This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Marco Austin,



Filed May 24, 2005

Reversed and remanded

Kalitowski, Judge


Ramsey County District Court

File No. KX-02-3878


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


Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)


John M. Stuart, State Public Defender, G. Tony Atwal, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Marco DeAngelus Austin challenges his sentence as an impermissible use of the Hernandez method of sentencing.  Appellant argues that because he committed several drug offenses to facilitate a racketeering offense, all offenses were part of the same behavioral incident, and, therefore, the district court erred by using the Hernandez method to increase his criminal history score.  We reverse and remand. 


            The district court’s determination of a defendant’s criminal history score will not be reversed absent an abuse of discretion.  State v. Stillday, 646 N.W.2d 557, 561 (Minn. App. 2002), review denied (Minn. Aug. 20, 2004).  Under Hernandez, a district court sentencing a convicted defendant on the same day for multiple convictions based on multiple offenses that were not part of a single behavioral incident or course of conduct, can increase the defendant’s criminal history score incrementally as each successive sentence is imposed.  State v. Hernandez, 311 N.W.2d 478, 481 (Minn. 1981). 

            Minnesota law prohibits the imposition of multiple sentences, including concurrent sentences, for multiple offenses that arise from a single behavioral incident.  State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995); see also Minn. Stat. § 609.035, subd. 1 (2002) (prohibiting the same).  Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of the particular case.  Bookwalter, 541 N.W.2d at 294.  In making this determination, courts “generally consider the factors of time and place and whether a defendant is motivated by a single criminal objective in committing [multiple] intentional crimes.”  Id. 

            Between July 29, 2002 and August 31, 2002, the St. Paul Police Department conducted a videotaped surveillance operation of undercover controlled-substance purchases.  As a result of the operation, eight individuals, including appellant, were alleged to be part of a criminal enterprise that involved controlled-substance sales.  Appellant was charged with (1) four counts of second-degree controlled-substance crimes for selling cocaine in a school zone; (2) one count of third-degree controlled-substance crime for selling cocaine; (3) five counts of committing controlled-substance offenses for the benefit of a gang; and (4) one count of racketeering. 

            The state dismissed the five counts of committing controlled-substance offenses for the benefit of a gang and recommended a 120-month sentencing cap in exchange for appellant’s guilty plea to all remaining counts.  The district court sentenced appellant to concurrent terms of (1) 48 months for count 1, second-degree controlled-substance crime occurring on August 1, 2002; (2) 68 months for count 3, second-degree controlled-substance crime occurring on August 8, 2002; (3) 39 months for count 5, third-degree controlled-substance crime occurring on August 8, 2002; (4) 94 months for count 7, second-degree controlled-substance crime occurring on August 18, 2002; (5) 94 months for count 9, second-degree controlled-substance crime occurring on August 19, 2002; and (6) 36 months for count 11, racketeering from July 29, 2002 to August 31, 2002.  The district court sentenced the racketeering as a severity level seven offense with a criminal history score of zero, but added points to appellant’s criminal history score for each of the controlled-substance convictions.

            Appellant pleaded guilty to racketeering under Minn. Stat. § 609.903, subd. 1 (2002), as a person who is “employed by or associated with an enterprise and intentionally conducts or participates in the affairs of the enterprise by participating in a pattern of criminal activity.”  A “pattern of criminal activity” is defined in relevant part as “conduct constituting three or more criminal acts that . . . are neither isolated incidents, nor so closely related and connected in point of time or circumstance of commission as to constitute a single criminal offense.”  Minn. Stat. § 609.902, subd. 6(2) (2002).  The criminal acts must be “either:  (i) related to one another through a common scheme or plan or a shared criminal purpose or (ii) committed . . . by persons acting with the mental culpability required for the commission of the criminal acts and associated with or in an enterprise involved in those activities.”  Id., subd. 6(3) (2002). 

            Appellant contends that his controlled-substance offenses and his racketeering offense were part of a single behavioral incident.  “When one crime is committed with the intent of facilitating another or is but a means toward committing another, the offenses are part of a single behavioral incident.”  State v. Huynh, 504 N.W.2d 477, 483 (Minn. App. 1993) (holding that defendant’s five coercion offenses were a means of sustaining a racketeering enterprise and a means toward committing a racketeering offense), aff’d 519 N.W.2d 191 (Minn. 1994).  Here, as in Huynh, appellant’s controlled-substance offenses were a means of sustaining the racketeering enterprise and a means toward committing the racketeering offense, and therefore, part of a single behavioral incident.

            But racketeering is not one of the listed exceptions in Minn. Stat. § 609.035 to the general prohibition against multiple sentences for offenses committed as part of a single behavioral incident.  And appellant concedes that the exception in Minn. Stat. § 609.910 (2002), permitted the district court to sentence him for the controlled-substance offenses and the racketeering offense.  See Minn. Stat. § 609.910, subd. 1 (stating that a sentence imposed for racketeering “does not preclude the application of any other criminal penalty or civil remedy for the separate criminal acts”).  But appellant argues that the district court unfairly exaggerated his criminal conduct by sentencing him based on the Hernandez method.

            “[T]he Hernandez method cannot be used to increase a defendant’s criminal history score unless sentencing for more than one offense is permitted under section 609.035.  Unless section 609.035 authorizes multiple sentencing, use of the Hernandez method unfairly exaggerates the criminality of a defendant’s conduct.”  Huynh, 504 N.W.2d at 484 (citing State v. Hartfield, 459 N.W.2d 668, 670 (Minn. 1990)).[1]  Here, the district court was allowed to sentence appellant for the controlled-substance offenses and the racketeering offense under Minn. Stat. § 609.910, rather than under Minn. Stat. § 609.035.  Therefore, the district court should not have used the Hernandez method when sentencing appellant.

            The state contends that the criminality of appellant’s conduct was not unfairly exaggerated in this case because the racketeering conviction was not used to enhance sentences on the predicate acts of the controlled-substance offenses.  The state argues that Huynh is fact specific and only applies where racketeering is the controlling or umbrella offense and that since the racketeering count “was sentenced first and appellant did not accrue a criminal history point for this offense, it had no impact on his sentence for the last sale of cocaine.”  Finally, the state points out that appellant’s interpretation of Huynh is not reasonable because, if followed, appellant would have been subject to a greater sentence if he had not had the racketeering conviction.

            While the state’s reasoning may have merit, we note that this identical argument was recently rejected by this court in an unpublished opinion involving a codefendant of appellant.[2]  And in light of the cases interpreting Huynh, we do not find authority for limiting the holding in Huynh.  Following Tate, we therefore reverse appellant’s sentence and remand for resentencing.

            Reversed and remanded.

[1] The supreme court acknowledged this ruling without discussion, noting that the state did not appeal it.  See Huynh, 519 N.W.2d 191.

[2] See State v. Tate, No. A04-1563, 2005 WL 468865 (Minn. App. Mar. 1, 2005).