                          This opinion will be unpublished and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
                                      A15-1825

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                   David Muniz Bustos,
                                       Appellant.

                                    Filed June 13, 2016
                                         Affirmed
                                      Hooten, Judge

                              McLeod County District Court
                                File No. 43-CR-12-305

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

Michael Junge, McLeod County Attorney, Elizabeth Smith, Assistant County Attorney,
Glencoe, Minnesota (for respondent)

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

         Considered and decided by Hooten, Presiding Judge; Reilly, Judge; and Jesson,

Judge.

                         UNPUBLISHED OPINION

HOOTEN, Judge

         Appellant challenges his 391-month guidelines sentence for second-degree murder,

arguing that the district court abused its discretion by failing to sentence him to 326 months
as was recommended by his presentence investigation report (PSI). Because the district

court did not abuse its discretion in imposing a sentence within the presumptive range

under the sentencing guidelines and the 391-month sentence was consistent with a

negotiated plea agreement between the state and appellant, we affirm.

                                         FACTS

       Appellant David Muniz Bustos was indicted by a grand jury for first-degree murder

while committing domestic abuse and second-degree intentional murder in connection with

the February 21, 2012 stabbing death of D.L., a woman with whom Bustos was in a

romantic relationship. State v. Bustos, 861 N.W.2d 655, 658–59 (Minn. 2015). Following

a jury trial, Bustos was found guilty of first-degree domestic-abuse murder and second-

degree intentional murder, along with the lesser-included offenses of second-degree felony

murder and third-degree murder. Id. at 657. The district court adjudicated Bustos guilty

of the first-degree murder count and sentenced him to life in prison with the possibility of

release. Id. at 660.

       Bustos appealed, and the Minnesota Supreme Court affirmed the second-degree

intentional murder conviction, but reversed the first-degree murder conviction and

remanded for a new trial on that charge. Id. at 667. On remand, the parties stated on the

record that they had reached an agreement that Bustos would be sentenced to 391 months

in prison on the second-degree intentional murder conviction in exchange for the state

dismissing the first-degree murder charge. A PSI was prepared prior to sentencing, which

recommended that Bustos be sentenced to 326 months in prison, the middle of the

presumptive range of sentences for individuals with Bustos’ criminal history.            In


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accordance with the parties’ agreement, the district court sentenced Bustos to 391 months

in prison on the second-degree intentional murder conviction, the top end of the

presumptive range. This appeal followed.

                                       DECISION

         Bustos argues that the district court abused its discretion by sentencing him to 391

months in prison because the PSI recommended a term of only 326 months. This court

reviews a district court’s sentencing decision for an abuse of discretion. State v. Soto, 855

N.W.2d 303, 307–08 (Minn. 2014).           “[A]ny sentence within the presumptive range

[specified in the sentencing guidelines] for the convicted offense constitutes a presumptive

sentence.” State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn.

July 20, 2010). As a result, “[t]his court will generally not exercise its authority to modify

a sentence within the presumptive range absent compelling circumstances.” Id. (quotation

omitted). This court will only reverse the district court’s imposition of a presumptive

sentence in a “rare” case. Id. (quotation omitted).

         In arguing that the district court abused its discretion by imposing a 391-month

sentence, Bustos points to no compelling circumstances justifying the modification of the

presumptive sentence. Instead, Bustos points out that the corrections agent who completed

the PSI, after examining Bustos’ background, criminal-history score, and offense conduct,

recommended that Bustos receive 326 months in prison, the middle of the presumptive

range.

         Bustos’ argument that the district court abused its discretion overlooks established

precedent providing that any sentence within the presumptive range for the convicted


                                              3
offense constitutes a presumptive sentence. See State v. Jackson, 749 N.W.2d 353, 359 n.2

(Minn. 2008) (noting that under the sentencing guidelines presumptive sentences are

determined using a grid system, that each cell on the grid contains three numbers, and that

“[a]ll three numbers in any given cell constitute an acceptable sentence”). The presumptive

range for an individual convicted of second-degree intentional murder with Bustos’

criminal-history score of one is 278 to 391 months, with a midpoint of 326 months. Minn.

Sent. Guidelines 4 (Supp. 2011). The district court sentenced Bustos to 391 months in

prison, which was the top of the range, but was still a presumptive sentence. Because

Bustos’ sentence was not a departure and district courts have broad discretion in sentencing

a defendant within the presumptive range, we conclude that the district court did not abuse

its discretion by sentencing Bustos to 391 months.

       We further note that the terms of the plea agreement allowed Bustos to avoid a trial

on the first-degree murder charge and the risk of a substantially longer sentence than the

agreed-upon sentence. A plea agreement is in many ways “analogous to a contract between

the state and a defendant.” State v. Meredyk, 754 N.W.2d 596, 603 (Minn. App. 2008).

Essentially, a plea agreement “represent[s] a bargained-for understanding between the

government and criminal defendants in which each side foregoes certain rights and

assumes certain risks in exchange for a degree of certainty as to the outcome of criminal

matters.” Id. (quotation omitted). The fact that Bustos agreed to a longer presumptive

sentence than was eventually recommended by the PSI in order to gain the benefit of

avoiding another first-degree murder trial provides further support for our conclusion that

the district court did not abuse its discretion in sentencing Bustos to 391 months.


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       In his pro se supplemental brief, Bustos raises a sufficiency of the evidence

argument. Because his allegation is unsupported by argument or citation to legal authority,

we deem this issue to be waived. State v. Taylor, 869 N.W.2d 1, 22 (Minn. 2015).

Moreover, because Bustos could have raised a sufficiency argument on direct appeal of his

convictions, this claim is barred on appeal. See State v. Knaffla, 309 Minn. 246, 252, 243

N.W.2d 737, 741 (1976) (providing that all matters raised or known and not raised at the

time of direct appeal will not be considered in a subsequent matter).

       Affirmed.




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