This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Jesse Lee Little,



Filed May 18, 2004


Kalitowski, Judge

Dissenting, Shumaker, Judge


Dakota County District Court

File No. K6-03-2802


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


James C. Backstrom, Dakota County Attorney, Vance B. Grannis, III, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for appellant)


John M. Stuart, State Public Defender, Philip Marron, Bridget N. Kearns, Assistant Public Defenders, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and


Crisha Haugen, 500 Laurel Avenue, St. Paul, MN 55102 (for respondent)


            Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Minge, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant State of Minnesota challenges the district court’s imposition of a downward dispositional departure from the presumptive sentence after respondent pleaded guilty to a fifth-degree controlled substance crime.  We affirm.


            The decision to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  But when departing from the sentencing guidelines, a district court must articulate substantial and compelling reasons justifying the departure.  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).  If there is sufficient evidence in the record to support the departure, the departure will be affirmed even if the district court’s reasons are improper or inadequate.  State v. Sanchez-Sanchez, 654 N.W.2d 690, 694 (Minn. App. 2002). 

            The sentencing court may depart dispositionally from the sentencing guidelines if the defendant is particularly amenable to probation or if offense-related mitigating circumstances exist.  State v. Love, 350 N.W.2d 359, 361 (Minn. 1984).  Although a finding of amenability is an important factor in justifying dispositional departures, it is not a prerequisite.  State v. McCalister, 462 N.W.2d 407, 409 (Minn. App. 1990).  Ultimately, the district court has a superior sentencing capacity because it sits with a unique perspective on all stages of a case, including sentencing, and the trial judge is in the best position to evaluate the offender’s conduct and weigh sentencing options.  State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999) (quotation omitted).   

            Here, the district court imposed a dispositional departure citing the fact that respondent only possessed a trace amount of cocaine and that the court had promised to do so if respondent pleaded guilty to the charged fifth-degree controlled substance offense.  Appellant argues that the district court abused its discretion in basing a departure on the fact that respondent possessed an extremely small amount of cocaine.  We disagree.  As both parties indicate, state law imposes harsher penalties on individuals who possess large amounts of controlled substances.  For example, a person can be sentenced to up to 30 years in prison for possessing 25 or more grams of cocaine (first-degree controlled substance crime), up to 25 years in prison for possessing six or more grams (second-degree), up to 20 years for possessing three or more grams (third-degree), and up to 5 years in prison for possessing any amount of cocaine (fifth-degree).  Minn. Stat. §§ 152.021, subds. 2(1), 3(a), .022, subds. 2(1), 3(a), .023, subds. 2(1), 3(a), .025, subds. 2(1), 3(a) (2002). 

            Thus, under the statutory scheme, an individual commits a fifth-degree controlled substance offense by possessing any amount of cocaine, but the offense becomes more serious if the person possesses three or more grams.  At oral arguments, the parties agreed that a trace amount of cocaine is defined as one hundredth of one gram, which is an amount three hundred times less than the three-gram threshold.  While a dispositional departure may not be warranted in every instance where the defendant possesses only a small amount of a controlled substance, we conclude that on these facts, the district court did not abuse its discretion in determining that respondent’s possession of a trace amount of cocaine, an offense-related factor, makes his conduct less serious than that typically involved in the commission of a fifth-degree controlled substance crime.  See State v. VanZee, 547 N.W.2d 387, 391-92 (Minn. App. 1996) (in determining whether district court properly imposed a dispositional and durational departure, court considered whether the defendant’s conduct was significantly more or less serious than that typically associated with the crime), review denied (Minn. July 10, 1996).  Cf. State v. Gartland, 330 N.W.2d 881, 883 (Minn. 1983) (concluding that dispositional departure was justified because defendant’s conduct was more serious than that typically associated with the crime).


GORDON W. SHUMAKER, Judge (dissenting)            

I respectfully dissent.  A district court may depart from a presumptive sentence if it identifies substantial and compelling circumstances that justify a departure.  Minn. Sent. Guidelines II.D.  It has been held that circumstances that make a case atypical can satisfy the departure requirement.  State v. Bock, 490 N.W.2d 116, 121-22 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992).  The district court based its departure solely on the fact that respondent possessed only a trace amount of cocaine.  The majority holds that this miniscule quantity of a controlled substance makes this case different from the typical case and therefore provides a permissible departure basis.

But the “typicality” basis cannot override the clear rule that essential elements of an offense are improper factors on which to premise a departure.  State v. Yanez, 469 N.W.2d 452, 457 (Minn. App. 1991), review denied (Minn. June 19, 1991).  The offense of which respondent was convicted has as an essential element the amount of the controlled substance which is prohibited.  Minn. Stat. § 152.025, subd. 2(1) (2002).  Thus, the basis for departure was improper and I would reverse.