This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Anthony Cortez Gray,




Filed January 8, 2002


Gordon W. Shumaker, Judge


Hennepin County District Court

File No. 00102525



Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106; and


Amy Klobuchar, Hennepin County Attorney, Elizabeth V. Cutter, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)


Considered and decided by Halbrooks, Presiding Judge, Shumaker, Judge, and Stoneburner, Judge.


U N P U B L I S H E D   O P I N I O N




Appellant contends on appeal that the district court’s durational departure from the presumptive sentence was excessive even if permitted by the career-offender statute.  Because the district court did not abuse its discretion in sentencing appellant, we affirm.


Eyewitnesses saw appellant Anthony Cortez Gray steal four boxes of tools, valued at about $500, from a pickup truck parked at a home remodeling site.

A jury found Gray guilty of theft over $250, a crime enhanced to a felony because of Gray’s prior theft record.

Gray’s prior felony convictions were for burglaries in 1983 and 1985, unlawful use of a weapon in 1989, armed robbery in 1991, and theft from person in 1997.  The presumptive sentence for the current theft is 21 months and the statutory maximum 60 months.

Finding that Gray met the statutory criteria for sentencing as a career offender, the district court departed durationally from the sentencing guidelines and imposed a sentence of 45 months.

Gray concedes that he meets the statutory criteria for career-offender sentencing, but argues on appeal that the court’s durational departure of more than twice the presumptive sentence was excessive.


On an appeal from a criminal sentence, this court reviews the sentence to determine whether it is “inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court.”  Minn. Stat. § 244.11, subd. 2(b) (2000).  The district court’s decision to depart from the sentencing guidelines rests within its discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

The district court may depart from the presumptive sentence and impose a sentence not exceeding the statutory maximum if the offender has been convicted of at least five prior felonies and “the present offense is a felony that was committed as part of a pattern of criminal conduct.”  Minn. Stat. § 609.1095, subd. 4 (2000).  The court found that Gray met both requirements.  Gray does not challenge that finding.

Gray argues that the sentence was excessive because the theft was no more serious that the typical “low-level property offense which would ordinarily carry a misdemeanor jail term.”  He notes that the presumptive sentence of 21 months already took into consideration the nature of the offense and his prior criminal history.  Although Gray acknowledges the career-offender statute and does not appear to challenge its validity, he contends that, in his case, the statute allowed a “disproportionally harsh sentence.”

Despite the fact that the presumptive sentence already takes into account the nature of the crime and the offender’s prior criminal history, the legislature has indicated that where the additional factor of a pattern of criminal conduct exists, the district court may in its discretion exceed the presumptive sentence.  Id.  The court must, however, make the requisite findings to demonstrate the existence of the statutory factor.  Id.  The court did so here.  Thus, Gray’s crime was not merely a “low-level property offense” but was part of a broader pattern of ongoing criminal conduct for which the legislature allows a greater penalty than might be permitted if the crime were not part of such a pattern.

Because the district court made the requisite findings and sentenced Gray within the range allowed for career-offender sentencing, the court did not abuse its discretion in departing durationally from the presumptive sentence.