State of Minnesota, Respondent, vs. Hajj Abdul Shabazz, Appellant.

State of Minnesota, Respondent, vs. Hajj Abdul Shabazz, Appellant. A05-2184, Court of Appeals Unpublished, July 18, 2006.

This opinion will be unpublished and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

A05-2184

 

State of Minnesota,
Respondent,
 
vs.
 
Hajj Abdul Shabazz,
Appellant.

 

Filed July 18, 2006

Affirmed

Wright, Judge

 

Hennepin County District Court

File No. 02071643

 

 

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)

 

 

            Considered and decided by Stoneburner, Presiding Judge; Wright, Judge; and Dietzen, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

            Appellant challenges the denial of postconviction relief, arguing that the district court abused its discretion by declining to grant appellant a downward departure on his sentence for possession of a firearm by an ineligible person.  We affirm.

FACTS

            Appellant Hajj Shabazz was charged with third-degree criminal sexual conduct and possession of a firearm by an ineligible person based on an incident that occurred on September 4, 2002.  After police received a call from Shabazz's ex-girlfriend reporting that Shabazz had assaulted her with a gun, police found Shabazz in a motel room that his ex-girlfriend had rented.  When Shabazz was arrested, he was with a 14-year-old girl.  After Shabazz was handcuffed and seated on a chair, police saw a pair of red tennis shoes on the floor near the head of the bed.  Inside one of the shoes they found a semi-automatic gun.  Shabazz was not permitted to possess a firearm because of a prior felony conviction.

            The jury found Shabazz not guilty of the third-degree criminal sexual conduct charge but guilty of possession of a firearm by an ineligible person.  The district court sentenced Shabazz to the mandatory minimum sentence of 60 months' imprisonment under Minn. Stat. § 609.11, subd. 5(b) (2002), acknowledging some mitigating factors but stating: "I don't think I have a choice under the mandatory minimum sentence."[1]  On direct appeal, we affirmed the conviction but reversed and remanded the sentence "to give the district court an opportunity to confirm that Shabazz's aggravated-robbery conviction did not involve the use of a weapon and, if it did not, to determine whether any substantial and compelling reasons exist to depart from the presumptive guidelines sentence."  State v. Shabazz, No. A03-598, 2004 WL 835228, at *5 (Minn. App. Apr. 20, 2004), review denied (Minn. June 29, 2004).

            The district court on remand noted that Shabazz had argued at sentencing for a downward departure because he was only in constructive possession of the gun, the state did not allege that Shabazz had used the gun, the gun was not found as the result of another crime, and the parties had apparently recognized Shabazz's amenability to probation in an aborted negotiation for a cap on prison time.  The district court on remand then stated that it agreed with these arguments but did not find that they constituted substantial and compelling reasons for a downward departure.  The district court issued the remand order on August 17, 2004.

            Shabazz did not appeal this decision.  Instead, he filed a pro se postconviction petition almost one year later, with the State Public Defender's Office agreeing to represent him in the postconviction proceeding.  Shabazz's counsel argued that Shabazz was improperly denied a hearing on the remand.  On August 30, 2005, the district court held a hearing.

            At the hearing, Shabazz read a statement in support of his request for a downward departure.  The prosecutor then conceded that Shabazz's prior aggravated robbery conviction did not involve the use of a weapon but argued that there were no compelling circumstances justifying a departure.  After reviewing the presentence-investigation report, the district court reconvened the hearing.  After asking several questions concerning the facts of the offense, the district court denied the downward-departure motion, concluding that there were no substantial and compelling reasons for a durational departure.  The district court noted that it had departed in other cases on weapons-related offenses.  But in this case, "the presence of ammunition is a significant factor that would warrant not departing," and the weapon possessed was not a hunting weapon possessed for an innocent purpose.  This appeal followed.

D E C I S I O N

            We review a postconviction order to determine whether there is sufficient evidence to sustain the findings of the postconviction court.  See Zenanko v. State, 587 N.W.2d 642, 644 (Minn. 1998).  The district court's postconviction decision will not be disturbed absent an abuse of discretion.  Id.   We will not modify a presumptive sentence absent compelling circumstances. State v. Elting, 480 N.W.2d 152, 154 (Minn. App. 1992), review denied (Minn. Mar. 26, 1992); cf. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (holding that refusal to depart will be reversed only in a "rare case").

            As an initial matter, it is evident that the district court's August 2004 remand order corrected the error that we noted in the direct appealnamely, that the district court had indicated it lacked the discretion to depart.  Shabazz, 2004 WL 835228 at *4-*5.  The August 2005 postconviction order remedied the failure to accord Shabazz a hearing on remand.  Shabazz's argument that the district court's refusal to depart is still erroneous is without merit.

            Shabazz argues that his offense was less serious than the typical offense, and, therefore, the district court abused its discretion in refusing to depart.  But in determining whether Shabazz's offense was less serious than the typical offense, we do not look at all other offenses involving possession of a firearm that are subject to a mandatory minimum sentence under Minn. Stat. § 609.11.  That statute applies to a broad range of offenses.  See Minn. Stat. § 609.11, subd. 9 (2004) (listing offenses ranging from harassment to first-degree murder).  The legally relevant question is how Shabazz's offense compares to other offenses of possession of a firearm by an ineligible person.

            Although Shabazz was convicted for what could be termed a constructive possession of a firearm by an ineligible person, the statute at issue here often is applied to constructive possession of a gun.  E.g. State v. Olson, 326 N.W.2d 661, 663 (Minn. 1982) (holding that defendant was properly convicted of possession of a firearm by an ineligible person despite lack of actual or physical possession); State v. Breaux, 620 N.W.2d 326, 329, 334 (Minn. App. 2001) (affirming conviction for firearm possession by an ineligible person based on evidence that police found a gun inside a rolled-up newspaper outside defendant's apartment).  Shabazz's possession offense may not be as serious as many drug offenses in which section 609.11 has been used to enhance the sentence.  But Shabazz has not shown that it is less serious than most offenses of possession of a firearm by an ineligible person.

            Shabazz also cites State v. Royster in support of his argument that constructive possession of a weapon is less serious than actual possession.  590 N.W.2d 82 (Minn. 1999).  In Royster, the Minnesota Supreme Court rejected the argument that actual use of a weapon should be required before section 609.11, subdivision 5, would mandate enhancement of the sentence.  Id. at 84-85.  The Royster court interpreted the statute as requiring that the possession of the weapon increase the risk of violence from the offense.  Id. at 85. 

            But the issue here is not whether Minn. Stat. § 609.11 should apply; rather, it is whether a downward departure was warranted.  Shabazz's crime is a status-based offense that is committed whenever a felon possesses, even constructively, a firearm.  It is not necessary that the firearm possession increase the risk of violence from another crime.  Shabazz was found with an underage girl in a motel room after his ex-girlfriend called police and reported that Shabazz had threatened her with a gun.  The gun was found approximately 15 feet from Shabazz, inside a shoe.  And although the gun was unloaded, ammunition for the gun was found nearby. 

            The two unpublished opinions Shabazz has cited are not precedential authority and do not support his argument in any event.  Decisions affirming downward departures granted by the district court in other cases involving the same offense do not compel reversal of a refusal to depart even when the facts are similar.  As the supreme court stated in Kindem, only in a "rare case" will the district court's refusal to depart be reversed.  313 N.W.2d at 7.  Shabazz has not shown that this is one such "rare case."

            Shabazz also has presented pro se supplemental arguments.  The first one, which restates his counsel's argument for a downward departure based on Royster, is without merit.  The second, which challenges a decision extending Shabazz's time in prison based on a failure to successfully complete chemical-dependency treatment, is a challenge to a disciplinary sanction that should have been raised in a petition for a writ of habeas corpus.  Shabazz's challenge to the disciplinary sanction is beyond the scope of this postconviction appeal, which was taken from a different order.  See Minn. Stat. § 590.01, subd. 1(1) (2004) (providing that postconviction petition may be filed to challenge "the conviction obtained or the sentence or other disposition made").

            Affirmed.

[1] A defendant is entitled to a jury determination of the facts supporting imposition of a mandatory minimum sentence under this statute.  State v. Barker, 705 N.W.2d 768, 773 (Minn. 2005).  But Shabazz, who faced a presumptive sentence ranging up to 59 months even absent application of the statute, has not raised the jury-trial issue.