This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-685

 

State of Minnesota,
Respondent,

vs.

Charles James Simon,
Appellant.

 

Filed May 30, 2006

Affirmed

Minge, Judge

 

Hennepin County District Court

File No. 04003857

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Ross, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

            Appellant challenges the district court’s denial of his motion for a downward sentencing departure.  Because the district court did not abuse its discretion, we affirm.

FACTS

            Appellant lived at the home of Rebecca Jarvis.  One night, appellant saw a gun in the gutter, picked it up, brought it in the house, and unloaded it.  The next morning when appellant awoke, Jarvis had returned home with her friend, Ethan Goustin.  As Goustin walked out of the home, Jarvis told appellant that Goustin had a gun.  Appellant said that he also had a gun.  As appellant watched, Jarvis walked out of the house and Goustin began to shake her back and forth.  Appellant located the gun that he had found the night before, pointed the gun in the air, and threatened to shoot Goustin.  Goustin called the police, who came and arrested appellant.  Appellant was convicted of being a prohibited person in possession of a firearm, in violation of Minn. Stat. § 624.713, subd. 1(b) (2002).  Appellant moved for downward dispositional and durational departures, arguing that he was amenable to probation and that his crime was less serious than the typical prohibited-person-in-possession-of-a-firearm offense.  The district court denied appellant’s motion and sentenced him to the mandatory minimum 60 months under Minn. Stat. § 609.11, subd. 5(b) (2002).  This appeal follows. 

D E C I S I O N

            Appellant argues that the district court abused its discretion in denying his motion for a downward sentencing departure.  A district court’s decision not to depart from the presumptive sentence is reviewed for an abuse of the district court’s 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).  Minn. Stat. § 609.11, subd. 5(b) (2002), provides a mandatory minimum sentence of five years for defendants convicted of violating Minn. Stat. § 624.713, subd. 1(b) (2002).[1]  A district court may depart from this minimum if it finds substantial and compelling reasons to do so.  Minn. Stat. § 609.11, subd. 8(a) (2002).  Such a sentence is considered a departure from the sentencing guidelines.  Id. 

I.

            The first issue is whether the district court abused its discretion in denying appellant’s request for a downward dispositional departure.  A defendant’s amenability to probation can justify a downward dispositional departure.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  “Numerous 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, are relevant to a determination whether a defendant is particularly suitable to individualized treatment in a probationary setting.”  Id.  The sentencing guidelines indicate that employment factors and social factors should not be used as reasons for departure.  Minn. Sent. Guidelines II.D.1.  But these factors can be used indirectly to determine whether a defendant is particularly amenable to probation.  State v. Solomon, 359 N.W.2d 19, 22 (Minn. 1984).  A defendant’s amenability to probation does not require that a district court depart from the presumptive sentence.  State v. Evenson, 554 N.W.2d. 409, 412 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).

            Here, appellant argues that he is amenable to probation because he was cooperative with police at his arrest, gave a statement at the county jail, and attended numerous hearings.  Appellant also claims that he has strong family support, that he has enrolled in classes with a “life coach,” and that he has maintained a job and a residence.  Based on the pre-plea investigation, a probation officer recommended that appellant be placed on probation. 

            In denying appellant’s motion, the district court noted appellant’s extensive criminal record, stating that he had been committed to prison at least ten times.  The district court also concluded that appellant’s claim that he had made positive changes in his life was undermined by his admission that he was inebriated from alcohol and cocaine use on the day of the offense.  The district court considered factors weighing both in favor of and against a downward departure.  Based on the record, we conclude that this is not the rare case requiring reversal of the district court’s refusal to depart. 

II.

            The second issue is whether the district court’s denial of appellant’s motion for a downward durational departure was an abuse of discretion.  Minn. Sent. Guidelines II.D.2.a provides mitigating factors that can be used to justify a downward departure, including “[o]ther substantial grounds . . . which tend to excuse or mitigate the offender’s culpability, although not amounting to a defense.”  Minn. Sent. Guidelines II.D.2.a.(5).  When considering whether mitigating factors exist, “the sentencing court should consider whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.”  State v. Spain, 590 N.W.2d 85, 88-89 (Minn. 1999) (quotations omitted).  But the presence of a mitigating factor does not require a district court to depart from the presumptive sentence.  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984). 

            It is a crime for certain prohibited persons to “possess a . . . firearm.”  Minn. Stat. § 624.713, subd. 1.  The elements of an offense under subdivision 1(b) are that “the defendant knowingly shipped, transported, possessed or received a firearm,” that the defendant had been convicted of a crime of violence, and that the act took place on the date specified.  10A Minnesota Practice, CRIMJIG 32.17 (Supp. 2006). 

            Appellant argues that his culpability is mitigated by the fact that he picked up the gun to prevent it from falling into the hands of young people in the neighborhood, that he never expected to use the gun, and that he planned to turn it over to the police.  But appellant conceded that he told police that he also considered cleaning up the gun to sell or trade it.  Appellant argues that he only brandished the gun and pointed it at Goustin to protect Jarvis.  As the state points out, this conduct constitutes more than merely possessing the firearm.  The jury’s rejection of this defense indicates that appellant’s possession offense is similar to many other such offenses.  See State v. Smith, 374 N.W.2d 520, 524-25 (Minn. App. 1985) (affirming district court’s refusal to depart when jury rejected appellant’s self-defense claim), review denied (Minn. Nov. 26, 1985). 

            The district court did not abuse its discretion in denying appellant’s motion for a downward durational departure.   

            Affirmed.