State of Minnesota, Respondent, vs. Oscar O. Navarro, Appellant.

State of Minnesota, Respondent, vs. Oscar O. Navarro, Appellant. A04-1791, Court of Appeals Unpublished, August 30, 2005.

 

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1791

 

 

State of Minnesota,

Respondent,

 

vs.

 

Oscar O. Navarro,

Appellant.

 

 

Filed August 30, 2005

Affirmed

Lansing, Judge

 

 

Olmsted County District Court

File No. K2-03-3989

 

 

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, Suite 1800, 445 Minnesota Street, St. Paul, MN 55101; and

 

Raymond F. Schmitz, Olmsted County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

 

John Stuart, State Public Defender, Philip Marron, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

Oscar Navarro appeals from his sentence for first-degree and second-degree controlled substance crimes, asserting that the district court abused its discretion by refusing to grant his motion for a downward dispositional departure from the presumptive guidelines sentence.  Because the district court acted within its discretion by imposing a sentence within the presumptive range, we affirm.

F A C T S

The Olmsted County Sheriff's Department arrested Oscar Navarro for six sales of cocaine and methamphetamine to a confidential reliable informant.  Navarro negotiated a plea on the resulting six charges.  In exchange for Navarro's guilty plea to one count of first-degree sale of a controlled substance and one count of aiding and abetting second-degree sale of a controlled substance, the state dismissed the remaining charges.  The guidelines-sentence range for first-degree sale of controlled substance is 44 to 52 months.  For second-degree aiding and abetting, with the increased criminal-history score, the range is 93 to 103 months.

            At the sentencing hearing, Navarro moved for a downward dispositional departure from the presumptive guidelines sentence.  Specifically, he requested that the district court stay the imposition of the sentence and place him on probation or stay the execution of the sentence.  In his argument in support of a dispositional departure, Navarro relied on the recommendations of the presentence investigation, which suggested that the district court stay the execution of the sentence, and also on his enrollment and participation in a rehabilitation program. 

The district court denied Navarro's request for a departure and sentenced him to an executed sentence of 93 months, which is within the range of the presumptive guidelines sentence.  Navarro appeals his sentence.

D E C I S I O N

A district court has broad discretion in imposing a sentence.  State v. Franklin, 604 N.W.2d 79, 82 (Minn. 2000).  This discretion is bounded by the guidelines requirement that a departure be supported by the presence of aggravating or mitigating factors.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  Under the guidelines, a district court may depart if the case involves "substantial and compelling circumstances" that would warrant a downward departure.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Although the facts may justify a downward departure, State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985), the presence of a mitigating factor does not require departure from the presumptive guidelines sentence.  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).  A reviewing court will therefore reverse a district court's imposition of the presumptive sentence only in rare cases.  Kindem, 313 N.W.2d at 7.  

A district court may choose to depart from the presumptive guidelines sentence by imposing probation instead of an executed sentence when a defendant is amenable to probation.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  Amenability to probation depends on numerous factors, including the defendant's age, remorse, cooperation, prior record, attitude while in court, and support of friends or family.  Id.

Navarro challenges the district court's decision to impose the presumptive guidelines sentence instead of a downward dispositional departure in the form of a stayed execution and contends that the district court did not consider the amenability factors.  We disagree.  The record establishes that the court carefully considered Navarro's argument and evaluated the relevant sentencing factors in imposing sentence.  The district court observed that the facts surrounding Navarro's conviction presented reasons that weighed both in favor of and against a determination of amenability.  The court expressed specific concern about the number of transactions and the significant amount of drugs involved in Navarro's drug-dealing transactions.  In light of these culpability factors, the district court stated it would be "hard-pressed to find a basis for a downward departure."

The sentencing transcript includes the district court's specific acknowledgement that Navarro had participated in a rehabilitation program, and the court recognized the "commendable amount of work" that Navarro had done to improve himself.  In its consideration of these factors, the court ultimately determined that Navarro's commendable behavior after arrest, weighed against the length and severity of his conduct, was an insufficient basis for departure.  Consequently, the court imposed the guidelines sentence at "the bottom of the box" and recommended "in the strongest possible terms" that Navarro be admitted to the Willow River Camp, a rehabilitative program for offenders who are motivated toward recovery. 

Although a district court may rely on a defendant's strong rehabilitative effort as an indication that the defendant is amenable to probation, the court has the obligation to weigh that against other factors that relate to dispositional departures.  See State v. Anderson, 463 N.W.2d 551, 555 (Minn. App 1990) (stating that, when factors both for and against granting downward departure exist, decision is committed to discretion of district court), review denied (Minn. Jan. 14, 1991).  The district court weighed the competing factors; we will not reweigh them on appeal and substitute our judgment for that of the district court.

Finally, Navarro suggests that the presentence-investigation recommendation that the district court stay the execution of his sentence mandated that the district court depart dispositionally.  But a presentence-investigation recommendation does not obligate the district court to impose a particular sentence or otherwise deprive it of discretion.  See State v. Park, 305 N.W.2d 775, 776 (Minn. 1981) (instructing sentencing courts to consider each case on merits and not accept presentence-investigation report as definitive).  The district court did not abuse its discretion by refusing to follow the recommendation.

            Affirmed.