This opinion will be unpublished and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,
Carlos Lamar Jackson,
Filed January 18, 2002
Affirmed in part and reversed in part
Ramsey County District Court
File No. K1002047
Mike Hatch, Attorney General, 525 Park Street, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102-1657 (for respondent)
John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (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 found appellant guilty of felon in possession of a firearm and possession of a short-barreled shotgun after appellant was arrested in possession of a short-barreled shotgun. The district court denied appellant’s motion for a downward dispositional departure and sentenced appellant to 50 months in prison for the felon-in-possession conviction. The district court also imposed a concurrent 15-month executed sentence for the conviction of possession of a short-barreled shotgun.
Appellant argues that the district court erred by refusing to grant a downward dispositional departure from the 60-month presumptive minimum executed sentence for the felon-in-possession conviction. Appellant also argues that the district court erred by imposing a concurrent 15-month executed sentence for the conviction of possession of a short-barreled shotgun because that sentence was based on the same behavioral incident underlying appellant’s sentence for felon in possession. We affirm in part and reverse in part.
The state charged appellant with felon in possession of a firearm, a violation of Minn. Stat. §§ 624.713, subds. 1(b), 2, 609.11, subd. 5(b) (1998). Appellant moved to suppress as evidence the shotgun found in his car, arguing that the police did not have reasonable suspicion to stop him. The state later filed an amended complaint charging appellant with the additional offense of possession of a short-barreled shotgun, a violation of Minn. Stat. § 609.67, subd. 2 (1998). The district court denied appellant’s motion to suppress the shotgun. Appellant subsequently waived his right to a jury trial and entered into a stipulation pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found appellant guilty of both offenses.
Appellant moved for a downward dispositional sentencing departure. Appellant argued that the 60-month presumptive statutory-minimum executed sentence for the felon-in-possession conviction should be stayed because he was amenable to probation. The district court, however, ordered a downward durational departure and imposed a 50-month executed sentence for the felon-in-possession conviction. The district court also imposed a concurrent 15-month executed sentence for the conviction of possession of a short-barreled shotgun. Appellant did not object to the district court’s imposition of a concurrent sentence for the conviction of possession of a short-barreled shotgun. This appeal followed.
Appellant first argues that the district court erred by refusing to grant a downward dispositional departure from the 60-month presumptive minimum executed sentence for the felon-in-possession conviction. Appellant contends there are substantial mitigating factors that suggest his amenability to probation: (1) he is only 31 years old; (2) the predicate conviction for his felon-in-possession conviction stemmed from an incident occurring nearly 10 years ago; (3) he is a productive member of his community with a wife and young child; (4) he is self-employed; (5) he recognizes the foolishness of his behavior and expresses remorse for his conduct; (6) he cooperated with the police; and (7) he has the support of his community, his state representative, and his family and friends.
Under the Minnesota Sentencing Guidelines, a district court may depart from a presumptive sentence if there are “substantial and compelling circumstances” that warrant departure. Minn. Sent. Guidelines II.D. “‘Underlying the [g]uidelines is the notion that the purposes of the law will not be served if judges fail to follow the guidelines in the ‘general case.’’” State v. Sherwood, 341 N.W.2d 574, 576 (Minn. App. 1983) (quoting State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981)). Consequently, it is only in rare cases that a district court’s refusal to depart from the sentencing guidelines warrants reversal. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); see also State v. Hennum, 441 N.W.2d 793, 801 (Minn. 1989); State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001). 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.” Kindem, 313 N.W.2d at 7; see also State v. Cerceo, 354 N.W.2d 823, 824 (Minn. 1984); State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984).
A downward dispositional departure may be appropriate, however, where a defendant is particularly amenable to probation. Several factors may be relevant in determining whether a defendant is particularly amenable to probation; these factors include, but are not limited to, “the defendant’s age, his prior record, his remorse, his cooperation, his attitude * * * and the support of friends and/or family.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982); see also State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).
The district court refused to grant appellant’s motion for a dispositional departure. It found “that there are a lot of positive things that are going on in [appellant’s] life” and that appellant “ha[s] been making a lot of [effort] to turn [his] life around.” Addressing appellant’s argument that, in addition to other personal-safety-related extenuating circumstances, he possessed the shotgun to protect his immediate family from a neighborhood drug dealer, the court stated,
Now, I can understand how you might be angry and upset and frustrated, but that doesn’t give you the right to take this kind of measure, to take the law into your own hands.
The district court added, however, that by imposing a 50-month executed sentence for the felon-in-possession conviction, it was departing durationally “from the sentencing guidelines, and the court is willing to depart in this matter based upon the [appellant]’s explanation that he found the weapon and that the previous conviction was not one of a violent nature.”
Although rare, there have been cases where the supreme court ordered a downward sentencing departure where the district court imposed a presumptive sentence or where the district court imposed an upward sentencing departure from a presumptive sentence. See, e.g., Hennum, 441 N.W.2d at 800-01 (ordering a downward durational departure from the imposed 102-month presumptive minimum executed sentence to a 54-month executed sentence); State v. Wall, 343 N.W.2d 22 (Minn. 1984) (district court’s imposition of an upward durational departure of 1 1/2 times the maximum presumptive sentence inappropriate). This case, however, is a “general” case that does not justify reversing the district court’s sentence.
Although appellant cites several mitigating factors that could support a departure, the mere presence of mitigating factors does not require a district court to grant a dispositional departure. Wall, 343 N.W.2d at 25; Oberg, 627 N.W.2d at 724 (noting that the “mere existence of [mitigating] factors [does] not obligate the sentencing court to depart from the presumptive sentence” (citation omitted)).
Appellant primarily relies on his remorse and foolishness as mitigating factors. We cannot ignore, however, the circumstances surrounding appellant’s arrest. Appellant admitted that he possessed a short-barreled shotgun, a particularly dangerous firearm, that he pointed the shotgun at a neighborhood drug dealer immediately before his arrest, and that the shotgun was loaded when the police recovered it. See generally State v. Ellenberger, 543 N.W.2d 673, 676-77 (Minn. App. 1996) (describing the legislature’s view that short-barreled shotguns are particularly dangerous firearms), review denied (Minn. Apr. 16, 1996).
Therefore, despite several mitigating factors suggesting appellant’s amenability to probation, we conclude that the district court did not abuse its discretion by refusing to grant appellant’s motion for a dispositional departure.
II. Minn. Stat. § 609.035
Appellant also argues that his concurrent 15-month executed sentence for possession of a short-barreled shotgun should be vacated because it arose out of the same behavioral incident as his felon-in-possession sentence. Appellant contends that Minn. Stat. § 609.035, subd. 3 (1998), which provides that a felon-in-possession conviction does not preclude a “conviction of or punishment for any other crime committed by the defendant as part of the same conduct,” does not apply to a conviction and concurrent sentence for possession of a short-barreled shotgun.
We conclude that appellant’s sentence for possession of a short-barreled shotgun should be vacated, but for reasons other than those advanced by appellant.
Statutory construction is a question of law, which we review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).
Minn. Stat. § 609.035, subd. 1, provides:
Therefore, we must first address whether the § 609.035, subd. 3 exception applies in this case. We conclude that § 609.035, subd. 3 contemplates circumstances where a defendant is convicted and sentenced for felon in possession of a firearm and is also convicted and sentenced for another substantive offense that requires additional conduct beyond mere possession of a firearm.
Minn. Stat. § 609.035, subd. 3 provides that a felon-in-possession conviction “is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.” (Emphasis added.) A reasonable interpretation of the phrase “as part of the same conduct” suggests that additional conduct beyond mere possession of a firearm is required for the exception to apply. If appellant in this case had assaulted the neighborhood drug dealer with the shotgun, this exception would likely permit both a felon-in-possession sentence and a concurrent sentence for assault. Because there was no additional conduct other than appellant’s possession of the shotgun, however, we conclude that the exception found in Minn. Stat. § 609.035, subd. 3 does not apply to the specific facts in this case.
Second, we must decide whether, absent the exception, § 609.035, subd. 1 prohibits the imposition of a sentence for the conviction of possession of a short-barreled shotgun.
Appellant’s possession of the short-barreled shotgun violated two Minnesota criminal statutes: the felon-in-possession statute and the possession-of-a-short-barreled-shotgun statute. Appellant did not engage in additional unlawful conduct. Therefore, his conduct exhibited a single criminal objective: illegal possession of a firearm. Cf. State v. Reese, 446 N.W.2d 173, 180 (Minn. App. 1989) (noting that possession of two controlled substances at the same time and place, for personal use, constitutes a single behavioral incident), review denied (Minn. Nov. 15, 1989); State v. Zimmerman, 352 N.W.2d 452, 454-55 (Minn. App. 1984) (noting that possession of two different controlled substances at the same time constitutes a single behavioral incident).
We therefore conclude that the district court erred by imposing a concurrent 15-month executed sentence for the conviction of possession of a short-barreled shotgun. Appellant’s sentence for possession of a short-barreled shotgun is vacated.
Affirmed in part and reversed in part.
 Appellant correctly notes that the district court had the discretion to depart dispositionally. Minn. Stat. § 609.11, subd. 8(a) (1998) provides that a district court may depart from a mandatory minimum sentence “if the court finds substantial and compelling reasons to do so.” A district court may not, however, depart dispositionally from a mandatory executed sentence “if the defendant previously has been convicted of [certain] offense[s] * * * in which the defendant used or possessed a firearm or other dangerous weapon.” Minn. Stat. § 609.11, subd. 8(b); see also State v. Sheppard, 587 N.W.2d 53, 56 (Minn. App. 1998), review denied (Minn. Jan. 27, 1999). One of those “offenses” is “a felony violation of chapter 152.” Minn. Stat. § 609.11, subd. 9. Here, although appellant was previously convicted of a felony drug offense under chapter 152, he did not use or possess a firearm in connection with that offense. Therefore, the district court had discretion to depart dispositionally in this case.
 We also recognize that Minnesota’s felon-in-possession law seeks to keep firearms out of the hands of felons because the legislature has made a policy judgment that these individuals are dangerous and that because of this perceived dangerousness, these individuals are not permitted to possess any “firearm.” See Minn. Stat. § 624.713, subd. 1 (1998).