This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-1098
State of Minnesota, Respondent,
vs.
Joseph Duane Gustafson, Jr., Appellant.
Filed March 9, 2015 Affirmed Chutich, Judge Dissenting, Cleary, Chief Judge
Hennepin County District Court File No. 27-CR-11-5352
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Bradford Colbert, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and
Chutich, Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
Appellant Joseph Gustafson Jr. challenges his sentence, arguing that the district
court abused its discretion by imposing a sentence of the same length on remand even though it decreased his criminal history score by one point. Because, under the
circumstances present here, the district court acted within its broad discretion in imposing
the same sentence on remand, we affirm Gustafson’s sentence.
FACTS
In March 2012, Joseph Gustafson Jr. was convicted of twelve serious crimes:
racketeering, kidnapping, terroristic threats, one count of controlled substance crime in
the first degree (sale of cocaine), two counts of controlled substance crime in the third
degree (sale of cocaine), two counts of possession of a firearm by an ineligible person,
and four counts of theft by swindle over $35,000. The convictions stem from
Gustafson’s lengthy leadership of a gang known as the “Beat-Down Posse.”
At the original sentencing, the district court assigned the racketeering conviction,
an unranked offense, a severity level of X, the second-highest severity level possible
under the sentencing guidelines. Based on Gustafson’s criminal history score of four, the
state requested the statutory maximum sentence of 240 months, which was within the
then-applicable guideline range of 179 and 252 months. Gustafson requested a middle-
of-the-box sentence of 210 months. The district court sentenced Gustafson to 210
months, noting that this number was within the range in all of the sentencing boxes from
two criminal history points up to six criminal history points. It further explained its
decision by stating that Gustafson’s case was not a typical racketeering case given the
wide variety of crimes and the unusual combination of violent crimes and non-violent
economic offenses.
2 Gustafson appealed, arguing, among other issues, that his criminal history score
was incorrect. State v. Gustafson, No. A12-1293, 2013 WL 4404241, at *6 (Minn. App.
Aug. 19, 2013), review denied (Minn. Oct. 23, 2013). He claimed that the district court
erroneously considered two prior assaults and a motor vehicle theft that arose out of a
single course of conduct in violation of the Minnesota Sentencing Guidelines. Id.; see
also Minn. Sent. Guidelines II.B.1.d. (2008)1 (“Only the two offenses at the highest
severity levels are considered for prior multiple sentences arising out of a single course of
conduct in which there were multiple victims.”). This court concluded that it lacked
sufficient information to determine if the three convictions arose out of a single course of
conduct and remanded to the district court to consider this issue further. Gustafson, 2013
WL 4404241, at *6.
On remand, the state argued that the previous incident involved separate courses
of conduct, and therefore the criminal history score was correct. It requested that the
district court impose the same 210-month sentence, but it also noted that a 210-month
sentence fell within the presumptive range even if Gustafson’s criminal history score
were lowered. Gustafson argued that his correct criminal history score was three and also
asked that he be sentenced to 166 months, the low end of the box for a criminal history
score of three. Gustafson asked for the lower sentence based not on the guidelines but
because of his good behavior in prison.
1 The 2008 Minnesota Sentencing Guidelines are applied because the racketeering charge involved offenses that occurred between 2005 and 2009. See Minn. Sent. Guidelines 2. (2014) (“The presumptive sentence for any offender convicted of a felony . . . is determined by the Sentencing Guidelines in effect on the date of the conviction offense.”).
3 The district court considered the issue to be a close call and said that it believed
that all three crimes should be used in calculating Gustafson’s criminal history score. But
for the purposes of remand, the district court only assigned points for the two assaults,
lowering Gustafson’s criminal history score to three. After noting that the guidelines
range with three criminal history points was 166 to 234 months, and after hearing
Gustafson’s reasons for why he should receive a bottom-of-the-box sentence, the district
court said: “On a remand I could not and would not increase a [sentence], but I am also
not going . . . to lower it; I am going to leave it at 210 months. . . . Still 210 months, but
on a cleaner criminal history score.” This appeal followed.
DECISION
Gustafson first argues that the district court erred by imposing the same 210-
month sentence even though it reduced his criminal history score. He claims that this
sentence contradicts the principles underlying the sentencing guidelines and this court’s
decision in State v. Benniefield, 668 N.W.2d 430 (Minn. App. 2003), aff’d on other
grounds, 678 N.W.2d 42 (Minn. 2004). The state argues, and we agree, that the new
sentence accords with relevant Minnesota caselaw.
A sentence imposed by the district court is reviewed for abuse of discretion. State
v. Ford, 539 N.W.2d 214, 229 (Minn. 1995).2 The Minnesota Sentencing Guidelines
2 Gustafson argues that the question presented—whether, after a remand, a district court may impose the same sentence after lowering the criminal history score—is an issue of law reviewed de novo. But a district court abuses its discretion if its decision is based on an erroneous view of the law. Riley v. State, 792 N.W.2d 831, 833 (Minn. 2011). “Accordingly, to the extent a [sentencing decision] turns on a question of law, reviewing
4 limit a district court’s sentencing discretion by prescribing a sentencing range that is
presumed appropriate. Soto, 855 N.W.2d at 308. When a sentence is imposed within the
presumptive guidelines range, this court will not generally review the district court’s
exercise of discretion; presumptive sentences are seldom overturned. State v. Delk, 781
N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn. July 20, 2010). Only in the
“rare” case will this court reverse the imposition of a presumptive sentence. State v.
Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Absent compelling circumstances, this court
will not exercise its authority to modify a presumptive sentence. State v. Freyer, 328
N.W.2d 140, 142 (Minn. 1982).
The district court’s original sentence was 210 months, within the presumptive
range based on severity level X and a criminal history score of four. See Minn. Sent.
Guidelines IV. (2008) (listing presumptive range as between 179 and 252 months). On
remand, the district court again sentenced Gustafson to 210 months. The presumptive
range based on a severity level of X and his adjusted criminal history score of three is
between 166 and 234 months; accordingly, Gustafson’s sentence remained well within
the range of a presumptive sentence. See id.; see also State v. Jackson, 749 N.W.2d 353,
359 n.2 (Minn. 2008) (“All three numbers in any given cell constitute an acceptable
sentence[;] . . . the lowest is not a downward departure, nor is the highest an upward
departure.”).
the decision for an abuse of discretion already calls for resolving the legal question de novo.” State v. Soto, 855 N.W.2d 303, 308 n.1 (Minn. 2014).
5 Gustafson claims that he must be sentenced to 195 months based upon this court’s
decision in Benniefield. In Benniefield, the parties agreed that the defendant’s criminal
history score was miscalculated. 668 N.W.2d at 437. He was originally sentenced to 37
months based on a criminal history score of three. Id. at 434. This court directed the
district court “to resentence appellant with a criminal history score of two to something
less than 37 months. It would not be due process to move to the high end of the
presumptive range to negate appellant’s successful appeal on calculating his criminal
history score.” Id. at 437.
Gustafson asserts that this language dictates that he must be resentenced to 195
months, the presumptive middle-of-the-box sentence based on a criminal history score of
three. We are unpersuaded by this argument. Although the supreme court affirmed this
court’s decision in Benniefield, it did not review this aspect of the case. 678 N.W.2d at
45 n.1. More importantly, however, this imprecise statement “of something less” from
Benniefield—made in passing without citation to other authority—runs counter to
previous supreme court decisions addressing the issue of the appropriate length of a new
sentence following retrial or a remand for resentencing.
The supreme court considered the issue of resentencing after a retrial in State v.
Holmes, 281 Minn. 294, 161 N.W.2d 650 (1968). The defendant in Holmes was
convicted, the supreme court reversed and granted a new trial, and he was convicted
again. Id. at 295, 161 N.W.2d at 651. The supreme court then considered “whether it
was error to impose a longer sentence after the second trial than that which [the district
court] imposed at the first trial.” Id. The supreme court held that a sentence may not be
6 increased after a retrial because it would discourage a defendant from exercising his legal
rights to appeal. Id. at 298, 161 N.W.2d at 653. The supreme court based this decision
not on constitutional grounds but instead on public policy considerations and procedural
fairness. Id.
The supreme court also addressed this issue in State v. Prudhomme, 303 Minn.
376, 228 N.W.2d 243 (1975), but this time in the context of resentencing rather than
retrial. But the supreme court found this difference “insignificant” and held that upon
resentencing, the district court could not impose a more severe penalty than it had
previously imposed. Id. at 380, 228 N.W.2d at 246.
The supreme court once again considered this issue of resentencing in State v.
Hatton, 409 N.W.2d 854 (Minn. 1987). In Hatton, the district court sentenced the
defendant to 130 months, which was double the presumptive sentence of 65 months
based on a criminal history score of two. 409 N.W.2d at 856. But the district court
incorrectly calculated the defendant’s criminal history score, which was actually one. Id.
In his motion to correct his sentence, the defendant stated that the correct presumptive
sentence was 54 months based on his criminal history score of one. Id. The state urged
the district court to impose the same 130-month sentence, which it did. Id.
This court reversed and directed imposition of a 108-month sentence—double the
presumptive sentence of 54 months. Id. But the supreme court reversed again, holding:
The punishment concept relied on by the court of appeals would come into play if the trial court on resentencing had imposed a more severe sentence than that previously imposed, i.e., a sentence longer than 130 months. But
7 under . . . other cases, the trial court was free to impose a sentence of up to 130 months on resentencing . . . .”
Id. (citation omitted).
These supreme court cases demonstrate that the imposition of the same sentence
after remand is permissible. We are unpersuaded by Gustafson’s argument that Hatton
does not apply because it involves a departure; nothing in its discussion so limited its
holding. Nor is Gustafson’s argument that this court should follow Benniefield because it
came later in time compelling. This court may not overrule supreme court precedent.
Mueller v. Theis, 512 N.W.2d 907, 912 (Minn. App. 1994), review denied (Minn. Apr.
28, 1994).
Benniefield stated that imposing the same sentence “would not be due process.”
668 N.W.2d at 437. But under the United States Constitution, even imposing a greater
sentence after a successful appeal is not a per se violation of due process. See, e.g., North
Carolina v. Pearce, 89 S. Ct. 2072, 2080-81, 395 U.S. 711, 725 (1969) (holding that due
process is violated if a judge imposes a greater sentence after retrial because of
vindictiveness). And the Minnesota Supreme Court affirmatively stated that its decisions
in Holmes and Prudhomme—that a district court may impose the same sentence but not a
longer one—were based not on constitutional grounds but on procedural fairness and
public policy principles. Prudhomme, 303 Minn. at 380, 228 N.W.2d at 246; Holmes,
281 Minn. at 298, 161 N.W.2d at 653.
Even if Benniefield were precedential, we believe its value would be limited at
best. Benniefield directed the district court to impose a sentence of “something less than
8 37 months,” but it did not state what that number should be. 668 N.W.2d at 437. In
theory, the district court could have imposed a sentence one day less than 37 months and
still have followed our remand instructions. Given that the parties in Benniefield agreed
that the criminal history score was miscalculated, the statement that it would not be due
process to impose the same sentence on remand is not only dicta but is contrary to the
legal reasoning in the controlling Minnesota Supreme Court cases.
Gustafson next contends that the principles of the sentencing guidelines require
that he receive a lower sentence. At oral argument, Gustafson’s attorney argued that only
two factors matter when sentencing an offender under the guidelines: offense severity and
criminal history. Those factors are certainly the two most critical in determining an
appropriate sentence. But we disagree that they are the only relevant factors to consider,
especially when arriving at a particular sentence within the range of a presumptive
sentence that incorporates those two factors.
According to the guidelines, offense severity and criminal history “represent the
two dimensions most important in current sentencing . . . decisions.” Minn. Sent.
Guidelines II. (2008). But these considerations are not the only factors a judge may
consider when imposing a sentence. These two factors lead to a box in the sentencing
grid that contains a “middle-of-the-box” number and also a range of numbers. Minn.
Sent. Guidelines IV. Any number within that range is a presumptive sentence under the
guidelines. Delk, 781 N.W.2d at 428.
Accordingly, it follows that offense severity and criminal history are the only two
factors used when determining the appropriate range. See Jackson, 749 N.W.2d. at 359
9 n.2. But once that range is determined, a district court is free to choose what it believes is
the correct sentence within that range based on everything it saw at trial or learned during
the sentencing process, including during the sentencing hearing. At the original
sentencing hearing, the district court explained that it choose 210 months not because it
was the middle-of-the-box sentence, but because—even though the racketeering in this
case was atypical because it included both violent and white-collar crimes—Gustafson
showed positive changes throughout the proceedings. Although the district court was not
required to explain its imposition of a presumptive sentence, we may not interfere with
the district court’s exercise of discretion because the record shows that it “carefully
evaluated all the testimony and information presented before making a determination.”
State v. Van Ruler, 378 N.W.2d 77, 80-81 (Minn. App. 1985).
We are concerned that to adopt the rule that Gustafson suggests—if a defendant
receives a midpoint sentence and the criminal history score is later adjusted, the midpoint
of the range of the new box must be imposed—would straightjacket district courts.
District courts are given great discretion to sentence within the presumptive range.
Kindem, 313 N.W.2d at 7. To adopt the mechanistic rule that Gustafson suggests would
be the antithesis of our flexible sentencing system once a guidelines range has been
established.
Even if we were to accept Gustafson’s argument that a sentence is based only on
severity and criminal history, however, we would still not be persuaded that the sentence
here was improper. As we recognize, offense severity and criminal history are the two
most critical sentencing considerations. See Minn. Sent. Guidelines II. Of the two,
10 offense severity is the weightier concern: the guidelines “reduce the emphasis given to
criminal history in sentencing decisions.” Minn. Sent. Guidelines II.B.01.
This principle is reflected in the guidelines themselves. At severity level X, the
level applicable to Gustafson, the ranges of presumptive sentences contain much overlap,
even when the criminal history score varies as much as from two criminal history points
to six. See Minn. Sent. Guidelines IV. Conversely, within the criminal history column,
very little overlap of the ranges occurs when the offense severity increases; in fact, the
ranges do not overlap at all at the most serious levels of crime, from severity level VII to
XI. See id.
Gustafson claims that because his criminal history score changed, imposing the
same sentence after changing his criminal history makes his sentence arbitrary and
contrary to the principles of guidelines, which seek to establish “rational and consistent
sentencing standards.” See Minn. Sent. Guidelines I. But based on the overlap between
the boxes, Gustafson’s sentence of 210 months still falls well within the presumptive
range for his adjusted criminal history score and is therefore a presumptive sentence.3
See Delk, 781 N.W.2d at 428. We do not agree that this presumptive sentence is rendered
arbitrary merely because the district court re-imposed it. Because it fell well within the
presumptive range of sentences for an offense with a severity level X and a criminal
history score of three, the rational and consistent object of the guidelines was still
attained.
3 We note that our decision here may have been different had Gustafson’s criminal history score been reduced to the point that the 210-month sentence would be a departure.
11 Moreover, when the district court initially chose 210 months, it did so—in an
exercise of caution and prudence—after considering the presumptive range of not only
the criminal history score of four, but also of three and two, noting that its chosen
sentence was permissible even under a lesser criminal history score. But most
importantly, the key and legitimate reason that the district court selected 210 months
among the range of permissible months available did not change during the appeal or
upon remand: Gustafson’s criminal conduct of racketeering was more serious than many
racketeering cases because he committed many different types of violent crimes as well
as swindling people out of large amounts of money.
At oral argument, Gustafson’s attorney clarified that he was not arguing that the
re-imposed 210-month sentence was “punishment.” This statement accords with
Minnesota caselaw on this issue. See State v. Wallace, 327 N.W.2d 85, 88 (Minn. 1982).
But re-imposing the same sentence after remand does not violate procedural fairness or
principles of public policy, the two concerns identified by our supreme court in its cases
addressing resentencing.
We recognize that a defendant’s legal victory on appeal may feel hollow if a
reduction in sentence does not automatically follow, but allowing a district court to re-
impose a presumptive sentence does not discourage defendants from exercising their
right to appeal a sentence. Because a district court cannot impose a more severe
sentence, “there could be no reprisal by the trial court and therefore no prejudice to
defendant. . . . [Defendants] have nothing to lose by testing their sentences and might
gain something under different facts.” Prudhomme, 303 Minn. at 384-85, 228 N.W.2d at
12 248 (Kelly, J., concurring in part and dissenting in part). With no risk but, depending
upon their individual circumstances, the possibility of a sentencing reduction, we cannot
see how defendants will be discouraged from exercising their legal right to appeal.
Further, we refuse to assume that district courts will conduct re-sentencings with a
vindictive attitude and automatically impose the same sentence in all circumstances upon
remand. In fact, nothing in the present record suggests any improper motivation by the
district court in re-imposing the same sentence. And, as the supreme court has
recognized, the rule that defendants may not receive a greater sentence upon resentencing
not only protects defendants but it “precludes inquiry into the motives of the sentencing
judge.” Holmes, 281 Minn. at 298, 161 N.W.2d at 653.
In sum, our thorough review of the record convinces us that the trial court
carefully and thoughtfully selected a sentence of 210 months based upon the nature and
severity of Gustafson’s racketeering conviction. Since that sentence was well within the
permissible range of the presumptive sentence for a severity level X offense with a
criminal history score of three, we affirm the sentence imposed. See State v. Broten, 343
N.W.2d 38, 41 (Minn. 1984) (“Our examination of the record convinces us that the trial
court wanted to impose a [particular] sentence . . . . Since that sentence was within the
permissible range . . . for the offense in question, we affirm the sentence imposed.”).
Finally, in his pro se supplemental brief, Gustafson further argues that his sentence
exceeds the statutory maximum and the maximum guidelines sentence, violating his right
to a jury trial as stated in State v. Shattuck, 704 N.W.2d 131 (Minn. 2005). But as
13 discussed above, neither sentence he received was a departure. Accordingly, this claim
lacks merit.
Affirmed.
14 CLEARY, Chief Judge (dissenting)
I respectfully dissent from the majority’s decision. The purpose of the sentencing
guidelines “is to establish rational and consistent sentencing standards that reduce
sentencing disparity and ensure that the sanctions imposed for felony convictions are
proportional to the severity of the conviction offense and the offender’s criminal history.”
Minn. Sent. Guidelines 1.A. (2014) (emphasis added). While this court will not generally
review the district court’s exercise of discretion when a sentence is imposed within the
presumptive guidelines, State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review
denied (Minn. July 20, 2010), the analysis changes when the district court is asked to
resentence a defendant after a successful appeal.
When a defendant is granted a new trial on appeal, the trial court may not impose
a greater sentence after a subsequent conviction than was imposed after the first
conviction. See, e.g., State v. Prudhomme, 303 Minn. 376, 380, 228 N.W.2d 243, 246
(1975). This rule is not based on constitutional principles, but rather on “procedural
fairness and principles of public policy.” Id. The public policy rationale has two main
justifications:
To permit a greater sentence on resentencing would make it possible for a trial judge who might be irked by having his actions questioned to increase a sentence out of pure vindictiveness rather than by reason of the defendant’s culpability. A rule that would permit greater sentences upon resentencing after a successful appeal might deter some defendants from exercising their rights to have their original sentences reviewed.
D-1 Id. at 383, 228 N.W.2d at 247 (Kelly, J., concurring in part). The supreme court forbids
greater sentences in a resentencing for two reasons: (1) to prevent a trial judge from
punishing defendants for appealing a conviction, and (2) to ensure defendants feel free to
exercise their right to have their sentence reviewed. Id.; see also State v. Holmes, 281
Minn. 294, 298, 161 N.W.2d 650, 653 (1968) (stating that as a matter of public policy,
reducing a sentence protects a district court judge from criticisms of bias or retribution in
resentencing). Such reasoning applies as well to a resentencing following a sentencing
based on erroneous information that results in a lower presumed sentence range.
This court relied on the public policy rationale in State v. Benniefield, 668 N.W.2d
430 (Minn. App. 2003), aff’d on other grounds, 678 N.W.2d 42 (Minn. 2004). Based on
a mistaken criminal history score of three, the defendant was sentenced to 37 months in
prison, which was in the low end of a presumptive range. The defendant actually had a
criminal history score of two, and the court of appeals ordered the district court to
resentence the defendant to less than 37 months, even though 37 months was within the
high end of the presumptive range for a criminal history score of two. Benniefield, 668
N.W.2d at 437. The court was concerned about the district court punishing an appellant
for a successful appeal by moving from the low end of a presumptive range in the
original sentence to the high end of a presumptive range in the second sentence. Id. The
supreme court did not address the issue in its opinion affirming Benniefield, but it did
state in a footnote that the defendant’s “sentence was subsequently reduced to 33 months
to reflect the proper criminal history score.” State v. Benniefield, 678 N.W.2d 42, 45 n.1
(Minn. 2004).
D-2 Similar to Benniefield, appellant was sentenced to 210 months, the middle of the
presumptive range for a person with a severity level ten and a criminal history score of
four. See Minn. Sent. Guidelines IV (2008). In a subsequent hearing, appellant
successfully argued that his criminal history score was actually three, and that he should
have been sentenced in a lower box. Instead of lowering the sentence to the middle of the
new presumptive range, the district court sentenced appellant to the same 210-month
term, which is at the high end of the presumptive range for someone with a severity level
ten and criminal history score of three. Id. Appellant therefore went from the middle of
a presumptive range to the high end of a presumptive range.4
The public policy concerns raised in Holmes suggest a sentence in the middle of
the new presumptive range—which correlates to the middle sentence he received in the
higher range—because appellant was originally sentenced based on an incorrect, higher
criminal history score. By imposing a sentence of 195 months, the mid-point of the
correct presumed sentence, the district court insulates itself from any criticism that
appellant’s successful appeal is being ignored. The lower sentence would also send a
message to other defendants that when they successfully appeal mistakes made in
computing their sentences, they are not engaging in an exercise in futility. Instead, they
are correcting a mistake in the calculation of the criminal history score that will result in a
corresponding sentence in a lower presumptive range.
4 It should be noted that, following the reasoning of the majority, even if the appellant had successfully shown that his criminal history score was two, rather than four, the district court would have been free to ignore this even more significant error and could have legally sentenced appellant to the same 210-month term.
D-3 If the district court is allowed to give the same sentence to a defendant who has
shown that the original sentence was computed in error due to an incorrect criminal
history score, we are effectively eliminating the “purpose” of the sentencing guidelines.
The sentencing guidelines, and the grid used to compute presumptive sentences, are
based not only on the severity of the offense but on the criminal history score as well. To
suggest that an error in one or the other, brought to the court’s attention by the appellant
in a successful challenge, can be ignored in resentencing, violates the public policy
objectives established by the Minnesota Supreme Court almost a half century ago. While
it is true that the cases invoking public policy involved the possibility of an increase in
sentences after a retrial or resentencing, the compelling logic of the reasoning applies
equally to a case involving resentencing after sentencing at mid-range of a presumed
sentence, without any departures, where the sentence is not increased in terms of time to
serve, but increased in terms of the mid-point of the correct presumed sentence.
To avoid deterring some defendants from exercising their right to have their
original sentence reviewed and calculated properly and to shield the resentencing judge
from criticism as to motivation, resentencing should properly reflect the corrected
information provided to the court, whether it be a corrected severity level or a corrected
criminal history score.
In this case, the mid-point of the range for the correct severity level and the correct
criminal history score should be used and appellant should be resentenced to 195 months.
D-4