This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Elsayed Salim,



Filed May 29, 2001

Reversed and remanded

Shumaker, Judge

Dissenting, Randall, Judge


Hennepin County District Court

File No. 00045312




Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106; and


Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)


Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55401-2700 (for respondent)


            Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Peterson, Judge.

U N P U B L I S H E D  O P I N I O N


            Appellant State of Minnesota argues that the district court abused its discretion in departing from the presumptive sentence by improperly considering respondent Elsayed Salim’s immigration status as a ground for departure.  We reverse and remand.


            The state charged respondent Elsayed Salim, a resident alien, and his wife with felonies of wrongfully obtaining public assistance in violation of Minn. Stat. §§ 256.98, subd. 1, 393.07, subd. 10(1), and 609.52, subd. 3(2) (1996), for not reporting income while they received general assistance and food stamps totaling $25,554 between June 1, 1997 and October 31, 1998.[1]

            Salim pleaded guilty to the felony, and, when he did so, his defense attorney stated that this was “a straight plea to the [c]ourt.”  The attorney added that she understood that if the presentence investigation report were favorable “the [c]ourt would sentence my client to 364 days in the workhouse, stayed for a period of two years.”  That sentence would classify the crime as a gross misdemeanor.  The district

court agreed to the sentence.  The prosecutor objected to a gross-misdemeanor disposition, arguing that “the dollar value of the case far exceeds the threshold of

At sentencing, the state repeated its earlier objection to the sentence and argued that "a gross misdemeanor disposition in this case is not warranted under any grounds that are legally recognized."  The court sentenced Salim to a stayed term of 364 days, with conditions of probation, stating on the record that the downward departure was warranted "to avoid [Salim's] potential deportation."

The state appeals, arguing that the district court abused its discretion in departing from the presumptive sentence by concluding that immigration status is a mitigating factor warranting a downward durational departure.


Felony sentencing in Minnesota is controlled by the Minnesota Sentencing Guidelines.

The sentences provided in the Sentencing Guidelines Grid are presumed to be appropriate for every case.  The judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances.


Minn. Sent. Guidelines II.D.


            The presumptive sentence for a defendant with a criminal-history score of zero who commits an offense of this severity level is a stayed felony sentence of one year and one day.  The district court departed from the guidelines by sentencing Salim within the parameters of a gross misdemeanor to a stayed sentence of 364 days.  See State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994) (determining that one-year gross-misdemeanor sentence, although only one day less than presumptive year-and-a-day felony sentence, was durational departure), review denied (Minn. Oct. 27, 1994).

            The decision to depart from the sentencing guidelines rests within the discretion of the district court and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  The guidelines require the district court to provide written reasons for a departure from the presumptive sentence.  Minn. Sent. Guidelines II.D.  The district court stated that "the reason for the departure is to avoid [Salim's] potential deportation,” and noted that “it would be a manifest injustice to accept the plea based upon [Salim's] immigration status * * *.”

The district court has broad discretion to depart from the sentencing guidelines where aggravating or mitigating factors exist.  State v. Barsness, 473 N.W.2d 325, 329 (Minn. App. 1991) (citing State v. Best, 449 N.W.2d 426, 427 (Minn. 1989)), review denied (Minn. Aug. 29, 1991).  But the abuse-of-discretion standard is not "a limitless grant of power to the [district] court."  State v. Warren, 592 N.W.2d 440, 451 (Minn. 1999).  A reviewing court will modify a departure if it has a "strong feeling" the sentence is inappropriate to the case.  State v. Malinski, 353 N.W.2d 207, 209 (Minn. App. 1984) (quotation omitted), review denied (Minn. Oct. 16, 1984). 

If the sentencing court states reasons supporting a departure, the reviewing court "will examine the record to determine if the reasons given justify the departure."  Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).  If the sentencing court gives improper or inadequate reasons, "but there is sufficient evidence in the record to justify departure, the departure will be affirmed."  Id. 

            Salim contends that neither the guidelines nor Minnesota caselaw "prohibits a district court from imposing a mitigated durational departure which is supported by the record in order to avoid deportation."  He further states that there is sufficient evidence in the record to find that other substantial grounds exist which tend to excuse or mitigate his culpability.  See Minn. Sent. Guidelines II.D.2.a(5) (allowing departure when "[o]ther substantial grounds exist which tend to excuse or mitigate the offender's culpability, although not amounting to a defense.").  He argues that "[he] and his wife did not know that they had to disclose part-time jobs because they did not speak or read English very well."  He reasons that the language barrier "may not be a complete defense to a claim of knowing fraud, but it certainly mitigates his culpability."  Salim provides no authority supporting his assertion that a language barrier may mitigate one's culpability.  See Ganguli v. University of Minnesota, 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (stating that court declines to address allegations unsupported by legal analysis or citation). 

            At the plea hearing, Salim admitted that he intended to defraud Hennepin County by not divulging his second job and that he was not entitled to the overpayment of benefits.  He did not contend that his inability to comprehend English made him unaware that he was required to disclose income earned from his part-time employment.  But he now argues that his limited ability to read and write English caused him not to understand that he was obligated to report income earned from part-time employment.

            The complaint alleges that Salim and his wife failed to disclose their household income on more than 29 occasions.    The record contains no information regarding the content of the income report forms Salim and his wife were required to submit.  It is also unclear whether the couple submitted the forms in person or through the mail.  Because this information is not in the record, we are unable to independently review the propriety of Salim's language-barrier argument.  Thus, the record does not contain sufficient evidence to support a downward departure based on language barriers.  

Salim also argues that the departure is supported by the fact that his conduct is significantly less serious than that typically involved in the commission of wrongfully obtaining public assistance.  See State v. Meyers, 416 N.W.2d 736, 738 (Minn. 1987) (upholding durational departure in stolen property case when the defendant's conduct was "significantly more or less serious than that typically involved in the commission of the crime in question.") (quotation omitted).

At sentencing, the prosecutor noted that Salim's case involved the second highest dollar value of the 60 cases that were referred to her office in 2000.  She added that in addition to having the second highest criminal overpayment, his civil overpayment of $13,005 exceeded the value of his criminal overpayment.  In this case, the value of the criminal overpayment was $12,549 and was not only higher than the typical felony but also was 25 times higher than the amount necessary to classify the crime as a gross misdemeanor.  See Minn. Stat. § 609.52, subd. 3(4) (1996) (stating defendant may be sentenced to imprisonment for not more than one year and/or $3,000 fine if value of property or services stolen is more than $250 but less than $500).  Salim's case of wrongfully obtaining public assistance is significantly more egregious than the typical gross-misdemeanor offense.

The state argues that the consideration of Salim's immigration status is an improper basis for a departure, requiring reversal.  Immigration status is not specifically listed in the guidelines as a reason for a downward departure.  Minn. Sent. Guidelines II.D.2.  However, the factors listed as possible grounds for departure comprise a “nonexclusive list” of reasons that can justify deviations from presumptive sentences.  Id. (emphasis omitted).

Although our appellate courts have not previously addressed the issue of immigration consequences as a ground for a sentencing departure, the supreme court has held that possible immigration sanctions are only collateral consequences of a criminal sentence and as such cannot provide a basis for a plea withdrawal.  See, e.g., Alanis v. State, 583 N.W.2d 573, 578-79 (Minn. 1998); Barragan v. State, 583 N.W.2d 571, 572-73 (Minn. 1998) (holding that federal immigration consequences of criminal convictions are collateral, not direct, consequences of the convictions, and deportation alone is not a manifest injustice warranting post-conviction relief in a state criminal proceeding).

The message of these cases is that immigration status is not a proper consideration in criminal sentencing.  Thus, we reject Salim’s contention that the sentencing guidelines permit a sentencing court to use possible deportation as a reason to deviate from the presumptive sentence.

The district court relied on an improper basis for its downward departure and, because there is no other basis for departure, we reverse and remand.  Furthermore, because Salim relied on the court’s sentencing concession as an inducement to his guilty plea, he must be given an opportunity on remand to move to withdraw his plea, if he desires.

            Reversed and remanded.




R. A. RANDALL, Judge (dissenting).                                                          The .0054 solution

            I respectfully dissent from the conclusion the majority reaches, namely, that there is an error of law and an abuse of discretion so embedded in the district court's sentence that it calls for a reversal and remand.  I gladly concur in the decision to give the respondent a chance to withdraw his plea of guilty and see if he wants to start over and proceed through trial.  Most certainly his plea of guilty was partially coaxed out of him by promises of leniency and it is only right that he now get a chance to rethink his proffered guilty plea.  But truly, the respondent here did not come to our court seeking a new trial.  He came here petitioning us to realize that the district court had done a decent thing and he is asking us to leave the sentence alone.  I see no reason why we should not.

            The sentence imposed was 364 days in the workhouse, stayed for a period of two years with certain conditions of probation.  The prosecution does not really contest the stayed term or the conditions of probation.  Rather, the prosecution whines to this court because the sentencing judge departed downward (mind you, on a stayed sentence, which means no time will be spent behind bars, regardless if it is 364 or 366 days, if the probation conditions are fulfilled) two days!  The presumptive sentence was 366 days stayed and the district court imposed a sentence of 364 days.  The difference between 364 days and 366 days is a .0054 downward departure

Had the sentencing judge listened to the prosecutor's mantra about how "serious" this case of welfare fraud was and departed upward from 366 days to 368 days, and had the defense attorney appealed on the grounds that an upward departure of two days was such a manifest injustice, so totally outside the discretion of a sentencing court, that it was reversible error as a matter of law, I would expect the end result of that legal argument to be a speedy affirmance of the "upward departure" and then grave and weighty talk by our court about "frivolous appeals."  We might consider sanctions for a defense attorney cluttering up judicial time by appealing an "upward departure" of two days.  If our court had speedily affirmed an upward departure of two days on a stayed sentence, I could not agree more.  If I review a case where the high end of the presumptive scale is 113 months and the trial court gives a defendant 114 months, or if the low end of the presumptive scale is 96 months and the judge sentences the defendant to 95 months, I am not alarmed.  I am not sure our scope of review goes all the way down to micromanaging; most certainly I do not view our scope of review going down to micromanaging a .0054 downward departure which is about 20,000 Leagues below de minimus. 

            The district court was aware of what it was doing.  It knew, as we do, that the length of days here, whether 364 or 366, because they would be stayed in either case, makes absolutely no difference.  The extra two days do not mean an iota to the prosecution.  If the defendant properly performs the condition of probation, he will avoid imprisonment, whether the state's sentence is 364 days or 366 days, and if he does not properly complete the terms of probation, his probation will be revoked.  Whether the sentence is 364 or 366 days, he would do a maximum of two-thirds of that time or eight months in jail.

            All the district court did was change the terminology from a felony to a gross misdemeanor to try to help out an immigrant.  I have no idea why the state is in court appealing this case.  The issue of deportation, if it arises, is a federal issue, and is in the hands of the Immigration and Naturalization Service (INS) and the federal courts.  The State of Minnesota has neither any standing nor any business being a "gopher" or a "water boy" for the INS.  It is just none of their business.  The defendant in this case is not "Lucky Luciano," but rather an immigrant, a resident alien, who failed to report all household income for purposes of continuing to get more welfare and food stamps.  To be sure, it is against the law, but the legally prescribed penalty for this crime is the lowest possible felony sentence that can be given in the State of Minnesota.  There is no felony sentence lower than a presumptive sentence of 366 days stayed.  Minnesota classifies crimes by the severity of the sentence.  Respondent was just one day on the cusp of not even having committed a felony at all; a presumptive sentence of 365 days would be a sentence describing a gross misdemeanor. 

Yes, I am aware of the line of cases discussing how deportation is a "collateral consequence" of a crime and, thus, can be rejected as a compelling basis for relief.  I have never been sure what "collateral consequence" really means.  Is that like when a mosquito lands on your arm and makes a tiny pinprick, but unknown to you, weeks later you contract encephalitis and then die?  Is the real focal point of your life the inconsequential mosquito bite or is the collateral consequence, your death, something of more importance?  If you go to a banker with your used car and ask to borrow $6,000 because you need that amount immediately to keep the home of you, your spouse, and your four children from immediate foreclosure, is the loss of your home a "collateral consequence?"  Thus, is it something the prim and proper banker should ignore when he applies the bank's guidelines for used car loans against the debtor's make and model and says, "our guidelines allow for a maximum of $4,800 against your car."  The debtor explains that he is up against it, assures the banker that he will not default in this loan, and points out that the car has a book value of about $7,000.  He asks the banker to stretch his guidelines an extra $1,200 so he can save his family's home.  Do we really want the banker to reply, "Well, the loss of your home is a collateral consequence and of no concern to me; our guidelines suggest a maximum of $4,800 on a used car with a high book value of $7,000."

The banker, of course, has no obligation to make this debtor any loan at all.  The car could be worth $10,000 or $12,000 and the bank has the right to say, "I am sorry, perhaps you would like to try someplace else."  But I suggest the banker has an ethical obligation as a human being to at least listen to what the debtor is telling him and then make an informed decision rather than make an uninformed decision and hide behind his precious guidelines.  The rigid and inflexible use of lending guidelines, sentencing guidelines, child support guidelines, etc. shows not a commitment to fairness and justice, but shows, rather, a closed mind.  Ralph Waldo Emerson, alive today, would likely observe that "the foolish consistency of guidelines is the hobgoblin of little minds."

Here, the district court prudently looked at all the facts and made an informed decision that a two-day downward departure would serve the administration of justice and the defendant, and would not harm the state or the general public.  This is the proper function of judges.

You can call something a "collateral consequence" but that has nothing to do with whether it is serious or inconsequential, or a tiny part of a whole piece, or, as in this instance, is the whole piece.  Possible deportation is the real penalty here, not the stayed sentence and the requirement for restitution, which is standard and to be expected.

In addition to the modest consequences of a low level felony (stayed sentence and/or monetary fine, and/or restitution), which are the only penalties non-immigrants suffer, immigrants are punished twice.  First, by the normal legal consequences, and then again by the penalty of risking deportation to a country thousands of miles away and separation from any family they have in America.  I suggest that kindness and compassion to the unfortunate are the hallmark of an ethical civilization.  I suggest that overly rigid adherence to guidelines, like the state suggests here, smacks of the mentality that helps foster civil disobedience and a disrespect for the law.

As I said above, it makes absolutely no difference to the respondent or the appealing state whether there are 364 days or 366 days hanging over respondent's head while he tries to perform the conditions of probation.  He either will or he won't, and if he doesn't and his probation is revoked, his time in jail will still be the same, two-thirds of the sentence or eight months. 

If this were a case where the sentence was ten years and the state, as we see so often, argues for and gets a double, triple, or quadruple departure that sentence should be strictly scrutinized.  If this was a presumptive sentence of ten years, and the district court had departed downwards to one, two, or three years, that would call for scrutiny and our best judgment.  But when the downward (or upward) departure is measured not in months or weeks, but rather in days, in a percentage far less than one percent, it is time to truly recognize, not just parrot, but to truly recognize the inherent power of the sentencing judge to look at the entire record, to look at the defendant, and to fashion something reasonable within the parameters of a fair sentence befitting the defendant and the crime.

            I conclude the district court accomplished that here.  I want to affirm.  I have no fear of Minnesota district court judges running amok and looking willy nilly to reduce the status of crimes by shaving off one or two days.  If that problem should somehow arise in the future, the future would be a good time to look at it.  This case is here and now.  I suggest that it never should have been appealed by the state, but having been appealed, I suggest that an appellate court of review leave a .0054 downward departure alone. 

I dissent and would have affirmed the district court.



[1] The complaint alleged that while Salim reported income from his full-time employment, both Salim and his wife failed to report household income earned from their part-time positions of employment.