in violation of the Sixth Amendment right to a jury trial. According to the State, the validity and
correctness of its concession is supported by the United States Supreme Court’s decision in Booker.

        Before accepting a concession, this Court independently analyzes the underlying legal issue
to determine whether the concession reflects a correct interpretation of the law. See, e.g., State v.
Ely, 48 S.W.3d 710, 716 n.3 (Tenn. 2001); State v. Ducker, 27 S.W.3d 889, 893 n.1 (Tenn. 2000);
State v. Shepherd, 902 S.W.2d 895, 906 (Tenn. 1995). Where, as here, a concession casts
constitutional doubt upon a duly enacted statute, such an independent analysis is crucial. In
conducting this analysis, we are mindful that statutes are presumed to be constitutional. See Gallaher
v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003); State v. Robinson, 29 S.W.3d 476, 479 (Tenn. 2000);
Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn. 1997). Indeed, we must “indulge every presumption and
resolve every doubt in favor of the statute’s constitutionality.” State v. Taylor, 70 S.W.3d 717, 721
(Tenn. 2002); see also Riggs, 941 S.W.2d at 51; In re Burson, 909 S.W.2d 768, 775 (Tenn. 1995).

        Thus, we must conduct an independent analysis to determine whether the sentencing
procedure violated a “clear and unequivocal rule of law.” We begin this analysis with Apprendi, in
which the defendant was convicted of second-degree unlawful possession of a firearm, an offense
carrying a maximum penalty of ten years imprisonment. 530 U.S. at 469-70. On the prosecutor’s
motion, the sentencing judge found by a preponderance of the evidence that the crime had been
committed “‘with a purpose to intimidate . . . because of race, color, gender, handicap, religion,
sexual orientation or ethnicity.’” Id. at 469 (quoting N.J. Stat. Ann. § 2C:44-3(e) (West Supp.
1999-2000)). This judicial finding had the effect of doubling from ten years to twenty years the
maximum sentence to which Apprendi was exposed. Id. at 469. The judge sentenced Apprendi to
twelve years in prison, two years more than the maximum that would have applied but for the
judicial finding of racial motivation. Id. at 471-72. The Court held that imposition of this departure
sentence violated Apprendi’s Sixth Amendment right to a jury trial, stating: “[o]ther than the fact
of prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury and proved beyond a reasonable doubt.” Id. at 490.

        In Blakely, the Court applied and expounded upon Apprendi. At issue in Blakely was the
State of Washington’s “determinate sentencing scheme.”18 Blakely had been charged with first-

         18
            Booker, 125 S. Ct. at 749. “Determinate sentencing” has been widely understood to refer to a sentencing
scheme that lacks a discretionary release mechanism, such as parole. “Determinancy” describes the extent to which a
judge’s sentence determines the length of time a defendant will actually serve in prison. “Indeterminate sentencing” has
been widely understood to refer to a system in which a releasing authority, such as a pa role b oard , has discretion to
release a defendant prior to expiration of the full sentence imposed. However, the Court in Booker and Blakely used
the term “determinate sentencing” to refer to sentencing systems in which a judge’s discretion is constrained by an
internal sentencing threshold. The Court used the term “indeterminate sentencing” to refer to systems with no such
                                                                                                           (continued...)

                                                         -20-
degree kidnapping, but he pleaded guilty to second-degree kidnapping with a firearm, a class B
felony punishable by a term of not more than ten years. Other statutory provisions mandated a
“standard” sentence of forty-nine to fifty-three months, unless the judge found aggravating facts
justifying an exceptional sentence. Blakely, 124 S. Ct. at 2537. Although the prosecutor
recommended a sentence in the standard range, the judge found that Blakely had acted with
“deliberate cruelty” and sentenced him to ninety months, a sentence approximately three years longer
than the fifty-three month maximum sentence available in the standard range. Blakely appealed,
arguing that this sentencing procedure deprived him of his Sixth Amendment right to have a jury
determine beyond a reasonable doubt all facts legally essential to his sentence. Id. at 2534-35.

         In concluding that Washington’s sentencing procedure violated Blakely’s Sixth Amendment
right to a jury trial, the Court emphasized that the “deliberate cruelty” finding had been based upon
facts that were neither admitted by Blakely nor found by a jury beyond a reasonable doubt. The
Court pointed out that the guilty plea authorized the Washington trial judge to impose a sentence
within the standard range of forty-nine to fifty-three months. Absent the finding of “deliberate
cruelty,” the trial judge could not have imposed the exceptional ninety month sentence. Id. at 2537.
The Court rejected the State’s argument that the jury verdict was sufficient to authorize a sentence
anywhere within the ten-year statutory range for Class B felonies, explaining:

         Our precedents make clear, however, that the “statutory maximum” for Apprendi
         purposes is the maximum sentence a judge may impose solely on the basis of the
         facts reflected in the jury verdict or admitted by the defendant. In other words, the
         relevant “statutory maximum” is not the maximum sentence a judge may impose
         after finding additional facts, but the maximum he may impose without any
         additional findings. When a judge inflicts punishment that the jury’s verdict alone
         does not allow, the jury has not found all the facts “which the law makes essential to
         the punishment,” and the judge exceeds his proper authority.

Id. (citations omitted). Accompanying this explanation of “statutory maximum” was a discussion
of the nature and limits of the Sixth Amendment:

         First, the Sixth Amendment by its terms is not a limitation on judicial power, but a
         reservation of jury power. It limits judicial power only to the extent that the claimed
         judicial power infringes on the province of the jury. Indeterminate sentencing does
         not do so. It increases judicial discretion, to be sure, but not at the expense of the
         jury’s traditional function of finding the facts essential to lawful imposition of the
         penalty. Of course indeterminate schemes involve judicial factfinding, in that a judge
         (like a parole board) may implicitly rule on those facts he deems important to the


         18
            (...continued)
internal constraints, whe re jud ges are free to sentence anywhere within the statuto ry limits. Jon W ool, Beyond Blakely:
Implications of the Booker Decision for State Sentencing Systems, at 3, Policy and Practice Review (V era Inst. of Justice
February 200 5), at http://www.vera.org/publications/publications_5.asp?publication_id=268 (last visited Mar. 1, 2005).

                                                          -21-
       exercise of his sentencing discretion. But the facts do not pertain to whether the
       defendant has a legal right to a lesser sentence–and that makes all the difference
       insofar as judicial impingement upon the traditional role of the jury is concerned. In
       a system that says the judge may punish burglary with 10 to 40 years, every burglar
       knows he is risking 40 years in jail. In a system that punishes burglary with a 10-year
       sentence, with another 30 added for use of a gun, the burglar who enters a home
       unarmed is entitled to no more than a 10-year sentence–and by reason of the Sixth
       Amendment the facts bearing upon that entitlement must be found by a jury.

Id. at 2540 (emphasis in original). Blakely thus drew a constitutionally significant distinction
between judicial factfinding in a “determinate” sentencing scheme and judicial factfinding in an
“indeterminate” sentencing scheme. See footnote 18, supra. The Court’s holding in Booker focuses
to an even greater degree upon this distinction.

           In Booker, the Court addressed the question specifically left unanswered in
Blakely—whether the Federal Sentencing Guidelines (“Guidelines”) violate the Sixth Amendment
right to jury trial. Booker was convicted of possession with intent to distribute at least fifty grams
of cocaine base, an offense statutorily punishable by ten years to life in prison. Booker, 125 S. Ct.
at 746. Based upon his criminal history and the quantity of drugs found by the jury, the Guidelines
set Booker’s maximum sentence at 262 months (twenty-one years and ten months). Id. At a
sentencing hearing, the district judge concluded by a preponderance of the evidence that Booker had
possessed an additional 566 grams of cocaine base and that Booker was guilty of obstructing justice.
Under the Guidelines, these additional findings mandated a sentence between 360 months to life
imprisonment, and the trial judge imposed a sentence of 360 months (thirty years). Id. The Seventh
Circuit reversed, holding that application of the Guidelines to impose a sentence in excess of the
maximum sentence authorized by the jury verdict alone conflicted with Apprendi.

         In United States v. Fanfan, the case consolidated with Booker, the defendant was convicted
of conspiracy to distribute and to possess with intent to distribute at least 500 grams of cocaine,
offenses statutorily punishable by a sentence of five to forty years. Booker, 125 S. Ct. at 747. Based
upon the jury’s verdict, the Guidelines set Fanfan’s maximum sentence at seventy-eight months. The
district court conducted Fanfan’s sentencing hearing shortly after the Court rendered its decision in
Blakely. The district court found additional facts by a preponderance of the evidence that would
have mandated a Guidelines sentence between 188 and 235 months. However, in light of Blakely
the district court declined to impose the mandatory increase and instead imposed the seventy-eight
month maximum sentence authorized by the jury’s verdict. Id. at 747.

        The United States Supreme Court agreed with the lower courts’ conclusions that application
of the Guidelines to impose upon Booker and Fanfan a sentence in excess of that authorized by the
jury’s verdict violated the Sixth Amendment right to a jury trial. In so holding, the Court observed
that “there is no distinction of constitutional significance between the Federal Sentencing Guidelines
and the Washington procedures” at issue in Blakely. Booker, 125 S. Ct. at 749. This conclusion,
the Court explained, “rests on the premise, common to both systems, that the relevant sentencing

                                                -22-
rules are mandatory and impose binding requirements on all sentencing judges.” Id. (emphasis
added). Further explaining the mandatory versus non-mandatory distinction, the Court in Booker
observed:

       If the Guidelines as currently written could be read as merely advisory provisions that
       recommended, rather than required, the selection of particular sentences in response
       to differing sets of facts, their use would not implicate the Sixth Amendment. We
       have never doubted the authority of a judge to exercise broad discretion in imposing
       a sentence within a statutory range. Indeed, everyone agrees that the constitutional
       issues presented by these cases would have been avoided entirely if Congress had
       omitted from the [Sentencing Reform Act] the provisions that make the Guidelines
       binding on district judges; it is that circumstance that makes the Court’s answer to
       the second question presented possible. For when a trial judge exercises his
       discretion to select a specific sentence within a defined range, the defendant has no
       right to a jury determination of the facts that the judge deems relevant.

Id. at 750 (emphasis added). Thus, Booker instructs us that the Sixth Amendment is not implicated
by a sentencing procedure which uses non-binding, advisory enhancement factors to inform and to
guide the judge’s selection of an appropriate sentence in the statutory range authorized by the jury’s
verdict. The remedial majority opinion, authored by Justice Breyer, confirms that allowing a judge
to find and to consider enhancement factors in a non-mandatory, discretionary sentencing system
does not violate the Sixth Amendment. Indeed, the remedy applied in Booker requires district
judges to do so in all future cases. Id. at 764 (excising the statute making the Guidelines binding on
sentencing courts and the statute requiring de novo review of sentences on appeal, and stating that
“[w]ith these two sections excised (and statutory cross-references to the two sections consequently
invalidated), the remainder of the Act satisfies the Court’s constitutional requirements.”). Justice
Breyer explained that the statutory provision which made the Guidelines mandatory and binding on
district court judges “is a necessary condition of the constitutional violation. That is to say without
this provision . . . the statute falls outside the scope of Apprendi’s requirement.” Id. at 764. Thus,
in Booker all nine justices agreed that the Sixth Amendment is not implicated by a sentencing statute
which permits judge fact-finding, but which does not mandate imposition of an increased sentence
upon the judge’s finding of a fact. Id. at 749-50, 764.

         Admittedly, Blakely itself includes language which can be broadly construed to require the
result the defendants seek. We are unwilling to adopt that broad reading of Blakely. Blakely must
be read in light of Booker. Not only has Booker provided further insight as to the constitutionally
significant differences between “determinate” and “mandatory” sentencing schemes versus
“indeterminate” and “non-mandatory” sentencing schemes, this Court has a duty to resolve doubts
in favor of the constitutionality of statutes. In our view, Booker confirms that Tennessee’s
sentencing structure differs markedly and in constitutionally significant ways from the Guidelines
and the New Jersey and Washington statutes at issue in Apprendi and Blakely.




                                                 -23-
        The Tennessee Criminal Sentencing Reform Act of 1989 (“Reform Act”) (1) divides felonies
into five classifications according to the seriousness of the offenses; (2) separates offenders into five
classifications according to the number of prior convictions; (3) assigns a span or range of years for
each class of crime committed by each class of offenders; and (4) employs enhancement and
mitigating factors to assess the definite sentence within each range. Tenn. Code Ann. §§
40-35-105–114 (2003); State v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994). Under the Reform Act,
trial courts must consider the following in assessing a sentence:

         (1) The evidence, if any, received at the trial and the sentencing hearing;
         (2) The presentence report;
         (3) The principles of sentencing19 and arguments as to sentencing alternatives;
         (4) The nature and characteristics of the criminal conduct involved;
         (5) Evidence and information offered by the parties on the enhancement and
         mitigating factors . . .; and
         (6) Any statement the defendant wishes to make in his own behalf about sentencing.

 Tenn. Code Ann. § 40-35-210(b) (2003); Ashby, 823 S.W.2d at 168. The Reform Act classifies
offenses according to their seriousness and offenders according to their prior convictions and thereby
predetermines the nature and extent of punishment that should be imposed for similar offenses
committed by similar offenders. Jones, 883 S.W.2d at 600. The Reform Act affords judges
discretion to select an appropriate sentence within a predetermined statutory range, but judges in
Tennessee have no authority to impose a sentence outside the statutory range. In exercising their
discretion to select an appropriate sentence within the range, the Reform Act, much like the remedy
adopted in Booker, requires that judges find and consider statutory enhancement factors and


         19
           As to se ntencing princ iples, the statute provid es:
        (1) Sentenc es involving confinement should b e based on the following co nsiderations:
                   (A) Confinement is necessary to protect society by restraining a defendant who has
                   a long history of criminal cond uct;
                   (B) Confinement is necessary to avoid depreciating the seriousness of the offense
                   or confinement is particularly suited to provide an effective deterrence to others
                   likely to commit similar offenses; or
                   (C) Measures less restrictive than confinement have freque ntly or rec ently been
                   app lied unsuccessfully to the d efendant;
        (2) The sentence imposed should be no greater than that deserved for the offense committed;
        (3) Inequalities in sentences that are unrelated to a purpose of this chapter should be avoided;
        (4) The sentence imposed should be the least severe measure necessary to achieve the purposes for
        which the sentence is imposed;
        (5) The potential or lack of potential for the rehabilitation or treatment of the defend ant should be
        considered in de termining the sentence alternative or length of a term to be imposed....
        (6) Trial judges are encouraged to use alternatives to incarceration that include requirements of
        reparation, victim co mpe nsation and/o r com munity service.
Tenn. Code A nn. § 4 0-35 -103 (2003). Finally, the A ct direc ts that an ap propriate sentenc e is one which is “justly
deserved in relation to the seriousness of the offense,” is “fair and consistent [with other similar cases],” and “prevent[s]
crime and p romote[s] respe ct for the law.” T enn. C ode Ann. § 40-3 5-10 2 (2003 ); State v. Ashby, 823 S.W.2d 166, 168
(Tenn. 1991 ).

                                                           -24-
mitigating factors. Judges may consider all enhancement factors that are “appropriate for the
offense” and “not themselves essential elements of the offense.” Tenn. Code Ann. § 40-35-114
(2003). Significantly, no provision in the Reform Act mandates an increase in a defendant’s
sentence upon the finding of an enhancement factor.

        Unlike the statutes at issue in Blakely and Booker, a judicial finding of an enhancement
factor in Tennessee does not affect the range of punishment to which a defendant is exposed.
Tennessee Code Annotated section 40-35-210(c) through (e) provides:

       (c) The presumptive sentence for a Class B, C, D and E felony shall be the minimum
       sentence in the range if there are no enhancement or mitigating factors. The
       presumptive sentence for a Class A felony shall be the midpoint of the range if there
       are no enhancement or mitigating factors.
       (d) Should there be enhancement but no mitigating factors for a Class B, C, D or E
       felony, then the court may set the sentence above the minimum in that range but still
       within the range. Should there be enhancement but no mitigating factors for a Class
       A felony, then the court shall set the sentence at or above the midpoint of the range.
       Should there be mitigating but no enhancement factors for a Class A felony, then the
       court shall set the sentence at or below the midpoint of the range.
       (e) Should there be enhancement and mitigating factors for a Class B, C, D or E
       felony, the court must start at the minimum sentence in the range, enhance the
       sentence within the range as appropriate for the enhancement factors, then reduce the
       sentence within the range as appropriate for the mitigating factors. Should there be
       enhancement and mitigating factors for a Class A felony, the court must start at the
       midpoint of the range, enhance the sentence within the range as appropriate for the
       enhancement factors, and then reduce the sentence within the range as appropriate
       for the mitigating factors.

Thus, even after an enhancement factor is found, this statute affords to the judge discretion to choose
an appropriate sentence anywhere within the statutory range, including the presumptive minimum
sentence within the range. For Class B, C, D or E felonies, section -210(d) provides specifically that,
if there are enhancement but no mitigating factors, the trial judge “may set the sentence above the
minimum in that range but still within the range.” Tenn. Code Ann. § 40-35-210(d) (2003)
(emphasis added). For Class A felonies, section -210(d) provides that if there are enhancement but
no mitigating factors, the trial judge “shall set the sentence at or above the midpoint of the range.”
Id. (emphasis added). Although the statute employs mandatory language (“must”), this language is
qualified by the phrase “at or above the midpoint of the range” and by section -210 (c), which sets
the presumptive minimum for Class A felonies at the midpoint of the range, and which does not
mandate enhancement above the midpoint.

        Section -210(e), similarly prescribes use of an advisory, discretionary procedure when a judge
finds both enhancement and mitigating factors. The statute provides that the judge “must start at the
minimum sentence in the range, enhance the sentence within the range as appropriate for the

                                                 -25-
enhancement factors, then reduce the sentence within the range as appropriate for the mitigating
factors.” (Emphasis added.) Although this section includes mandatory language, (“must” and
“shall”), read in context this mandatory language loses its mandatory effect because this section
directs the judge to enhance and to mitigate the sentence “as appropriate,” thereby affording to the
judge discretion to select an appropriate sentence anywhere within the range.

        Thus, the finding of an enhancement factor simply does not mandate an increased sentence.
 Instead, the Reform Act thus provides what Blakely and Booker describe as an “indeterminate,”
non-mandatory, advisory sentencing scheme which merely requires judges to consider enhancement
factors, along with other information, when exercising their discretion to select an appropriate
sentence within the statutory range. Unlike the Washington sentencing statutes and the Guidelines,
the Reform Act requires the trial judge to consider enhancement and mitigating factors to aid the trial
judge in exercising discretion and choosing a sentence within the statutory range, but the Reform Act
does not mandate an increased sentence upon a judge’s finding of an enhancement factor. Rather,
upon finding an enhancement factor under the Reform Act, a judge has the discretion to select a
sentence at or above the presumptive minimum. Imposition of a sentence above the presumptive
sentence represents an exercise of the judge’s discretion.

        The dissent, the defendant, and the State point out that when no enhancement or mitigating
factors are found, section 40-35-210(c) mandates imposition of the presumptive sentence. Although
we do not disagree with this proposition, we also do not view it as dispositive of the constitutional
issue. Unlike the “standard range” statute in Blakely, section -210(c) does not lower the ceiling for
felony sentences, nor is it like the statute in Apprendi which exposed the defendant to a punishment
greater than that otherwise legally prescribed. Section -210(c) operates solely to limit the sentencing
court’s discretion in selecting a penalty within the available range by mandating imposition of the
presumptive sentence when there “are no enhancement or mitigating factors.” Tenn. Code Ann. §
40-35-210(c) (2003). The dissent contends that section -210(c) “fixes a determinate point, not a
range and the trial judge has no discretion to deviate from this determinate point unless he or she
makes additional findings that enhancement factors are present.” The dissent’s observation about
how the statute functions is accurate. However, the dissent misinterprets the constitutional relevance
of this observation.

        The United States Supreme Court explained in Booker that “when a trial judge exercises his
[or her] discretion to select a specific sentence within a defined range, the defendant has no right to
a jury determination of the facts that the judge deems relevant.” 125 S. Ct. at 750; see also Harris
v. United States, 536 U.S. 545, 558 (2002) (“Judicial factfinding in the course of selecting a sentence
within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt
components of the Fifth and Sixth Amendments.”) Indeed, all nine justices agreed in Booker that
the relevant constitutional inquiry is not whether a judge exercises sentencing discretion by finding
facts, but rather whether the judge’s finding of a fact mandates an increased sentence. 125 S. Ct. at
749-50, 764. Thus, to determine whether the defendants’ sentences were imposed in violation of
the Sixth Amendment, the relevant inquiry is not whether the Reform Act permits judicial fact-
finding. Nor is the relevant inquiry whether the Reform Act sets a determinate point at which judges

                                                 -26-
must begin the exercise of their discretion and provides a determinate sentence which must be
imposed in the absence of enhancement and mitigating factors. Rather, the relevant inquiry is
whether the Reform Act mandates imposition of a sentence increased above the presumptive
sentence when a judge finds an enhancement factor. Although the dissent is correct that the Reform
Act requires trial judges to determine whether enhancement factors exist, the dissent fails to
recognize that the finding of an enhancement factor does not mandate an increased sentence. Booker
explains that the mandatory increase of a sentence is the crucial issue which courts must consider
in determining whether a particular sentencing scheme violates the Sixth Amendment.

        Considering this point, we conclude that the defendants’ sentences were not imposed in
violation of the Sixth Amendment. The Reform Act authorizes a discretionary, non-mandatory
sentencing procedure and requires trial judges to consider the principles of sentencing and to engage
in a qualitative analysis of enhancement and mitigating factors. The Reform Act does not include
a formula, a grid, or any other mechanical process. It instead sets out broad sentencing principles,
enhancement and mitigating factors, and a presumptive sentence, all of which serve to guide trial
judges in exercising their discretion to select an appropriate sentence within the range set by the
Legislature. Under the Reform Act, the finding of an enhancement factor does not mandate an
increased sentence. The Reform Act does not provide a system which requires or even allows
judicial power to “infringe[] upon the province of the jury.” Blakely, 124 S. Ct. at 2540. Thus, for
these reasons, and in accordance with our duty to indulge every presumption in favor of the
constitutionality of statutes–a duty which the dissent fails to discuss–we conclude that Tennessee’s
sentencing structure does not violate the Sixth Amendment.20

        For these reasons, we are unable to accept the State’s concession that the defendants’
sentences were imposed in violation of the Sixth Amendment. In light of our holding that the
defendants’ sentences were not imposed in violation of the Sixth Amendment, the defendants are
not entitled to relief because the record reflects no plain error. The trial court carefully considered
the enhancement and mitigating factors and exercised judicial discretion consistent with the statute.
The evidence does not preponderate against the trial court’s decision imposing the maximum
sentence or the trial court’s decision ordering consecutive service of the sentences.


                                         IV. Conclusion
       Because the defendants failed to properly preserve their constitutional claims of error, we
have reviewed these claims for plain error and have determined that the defendants are not entitled


         20
            In response to the United States Supreme Court’s decision in Blakely, Gove rnor B redesen appointed a “Ta sk
Force on the Use of Enhancement Factors in Criminal Sentencing.” After many meetings, this Task Force recently issued
a Repo rt which includes reco mmen dations for statutory a mendments. This decision should not be co nstrued as a
comment upon the work or recommendations of the Task Force. Rather, this decision is limited to the issues presented
by the case on ap peal, and in resolving these issues this Court must afford to the sentencing statutes a presumption of
constitutionality. Determining whether the recommendations of the Task Force should be ado pted in whole or in part
is a matter for the G overnor and the General A ssemb ly.

                                                         -27-
to relief. Accordingly, the defendants’ convictions and sentences are affirmed. It appearing that the
defendants are indigent, costs of this appeal are taxed to the State of Tennessee.




                                              _______________________________________
                                              FRANK F. DROWOTA, III,
                                              CHIEF JUSTICE




                                                -28-
