This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Michael Emmanuel Hughes,
Filed January 13, 2004
Olmsted County District Court
File No. K4-02-1215
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Raymond F. Schmitz, Olmsted County Attorney, Courthouse, 151 Fourth Street SE, Rochester, MN 55904 (for respondent)
Bradford Colbert, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Considered and decided by Klaphake, 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
Appellant challenges his sentence for second-degree murder, arguing that the district court’s imposition of an upward durational departure is not supported by substantial and compelling circumstances. Because we conclude that the district court did not abuse its discretion in sentencing appellant, we affirm.
On February 23, 2002, appellant Michael Emmanuel Hughes attended a party with two friends, Samphan Roeun and Viengvilay Phetsomphou, at a restaurant in Rochester. The party ended at about midnight, and, as people were leaving the restaurant, a fight broke out in the parking lot between members of two rival street gangs, the Baby Gangster Crips and the Bloods. Phetsomphou was a member of the Baby Gangster Crips, and although Hughes was not a member of the gang, he associated with some of its members. The record is unclear as to whether Roeun was a member of the gang, but, like Hughes, he associated with some of its members. Hughes, Roeun, and Phetsomphou all participated in the fight, which police quickly broke up. The three men then drove to a friend’s home in Rochester, where others who had attended the earlier party had also gone.
While at the friend’s house, members of the group discussed resuming the fight. Hughes, Roeun, Phetsomphou, and Phetsomphou’s minor girlfriend then drove Roeun’s car to the home of one of the rival gang members. Roeun removed a handgun from under the seat of the car and told the others that he intended to pistol-whip someone with it. Hughes and Roeun got out of the car and hid behind the house. After about ten minutes, the people Hughes and his friends were waiting for, including Samoeun Sam, came out of the house. Some got into a car, and Roeun approached the driver’s door and displayed the handgun to the car’s occupants. One occupant of the car fled on foot, and the other occupants drove away. Roeun began firing at the departing car. In the meantime, Hughes scuffled briefly with Sam near the front of the house. Sam broke free and attempted to return to the house. Hughes ran back to Roeun’s car. Roeun fired shots towards the house before joining his friends in the car and leaving, and one of the shots struck and killed Sam.
A grand jury indicted Hughes, Roeun, and Phetsomphou on 14 counts, including seven counts of crimes committed for the benefit of a gang. On January 2, 2003, Hughes entered into a plea agreement by which he agreed to plead guilty to second-degree felony murder in violation of Minn. Stat. §§ 609.19, subd. 2(1) (2000), and 609.05 (2000). In exchange, the state dropped the remaining 13 counts against Hughes. The plea agreement also provided that Hughes agreed to be committed to the Department of Corrections for 228 months, which represented a 78-month upward departure from the presumptive sentence of 150 months. At the plea hearing on January 2, 2003, the prosecutor explained to the court that the agreed-on factors justifying the upward departure were that (1) Hughes committed the crime as part of a group of three or more persons who all actively participated in the crime, and (2) the crime created a greater danger of harm to persons other than the victim because multiple shots were fired in a residential area. The court then asked Hughes if the prosecutor’s explanation was consistent with his understanding of the plea agreement, and Hughes said that it was. On February 3, the court sentenced Hughes to 228 months’ incarceration. The factors relied on by the court for the upward departure were those discussed at the plea hearing.
D E C I S I O N
Under the sentencing guidelines, the district court has broad discretion to depart from the presumptive sentence. State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993). Departures from presumptive sentences are reviewed under an abuse-of-discretion standard, but there must be “substantial and compelling circumstances” to justify a departure. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996) (citation omitted). A single aggravating factor is sufficient to support an upward departure. State v. Dominguez, 663 N.W.2d 563, 567 (Minn. App. 2003).
The sentencing guidelines explicitly state that if an offender commits a crime as part of a group of three or more persons who all actively participate in the crime, that fact can be used to justify an upward departure. See Minn. Sent. Guidelines II.D.2.b.(10). It is undisputed that Hughes, Roeun, and Phetsomphou actively participated in the crime in question. Relying on Comment II.D.205 of the sentencing guidelines, Hughes argues that the purpose of Minn. Sent. Guidelines II.D.2.b.(10) is to punish gang members who commit crimes more severely than offenders who are not members of gangs. Therefore, he concludes, because he was not a gang member, the district court improperly relied on this factor in departing from the presumptive sentence.
But upward departures for crimes committed by three or more persons have been affirmed by Minnesota appellate courts when there has been no evidence of gang activity. See, e.g., State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998); State v. Kujak, 639 N.W.2d 878, 882-83 (Minn. App. 2002), review denied (Minn. Mar. 25, 2002). The district court’s use of this aggravating factor is, therefore, supported both by the sentencing guidelines and by caselaw. Additionally, the fact that the sentencing guidelines prohibit the use of this factor when a defendant is convicted of committing a crime for the benefit of a gang suggests that this factor does not require that the defendant be a gang member. The district court did not abuse its discretion in citing this factor as a reason for the upward departure in Hughes’s sentence.
Hughes contends that basing the upward departure on the increased risk of danger to the safety of people other than the victim created by multiple shots being fired in a residential neighborhood contradicts the principlethat “[i]f evidence only supports defendant’s guilt of some other offense but does not support the conclusion that the defendant committed the instant offense for which he is being sentenced in a particularly serious way, then it cannot be relied upon as a ground for departure.” State v. Ott, 341 N.W.2d 883,884 (Minn. 1984). Hughes argues that the fact that Roeun fired numerous shots that injured no one supports only the conclusion that Hughes and Roeun are guilty of the “other offense” of second-degree assault and not that their conduct was more serious than that normally associated with second-degree felony murder.
Hughes’s reliance on Ott is misplaced. In Ott, the defendant pleaded guilty to four counts of burglary and theft arising from two incidents that occurred two months apart. 341 N.W.2d at 883. In return, the prosecutor agreed not to charge the defendant with other crimes of the same nature that there was evidence he had committed. Id. at 884. The district court based its upward departure in Ott’s sentence, in part, on the fact that there was evidence that Ott committed those uncharged offenses. Id. The supreme court held that it was error to base a departure on that ground. Id. But the “other offenses” that the Ott court refers to were uncharged offenses that occurred in separate incidents, not, as Hughes argues, lesser offenses arising from the same incidents as the charged crimes.
Ott does not preclude a district court from basing a departure on the fact that the defendant’s conduct created a greater-than-normal danger to the safety of persons other than the victim. A durational departure is justified when “the conduct underlying the offense represents a greater than normal danger to the safety of other people.” State v. Williams, 414 N.W.2d 781, 782 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988). Here, firing multiple shots from a handgun in a residential neighborhood created a greater-than-normal danger to the safety of persons other than the victim. The fact that Hughes’s and Roeun’s conduct created an increased danger to the safety of others is sufficient to justify an upward departure, and the district court did not abuse its discretion by relying on this factor in sentencing Hughes. See State v. McClay, 310 N.W.2d 683, 685 (Minn. 1981) (holding that upward departure from presumptive sentence for robbery was justified where the conduct underlying the offense created a greater-than-normal danger to the safety of other people); State v. Morris, 609 N.W.2d 242, 246 (Minn. App. 2000) (stating that “greater than normal danger to the safety of people other than the victims” has been recognized as aggravating factor supporting durational departure), review denied (Minn. May 23, 2000).
In addition, while a district court cannot rely solely on a defendant’s acquiescence to an upward departure, “grounds for a departure are magnified” when a defendant agrees to a durational departure in his plea agreement and acknowledges the reasons for the departure at his plea hearing. State v. Pearson, 479 N.W.2d 401, 405 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992). The plea agreement here shows that Hughes recognized that the 228-month sentence represented a 78-month upward departure from the presumptive sentence, and, at his plea hearing, Hughes acknowledged that the departure was justified by the factors relied on by the court. The 228-month sentence imposed by the district court is affirmed.
 Comment II.D.205 of the guidelines states that the three-or-more-persons factor cannot be used as a reason for departure when the offender has been convicted of a crime committed for the benefit of a gang under Minn. Stat. § 609.229.