This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Keith R. Pierce,




Filed May 30, 2006


Halbrooks, Judge



Hennepin County District Court

File No. 03051480



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


Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487  (for respondent)


John M. Stuart, State Public Defender, Richard Schmitz, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from sentencing, appellant challenges the district court’s imposition of the mandatory three-year prison sentence for possession of a firearm during the offense and denial of his motion for a downward dispositional departure.  Because the district court did not err in imposing the mandatory sentence or denying the motion for departure, we affirm. 


            In June 2003, appellant Keith Pierce sold two OxyContin pills and two ounces of marijuana to an undercover police officer.  The sale took place in a parking lot, where appellant parked his van five feet from the officer’s truck, got out, reached back into his van, then entered the officer’s truck and completed the sale.  After police arrested appellant, an officer executed a search warrant on appellant’s van and discovered a duffel bag behind the front seats that contained drug paraphernalia, a notepad, scales, and a fully loaded nine-millimeter pistol with a round in the chamber.  During a post-arrest interview, appellant admitted ownership of the gun and told the officer that “he carried it because he needed protection” because he is a sex offender. 

            Appellant pleaded guilty to one count each of fourth- and fifth-degree controlled-substance crime for selling OxyContin and marijuana in violation of Minn. Stat. §§ 152.024, subd. 1(1), and .025, subd. 1(1) (2002), but contested the state’s position that, because he possessed a firearm at the time of the offenses, a three-year minimum sentence should apply.  During a Royster hearing in January 2005, appellant waived his Blakely right to a jury determination of whether he possessed a firearm, for purposes of the application of Minn. Stat. § 609.11 (2002), and agreed to allow the court to make the determination. 

            The district court concluded that the sentencing enhancement under Minn. Stat. § 609.11, subd. 5(a), properly applies to appellant.  The district court determined that there are three requirements for sentencing under that provision: (1) conviction of a predicate offense listed in Minn. Stat. § 609.11, subd. 9; (2) the accused having had “in possession or used, whether by brandishing, displaying, threatening with, or otherwise employing a firearm”; and (3) possession or use occurring “at the time of the offense.”  The district court ruled that the first prong was met by appellant’s guilty plea to the felony violations of chapter 152 and that the second and third prongs were met by appellant’s constructive possession of the gun during the commission of the crime.

            At appellant’s sentencing hearing, the district court denied appellant’s motion for a downward dispositional departure.  Although appellant presented evidence in support of his request for a downward departure, including evidence that he had completed treatment, that he was dedicated to recovery, and that he intended to become an asset to the community, the court concluded that there was no compelling reason to depart and sentenced appellant to the three-year term mandated by Minn. Stat. § 609.11, subd. 5(a).  This appeal follows.



            Appellant contends that the district court erred by applying the mandatory sentencing minimum prescribed by Minn. Stat. § 609.11, subd. 5(a) (2002), arguing that the firearm did not increase the offense’s risk of violence because it was located in another vehicle during the drug sale. 

            Under Minn. Stat. § 609.11, subd. 5(a),

any defendant convicted of [a qualifying offense] . . . in which the defendant or an accomplice, at the time of the offense, had in possession or used, whether by brandishing, displaying, threatening with, or otherwise employing, a firearm, shall be committed to the commissioner of corrections for not less than three years, nor more than the maximum sentence provided by law. 


For purposes of this statute, the term “possession” includes both actual and constructive possession.  State v. Royster, 590 N.W.2d 82, 83-84 (Minn. 1999).  An individual has constructive possession of a firearm if that person consciously exercises dominion and control over it.  State v. Willis, 320 N.W.2d 726, 728-29 (Minn. 1982).  If the sentence was enhanced based on constructive possession, the next inquiry on appeal is whether the constructive possession “increased the risk of violence.”  See Royster, 590 N.W.2d at 85.  

            Factors to consider in determining whether a firearm increased the risk of violence of a controlled-substance offense include the nature, type and condition of the firearm, its ownership, whether it was loaded, whether it was easily accessible, its proximity to the drugs, why the firearm was present, and whether the nature of the predicate offense is frequently or typically accompanied by use of a firearm.  Id.  “The district court determines whether the firearm-enhancement requirements have been met by a preponderance of the evidence,” and this court will affirm the district court’s decision if it is supported by the totality of the circumstances.  Salcido-Perez v. State, 615 N.W.2d 846, 848-49 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000).

            Here, the district court concluded that the risk of violence was increased by the presence of the loaded gun in appellant’s vehicle, the gun’s location and ready availability in the vehicle, and appellant’s admission that he carried the gun for protection, which supports an inference that appellant “was ready and willing to use [the gun].” 

            Appellant’s argument that “[i]t is the use and not simply the presence of firearms that is relevant to the Royster analysis” is contrary to the law.  Such a distinction ignores the clear language of the statute, which provides for application of the mandatory-minimum sentence under certain circumstances when the person convicted either “had in possession or used” a firearm.  Minn. Stat. § 609.11, subd. 5(a) (emphasis added).

            Appellant also argues that the state failed to present evidence contradicting his claims regarding why he possessed the gun.  But whether to accept appellant’s testimony that he had the pistol for protection was a credibility issue for the district court to determine.  See Royster, 590 N.W.2d at 83, 85 (affirming application of firearm-enhancement provision when appellant claimed that a loaded revolver had been given to him by his father for protection because he lived in a dangerous neighborhood).  It is well settled that judging the credibility of the witnesses and assigning weight to their testimony rests within the province of the finder of fact.  BLC Ins. Co. v. Vivent, 359 N.W.2d 315, 317 (Minn. App. 1984).    

            Finally, appellant’s argument that his case is akin to that presented in State v. Barker, 692 N.W.2d 755 (Minn. App. 2005), aff’d, 705 N.W.2d 768 (Minn. 2005),is without merit.  In Barker, this court reversed the application of the mandatory-minimum sentence solely because it was imposed in contravention of appellant’s right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 2537 (2004).  Barker, 692 N.W.2d at 761.  Reliance on that case for guidance as to the application of the Royster factors would therefore be inappropriate.

            We conclude that the totality of the circumstances supports the district court’s decision to apply Minn. Stat. § 609.11, subd. 5(a).  See Salcido-Perez, 615 N.W.2d at 848 (stating that “it is difficult to imagine any purpose, other than violence, for an individual . . . to keep a loaded pistol in his kitchen”). 


            Appellant contends that the district court abused its discretion by denying his motion for a downward sentencing departure, arguing that the district court mistakenly believed that it was prohibited from dispositionally departing downward.  A district court’s decision not to depart from the presumptive sentence is reviewed for an abuse of the district court’s broad discretion, and “it would be a rare case which would warrant reversal of the refusal to depart.”  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Minn. Stat. § 609.11, subd. 5(a), provides a mandatory-minimum sentence of three years for certain defendants convicted of felony violations of Minnesota Statutes chapter 152.  A district court may depart from this minimum “if [it] finds substantial and compelling reasons to do so.”  Minn. Stat. § 609.11, subd. 8(a) (2002).  Such a sentence would be considered a departure from the sentencing guidelines.  Id. 

            While appellant argues that the district court incorrectly assumed that it was prohibited from dispositionally departing downward, our close review of the record shows that the district court understood its ability to depart but decided not to do so in this case.  And even if the district court did miscomprehend or misstate the law, such an error was not prejudicial because the court set forth the correct standard and ruled consistently therewith. 

            After hearing arguments about the proposed departure and before announcing its sentencing decision, the district court queried, “I want to go to the heart of it for me, which is what is a substantial and compelling reason?”  The court further noted that “I don’t find this enjoyable, but I have to—I’m here to follow the law as it exists and look for substantial and compelling reasons.  But the circumstances of [the case] raised the bar of what I would have to find for substantial and compelling reasons in this case.”  And explaining its refusal to depart from the 36-month sentence, the district court explicitly stated that “the legislature says ‘shall’ unless there’s a compelling reason.  I don’t find a compelling reason in this case.”  Finally, the district court noted the substantial-and-compelling standard in comments about the location of the gun here, stating that “if it’s an unloaded hunting rifle in an obscure place in the home, I’m going to have an easier time finding a substantial and compelling reason than I am if it’s a sale in a car and there’s a loaded weapon.”  Given the district court’s repeated acknowledgment of the correct standard and its explicit statement that it did not find substantial and compelling reasons to depart here, appellant’s argument that the district court applied the wrong law fails.

            Further, the district court’s determination not to depart was not an abuse of discretion.  Of course, a defendant’s amenability to probation can justify a downward dispositional departure.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  But a defendant’s amenability to probation does not remove a district court’s discretion not to depart from the presumptive sentence.  State v. Evenson, 554 N.W.2d. 409, 412 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).

            Appellant argues that he is amenable to probation because he completed a voluntary treatment program, is dedicated to recovery, and wants to become an asset to the community.  The district court considered factors weighing both in favor of and against a downward departure and determined that there were no substantial and compelling reasons justifying such a departure.  The court gave appellant credit for the time he spent pursuing treatment and recognized appellant’s efforts while free on pretrial release.  But the court also noted that appellant possessed a loaded pistol (as opposed to a hunting firearm), the gun was near appellant, and appellant was willing to use it, based on his own testimony.  We conclude that the district court did not abuse its discretion by denying appellant’s motion for a downward dispositional departure.