Marvin Ketola, Carlton County Attorney, Thomas H. Pertler, Assistant Carlton County Attorney, 202 Courthouse, P.O. Box 300, Carlton, MN 55718-0300 (for respondent)

Lawrence W. Pry, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Foley, Judge.

Appellant Edsel Clark Niemi pleaded guilty to possession of a firearm by a felon, Minn. Stat. § 624.713, subd. 1(b) (1996). Niemi appealed from his initial 60-month sentence, arguing that the mandatory minimum sentence was 18 months, not 60 months. Because this was Niemi's first conviction under the felon-in-possession statutes, this court agreed that the mandatory minimum sentence was 18 months. State v. Niemi, No. C6-98-1415 (Minn. App. Nov. 17, 1998) (holding that Minn. Stat. § 609.11, subd. 5 (1996) "mandates an 18-month minimum sentence for defendants convicted of violating a felon-in-possession statute and a 60-month minimum sentence for defendants convicted of second or subsequent felon-in-possession convictions"). Niemi's original sentence was therefore vacated and the matter was remanded for resentencing.

On remand, the trial court departed on its own motion and sentenced Niemi to 25 months, a seven-month upward durational departure. Niemi appeals, arguing that he was prejudiced by the trial court's failure to provide him notice of its intent to depart from the sentencing guidelines and that the court's reasons for departure are improper and inadequate.

On March 28, 1998, a woman called the Cloquet police dispatcher and reported that a man had a loaded gun and was threatening to kill someone. When officers responded, they encountered Niemi arguing with a woman in a hallway of an apartment building. The officers searched Niemi and found a loaded nine-millimeter "Tokarov" pistol in the waistband of his pants. There was a live round in the chamber of the pistol and the safety was in the "off" position. An extra clip of ammunition was also found in Niemi's pocket.

At his plea hearing, Niemi admitted these facts, but denied stating that he was going to kill someone. He claimed that he "was getting ready to hock" the pistol, which he had obtained from a friend as loan collateral. He did admit that the pistol had been in his possession for more than a month.

When he was arrested, Niemi was also carrying approximately 21 grams of a white powdery substance. A subsequent chemical analysis determined that the substance was baking powder and not a controlled substance.

Niemi pleaded guilty to possession of a firearm by a felon. The state agreed to dismiss the other four counts, which included a third-degree controlled substance crime, possession of a pistol without a permit, obstructing legal process with force, and disorderly conduct.

At the resentencing hearing in this case, Niemi did not object to the trial court's decision to depart or otherwise request a continuance so that he could prepare a rebuttal. Moreover, although Niemi claims that he was surprised by the court's decision to depart, he had at least constructive notice of a possible departure, given the court's original 60-month sentence. Under these circumstances, Niemi was not prejudiced by the court's failure to provide him with actual, prior notice of its intent to depart.

The trial court in this case based its departure on the following reasons: (1) the gun in Niemi's possession was not merely a hunting gun; (2) Niemi exhibited the gun to a woman and told her that he was going to kill someone; (3) Niemi was intoxicated and uncooperative; (4) Niemi allegedly possessed a felony amount of narcotics; (5) the gun was concealed and loaded; (6) Niemi possessed a knife and extra ammunition; and (7) Niemi had used a firearm to assault a citizen in his prior felony.

Niemi is correct in arguing that a number of these factors are inadequate or inappropriate to support a departure. First, the type of gun that Niemi possessed is not an adequate aggravating factor because it is an element of his offense for unlawful possession of a "pistol or semiautomatic military-style assault weapon or * * * any other firearm." Minn. Stat. § 624.713, subd. 1 (1996). Next, Niemi's uncooperative and drunken behavior and his possession of narcotics, which later tests proved to be only baking powder, cannot be considered aggravating factors because they were unproven. Further, Niemi's use of a firearm during the commission of his prior felony is not a proper aggravating factor because it is already considered in the calculation of his presumptive sentence. Nor is the trial court's disagreement with this court's decision in his first appeal an adequate basis for departure. See State v. Bellanger, 304 N.W.2d 282, 283 (Minn. 1981) ("[g]eneral disagreement with the Guidelines or the legislative policy on which the Guidelines are based does not justify departure").

Other facts cited by the trial court, however, support the court's decision that Niemi's conduct was particularly serious. Those facts, which Niemi did not deny during his plea hearing, include: he was arguing with a woman when the police arrived, police had been called by a woman who claimed that Niemi had a gun and had threatened to kill someone, the gun was found in the waistband of Niemi's pants, the gun was loaded with the safety in the "off" position, and an extra clip of ammunition was found in Niemi's pocket. These facts relate to Niemi's course of conduct and support the court's decision that his conduct was significantly more serious than that typically involved in the commission of the charged offense. See State v. Back, 341 N.W.2d 273, 276-77 (Minn. 1983) (court may consider course of conduct underlying offense); State v. Srey, 400 N.W.2d 722, 722-23 (Minn. 1987) (court may rely on course of conduct underlying charge, even conduct that was uncharged or charged but dismissed under plea agreement, unless defendant denied conduct). Because these facts demonstrate a greater-than-normal danger to other people's safety than mere possession of a firearm by a felon, we affirm the trial court's upward durational departure in this case. See State v. McClay, 310 N.W.2d 683, 685 (Minn. 1981).

Affirmed.

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