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found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, … the DSL violates Apprendi’s bright-line rule: Except for a 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.’ 530 U.S., at 490, 120 S.Ct. 2348.” See note on Booker (January 12, 2005), below; see also Rita v. United States , 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (June 21, 2007) (“federal appellate court may apply presumption of reasonableness to district court sentence that is within properly calculated Sentencing Guidelines range”); Kimbrough v. United States , 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (December 10, 2007) (deviation from guidelines for crack cocaine sentence, based on trial judge’s opinion that guidelines’ disparity between crack and powder cocaine sentences was excessive, was not abuse of discretion). Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (June 26, 2006). “Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error.” Thus, Supreme Court of Washington erred in failing to consider whether the error in this case was harmless error. Here, jury was charged on “assault” and “assault with a deadly weapon,” but not “assault with a firearm” – but the evidence was uncontroverted that the only weapon used was a handgun. Under Washington law, “assault with a firearm” carries a higher sentence enhancement than “assault with a deadly weapon.” Jury specifically found that defendant used a deadly weapon. Supreme Court remands for consideration of whether the failure to specify “firearm” in the verdict form, although the indictment specified “a deadly weapon, to wit: a handgun,” was harmless error. Analogized to Neder v. United States , 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (omitting charge on an element of offense was not necessarily harmful error where that element – whether omissions from defendant’s tax returns were “material” – was not in controversy). Duncan v. State, 281 Ga.App. 270, 635 S.E.2d 875 (August 24, 2006). As clearly stated in Apprendi (June 26, 2000), below, the State is not required to prove prior convictions used in aggravation of sentence to a jury and beyond a reasonable doubt. Accord, Brown v. State , 284 Ga. 727, 670 S.E.2d 400 (November 3, 2008). Burke v. State, 274 Ga.App. 402, 618 S.E.2d 36 (June 22, 2005). Apprendi has no application where “the sentence imposed was within the maximum established” for the offense generally. “ Apprendi requires that facts used to increase punishment beyond the usual maximum punishment be found by a jury.” Burke’s life sentence for rape was authorized by OCGA § 16-6-1, notwithstanding the more general provisions of OCGA § 17-10-1 at the time of defendant’s conviction, which required “a determinate sentence for a specific number of months or years” in all cases except where “life imprisonment or the death penalty must be imposed.” OCGA § 17-10-1 was amended in 1993 to except those cases where life, life without parole, or death may be imposed. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (January 12, 2005). By 5-4 majority, holds that federal sentencing guidelines, mandating sentences within a certain range unless the court finds facts allowing it to vary from the guidelines, violate Sixth Amendment right to trial by jury. A different 5-4 majority holds that the best remedy, consistent with congressional intent, is to strike down the statute making the guidelines mandatory, thus enabling the court to impose any sentence provided by statute, even though the guidelines may call for a different sentence, as long as the sentence meets a “reasonableness” standard of review not fully elaborated on here. Follows Apprendi (June 26, 2000) and Blakely (June 24, 2004), both below . Same dissenters from those cases would allow legislatures to decide what facts establish guilt and what facts are sentencing considerations. Dissenters would also distinguish between prior cases, which found fault with legislative enactments, and the administratively-adopted federal sentencing guidelines, a distinction rejected by the majority here. See also Rita v. United States , 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (June 21, 2007) (“federal appellate court may apply presumption of reasonableness to district court sentence that is within properly calculated Sentencing Guidelines range.”). Botts v. State, 278 Ga. 538, 604 S.E.2d 512 (October 25, 2004). Following defendants’ guilty pleas to aggravated assault and related offenses, Supreme Court reverses their sentences enhanced under the hate crimes statute. “OCGA § 17- 10-17 as enacted is unconstitutionally vague. A statute is generally considered vague if it is not specific enough to give persons of ordinary intelligence an understanding and adequate warning of the proscribed conduct. Land v. State, 262 Ga. 898, 899 (426 S.E.2d 370) (1993). ‘[A] statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. [Cits.]’ Connally v. General Const. Co., 269 U.S. 385, 391 (46 S.Ct. 126, 70 L.Ed. 322) (1926).” While other states’ hate crime statutes have been found constitutional, Georgia’s is too vague because it allows enhancement if the victim was selected due to “bias or prejudice” on any basis “no matter how obscure,