This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Luis Enrique Diaz,

Filed February 9, 1999
Willis, Judge

Ramsey County District Court
File No. K9972110

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant State Public Defender, 2829 University Avenue, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Luis Enrique Diaz, who pleaded guilty to second-degree assault, claims that (1) the district court abused its discretion in imposing a 65-month sentence when his accomplice, who had an identical criminal history score, received a 57-month sentence for the same offense; (2) the different sentences for him and his accomplice is inequitable because his plea negotiations contemplated treatment equal to that which his accomplice received; and (3) the disparity between his and his accomplice's sentences violates his equal protection rights. We affirm.


Brothers Jose Alberto Diaz, Ricardo Diaz, and Luis Diaz were charged with attempted second-degree murder arising from a shooting incident in June 1997. Jose was acquitted.

In October 1997, Ricardo pleaded guilty to second-degree assault. Nine days later, the police arrested Luis in Puerto Rico. Luis agreed to plead guilty to second-degree assault. His plea petition states:

Plea to amended complaint of 2nd [degree] Assault - Guidelines Dispo. What ever [criminal history] points [Luis] has will determine the [sentence] under the Minn. Sent. Guidelines grid. (609.222 Sub. 2) [sic].

At the plea hearing, the prosecutor described the terms of Luis's plea agreement as follows:

[Luis] will be pleading guilty to the amended petition of assault in the second degree, in violation of Minnesota Statute 609.222, subd. 2, 609.05 and 609.11. At the time of sentencing, the original complaint or the original charge of attempted murder will be dismissed. It is the parties' understanding that this agreement does not have a sentence limitation, other than the defendant will receive a guideline sentence. It is not clear to the defense nor to the State how many criminal history points that Mr. Diaz has, if any. We believe there may be some history out of Chicago, but we're not clear on that. The understanding of the parties is that wherever he falls in the guidelines, in the appropriate box for assault two, is the sentence that he will receive.

Subsequent to Luis's plea hearing, the state recommended that Ricardo receive a 57-month sentence, which was the presumptive sentence for second-degree assault under the guidelines in effect on the date of Ricardo's sentencing. The presumptive sentence under the guidelines in effect on the date of the offense was 65 months.[1] Ricardo was sentenced to 57 months.

At Luis's sentencing hearing in March 1998, the state encouraged the district court to sentence as recommended in the presentence investigation (PSI), arguing that it was the sentence for which Luis had bargained. Defense counsel contended that Luis should receive a 57-month sentence, stating Luis's agreement with the state contemplated that he would be treated identically with Ricardo. The court remarked:

I don't see anything in my notes indicating any agreement that was part of the plea which was going to tie this into similar treatment.

Defense counsel responded:

There wouldn't be, Your Honor. That was that my client was pleading guilty and was going to have a guidelines disposition in the matter. It certainly was discussed between the State and myself that my client would be treated no differently than the other co-defendant in this matter. * * * Under the guidelines on the date that this offense occurred, it would call for a 65 month sentence.

After sentencing Luis to 65 months in prison, the court noted that it had considered the PSI and the victim's letter in determining the appropriate sentence. This appeal followed.


Luis asserts that, because Minnesota law requires that convicted felons similarly situated with respect to relevant sentencing criteria receive similar sanctions, he should receive the same sentence that Ricardo received, citing State v. McClay, 310 N.W.2d 683, 685-86 (Minn. 1981) (affirming upward durational departure for co-defendants but reducing sentence for one to equal sentence for other). In the alternative, Luis requests that we reduce his sentence to 60 months, which is still within the presumptive range.

The purpose of the Minnesota Sentencing Guidelines is to

reduce sentencing disparity and ensure that sanctions following conviction of a felony are proportional to the severity of the offense of conviction and the extent of the offender's criminal history.

Minn. Sent. Guidelines I. Modifications to the guidelines are applied to offenders whose date of offense is on or after the specified modification effective date. Minn. Sent. Guidelines III.F. Part II.D of the guidelines provides that the court "shall" use the presumptive sentence "unless the individual case involves substantial and compelling circumstances." Minn. Sent. Guidelines II.D. Because the district court is in the best position to determine whether circumstances warrant departure, a reviewing court ordinarily will not interfere with a presumptive sentence, even if there are grounds to justify departure. State v. Krebsbach, 524 N.W.2d 17, 19 (Minn. App. 1994), review denied (Minn. Jan. 13, 1995).

Although Luis's sentence was longer than Ricardo's sentence, McClay does not compel the conclusion that Luis's sentence should be reduced. In State v. Vazquez, 330 N.W.2d 110 (Minn. 1983), which was decided after McClay, the defendant was found guilty of first-degree criminal sexual conduct and received a sentence of 86 months, double the presumptive sentence. 330 N.W.2d at 111. Vazquez's accomplice, with the same criminal history score, pleaded guilty to first-degree criminal sexual conduct and received a 45-month sentence from a different judge. Id. The supreme court upheld Vazquez's sentence against his claim that he was no more culpable than his accomplice but received a more severe sentence. Id. at 112-13. The court explained that equality and fairness in sentencing involve more than comparing an appellant's sentence with his accomplice's sentence; they also involve comparing an appellant's sentence with those imposed on other offenders. Id. at 112. In comparing Vazquez's sentence with those given other offenders who committed similar misconduct, the court concluded that he had not been treated harshly. Id. Here, Luis received the presumptive sentence for his offense; he was not treated more harshly than similar offenders.

Luis also contends the fact that he received a longer sentence than Ricardo did is inequitable, claiming his plea negotiations contemplated the "same or similar" treatment. But at Luis's sentencing hearing the district court noted that it found nothing before it reflecting any such agreement. Similarly, we find nothing in the record showing such an agreement.

The express terms of Luis's plea agreement provided for a guidelines disposition dependent on Luis's criminal history score, not on the sentence that Ricardo received. The fact that Ricardo later received a 57-month sentence is irrelevant. Luis's sentence corresponds precisely to his plea agreement, which was placed on the record.

Finally, Luis claims that the disparity between his sentence and Ricardo's violates his equal protection rights because they are similarly situated defendants. The district court exercises its discretion when it imposes a sentence. State v. Lundberg, 575 N.W.2d 589, 591 (Minn. App. 1998), review denied (Minn. May 20, 1998). The legislature fixes the limits of punishment for criminal acts; the courts impose sentences within those limits. Id. The supreme court has rejected the argument that a court violates a defendant's right to equal protection by giving him a longer sentence than that his accomplice receives from a different judge. See State v. Arndt, 260 N.W.2d 583, 584 (Minn. 1977) (asserting that no equal protection violation exists when court gives defendant harsher sentence than his accomplice brother received from a different judge). We conclude that there is no equal protection violation.

Luis alternatively argues that his sentence should be reduced to 60 months because it would still be within the presumptive range and would more closely match Ricardo's sentence. But "[a] reviewing court will not ordinarily interfere with a presumptive sentence," Krebsbach, 524 N.W.2d at 19, and we decline to do so here.

In a supplemental pro se brief, Luis argues that he believed that he would receive the same sentence that Ricardo received. But, as we have already noted, there is nothing in the record to support this contention.

The district court did not abuse its discretion in imposing a 65-month sentence on appellant.


[1] The guidelines under which Ricardo was sentenced became effective August 1, 1997.