This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Edward Marcus Butler,

a/k/a Edward Marcus Meredith,




Filed  October 7, 2003

Reversed  and remanded

Toussaint, Chief Judge


Nicollet County District Court

File No. K1-02-755



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Michael K. Riley, Nicollet County Attorney, 326 South Minnesota Avenue, P.O. Box 360, St. Peter, MN 56082-0360 (for respondent)


John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)



Considered and decided by Lansing, Presiding Judge, Toussaint, Chief Judge, and Schumacher, Judge.


TOUSSAINT, Chief Judge

Appellant challenges his sentence imposed for failure to register as a predatory offender, arguing that the district court abused its discretion in assigning that offense to severity level II.  Appellant contends that because the district court failed to apply any of the applicable factors and because the guidelines commission has decided to assign the offense to severity level I in the future, appellant’s offense should be ranked at severity level I.  The sentencing court acted within its discretion by determining an offense severity level, but because the court did not include findings explaining the factors it used to reach that determination, we reverse and remand for further findings.


Appellant Edward Marcus Butler was charged in Nicollet County District Court with failure to register as a predatory offender in violation of Minn. Stat. § 243.166, subd. 5(a) (2000).  Butler entered a plea of guilty and testified at the guilty plea hearing that he was convicted of fourth-degree criminal sexual conduct on April 16, 1997.  Butler was aware that his was an unranked offense, that the court could exercise its discretion in imposing  a sentence, and that Butler could face up to five years in prison.

At the time of sentencing, the offense of failure to register as a predatory offender was unranked by the Sentencing Guidelines Commission.[1]  In such cases, a sentencing court should exercise its discretion by assigning an offense severity level that it believes to be appropriate.  Minn. Sent. Guidelines, cmt. II.A.05.  A court should consider the following four factors when deciding how to rank an unranked offense:

[1] the gravity of the specific conduct underlying the unranked offense; [2] the severity level assigned to any ranked offense whose elements are similar to those of the unranked offense; [3] the conduct of and severity level assigned to other offenders for the same unranked offense; and [4] the severity level assigned to other offenders who engaged in similar conduct.  No single factor is controlling nor is the list of factors meant to be exhaustive.

State v. Kenard, 606 N.W.2d 440, 443 (Minn. 2000); Minn. Sent. Guidelines, cmt. II.A.05.  An appellate court reviews a district court’s decision under an abuse-of-discretion standard.  Kenard, 606 N.W.2d at 442-43.

Butler argues that the sentencing court abused its discretion by assigning his offense to severity level II without indicating on the record which of the Kenard factors, if any, it considered.  Butler contends that without such an indication from the sentencing court “it is almost impossible for a reviewing court to evaluate the sentencing court’s exercise of discretion.”  Id. (citing State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981)).  In Kenard, the sentencing court’s statement that “the sentence is based on really what I think is appropriate, in light of the severity of the crime,” without mentioning which factors it considered, insufficiently demonstrated the factors it had considered.  Id. at 443 n.2.

The sentencing court here failed to sufficiently note on the record which factors it considered in making its decision.  Butler’s appellate brief notes that the court, in a letter to both counsel, indicated that it had reviewed similar cases and determined that most of those cases were severity level II and higher.  Although Butler refers to the letter in his brief, the letter is not included in the record.  Evidence not contained in the appellate record may not be considered by this court on appeal.  State v. Larson, 520 N.W.2d 456, 464 (Minn. App. 1994), review denied (Minn. Oct. 14, 1994).  Without any record evidence of the factors on which the court relied, a court may reverse and remand for additional findings.  See Kenard, 606 N.W.2d at 445 (stating that sentencing court’s severity level decision appears harsh for that defendant’s facts, but allowing sentencing court to determine appropriate severity level on remand); see State v. Garrett, 479 N.W.2d 745, 749 (Minn. App. 1992) (reversing and remanding because district court failed to make findings regarding reason for departing from sentencing guidelines).

Butler argues that this court should vacate his sentence and remand for sentencing at severity level I because the Sentencing Guidelines Commission voted to rank his offense at that level in September 2002.  But Butler acknowledges that because the modification did not become effective until August 1, 2003, neither the district court nor this court is required to apply it to the instant case.  See Minn. Sent. Guidelines III.F (stating that modifications “will be applied to offenders whose date of offense is on or after the specified modification date”).

Because the new guidelines do not control the sentencing or appellate courts here, the sentencing court was  authorized to exercise its discretion in determining an appropriate severity level.  Because the court must make findings on the Kenard factors it used in making that determination, we remand to the sentencing court for additional findings consistent with this opinion.

Reversed  and remanded.

[1] In September 2002, the Sentencing Guidelines Commission ranked this offense as severity level I, but this change only became effective on August 1, 2003. Minn. Sent. Guidelines Comm’n, Report to the Legislature, Jan. 2003, at 3-4, 19.