This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Stanley Miller Cowan,
Reversed and remanded
Sherburne County District Court
File No. K6991945
Mike Hatch, Attorney General, David S. Voigt, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Walter M. Kaminsky, Sherburne County Attorney, Sherburne County Courthouse, 13880 Highway 10, Elk River, MN 55330 (for respondent)
Bradford W. Colbert, Attorney at Law, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
G. BARRY ANDERSON, Judge
The district court denied appellant’s motion for a dispositional departure from his presumptive 43-month executed sentence for aiding and abetting the attempt to manufacture methamphetamine in the first degree. Appellant argues that the district court erred by refusing to consider (1) appellant’s minor role in the overall methamphetamine-manufacturing scheme and (2) his lack of a prior record when denying appellant’s motion for a dispositional departure. We reverse and remand.
The state charged appellant with conspiracy to commit a controlled-substance crime in the first degree, a violation of Minn. Stat. §§ 152.021, subds. 2a, 3; 152.096, subd. 1 (1998). On April 9, 2001, pursuant to an Alford plea agreement, appellant pleaded guilty to aiding and abetting the attempt to manufacture a controlled substance in the first degree, a violation of Minn. Stat. §§ 152.021, subds. 2a, 3; 609.05; 609.17 (1998). A pre-sentence investigation recommended a presumptive 43-month executed sentence based on appellant’s criminal-history score of zero. Appellant moved for a dispositional departure from the presumptive 43-month executed sentence.
Appellant argued there were substantial and compelling circumstances warranting a dispositional departure because of (1) his amenability to drug-rehabilitation treatment; (2) his positive participation in earlier drug rehabilitation; (3) his “very minor or passive role among the co-conspirators in that he never manufactured methamphetamine”; (4) his ongoing employment; (5) his limited criminal history; and (6) his support from family and friends. The dispositional departure would have included some jail time and chemical-dependency treatment as conditions of probation. The district court denied appellant’s motion for a dispositional departure and sentenced appellant to 43 months in prison. This appeal followed.
Appellant argues that his “passive role in the offense” and his “lack of criminal history” should have been considered by the district court and that the district court’s refusal to consider these factors was error.
Generally, it is the rare case that warrants reversal of a district court’s refusal to depart from the sentencing guidelines. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). In reviewing a decision not to depart from the guidelines, “the trial court has broad discretion,” and Minnesota appellate courts will generally “not interfere with the exercise of that discretion.” Id.; see also State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984).
Although a district court has broad discretion to depart or not depart from the guidelines, it must exercise that discretion. Where the record suggests there are factors that could justify a dispositional departure, these factors “should be deliberately considered.” Curtiss, 353 N.W.2d at 264. Therefore, a district court errs when it fails to exercise its discretion by refusing to consider possible mitigating factors that may justify a departure. Id.
The Minnesota Sentencing Guidelines provide a non-exclusive list of mitigating factors that may justify a durational or dispositional departure from a presumptive sentence. One mitigating factor recognizes circumstances where “[t]he offender played a minor or passive role in the crime or participated under circumstances of coercion or duress.” Minn. Sent. Guidelines II.D.2. In several cases, the supreme court and this court have recognized that a “defendant’s passive role in the crime is a permissible mitigating factor.” State v. Sherwood, 341 N.W.2d 574, 577 (Minn. App. 1983); see also State v. Campbell, 367 N.W.2d 454, 461 (Minn. 1985) (“Whether defendant played a passive role in the offense is the type of factual issue best decided, in most cases, at the trial court level.”); State v. Frey, 340 N.W.2d 346, 348 (Minn. App. 1983) (upholding imposition of presumptive sentence where defendant argued that his passivity should have entitled him to a guideline departure), review denied (Minn. Mar. 15, 1984).
Moreover, this court has found that a defendant’s minor or passive role in an offense may itself justify a dispositional departure without a concurrent showing that the defendant is particularly amenable to probation. See State v. Wittman, 461 N.W.2d 247, 249 (Minn. App. 1990). Nevertheless,
[t]he fact that a mitigating factor [is] clearly present [does] not obligate the court to place defendant on probation or impose a shorter term than the presumptive term.
State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984); see also State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001) (noting that the “mere existence of [mitigating] factors [does] not obligate the sentencing court to depart from the presumptive sentence”), review denied (Minn. Aug. 22, 2001).
Conversely, the supreme court has held that a defendant’s criminal history, or lack thereof, should generally not be considered as an independent mitigating factor in determining whether to depart durationally.
Generally, the sentencing court cannot rely on a defendant’s criminal history as a ground for departure. The Sentencing Guidelines take one’s history into account in determining whether or not one has a criminal history score and, if so, what the score should be. Here defendant’s criminal history was already taken into account in determining his criminal history score and there is no justification for concluding that a qualitative analysis of the history justifies using it as a ground for departure. State v. Erickson, 313 N.W.2d 16 (Minn. 1981); State v. Barnes, 313 N.W.2d 1 (Minn. 1981).
State v. Magnan, 328 N.W.2d 147, 149-50 (Minn. 1983); see also State v. Gross, 332 N.W.2d 167, 169 (Minn. 1983) (“Defendant’s criminal history [is] not an appropriate basis for [a] durational departure.”); State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).
A defendant’s prior record, however, may be considered when determining whether a dispositional departure is appropriate. In State v. Trog, the supreme court found that a defendant’s prior record might be “relevant to a determination whether a defendant is particularly suitable to individualized treatment in a probationary setting.” 323 N.W.2d 28, 31 (Minn. 1982). The Trog court, however, did not hold that a defendant’s prior record is an independent mitigating factor to support either a durational or a dispositional departure; rather, it recognized,
[A] defendant’s clean record does not by itself justify mitigation of sentence because that factor, in the form of defendant’s criminal history score, has already been taken into account by the Sentencing Guidelines in establishing the presumptive sentence.
Id. (citing State v. Cizl, 304 N.W.2d 632, 634 (Minn. 1981)).
Here, the district court found that appellant was “amenable to treatment and apparently has done very well through his primary [drug-rehabilitation] treatment and in his aftercare and that certainly goes in his favor.” The district court also addressed appellant’s argument that he played a “minor or passive role” in the overall methamphetamine-manufacturing scheme. The court noted,
The second factor set out by the defendant is that he played a minor or passive role in that he never manufactured methamphetamines. While that is true, the problem is that he didn’t plead guilty to the manufacture of methamphetamines, and therefore, that already reflects in it a half sentence from what the manufacture itself would be. So I don’t find that to be a legally sufficient factor to consider.
The court also addressed appellant’s argument that his lack of criminal history should be considered to determine whether to depart dispositionally:
The next factor you have listed is [your] prior criminal history score of zero but that is also reflected in the [sentencing-guidelines] grid, so that’s not a factor I am allowed to consider.
We conclude that the district court erred by refusing to consider appellant’s minor or passive role, or lack thereof, in the overall methamphetamine-manufacturing scheme. It is true that an aiding and abetting attempt offense is a lesser offense than a conspiracy offense; but the fact that appellant pleaded guilty to a lesser offense is irrelevant to the question whether the district court could consider appellant’s qualitative involvement in the alleged methamphetamine-manufacturing scheme.
The district court properly recognized that the lesser offense of aiding and abetting the attempt to manufacture methamphetamine reduced appellant’s presumptive sentence to one-half of what his presumptive sentence would have been had he been found guilty of the original conspiracy offense. The district court failed to recognize, however, that by pleading guilty to a lesser offense as part of a plea agreement, a defendant does not waive his right to present certain sentencing arguments.
On remand, therefore, the district court should consider appellant’s argument that he “played a minor or passive role among the co-conspirators in that he never manufactured methamphetamine.” See Kindem, 313 N.W.2d at 7 (where defendant is indicted for second-degree murder and pleads guilty to third-degree murder “under some circumstances [defendant’s more passive role] might be a sufficient reason for [a sentencing] departure”); cf. Wittman, 461 N.W.2d at 248-49 (where defendant pleaded guilty to conspiracy charge in exchange for state agreeing not to ask for an upward dispositional departure, record supported district court’s finding that defendant played a minor role in the conspiracy and dispositional departure was appropriate).
On remand, the district court may consider this mitigating factor and still refuse to order a dispositional departure because no substantial or compelling circumstances warranting a dispositional departure exist. But the failure to consider appellant’s possible minor or passive role in the manufacturing scheme as a mitigating factor, because the district court felt that it could not consider his minor or passive role, is error. See, e.g., Sherwood, 341 N.W.2d at 577-78 (after defendant pleaded guilty to conspiracy to receive stolen property, district court did not err by refusing to depart dispositionally from the presumptive sentence although defendant argued that she played a passive role in the crime); Frey, 340 N.W.2d at 347 (after defendant pleaded guilty to accomplice liability for burglary, district court did not err by refusing to depart from a presumptive sentence where defendant argued “that he had a minor or passive role in the offense”).
We also conclude that appellant’s alternative argument, that the district court improperly refused to consider appellant’s prior record as a mitigating factor, has merit. It is true that appellant’s criminal history score partially determines the duration of his presumptive sentence. But appellant did not ask the court to grant a downward durational departure. Appellant asked the court to grant a downward dispositional departure. Therefore, the district court erred by refusing to consider appellant’s “prior record” as supporting appellant’s contention that he “is particularly suitable to individualized treatment in a probationary setting.” Trog, 323 N.W.2d at 31.
We take no position on what the proper sentence should be in this case, however.
Reversed and remanded.
 The record does not support respondent’s contention that the district court implicitly considered appellant’s minor or passive role in the manufacturing scheme. The district court stated in plain language when rejecting appellant’s argument: “I don’t find that to be a legally sufficient factor to consider.” (emphasis added).
 Under Minnesota law, a defendant convicted of conspiracy to manufacture methamphetamine in the first degree is treated the same as a defendant convicted for the actual manufacture of methamphetamine in the first degree. See Minn. Stat. §§ 152.021, subd. 2a (1998) (manufacture); 152.096, subd. 1 (conspiracy). A defendant convicted of attempt to manufacture methamphetamine in the first degree receives a presumptive sentence under the guidelines that is one-half of the presumptive sentence for conspiracy to manufacture methamphetamine in the first degree. See Minn. Stat. § 609.17, subd. 4(2) (1998). A defendant convicted of aiding and abetting the attempt to manufacture methamphetamine in the first degree would have the same presumptive sentence as a defendant convicted of attempt to manufacture. See Minn. Stat. § 609.05 (1998). Therefore, by pleading guilty to the aiding and abetting attempt offense, appellant’s presumptive sentence was one-half of what it would have been had he been convicted of the original conspiracy offense.
 Appellant’s counsel argued this point indirectly at the sentencing hearing. Specifically, counsel noted that appellant did not wish to take his chances with a jury trial, where he could have been found guilty of conspiracy to manufacture methamphetamine and sentenced to 86 months in prison. Moreover, respondent notes that, as part of the plea agreement, appellant did not admit his participation in either the attempt or the actual manufacture of methamphetamine.