This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Xiong Vang,




Filed February 6, 2007

Crippen, Judge


Kanabec County District Court

File No. 33-CR-05-62


Lori Swanson, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Norman Loren, Kanabec County Attorney, Amy R. Brosnahan, Assistant County Attorney, 18 North Vine Street, Suite 202, Mora, MN  55051 (for respondent)


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


            Considered and decided by Wright, Presiding Judge, Peterson, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Xiong Vang questions the decision of the district court to sentence him to the presumptive sentence.  We affirm.


            Appellant pled guilty to an amended charge of sale of controlled substances in the second degree in violation of Minn. Stat. § 152.022, subd. 1(1) (2004), reserving the right to argue for a downward dispositional and durational departure at sentencing.  After hearing argument, the district court sentenced appellant to the lower end of the presumptive sentencing range, 54 months’ imprisonment.


            Appellant argues that the district court abused its discretion when it sentenced him to the presumptive sentence.  The district court has no discretion to depart from the presumptive sentence absent the presence of aggravating or mitigating factors.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  Because the guidelines say the judge “may” make a downward dispositional departure due to mitigating factors, the district court has 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).  When mitigating factors are shown, the district court must consider the relevant factors in favor of departure.  See State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984) (noting that case before court was not the rare case in which an appellate court reverses the refusal to depart but was a case in which the discretion was never exercised). 

            Appellant argues that as a permanent resident of the United States, which he remains despite his eligibility to be naturalized for the last several years, he would not be eligible to participate in the Challenge Incarceration Program and would, as a consequence, be subject to a longer term of imprisonment.  We have previously determined that sentencing factors should not include the consequences to a defendant’s immigration status.  State v. Mendoza, 638 N.W.2d 480, 484 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002).  We find no reason to rule differently in the related situation of a sentence itself being affected by the defendant’s immigration status.  Appellant cites two federal decisions in support of his argument; both are, in light of Mendoza, not controlling, and neither is, in any event, apposite.  See United States v. Restrepo, 999 F.2d 640, 645-47 (2d Cir. 1993) (noting that post-incarceration detention and deportation, and the fact that an undocumented immigrant offender is not eligible for early release, are not sufficient to justify departure); see also United States v. Veloza, 83 F.3d 380, 382 (11th Cir. 1996) (accord).  But see United States v. Maung, 320 F.3d 1305, 1308 (11th Cir. 2003) (characterizing language in Restrepo and Veloza as dicta).

             Appellant argues that his amenability to probation justifies a downward dispositional departure, noting that he has entered into drug treatment, obtained employment after his arrest, and has the support of his family and friends.  See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (noting that a downward dispositional departure is warranted if a defendant is particularly amenable to probation).  Appellant argues that there were additional mitigating factors, including a possible entrapment defense, warranting a downward durational departure.  But the record reflects that the district court considered appellant’s amenability to probation and other mitigating factors at sentencing.  And although all are significant, they are not sufficiently compelling to make this the rare case in which we demand a departure. 


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