This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Robert M. Culver,



Filed April 4, 2006


Lansing, Judge


Olmsted County District Court

File No. K2-03-1384


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


Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)


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


            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Robert Culver appeals from his sentence for aiding and abetting a first-degree controlled-substance crime, arguing that the district court abused its discretion by refusing to grant his motion for either a downward dispositional or durational departure from the presumptive guidelines sentence.  Because the district court acted within its discretion by imposing a sentence in the presumptive guidelines range, we affirm.


            The Olmsted County Sheriff’s Department received a report from a citizen informant who found several garbage bags that contained chemicals and equipment commonly used for manufacturing methamphetamine.  The garbage bags also contained mail addressed to Robert Culver.  Culver’s house was located in the area where the garbage bags were found.  Following an investigation, the state charged Culver with a first-degree controlled-substance crime (manufacturing), possession of anhydrous ammonia in an improper container, and unlawful possession of a firearm.

            The district court conducted an omnibus hearing and denied Culver’s motions to dismiss the complaint and to suppress evidence obtained in a search of Culver’s home and garage.  Culver later pleaded guilty to aiding and abetting a first-degree controlled substance crime in violation of Minnesota Statutes section 152.021, subdivision 2a, and section 609.05 (2002).  The state dismissed the two companion charges.  At the plea hearing, Culver also pleaded guilty, on a separate file, to a felony charge of violating Minnesota Statute section 609.49, subdivision 1 (2002), by failing to appear in court. 

            Culver moved alternatively for a downward dispositional or durational sentencing departure.  The state opposed the departure, and the district court heard arguments on the motion prior to sentencing.  The district court denied the departure motion and sentenced Culver to an executed prison term of eighty-one months, which is the low end of the presumptive range.  The court ordered that at least fifty-four months be served in prison and the remaining time on supervised release, assuming no disciplinary violations.  The sentencing order also recommended that Culver be admitted to the Willow River Challenge Incarceration Program.  Culver appeals from the district court’s imposition of his sentence.


A district court has broad discretion in imposing a sentence.  State v. Franklin, 604 N.W.2d 79, 82 (Minn. 2000).  The discretion is bounded by the guidelines requirement that a departure be supported by the presence of aggravating or mitigating factors.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  A downward departure requires the presence of “substantial and compelling circumstances.”  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  But the presence of a mitigating factor does not require departure from the presumptive guidelines sentence.  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).  Consequently, only in rare cases will we reverse a district court’s imposition of the presumptive sentence.  Kindem, 313 N.W.2d at 7.

In his departure motion and at the January 2005 sentencing hearing, Culver argued that substantial and compelling circumstances supported a downward departure.  These circumstances included his lack of a prior criminal record aside from one misdemeanor violation of an order for protection, the support of family and friends, and his amenability to drug treatment as evidenced by his successful completion of a program while in jail.  In opposition to Culver’s departure motion, the state relied on the recommendation of the presentence-investigation report that Culver receive a guidelines sentence and on Culver’s past failures to complete treatment programs or voluntarily enter recommended treatment programs.  In denying Culver’s departure motion, the district court sentenced Culver to the low end of the presumptive guidelines sentence “with the recommendation that [Culver] be admitted to the Willow River Program as soon as possible.”  

Culver challenges the district court’s decision to impose the presumptive guidelines sentence instead of a downward dispositional departure and contends that the district court abused its discretion by failing to consider the amenability factors.  We disagree.  The discussion in the eighteen-page transcript of the sentencing hearing relates primarily to Culver’s amenability or lack of amenability to treatment.  At the hearing the district court specifically referred to the contents of the presentence-investigation report that recommended that Culver not receive a downward departure.  The probation officer who prepared the report based her recommendation on Culver’s longstanding chemical-abuse problems, evidenced by four driving-while-impaired offenses and a possession-of-marijuana offense; his on-probation and in-treatment status at the time of his current offenses; and his failure to take responsibility for his involvement or even acknowledge that he knew of the methamphetamine manufacturing on his property.

The prosecutor addressed each of the reasons that Culver advanced for a departure.  He pointed out Culver’s history of noncompliance with court orders, including a four-month period following Culver’s failure to appear for a court-ordered hearing.  He acknowledged that Culver has strong family support, but argued that the same family support was present earlier when Culver failed to complete or enroll in recommended treatment programs.  And he emphasized that Culver has been unable to successfully complete any voluntary treatment program and that these repetitive failures demonstrate that incarceration is necessary for successful treatment.

The district court’s statements, questions, and ultimate sentence establish the court’s knowledge and consideration of the submitted material, including Culver’s specific arguments for a downward departure.  The district court referred to the evidence of Culver’s chemical dependency and his struggle with methamphetamine addiction as qualifications for the Willow River program.  The district court also referred to Culver’s prior history and his need, not only for treatment, but for aftercare with a high degree of supervision.  At the outset of the hearing, the district court referred to the letters from Culver’s family and the letter from the representative of Crossroads, a treatment program that concluded that Culver was amenable to their eight-session treatment program but also stated that Culver needed intensive, long-term treatment.   

            We find nothing in the record that indicates the district court failed to consider the departure arguments that Culver advanced or that the district court failed to exercise its proper sentencing function.  The district court’s specific recommendation for Culver’s admission to the Willow River program underscores the district court’s attention to Culver’s individual circumstances and its attention to realistic rehabilitation.