Opinion
C 9111-35836; CA A73914
Argued and submitted May 28, 1993
Affirmed July 14, 1993
Appeal from Circuit Court, Multnomah County.
Ancer L. Haggerty, Judge.
David K. Allen, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and John Payne, Certified Law Student, Salem.
Before Rossman, Presiding Judge, and De Muniz and Leeson, Judges.
PER CURIAM
Affirmed.
Defendant was found guilty of delivery of a controlled substance, ORS 475.992, after a trial before a jury. He appeals from the departure sentence imposed, arguing that the sentencing court erroneously considered his immigration status as a basis for imposing the departure. See State v. Zavala-Ramos, 116 Or. App. 220, 840 P.2d 1314 (1992). Defendant failed to preserve the claimed error.
Defendant's only objection at sentencing was that the statement in the presentencing investigation report (PSI) that he had been deported was "not [the] most credible evidence." That objection did not alert the sentencing court that defendant objected to consideration of his immigration status as a basis of departure. It also did not alert the court to defendant's argument that the evidence in the PSI will not support the conclusion that he was illegally in the United States. See State v. Orsi/Gauthier, 108 Or. App. 176, 813 P.2d 82 (1991). We decline to address that argument, which was made for the first time on appeal.
That evidence could support a departure sentence by showing that defendant is unwilling to conform his conduct to the requirements of law. State v. Zavala-Ramos, supra, 116 Or App at 223.
We note, however, that the PSI contained defendant's admission that he had reentered the country illegally the day after he was deported.
Affirmed.