                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-0929

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                 Jesus Ivan Torres-Lopez,
                              a/k/a Jesus Ivan Lopez-Torres,
                                         Appellant

                                 Filed February 1, 2016
                                        Affirmed
                                     Worke, Judge

                             Freeborn County District Court
                                 File No. 24-CR-11-298

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Craig S. Nelson, Freeborn County Attorney, David J. Walker, Assistant County Attorney,
Albert Lea, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Larkin, Presiding Judge; Worke, Judge; and Bjorkman,

Judge.

                         UNPUBLISHED OPINION

WORKE, Judge

         Appellant argues that the district court abused its discretion by revoking his

probation because it improperly relied on his immigration status, and the policies
favoring probation outweigh the need for confinement. Appellant also argues that the

district court erred by denying him custody credit for time in federal custody. We affirm.

                                         FACTS

       In April 2011, appellant Jesus Ivan Torres-Lopez pleaded guilty to a first-degree

controlled-substance crime. The district court sentenced Torres-Lopez to 86 months in

prison but stayed execution and placed Torres-Lopez on probation for 30 years. The

district court required Torres-Lopez to refrain from re-entering the United States illegally

if he were deported. If Torres-Lopez was not deported, the stay of execution would be

vacated, requiring Torres-Lopez to serve his prison term.

       Torres-Lopez was deported, but unlawfully returned and was picked up by

immigration on May 5, 2013. Torres-Lopez pleaded guilty in federal court to the felony

offense of re-entry of a removed alien. On November 29, 2013, Torres-Lopez was

released from federal custody and transported to Minnesota.

       In February 2014, the district court vacated the stay of execution and committed

Torres-Lopez to the Commissioner of Corrections for 86 months.                Torres-Lopez

appealed, and this court remanded because the district court did not sufficiently satisfy

the Austin factors. State v. Torres-Lopez, No. A14-0767, 2014 WL 5343316, at *3

(Minn. App. Oct. 20, 2014), review denied (Minn. Dec. 30, 2014).

       At the probation-violation hearing, Torres-Lopez admitted to returning to the

United States to pay back the money lost in connection with his original arrest. Torres-

Lopez stated that people threatened to kill his brother or chop off one of his hands if he




                                             2
did not return. The district court executed Torres-Lopez’s sentence and did not award

custody credit for his time in federal custody. This appeal follows.

                                     DECISION

Probation revocation

       Torres-Lopez argues that the district court abused its discretion by revoking his

probation because it improperly relied on his immigration status. “The [district] court has

broad discretion in determining if there is sufficient evidence to revoke probation and

should be reversed only if there is a clear abuse of that discretion.” State v. Austin, 295

N.W.2d 246, 249–50 (Minn. 1980).

       Before revoking probation, a district court must: (1) “designate the specific

condition or conditions that were violated[,]” (2) “find that the violation was intentional

or inexcusable[,]” and (3) “find that [the] need for confinement outweighs the policies

favoring probation.” Id. at 250. The third Austin factor may be satisfied by finding that

(1) confinement is necessary to protect the public from further criminal activity, (2) the

offender requires correctional treatment that can most effectively be provided by

confinement, or (3) failing to revoke probation would unduly depreciate the seriousness

of the violation. Id. at 251.

       Torres-Lopez’s argument that the district court improperly relied on his

immigration status in analyzing the third Austin factor is unpersuasive.1 Here, the district




1
  Torres-Lopez does not challenge the district court’s application of the first two Austin
factors.

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court listed four reasons supporting its conclusion that the need for confinement

outweighed the policies favoring probation:

             a. It was never the intent of the sentencing court to place
                [Torres-Lopez] on supervised probation. [Torres-Lopez]
                was given a dispositional departure, placed on
                unsupervised probation, given the conditions of probation,
                and was then deported. Supervised probation was never
                an option in this case.
             b. There is no doubt that if [Torres-Lopez] is again placed on
                “unsupervised probation” he will again be deported. As
                such, [Torres-Lopez] is truly unamenable to probation.
             c. The serious nature of the violation requires confinement
                over “probation.” [Torres-Lopez] was convicted of a first-
                degree controlled substance offense and was facing a
                lengthy prison sentence. [Torres-Lopez] was then given a
                dispositional departure and was deported. [Torres-Lopez]
                intentionally re-entered the United States and served time
                in a federal prison for that offense. To simply place
                [Torres-Lopez] on “probation” again and allow him to be
                deported would seriously depreciate the serious nature of
                these violations.
             d. It should be noted that the [district court] did consider a
                lesser sanction in this case. That lesser sanction involved
                some local jail time and then placing [Torres-Lopez] on
                “probation” and allowing him to be deported a second
                time. The [district court] rejected that option because it is
                the [district court’s] belief and finding that [Torres-Lopez]
                will again return to the United States after a second
                deportation. Given that scenario, [Torres-Lopez] will
                have had little consequence for a very serious drug
                offense.

      Three of the district court’s reasons for revoking probation are independent of

Torres-Lopez’s immigration status.      The district court supported its decision by

specifically recognizing (1) that the original sentencing judge never intended to place

Torres-Lopez on supervised probation, (2) the “serious nature” of the violation and the

original offense of conviction, (3) the fact that Torres-Lopez faced a “lengthy prison


                                              4
sentence,” and (4) the likelihood that Torres-Lopez will continue to violate probation.

These factors provide a sufficient basis for the district court to conclude that the need for

confinement outweighs the policies favoring probation. See id. at 249, 251 (affirming

district court’s probation revocation because offender failed to enter a drug-treatment

facility as required by the probation order, stating that “the seriousness of [the] violation

would be denigrated if probation were not revoked”).

       Torres-Lopez relies on State v. Mendoza, but Mendoza is distinguishable. See 638

N.W.2d 480, 484 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002). In Mendoza,

two defendants pleaded guilty to counts of conspiracy to commit a first-degree

controlled-substance crime. Id. at 481–82. The defendants moved for dispositional

departures on the ground that they were amenable to probation. Id. at 482. A probation

officer stated that probation would not be appropriate because the defendants would

likely be deported. Id. The district court stated that “the complicating factor is obviously

the INS situation, which makes the otherwise possible option of some kind of a local

disposition really impossible and impractical.” Id. The district court imposed 81-month

prison sentences. Id.

       This court concluded that the district court improperly relied on the defendants’

immigration statuses when it sentenced them and that deportation is a collateral

consequence of a guilty plea because the ultimate decision regarding deportation is

handled by INS. Id. at 483–84. “[C]onsideration of a possible collateral consequence,

which is beyond the control of the district court and which may or may not occur, is not a




                                             5
valid consideration in deciding whether to impose a presumptive sentence or to depart

from the guidelines.” Id. at 484 (emphasis added).

       Here, the district court was not considering whether to impose a presumptive

sentence or depart from the guidelines. Rather, this case involved a probation-violation

hearing where the district court decided whether to continue probation or execute Torres-

Lopez’s sentence. Additionally, the district court did not rely solely on Torres-Lopez’s

immigration status in making its decision. The district court recognized the serious

nature of the violation and original conviction, the intent of the original sentencing judge,

the lengthy prison sentence Torres-Lopez faced, and the likelihood that Torres-Lopez

would continue to violate probation.      These considerations also support the district

court’s finding that the need for confinement outweighed the policies favoring probation.

Therefore, the district court did not abuse its discretion by revoking probation.

Custody credit

       Torres-Lopez also argues that the district court erred by denying him custody

credit for his time in federal custody. “[The] decision whether to award [custody] credit

is a mixed question of fact and law.” State v. Clarkin, 817 N.W.2d 678, 687 (Minn.

2012) (quotation omitted). We review the district court’s factual findings concerning the

custody credit the defendant seeks under the clearly erroneous standard and then apply

the rules of law to those circumstances under the de novo standard. Id.

       “A defendant bears the burden of establishing that he/she is entitled to [custody]

credit.” State v. Garcia, 683 N.W.2d 294, 297 (Minn. 2004). The decision to grant

custody credit is not discretionary with the district court. State v. Doyle, 386 N.W.2d


                                             6
352, 354 (Minn. App. 1986). “When pronouncing sentence the court must . . . [s]tate the

number of days spent in custody in connection with the offense or behavioral incident

being sentenced.     That credit must be deducted from the sentence and term of

imprisonment . . . .” Minn. R. Crim. P. 27.03, subd. 4(B).

       In State v. Willis, the supreme court stated that “[custody] credit should be given

for time spent in jail in another state solely in connection with the offense of sentencing.”

376 N.W.2d 427, 428 (Minn. 1985) (emphasis added). The supreme court relied on State

v. Brown, in which the court stated, “Of course, if part of the time [the] defendant spent

in jail in Illinois was in connection with an Illinois charge, he would not be entitled to a

credit for that time.” Id. at 428–29 (quotation omitted). Here, Torres-Lopez was in

federal custody for pleading guilty to a federal offense; therefore, he is not entitled to

custody credit for time in federal custody from May 5 through November 28, 2013.

       Affirmed.




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