This opinion will be unpublished and

may not be cited except as provided by

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






Tou Vue,





State of Minnesota,



Filed June 27, 2006


Collins, Judge*


Hennepin County District Court

File No. 04069124


Arthur R. Martinez, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant)


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


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

            Considered and decided by Minge, Presiding Judge; Ross, Judge; and Collins, Judge.



U N P U B L I S H E D   O P I N I O N


            On direct appeal from concurrent sentences imposed for second-degree assault and being a prohibited person in possession of a firearm, appellant, who waived his right to a jury trial, argues that his sentences, as affected by Minn. Stat. § 609.11 (2004), reflect unconstitutional enhancement under the Blakely rule.  Because Blakely is not implicated, we affirm.


            Arising out of an incident in Minneapolis in October 2004, appellant Tou Vue was charged with assault in the second degree in violation of Minn. Stat. §§ 609.222, subd. 1, .101, subd. 2, .11 (2004), and prohibited person in possession of a firearm in violation of Minn. Stat. §§ 624.713, subds. 1(b), 2(b), 609.11, subd. 5(b) (2004).  Vue waived a jury and a bench trial was scheduled for January 19, 2005.  Vue moved for dismissal of the charges, challenging the constitutionality of Minn. Stat. § 609.11 in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  The district court reserved consideration of the motion pending completion of the trial, after which counsel were directed to submit written final trial arguments and briefs on the reserved motion. 

            On February 9, the district court denied Vue’s dismissal motion and found him guilty of both crimes.  Following a presentence investigation, on March 10, 2005, Vue was sentenced to prison terms of 45 months for second-degree assault and 60 months for being a prohibited person in possession of a firearm, to be served concurrently.  This appeal followed. 



            Vue argues that his sentences under Minn. Stat. § 609.11 (2004) are the result of an unconstitutional enhancement under the Blakely rule.  This court reviews the constitutional issue presented by the application of Blakely de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).

            In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000), the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  (Emphasis added.)   Blakely applied this rule to sentencing guidelines, holding that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  542 U.S. at 303, 124 S. Ct. at 2537 (emphasis in original).  There, it was determined that the presumptive sentence under a state’s sentencing guidelines was the maximum sentence authorized by the verdict following a trial and that any term longer than the presumptive duration, imposed pursuant to judicial fact-finding, violates the Sixth Amendment.  Id. at 305, 124 S. Ct. at 2538.   

            Following the Apprendi line of cases, our supreme court has held that “under the Minnesota Sentencing Guidelines imposition of the presumptive sentence is mandatory absent additional findings” and “the presumptive sentence prescribed by the Minnesota Sentencing Guidelines is ‘the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.’”  State v. Shattuck,704 N.W. 2d 131, 141 (Minn. 2005) (quoting Blakely, 542 U.S. at 303, 124 S. Ct. at 2537).  The court then noted that “Blakely expressly permits a defendant to either stipulate to relevant facts or consent to judicial factfinding regarding sentencing factors.”  Id. at 142(citation omitted).

A.         Second-Degree Assault Sentence 

            Vue argues that under the Blakely rule, his sentence for second-degree assault was unconstitutionally enhanced by Minn. Stat. § 609.11, subd. 5.  We disagree. Under the sentencing guidelines, second-degree assault is a severity-level-six offense, which, when committed by an offender with four criminal-history points, such as Vue, results in a presumptive sentence of 45 months—exceeding the mandatory minimum of 36 months that would otherwise apply under section 609.11.  On the conviction of assault in the second degree, the district court imposed the presumptive sentence of 45 months.  Thus, section 609.11 did not apply as an aggravating factor and Vue’s sentence for assault in the second degree is not unconstitutional under Blakely.


B.         Possession of Firearm Sentence 

            Vue also challenges his sentence for being a prohibited person in possession of a firearm.  He argues that because the gun-possession issue was never presented to a jury, section 609.11 unconstitutionally increased his sentence to 60 months.  We disagree.  Vue was charged with prohibited person in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b).  The relevant essential elements of that offense are (1) the possession of a firearm, and (2) by a person who is ineligible to possess a firearm because of a past conviction of a crime of violence.  Id.; see 10A Minnesota Practice, CRIMJIG 32.17 (1999) (advisory elements of felon in possession of a firearm).  Vue waived his right to a jury trial.  There is no dispute about the validity of the waiver.  Vue thus consented to the district court’s function as the sole fact-finder.  The district court clarified the effect of the jury waiver and her resulting role in the trial by stating, “[M]y understanding is that [Vue] is in any event going to waive the right to a jury trial and is going to ask that the [c]ourt be the finder of fact, and presumably the [s]tate will seek to prove beyond a reasonable doubt the use of a weapon in addition to the other elements of the offense.”

            The district court, thus acting as the trier of fact, found that Vue pulled a gun from his sweatshirt and twice pointed it at a parking-lot-security guard who later “positively identified [Vue] as the person who pointed the gun at him.”  From the evidence, the court concluded that Vue “is guilty of assault[] . . . with a dangerous weapon, that is a handgun.”  Further, based on Vue’s stipulation that in 2003 he was convicted of a fifth-degree controlled-substance crime (a “crime of violence” under Minn. Stat. § 624.712, subd. 5 (2004)), the district court concluded that Vue “is guilty of being a prohibited person in possession of a handgun,” adding that all essential elements were satisfied beyond a reasonable doubt, “including the statutory enhancement use of a firearm pursuant to [Minn. Stat. § 609.11, subd. 5].”  In such case, without more, section 609.11, subdivision 5, mandates that the offender “shall be committed to the commissioner of corrections for not less than five years, nor more than the maximum sentence provided by law.”

            When, as here, the sentence was not enhanced by any other fact not submitted at the trial and proved beyond a reasonable doubt, we conclude that Blakely is not implicated and Vue’s sentence for being a prohibited person in possession of a firearm was proper.


* Retired judge of the district court, serving as judge of the Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.