This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Ryan A. Vollmer,
Filed April 10, 2001
Crow Wing County District Court
File No. K3-00-0062
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Donald F. Ryan, Crow Wing County Attorney, County Service Building, 322 Laurel Street, Brainerd, MN 56401 (for respondent)
John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant State Public Defender, 2829 University Avenue SE, Minneapolis, MN 55414 (for appellant)
Considered and decided by Hanson, Presiding Judge, Crippen, Judge, and Harten, Judge.
Appellant Ryan Allen Vollmer challenges the sentence imposed on him for aggravated robbery. Appellant argues that the state’s two-year pre-indictment delay violated his right to due process, because in the intervening time, his criminal history score increased resulting in an increase in the length of his sentence. We affirm.
On August 14, 1997, at approximately 9:20 a.m., there were two tellers and one customer in the First National Bank of Crosby (Emily Branch) when a masked man brandishing a silver-plated pistol entered the bank and stated: “This is a robbery.” The masked man pushed the customer down and grabbed a handful of bills from the cash drawers of the two tellers. He ordered one of the tellers to get money out of the vault. A witness testified that he then stated that “he was very glad that we cooperated so he didn’t have to kill us.” The man fled with more than $10,000 in a getaway car driven by an accomplice.
Both the Federal Bureau of Investigation and the Crow Wing County Sheriff’s Department investigated the robbery. On January 15, 1998, investigators interviewed J.T. King. During the interview, King told the investigators that his friends, Jason Anker and appellant Ryan Allen Vollmer, had admitted to robbing the bank. According to King, Anker was the masked man with the gun and appellant drove the getaway car.
On August 10, 1999, a grand jury indicted appellant for aggravated robbery, in violation of Minn. Stat. § 609.245, subd. 1 (1996), conspiracy to commit aggravated robbery, in violation of Minn. Stat. § § 609.245, subd. 1, 609.175, subd. 2 (1996), and theft in excess of $10,000, in violation of Minn. Stat. § 609.52, subd. 2(1) (Supp. 1997). Appellant moved to dismiss the indictment. The district court dismissed the aggravated robbery count, but denied appellant’s motion to dismiss the other counts of conspiracy and theft. Subsequently, respondent State of Minnesota issued a complaint charging appellant with aggravated robbery. Appellant pleaded not guilty to all charges and demanded a speedy trial. A jury found appellant guilty on all counts. On April 3, 2000, the district court sentenced appellant to 98 months in prison for the aggravated robbery conviction and dismissed the two remaining counts as lesser-included offenses. Appellant contests his sentence.
D E C I S I O N
Appellant contends that the state’s delay in indicting him for robbery violated his right to due process by adversely impacting his sentence.
[T]he primary guarantee against overly stale charges is the statute of limitations. The due process clause of the Fifth Amendment guards against long delays when the Sixth Amendment right has not attached and the statute of limitations has not yet run.
State v. F.C.R., 276 N.W.2d 636, 639 (Minn. 1979) (citing United States v. Lovasco, 431 U.S. 783, 97 S. Ct. 2044 (1977)). The legislature has determined that the statute of limitations for aggravated robbery is three years. Minn. Stat. § 628.26 (i) (1996). “Under the test announced in United States v. Marion,” 404 U.S. 307, 324-26, 92 S. Ct. 455 (1971), to establish that a pre-indictment delay violated due process, a defendant must prove: “(1) the delay actually prejudiced him, and (2) the delay was used by the prosecution to gain tactical advantage at trial.” State v. Hanson, 285 N.W.2d 487, 489 (Minn. 1979). See also F.C.R., 276 N.W.2d at 639 (to establish violation of due process clause due to pre-indictment delay, defendant must prove both actual prejudice and improper state purpose).
Appellant contends that the delay actually prejudiced him because his criminal history score increased from one point at the time of the robbery to five points at the time he was sentenced for his aggravated robbery conviction. With five criminal history points, appellant received the presumptive sentence of 98 months for an aggravated robbery conviction with a severity level of VII. The presumptive sentence for aggravated robbery for an offender with one criminal history point is 58 months. The sentencing guidelines provide that criminal history points are assigned “for every felony conviction for which a felony sentence was stayed or imposed before the current sentencing.” Minn. Sent. Guidelines II.B.1. See also Statev. Wallner, 346 N.W.2d 386, 388 (Minn. App. 1984) (district court calculates criminal history score based on present criminal record). The district court lawfully sentenced appellant for aggravated robbery using his criminal history score at the time of the sentencing hearing.
In his brief, appellant states that he “is not alleging that his trial was unfair as a result of the state’s delay in indicting him,” but instead, “the delay rendered his sentence unfair.” Appellant argues that “this court should not require him to prove that the delay was in bad faith” and that this court should reduce his sentence “[r]egardless of the prosecutor’s intent.” However, in order to succeed in his due process claim, appellant must prove that “the delay was used by the prosecution to gain tactical advantage at trial.” Hanson, 285 N.W.2d at 489. See alsoState v. Jurgens, 424 N.W.2d 546, 551 (Minn. App. 1988) (upholding refusal to dismiss delayed indictment where defendant “ha[d] not shown the prosecution intentionally delayed seeking an indictment in order to obtain a tactical advantage”), review denied (Minn. July 6, 1988). In its order dated April 25, 2000, the district court stated: “This Court does not find any evidence of manipulation by the prosecutor.” We agree.
Because appellant was indicted within the period of the applicable statute of limitations, and because he has not established that any pre-indictment delay violated his due process rights, we affirm.
On December 22, 1997, a search warrant was executed at appellant’s residence and officers seized several stolen guns. Appellant was charged with numerous counts of receiving stolen property in Crow Wing County District Court. Appellant was also charged in federal district court with possessing a firearm with an obliterated serial number. On January 19, 1999, appellant pleaded guilty to four counts of receiving stolen property, and in exchange, the remaining counts were dismissed. The district court denied appellant’s motion to delay sentencing pending the outcome of the robbery case. On September 13, 1999, the district court sentenced appellant using the Hernandez method of sentencing, concluding that the four counts of receiving stolen property involved separate behavioral incidents. This court affirmed the sentences in State v. Vollmer, C9-99-2116. The four convictions for receiving stolen property added four points to appellant’s criminal history score.
 Appellant’s reliance on United States v. Martinez, 77 F.3d 332 (9th Cir. 1996), is misplaced. Appellant cites Martinez for the proposition that “[w]here delay impacts the computation of a defendant’s sentence under the sentencing guidelines, the prejudice is actual.” But Martinez holds that “[b]ecause the district judge could avoid any unfairness to Martinez under the guidelines by using permitted departures, prejudice caused by delay, even if we assume that it would otherwise implicate the due process clause, is speculative.” 77 F.3d at 337.
 Because he has not shown that the prosecution used the delay to gain a tactical advantage, we do not decide whether the delay actually prejudiced appellant. See Hanson, 285 N.W.2d at 489 (“Theoretically, an argument could be framed as to the first of the Marion tests, but we do not reach it since the evidence discloses that the second test is not met.”).