                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                        A13-1313


Court of Appeals                                                            Gildea, C.J.
                                                                Took no part, Dietzen, J.

State of Minnesota,

                      Respondent,

vs.                                                           Filed: September 30, 2015
                                                              Office of Appellate Courts
Robert John Meyers,

                      Appellant.

                              ________________________


Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant
Hennepin County Attorney, Minneapolis, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
State Public Defender, Saint Paul, Minnesota, for appellant.

                              ________________________

                                      SYLLABUS

      1.     Because the repeat offender aggravating factor in Minn. Stat. § 244.10,

subd. 5a(a)(3) (2014), requires proof of facts that the Legislature did not consider in

setting the sentence for the offense of conviction, a departure based on this factor does




                                           1
not run afoul of the principle applied in State v. Peterson, 329 N.W.2d 58 (Minn. 1983)

or State v. Erickson, 313 N.W.2d 16 (Minn. 1981).

      2.     Because appellant’s sentence, which does not unduly exaggerate the

criminality of his behavior, was based on the repeat offender aggravating factor and facts

found by the jury, the district court did not abuse its discretion in imposing a 240-month

sentence.

      Affirmed.

                                     OPINION

GILDEA, Chief Justice.

      The question presented in this appeal is whether the district court erred when it

sentenced appellant to an upward departure from the presumptive sentence for his first-

degree assault conviction. Because we conclude that the court did not err in imposing a

240-month sentence, we affirm.

      This case arises from an assault that occurred as the victim, A.C., attempted to

enter her car. A.C.’s car was parked in a Minneapolis parking ramp. Physical evidence,

video surveillance, and witness testimony linked Meyers to the assault. Specifically, the

State presented evidence that on the afternoon in question, when A.C. started to enter her

car, Meyers came up behind her and put a large hunting-type knife to her throat. A.C.

attempted to grab the knife, screamed, and stomped on Meyers’s foot. Meyers whispered

in A.C.’s ear, “We’re going for a ride.” After A.C. bit his hand, Meyers stabbed A.C. in

the abdomen. A.C. repeatedly asked Meyers what he wanted and offered him her purse

and car.    Meyers responded, “you’re lucky you’re a fighter,” and walked away.


                                            2
A.C. called 911 and ran down four flights of stairs to obtain help from the parking

attendant. The parking attendant called emergency services and A.C. was taken by

ambulance to the hospital.

       An emergency room physician who treated A.C. testified that when A.C. arrived at

the hospital, she was in critical condition and needed emergency surgery. By the time of

surgery, A.C. had lost 2 liters of blood, or approximately 40% of her total blood volume.

The stab wound to her abdomen was about 10 inches deep and had sliced through the left

side of her liver and pierced her adrenal gland. A.C. also had lacerations on her chin and

hand and had permanent nerve damage in her thumb from where she grabbed the knife.

She spent 6 days in the hospital.

       The State charged Meyers with first-degree assault, Minn. Stat. § 609.221, subd. 1

(2014); attempted kidnapping, Minn. Stat. § 609.25, subds. 1(2), 2(2) (2014); and

attempted first-degree criminal sexual conduct, Minn. Stat. § 609.342, subd. 1(d) (2014).

Before trial, the State provided notice of its intent to seek an upward sentencing departure

on the first-degree assault charge pursuant to Minn. Sent. Guidelines II.D.2.b(3) (2010);

see also Minn. Stat. § 244.10, subd. 5a(a)(3) (2014) (codifying aggravating factor). The

aggravating factor on which the State relied, which we refer to as the “repeat offender

aggravating factor,” permits upward departure when “[t]he current conviction is for a

Criminal Sexual Conduct offense or an offense in which the victim was otherwise injured

and there is a prior felony conviction for a Criminal Sexual Conduct offense or an offense

in which the victim was otherwise injured.” Minn. Sent. Guideline II.D.2.b(3); see also

Minn. Stat. § 244.10, subd. 5a(a)(3).


                                             3
       The jury found Meyers guilty of first-degree assault, acquitted him of the criminal

sexual conduct charge, and failed to reach a verdict on the kidnapping charge. After the

verdicts were returned, the jury was asked to determine whether certain facts existed to

support a sentencing departure under the repeat offender aggravating factor. Specifically,

the jury was asked to determine (1) “whether or not, in the course of the commission of

the assault, the defendant intentionally injured [A.C.]”; and (2) “whether or not at the

time of the commission of the [assault], defendant had a previous conviction for criminal

sexual conduct to wit: Sexual abuse in the third degree in the Iowa District Court in and

for the County of Washington on June 17, 2002.” The State provided a certified copy of

conviction for the 2002 criminal sexual conduct offense, and Meyers stipulated to the fact

of conviction. The jury found that both facts had been proven.

       At the sentencing hearing, the State argued that the district court should depart

upward from the presumptive sentence range of 135-189 months, for the first-degree

assault conviction. See Minn. Sent. Guidelines IV, subd. A (sentencing guidelines grid).

The State contended that the departure was authorized under the repeat offender

aggravating factor. Meyers argued that an upward departure was improper because the

repeat offender aggravating factor duplicated the injury-to-the-victim element of first-

degree assault, Minn. Stat. § 609.221, subd. 1. The district court rejected Meyers’s

argument and sentenced Meyers to the statutory maximum sentence of 240 months,

Minn. Stat. § 609.221, subd. 1, an upward durational departure from the presumptive

range for the offense.




                                            4
       The district court concluded that an upward durational departure was warranted

“based upon the jury’s finding that in the course of the commission of this offense

[Meyers] intentionally injured [A.C.] and that at the time of the commission of this

offense, [Meyers] did have a previous conviction of criminal sexual conduct.” The court

determined that the length of the departure was “based upon . . . the particular cruelty that

[Meyers] demonstrated toward this victim, the gratuitous nature of [the] physical assault,

the extensive nature of her injuries which suggests to the court that [Meyers’s] conduct

was at the outer limits of first degree assault, falling very short of murder.” In the

departure report, the court specified two reasons for departure: (1) the “[v]ictim was

treated with particular cruelty,” and (2) the “[c]urrent conviction is [an] offense w[ith]

victim injury (including Crim. Sex Conduct) and there is a similar prior.”

       Meyers challenged his sentence on appeal. The court of appeals affirmed the

district court, concluding that the repeat offender aggravating factor provided a valid

ground for departure and that the district court did not abuse its discretion by imposing a

240-month sentence. State v. Meyers, 853 N.W.2d 819, 826 (Minn. App. 2014). We

granted Meyers’s petition for review.

       Meyers raises two issues on appeal. First, he argues that the repeat offender

aggravating factor cannot be applied to his conviction because that factor duplicates an

element of his first-degree assault conviction. Second, he argues that even if the repeat

offender aggravating factor could apply to his first-degree assault conviction, the district

court abused its discretion in imposing a 240-month sentence. We address each argument

in turn.


                                             5
                                              I.

       We first consider Meyers’s argument that the repeat offender aggravating factor

cannot be applied to his first-degree assault conviction because its application would

duplicate an element of his conviction in contravention of the general sentencing

principles articulated in our cases. Meyers notes that in order for the jury to have found

him guilty of first-degree assault under Minn. Stat. § 609.221, subd. 1, the jury had to

find that he “inflict[ed] great bodily harm” on the victim. “Great bodily harm” means

“bodily injury which creates a high probability of death, or which causes serious

permanent disfigurement, or which causes a permanent or protracted loss or impairment

of the function of any bodily member or organ or other serious bodily harm.” Minn. Stat.

§ 609.02, subd. 8 (2014). Meyers further notes that the repeat offender aggravating factor

requires that the victim suffer injury. Minn. Sent. Guidelines II.D.2.b(3); see also Minn.

Stat. § 244.10, subd. 5a(a)(3) (codifying aggravating factor). Relying on our case law,

including State v. Peterson, 329 N.W.2d 58, 60 (Minn. 1983), Meyers argues that the

repeat offender aggravating factor cannot be applied because it duplicates the injury

element of his first-degree assault conviction.

       For its part, the State argues that it is the Legislature’s function to set sentences for

criminal behavior and that the Legislature did so when it codified the repeat offender

aggravating factor. See Minn. Stat. § 244.10, subd. 5a(a)(3). The State contends that the

repeat offender aggravating factor can be used as a basis to depart from the Guidelines

even if application of the factor duplicates the injury element of Meyers’s first-degree

assault conviction.


                                               6
        It is well-settled that the Legislature is vested with “[t]he power to define the

conduct which constitutes a criminal offense and to fix the punishment for such conduct.”

State v. Olson, 325 N.W.2d 13, 17-18 (Minn. 1982). The Legislature has determined that

recidivism can justify increased punishment. See Minn. Stat. § 244.10, subd. 5a(a)(3)

(codifying factors that can support upward departure). The statutory language is clear

that aggravated sentences are permissible and that one of the factors upon which a district

court may depart is where “the current conviction is for . . . an offense in which the

victim was otherwise injured and there is a prior felony conviction for a criminal sexual

conduct offense . . . .” Id. Notably, the repeat offender aggravating factor does not

exclude cases in which victim injury is an element of the crime or cases in which the

offender’s prior offense is already used to calculate his or her criminal history score. See

id. 1

        But as Meyers correctly points out, we have held that facts considered by the

Legislature in determining the severity of the offense being sentenced cannot serve as a

basis for departure. State v. Peterson, 329 N.W.2d 58, 60 (Minn. 1983); see also State v.

Blanche, 696 N.W.2d 351, 378-79 (Minn. 2005) (stating that certain facts cannot be used

to support a departure, including facts necessary to prove elements of the offense for

which a sentence is imposed). We have also stated that using a prior conviction to

1
        The Legislature has adopted other sentencing provisions that, like the repeat
offender aggravating factor, authorize upward durational departures when the current
offense involves specified criminal conduct and the defendant has a certain number and
type of prior convictions. E.g., Minn. Stat. § 609.1095, subds. 2-3 (2014) (dangerous
offenders who commit a third violent crime or felony); Minn. Stat. § 609.3455, subds. 2,
3a, 4 (2014) (dangerous and repeat sex offenders).


                                             7
calculate a defendant’s criminal history score, and then using that same conviction as a

ground for departure would “in effect, count[] a single conviction twice and that is

contrary to the spirit and intent of the Guidelines.” State v. Erickson, 313 N.W.2d 16, 18

(Minn. 1981). But see Vickla v. State, 793 N.W.2d 265, 272 (Minn. 2011) (affirming an

aggravated sentence imposed pursuant to Minn. Stat. § 609.1095, even though the

sentence enhancement double-counted the defendant’s prior convictions); Neal v. State,

658 N.W.2d 536, 545-46 (Minn. 2003) (same).

      The State acknowledges this precedent but notes that, as specifically relevant here,

we have addressed and upheld upward departures based on the repeat offender

aggravating factor.   In State v. Lindsey, we determined that an upward durational

departure was justified under the repeat offender aggravating factor because the

defendant’s current conviction for armed robbery involved victim injury, and he had a

prior conviction for manslaughter—by definition, an offense in which the victim was

injured. 314 N.W.2d 823, 825 (Minn. 1982).

      In State v. Peake, we considered the validity of the repeat offender aggravating

factor as a basis for an upward departure. 2 366 N.W.2d 299 (Minn. 1985). Peake

pleaded guilty to murder in the second degree and the district court sentenced him to

180 months in prison, an upward departure of 9 months. Id. at 300. The district court


2
       At the time we decided Peake, the relevant provision of the Guidelines read: “The
current conviction is for an offense in which the victim was injured and there is a prior
felony conviction for an offense in which the victim was injured.” Minn. Sent.
Guidelines II.D.2.b(3) (1985). In 1989, this factor was amended to its current form,
permitting the current and/or prior conviction to be for criminal sexual conduct, as well.


                                            8
justified the durational departure because (1) “[t]he current conviction was for an offense

in which the victim was injured and died”; and (2) “[Peake] had been previously

convicted for an offense [manslaughter] in which the victim was injured and died.” Id.

Peake challenged the departure, arguing that the application of the repeat offender

aggravating factor resulted in impermissible double-counting of an element of the offense

of conviction. Id. at 301. Peake also argued that use of his prior conviction to support a

departure constituted double penalization because his prior conviction was used to

calculate his criminal history score. Id. We rejected Peake’s argument, holding that

when “past crimes are violent and the present crime a continuation of the violence,

departure is permissible under the guidelines.” Id. We noted that we had previously

upheld the application of the repeat offender aggravating factor to a defendant convicted

of aggravated robbery who also had a prior manslaughter conviction. Id. (citing Lindsey,

314 N.W.2d at 825).

      Lindsey and Peake support the conclusion that the district court did not err in

basing the departure in this case on the repeat offender aggravating factor. Meyers

argues, however, that cases decided before and after Lindsey and Peake undermine the

reasoning of those two cases. We disagree.

      Meyers first argues that Peake is irreconcilable with State v. Peterson, in which

we articulated the principle that a departure generally cannot be based on a fact that was

considered by the Legislature in determining the severity of the offense of conviction.

329 N.W.2d 58, 60 (Minn. 1983). Peterson was a criminal sexual conduct case and the

departure was based on the age and vulnerability of the victims, factors that we said


                                             9
“were considered by the legislature in determining the severity of the offense and were

apparently the basis for convicting him of criminal sexual conduct in the first and second

degrees.” Id. at 60.

       Meyers also argues our more recent decisions in State v. McIntosh, 641 N.W.2d 3

(Minn. 2002), and State v. Thompson, 720 N.W.2d 820 (Minn. 2006), impliedly overrule

Peake and Lindsey. In State v. McIntosh, we considered whether the district court

improperly applied a different aggravating factor for major controlled substance offenses.

641 N.W.2d at 8 (referring to the major-controlled-substance-offense aggravating factor

in Minn. Sent. Guidelines II.D.2b(5)).       McIntosh involved a defendant who was

convicted of multiple controlled-substance offenses, including second-degree sale of a

controlled substance, defined as involving 3 grams or more of cocaine. Id. at 6, 11 n.13.

The district court departed upward from the presumptive sentence for the second-degree

sale conviction based on Minn. Sent. Guidelines II.D.2.b(5). 641 N.W.2d at 7. The court

cited multiple sub-factors to support the existence of this aggravating factor, including

that the drug sale involved “quantities substantially larger than for personal use.” Id.

(citing to Minn. Sent. Guidelines II.D.2.b(5)(b)). The defendant argued that application

of the major-controlled-substance-offense aggravating factor was invalid because it was

“based upon considerations already taken into account by the legislature through its

categorization of drug offenses by the quantity of drugs sold,” therefore “amount[ing] to a

double-counting” of an element that establishes the seriousness of the offense. Id. at 11

(emphasis added). Although we did not need to reach this specific issue because there

was insufficient support in the record for application of the major-controlled-substance-


                                            10
offense aggravating factor, we “caution[e]d . . . against using quantity to support a

departure under the major controlled substance offense departure criteria when to do so

duplicates an element of the offense.” Id. at 12.

       In State v. Thompson, we considered whether the district court validly applied the

aggravating factor for major economic offenses. 720 N.W.2d at 828 (discussing Minn.

Sent. Guidelines II.D.2(b)(4)). In Thompson, the defendant was convicted of nine counts

of theft by swindle over $35,000.        Id. at 823.   The court imposed a sentence that

constituted a double durational upward departure from the presumptive sentence based on

the court’s determination that Thompson’s crime was a “major economic offense.” Id. at

825. The court relied on four of the major economic offense sub-factors listed in the

Guidelines, including that the offense involved monetary loss that was substantially

greater than the minimum loss specified in the statute. Id. at 829. We concluded that it

was an abuse of discretion for the district court to rely on this sub-factor because doing so

“amounted to using a factor necessarily used in convicting Thompson on each count” to

support an upward departure, and that this “sort of double-counting [was]

impermissible.” Id. at 830. But we upheld the district court’s reliance on two other sub-

factors: that “the offenses involved a high degree of sophistication and planning and that

[Thompson] used a position of trust . . . to facilitate her offenses.” Id.

       The relevant portion of our decision in McIntosh related to an upward departure

that was based on the quantity of drugs involved in the offense of conviction. See

641 N.W.2d at 11-12 (addressing application of Minn. Sent. Guidelines II.D.2.b(5)(b)).

Similarly, the portion of Thompson upon which Meyers relies related to the application of


                                              11
an aggravating factor based on the amount of money involved in the offense of

conviction.   See 720 N.W.2d at 829-30 (addressing the application of Minn. Sent.

Guidelines II.D.2.b(4)(b)). The aggravating factors at issue in these cases focused on

facts that were considered by the Legislature when it determined the severity of the

offense being sentenced, akin to the factors at issue in Peterson, 329 N.W.2d at 60

(considering the vulnerability of the victim, due in part to the victim’s age). In addition

to being facts necessary to support the aggravating factor, those same facts were also

needed to prove the elements of the offenses of conviction. In these cases, we cautioned

that the same set of facts cannot be used twice, once to support a conviction and a second

time to support a departure. 3

       In contrast to the focus of the departures in the cases Meyers cites, the repeat

offender aggravating factor includes facts other than those needed to prove the offense of

conviction. Meyers is correct that the offense of conviction and the aggravating factor

both require proof that the victim was injured. But the repeat offender aggravating factor

requires more. Specifically, it requires the defendant to have a prior conviction of a

particular type of offense: one involving victim injury or criminal sexual conduct. See

Peake, 366 N.W.2d at 301 (noting that the repeat offender factor examines whether the

3
       We followed a similar approach in State v. Stanke, 764 N.W.2d 824, 828 (Minn.
2009) (concluding that an “officer’s particular vulnerability” could not support departure
in sentencing for conviction of fleeing a peace officer resulting in death, Minn. Stat.
§ 609.487, subd. 4(a) (2008) because “the legislature accounted for a peace officer’s
particular vulnerability when it enacted Minn. Stat. § 609.487 with more severe
penalties”), and State v. Thao, 649 N.W.2d 414, 424 (Minn. 2002) (reversing a departure
when the district court based the departure “on the statutory predicates of the crime to
support the sentence departure”).


                                            12
offense for which sentence is being imposed represents a “continuation of the violence”

begun in a prior offense). The Legislature did not consider this type of repeated criminal

behavior in setting the punishment for the offense of conviction, first-degree assault. The

prior conviction is not an element of first-degree assault and it does not involve facts that

are used to prove the element of first-degree assault.        Because the repeat offender

aggravating factor requires facts that are not needed to prove the offense of conviction—a

prior conviction for a specified offense—a departure based on the factor does not run

afoul of the rule in Peterson, 329 N.W.2d at 60. 4

       A departure based on the repeat offender aggravating factor likewise does not run

afoul of the principle we applied in Erickson, 313 N.W.2d at 18, and Neal, 658 N.W.2d at

545-46. The aggravating factor is focused not on all prior convictions, but on only

specific types of prior convictions—those involving victim injury or criminal sexual

conduct. The repeat offender aggravating factor’s focus on recidivism of particular

criminal behavior distinguishes Erickson and Neal and makes the analysis in those cases

inapposite.

       In sum, the Legislature, through the repeat offender aggravating factor, has

expressly determined that recidivism for particular felonies is a valid basis for an upward

sentencing departure. Minn. Stat. § 244.10, subd. 5a(a)(3). Application of the repeat

offender aggravating factor when injury to the victim is an element of the current offense


4
       We have also said that departures “cannot be based on uncharged or dismissed
offenses.” State v. Jones, 745 N.W.2d 845, 849 (Minn. 2008). Meyers makes no
argument that this principle is at issue here and so we do not consider it.


                                             13
does not contravene the general sentencing principles articulated in our cases because the

Legislature did not consider a recidivism-based fact in determining the severity of the

sentence for Meyers’s offense at conviction. In Peake, we recognized that the repeat

offender aggravating factor may be properly applied even when victim injury is an

element of the current or prior conviction, and even when the prior conviction has already

been factored into the presumptive sentence through the defendant’s criminal history

score. 366 N.W.2d at 300. There is no basis in any of the cases relied upon by Meyers to

limit our holding in Peake. We therefore hold that the district court did not err in relying

on the repeat offender aggravating factor to support an upward departure in this case.

                                            II.

       We turn next to Meyers’s alternative argument that even if the repeat offender

aggravating factor applies, the district court abused its discretion in imposing a

240-month sentence. Under Minn. Stat. § 244.11, subd. 2(b) (2014), we may review the

sentence challenged on appeal “to determine whether the sentence is inconsistent with

statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or

not warranted by the findings of fact . . . .” We review the district court’s decision as to

the length of departure for an abuse of discretion.    State v. Murphy, 545 N.W.2d 909,

916-17 (Minn. 1996).

       Meyers argues that the district court abused its discretion by imposing a

240-month sentence for three reasons: (1) imposing an upward departure exaggerates

Meyers’s criminality; (2) Meyers’s conduct was not significantly more serious than in a

typical first-degree assault case; and (3) the district court improperly relied on facts not


                                            14
found by the jury to find a second aggravating factor, particular cruelty, and the State did

not provide notice of its intent to rely on particular cruelty as an aggravating factor. We

address each argument in turn.

       First, Meyers argues that the length of the departure exaggerates the criminality of

his conduct because it was based on his prior conviction, which is already factored into

his criminal history score. We rejected the double-counting argument Meyers advances

in Peake. See 366 N.W.2d at 301. Meyers also relies on Neal v. State, 658 N.W.2d 536

(Minn. 2003), to argue that the district court abused its discretion in imposing an upward

departure based on the repeat offender aggravating factor because it “artificially

exaggerates the criminality of Meyers’s conduct.” Neal does not support the conclusion

that the district court abused its discretion.

       Neal involved a quadruple upward durational departure. See 658 N.W.2d at 546.

By contrast, Meyers’s 240-month sentence is less than a double durational departure

(from a range of 135-189 months to 240 months). This difference in the length of the

departure is significant because our statements in Neal addressing the potential for

exaggeration of a defendant’s criminality under the dangerous-offender statute were

expressed in the specific context of a more-than-double durational departure imposed in

the absence of severe aggravating circumstances. Id. Indeed, in Neal we ultimately

remanded for imposition of a sentence that would still constitute at least a double

durational departure from the presumptive sentence for Neal’s kidnapping offense. See

id. at 549. In short, the concerns at issue in Neal regarding exaggerated criminality are




                                                 15
not present in this case, and Neal does not support the conclusion that the district court

abused its discretion in imposing a 240-month sentence.

       Second, Meyers argues that his conduct, stabbing A.C. once in the abdomen, is not

significantly more serious than conduct typically involved in first-degree assault cases.

Meyers supports his argument by comparing his conduct to the conduct in four first-

degree assault cases. State v. Johnson, 322 N.W.2d 358, 359 (Minn. 1982); Dillon v.

State, 781 N.W.2d 588, 592, 602 (Minn. App. 2010); State v. Lindsey, 654 N.W.2d 718,

726 (Minn. App. 2002); State v. Currie, 400 N.W.2d 361, 366 (Minn. App. 1987).

Meyers’s argument is without merit. While “an appellate court may consider, among

other things, comparable sentences in departure cases to determine if a sentence is

unjustifiably disparate . . . for a sentence to be comparable, the sentencing departure must

be based upon the same or similar reasons.” Vickla v. State, 793 N.W.2d 265, 270 (Minn.

2011). None of the cases cited by Meyers involve a departure based on the repeat

offender aggravating factor or a similar recidivism-based aggravating factor.

       In cases in which departures were based on the repeat offender aggravating factor,

we have held that the existence of the repeat offender aggravating factor is sufficient, by

itself, to justify up to a double durational departure. See State v. Lomax, 437 N.W.2d

409, 410 (Minn. 1989); State v. O’Brien, 369 N.W.2d 525, 527 (Minn. 1985); State v.

Williams, 337 N.W.2d 689, 690 (Minn. 1983). Based on this precedent, there is no merit

to Meyers’s argument that his 240-month sentence, a sentence that is less than the double

durational departures we upheld in these cases, unduly exaggerates the criminality of his




                                            16
behavior or is “unreasonable, inappropriate, excessive, [or] unjustifiably disparate” under

Minn. Stat. § 244.11, subd. 2(b).

       Third, Meyers argues that the district court improperly relied on facts not found by

the jury—notably the intentional and unprovoked nature of the attack—in finding he

acted with particular cruelty. Meyers argues that not only did the jury make no factual

findings that would support the district court’s determination of particular cruelty, but

that the State failed to give notice of its intent to rely on particular cruelty as an

aggravating factor, as required by Minn. R. Crim. P. 7.03 and Minn. Stat. § 244.10,

subd. 4 (2014).

       The record supports Meyers’s contention that at least some of the facts supporting

the district court’s determination of particular cruelty were not found by the jury. The

only findings made by the jury, apart from the guilty verdict for first-degree assault, were

that Meyers “intentionally injured” A.C. and that Meyers had a prior conviction for

criminal sexual conduct. Moreover, the record indicates that the State did not give notice

of its intent to rely on particular cruelty. Nonetheless, the district court indicated at

sentencing and in the departure report that particular cruelty, along with the repeat

offender aggravating factor, provided a basis for the length of the sentence in this case.

       Any error in sentencing based on particular cruelty, however, does not require

remand for resentencing. As we have held above, the district court had a valid basis to

depart based on the repeat offender aggravating factor. Moreover, the court imposed a

sentence that was less than double the presumptive sentence. We have generally deferred

to the district court’s judgment on the proper length of departures, provided that there is a


                                             17
valid basis to depart and the sentence imposed is less than double the presumptive

sentence. Cf. State v. Thompson, 720 N.W.2d 820, 831 n.4 (Minn. 2006) (explaining that

“because the departure imposed is within the general permissible range,” namely, less

than double the presumptive sentence, remand for resentencing to determine “the

appropriate weight to be given to the remaining departure factors and to determine the

appropriate level of departure” is not required). Because there was a proper ground on

which to depart (the repeat offender aggravating factor), and because we have previously

determined that this factor can support a double durational departure, the fact that the

district court in this case identified an improper departure ground (particular cruelty) as

part of the basis for its decision as to the length of the sentence does not require a

remand. See State v. Vance, 765 N.W.2d 390, 395-96 (Minn. 2009) (concluding that

remand for resentencing was unnecessary because two out of three aggravating factors

relied upon by the sentencing court were valid and one of those validly applied factors

could itself support the double upward durational departure originally imposed by the

sentencing court).

       Given the facts of this case, the applicability of the repeat offender aggravating

factor, and our prior recognition that the departure ground itself justifies up to a double

durational departure, we hold that the court did not abuse its discretion by imposing a

sentence of 240 months.

       Affirmed.



       DIETZEN, J. took no part in the consideration or decision of this case.


                                            18
