This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).



State of Minnesota,




Brice Killian Foster,



Filed October 30, 2007


 Kalitowski, Judge


St. Louis County District Court

File No. K3-600205


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


Melanie Sue Ford, St. Louis County Attorney, Courthouse, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (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 Ross, Presiding Judge; Kalitowski, Judge; and Worke, Judge.


U N P U B L I S H E D   O P I N I O N


Appellant Brice Killian Foster, who pleaded guilty to one count of possession of a firearm by a felon, argues that the district court abused its discretion by denying his request for a downward dispositional departure.  We affirm. 


The district court must order the presumptive sentence “unless substantial and compelling circumstances” justify departure.  State v. Jones, 733 N.W.2d 160, 164 (Minn. App. 2007) (citing Minn. Sent. Guidelines II.D).  “Whether to depart from the [sentencing] guidelines rests with the district court’s discretion, and this court will not reverse the decision absent a clear abuse of discretion.”  Jones, 733 N.W.2d at 164-65.  Only in a “rare” case will this court reverse a sentencing court’s refusal to depart.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). 

Appellant contends that the district court failed to consider mitigating factors in its sentencing decision, arguing that a sentencing court should consider a number of factors, including “the defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family” in determining whether to grant a dispositional departure.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  In Trog, the court found that the defendant’s youth, “prior record of law-abiding behavior, his remorse, his cooperation and his respectful attitude, the strong support shown him by family and friends, and the fact that a stayed sentence would keep defendant under continuing supervision over a longer period” supported his request for a downward dispositional departure.  Id.

We note that, unlike the case before us, Trog affirmed the district court’s exercise of discretion in granting a downward dispositional departure.  Moreover, although some of the same factors are present here, many of the Trog factors do not support appellant’s request for a downward dispositional departure.  Appellant has had several run-ins with the law, including a drug possession charge and a fleeing a peace officer in a motor vehicle charge.  Appellant’s probation history indicates that he failed to maintain contact with his probation officer and continued to use illegal drugs while on probation for his drug possession charge.  And appellant’s probation officer told the court that she does not think appellant is a good candidate for probation.

Appellant also argues that it was inappropriate for the district court to consider a dismissed felon-in-possession charge in denying his request for a downward departure. But because appellant fails to cite any authority for this proposition, the argument is waived.  See State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (finding waiver of issues not supported by argument or authority).

On this record, we conclude that this is not the rare case where the district court abused its discretion by imposing the presumptive sentence.