                        This opinion will be unpublished and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
                                   A14-0584

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                               Julian Sanchez-Sanchez,
                                      Appellant.

                               Filed April 27, 2015
                                    Affirmed
                                   Smith, Judge
                      Concurring specially, Rodenberg, Judge

                           Hennepin County District Court
                              File No. 27-CR-13-9468

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Mary F. Moriarty, Hennepin County Public Defender, Peter W. Gorman, Assistant Public
Defender, Minneapolis, Minnesota (for appellant)

      Considered and decided by Chutich, Presiding Judge; Rodenberg, Judge; and

Smith, Judge.
                         UNPUBLISHED OPINION

SMITH, Judge

       We affirm appellant’s sentence because the greater-than-double upward durational

departure is supported by severe aggravating circumstances based on the facts admitted

and evidence in the record.

                                         FACTS

       After a lengthy FBI investigation into a methamphetamine distribution network,

the state charged appellant Julian Sanchez-Sanchez with conspiracy to commit a first-

degree controlled substance crime. Sanchez-Sanchez pleaded guilty to the charge and

admitted his participation in the conspiracy.

       The state gave notice that it intended to seek an upward sentencing departure

because the offense was a major controlled substance offense, a large number of people

were put at risk by the offense, and the offense involved three or more active participants.

Sanchez-Sanchez waived his right to a sentencing jury.

       At a court sentencing trial, the district court concluded that three reasons existed

for an upward departure and made corresponding factual findings. First, the district court

found that the offense was a major controlled substance offense because Sanchez-

Sanchez occupied a high-level position within the distribution network and a high degree

of sophistication and planning was involved. Second, the district court found that the

offense involved three or more active participants because the conspiracy involved at

least 20 people and a “significant number” were active participants. And third, the

district court found that a large number of people were put at risk by the offense because


                                                2
methamphetamine is a “particularly dangerous” neurotoxin and the conspiracy was

distributing the drug in vast amounts. After giving consideration to mitigating factors as

well, the district court sentenced Sanchez-Sanchez to 240 months’ incarceration, an

upward durational departure of 279% from the 86-month guidelines sentence.

                                     DECISION

      Sanchez-Sanchez argues that the district court erred in its decision to depart

upwardly from a guidelines sentence for five reasons. We review an upward departure

from a guidelines sentence for an abuse of discretion. Tucker v. State, 799 N.W.2d 583,

585-86 (Minn. 2011). The district court may only depart upwardly from a guidelines

sentence if “substantial and compelling circumstances based on aggravating factors” are

present. Dillon v. State, 781 N.W.2d 588, 595 (Minn. App. 2010) (quotation omitted),

review denied (Minn. July 20, 2010). To impose a sentence that is more than double the

guidelines sentence, there must be severe aggravating circumstances. Id. at 596. We

review de novo “whether a valid reason to depart exists” and whether a departure

reason’s severity justifies a sentence that is more than double the presumptive sentence.

Id. at 598.   An upward departure will be reversed if the reasons for departing are

“improper or inadequate” or the record does not support the reasons.         Tucker, 799

N.W.2d at 586 (quotation omitted).

                                           A.

      Sanchez-Sanchez argues that the district court abused its discretion by sentencing

him to 240 months when his codefendants received shorter sentences. The guidelines are

designed to impose proportionate sentences because “convicted felons similar with


                                            3
respect to relevant sentencing criteria ought to receive similar sanctions.” Minn. Sent.

Guidelines 1 (Supp. 2011). While we acknowledge that many of Sanchez-Sanchez’s

codefendants received shorter sentences, the district court did not impose a

disproportionate sentence or abuse its discretion. First, only one codefendant alleged to

be at the top level of the conspiracy had been sentenced at the time, and he received the

statutory maximum sentence. State v. Ayala-Leyva, 848 N.W.2d 546, 552 (Minn. App.

2014) (reversing the sentence because the sentencing jury did not make proper factual

findings), review granted (Minn. Aug. 5, 2014). Moreover, the sentencing criteria were

not the same due to variations in criminal history scores, mitigating and aggravating

factors, and plea agreements. The district court appropriately considered factors that may

not have been present for the codefendants, including Sanchez-Sanchez’s position in the

hierarchy of the conspiracy and his role in facilitating the interstate movement of drugs

and money. See State v. Starnes, 396 N.W.2d 676, 681 (Minn. App. 1986) (“A defendant

is not entitled to a reduction in his sentence merely because a co-defendant or accomplice

has . . . received a lesser sentence.”).

                                           B.

       Next, Sanchez-Sanchez contends that the district court failed to make factual

findings in support of its stated departure reasons. We have held that aggravating factors

must be supported by adequate factual findings. Id. at 557-58. For example, if the

district court departs because the crime is a “major controlled substance crime,” it must

specifically name which of the required circumstances existed. Id. at 558. Here, the

district court departed for a major controlled substance offense and made corresponding


                                            4
findings that Sanchez-Sanchez occupied “a high position within the conspiracy” and that

the offense “involved a high degree of sophistication and planning.” See Minn. Sent.

Guidelines 2.D.2.b.5.e-f (Supp. 2011). The district court properly named two specific

circumstances as required by the guidelines. In addition, the district court found that the

crime involved “at least . . . 20 people” and that “a significant number of those persons”

were active participants to support departing for a conspiracy with three or more active

participants. See Minn. Sent. Guidelines 2.D.2.b.10 (Supp. 2011). Finally, the district

court found that the drugs involved were “particularly dangerous” neurotoxins and that

the amounts at issue put “many thousands of people in danger” to support departing on

the basis of the number of people at risk. See State v. Ford, 539 N.W.2d 214, 230 (Minn.

1995) (including conduct that “put a number of people at risk” among reasons to justify

departure). Therefore, each departure reason is supported by sufficient factual findings.

                                             C.

         Sanchez-Sanchez also argues that the district court’s decision “was based

exclusively upon hearsay.” Because Sanchez-Sanchez did not object at trial on the basis

of hearsay, we review for plain error. See State v. Griller, 583 N.W.2d 736, 740 (Minn.

1998).    To grant relief, “there must be (1) error, (2) that is plain, and (3) affects

substantial rights.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). An error is plain

“when it contravenes a rule, case law, or a standard of conduct, or when it disregards

well-established and longstanding legal principles.” State v. Brown, 792 N.W.2d 815,

823 (Minn. 2011). An error affects substantial rights if “there is a reasonable likelihood

that the error substantially affected the verdict.” Id. at 824 (quotation omitted).


                                              5
       The rules of evidence do not apply at a sentencing proceeding without a jury.1

Minn. R. Evid. 1101(b)(3).       Indeed, district courts routinely consider presentence

investigation reports and victim-impact statements, both of which generally include

hearsay statements, before making a sentencing decision. See, e.g., State v. Alexander,

855 N.W.2d 340, 344 (Minn. App. 2014) (presentence investigation report); Wells v.

State, 839 N.W.2d 775, 777 (Minn. App. 2013) (victim-impact statement), review denied

(Minn. Feb. 18, 2014). Accordingly, the district court did not plainly err by admitting

hearsay testimony.

                                             D.

       Next, Sanchez-Sanchez contends that the district court’s reasons for departing are

inconsistent with the law. Because the guidelines and caselaw permit the district court to

consider each of the stated departure reasons, this argument fails.

       Sanchez-Sanchez cites State v. McIntosh, 641 N.W.2d 3, 11-12 (Minn. 2002), in

support of the contention that the “major controlled substance crime” factor

impermissibly duplicates the offense’s Category 9 ranking in the guidelines. However,

McIntosh merely cautions that the factor “could . . . implicate” the quantity of drugs

required to commit the offense. 641 N.W.2d at 11. In this case, the district court appears

to have relied not on the quantity of drugs but on evidence demonstrating that Sanchez-

1
  Minn. R. Evid. 1101(b)(3) excludes application of the Minnesota Rules of Evidence
from “proceedings.” But, under Blakely v. Washington, a jury trial is required to
determine if aggravating factors are present. 542 U.S. 296, 313-14, 124 S. Ct. 2531,
2543 (2004). The Minnesota Supreme Court held in State v. Rodriguez that the
Minnesota Rules of Evidence apply in a jury determination of aggravating factors. 754
N.W.2d 672, 683-84 (Minn. 2008). In this case, however, Sanchez-Sanchez waived his
right to a jury determination.

                                             6
Sanchez orchestrated sophisticated transportation methods to move drugs from California

to Minnesota and rented a house for sale and storage of drugs as opposed to operating as

a street-level dealer.

       Next, Sanchez-Sanchez contends that “there is no direct evidence” tying him to

the sophisticated planning of the conspiracy because he was living in California, while

the street-level drug transactions were taking place in Minnesota. But there is ample

direct evidence. Sanchez-Sanchez admitted that he was part of the conspiracy and that he

rented the house and knew that it was being used to sell and store drugs, and the recorded

conversations indicate that he orchestrated transportation of the drugs that originated in

California.    Furthermore, the FBI agent testified that Sanchez-Sanchez arranged

transportation that used sophisticated concealment techniques. The fact that Sanchez-

Sanchez was in California did not hinder his ability to actively participate in the planning

and logistics of the conspiracy.

       Sanchez-Sanchez also argues that it was inappropriate to consider the “three or

more persons” factor because the crime charged required two or more persons. However,

we have concluded that this factor is not duplicative of an element of conspiracy because

it requires at least one additional person. See Ayala-Leyva, 848 N.W.2d at 558.

       Sanchez-Sanchez also asserts that the number of people put at risk is an improper

factor because it is not listed in the sentencing guidelines. The sentencing guidelines

clearly state that they provide a nonexclusive list of factors. Minn. Sent. Guidelines

2.D.2 (Supp. 2011). Moreover, the supreme court has applied this factor in other cases.

See, e.g., State v. Edwards, 774 N.W.2d 596, 607 (Minn. 2009); State v. Ford, 539


                                             7
N.W.2d 214, 230 (Minn. 1995). It was not improper for the district court to consider this

factor.

                                                E.

          Finally, Sanchez-Sanchez alleges that the district court judge implied that “the

sentencing decision was not his, but lay elsewhere.” The departure from a guidelines

sentence “is an exercise of judicial discretion constrained by case law and appellate

review.” Minn. Sent. Guidelines 2.D (Supp. 2011).

          At sentencing, the district court judge said:

                 The decisions that you made Mr. Sanchez-Sanchez to
                 participate in this conspiracy, to the extent that you did, those
                 were the things that have put you where you are today, and
                 they will place you where you will go for the next few years.
                 Not my decision, I want you to understand that.

The district court’s statement explains that its sentencing decision was based on Sanchez-

Sanchez’s participation in the charged crime, not the judge’s whims. The district court

did not fail to exercise proper discretion.

          Affirmed.




                                                 8
RODENBERG, Judge (concurring specially)

       I concur in affirming appellant’s sentence and see no abuse of the district court’s

discretion in sentencing on this record, but I write separately to observe that the

compression of a wide variety of dissimilar criminal activity into the definition of

controlled substance crime in the first degree under Minn. Stat. § 152.021, subd. 1(1)

(2014),2 necessarily results in outcomes at odds with the stated purpose of the Minnesota

Sentencing Guidelines.

       “The purpose of the [Minnesota] Sentencing Guidelines is to establish rational and

consistent sentencing standards that reduce sentencing disparity and ensure that the

sanctions imposed for felony convictions are proportional to the severity of the

conviction offense and the offender’s criminal history.” Minn. Sent. Guidelines 1.A.

(2014).3 The presumptive guidelines sentence is determined by a grid that lists the

offense of conviction on the vertical axis and the offender’s criminal history on the

horizontal axis.   Minn. Sent. Guidelines 2, 4.A (2014). Offense severity is determined

by the statutory definition of the conviction offense, and increases with the seriousness of

the offense, as determined by the offense ranks established in the sentencing guidelines.

See State v. Jackson, 749 N.W.2d 353, 359 n.2 (Minn. 2008); see also Minn. Sent.

Guidelines 5 (2014).




2
  The current statute proscribing drug sale crimes is identical to the statute in effect at the
time of the offense.
3
   Although the offense dates in this case span 2010 to 2013, the most current sentencing
guidelines are referenced because the guidelines have not changed substantially.
                                            CS-1
       “As a general rule, the guidelines contemplate that offenders with similar criminal

backgrounds who are convicted of similar crimes receive similar sentences; and offenders

with more extensive criminal records who commit the most serious and violent offenses

receive the greater sentences.” Taylor v. State, 670 N.W.2d 584, 586 (Minn. 2003).

First-degree controlled substance crime is defined as a severity level 9 offense under the

guidelines. Minn. Sent. Guidelines 5 (2014). While appellant pleaded guilty to having

occupied a central role in a massive methamphetamine-distribution conspiracy, he had a

zero criminal history score at sentencing. With a zero criminal history score, this offense

has a presumptive sentencing range of 74 to103 months, with 86 months as the

presumptive sentence in the middle of this range. Minn. Sent. Guidelines 4.A; see

Jackson, 749 N.W.2d at 359 n.2 (“All three numbers in any given cell constitute an

acceptable sentence based solely on the offense at issue and the offender’s criminal

history score—the lowest is not a downward durational departure, nor is the highest an

upward departure.”)

       Over the years the range and duration of the numbers in the cells have increased.

Taylor, 670 N.W.2d at 586-87. In 2005, for example, the legislature “substantially

broadened the sentencing ranges” to 20% above and 15% below the presumptive middle

sentence. Jackson, 749 N.W.2d at 360. The purpose of this change “was to reduce

aggravated durational departures.” Id. The underlying purpose of the guidelines “will

not be served if the trial courts generally fail to apply the presumptive sentences found in

the guidelines.” State v. Leja, 684 N.W.2d 442, 448 (Minn. 2004) (quoting State v.

Spain, 590 N.W.2d 85, 88 (Minn. 1999)).

                                           CS-2
      The statutory definition of a first-degree controlled substance crime includes all

sales of methamphetamine occurring within a 90-day period amounting to a total of ten

grams or more. Minn. Stat. § 152.021, subd. 1(1).4 And “sale” is broadly defined to

include a wide variety of actions, including to “give away” the drugs. Minn. § 152.01,

subd. 15a (2014). Therefore, a seller of multiple pounds of methamphetamine for tens of

thousands of dollars commits the same crime as a drug user who, on multiple occasions

over a 90-day period, shares ten grams of methamphetamine with other addicts. The

Minnesota Supreme Court has recognized that “typical does not mean minimal” and that

the “typical offense” may be “more extreme than the minimum conduct required to

violate the applicable statute.” Leja, 684 N.W.2d at 450. But the broad range of conduct

included within the definition of a first-degree controlled substance sale crime

undermines the goal of proportionality that is the foundation of the guidelines: the

presumptive guidelines sentencing range for an offender with no criminal history is the

same for one who sells multiple pounds of methamphetamine over several years, and

another who over a 90-day period shares ten grams of methamphetamine with others.

      That the statutory definition has compressed dissimilar behaviors into a single

defined criminal offense is evidenced not only by the range of sentences given to actors

in the methamphetamine-distribution network of which appellant was a part, but also by

the large number of departures from the presumed guidelines range in other first-degree

cases. Even after the guidelines ranges were increased in 2005, the departure rates for

4
  This concurrence refers to methamphetamine because it is the drug at issue in this
appeal. The same analysis, however, would apply to cocaine or heroin. Minn. Stat.
§ 152.021, subd. 1(1) (2014).
                                         CS-3
drug crimes suggest that there is no typical first-degree controlled substance sale crime.

For example, there is a high departure rate among defendants convicted of first-degree

controlled substance offenses, with 36% receiving the presumptive sentence, 34%

receiving a mitigated durational departure, and 30% receiving a mitigated dispositional

departure. Minnesota Sentencing Guidelines Commission, Report to the Legislature,

January 15, 2015, available at http://mn.gov/sentencing-guidelines/ Figures 11 at pg. 19,

and 12 at pg. 20. Some, as in the case now before us on appeal, are aggravated durational

departures.5 Less than half of all first- and second-degree drug offenders receive a

presumptive sentence under the guidelines. Id., Figure 13. This rate of departure does

not indicate any error by the district judge in this case. Nor does it indicate any error by

the judges who have imposed mitigated dispositional and durational departures in other

first-degree cases.   What it strongly indicates is that the definition of first-degree

controlled substance offense includes a wide array of fundamentally different criminal

behaviors.

       The current weight-based classification scheme for controlled substance offenses

was adopted in 1986 and 1989.         See Beverly J. Wolfe, Constitutional and Policy

Concerns Pertaining to Weight-Based Statutory Classifications for Minnesota Controlled

Substance Offenses, 15 Hamline J. Publ. L. & Pol’y 81, 83-84 (1994). Since these

weights were adopted, there have been conversations about lowering the severity level of

various drug offenses under the sentencing guidelines.       See John Stuart and Robert


5
  There can be no aggravated dispositional departure for first-degree offenses, as the
guidelines sentence is an executed sentence for all criminal history scores.
                                           CS-4
Sykora, Minnesota’s Failed Experience with Sentencing Guidelines and the Future of

Evidence-Based Sentencing, 37 Wm. Mitchell L. Rev. 426, 438-443 (2011) (discussing,

generally, failed efforts to lower the levels for controlled substance possession offenses

or re-rank controlled substance offenses). But, as demonstrated by this case and others

involving this same methamphetamine-distribution conspiracy, not all first-degree

controlled substance crimes should be ranked lower than a severity-level 9. See State v.

Ayala-Leyva, 848 N.W.2d 546 (Minn. App. 2014) (reversing and remanding 360-month

sentence, a greater-than-quadruple upward departure from presumptive 86-month

sentence for first-degree controlled substance crime, with instructions concerning a

greater-than-double durational departure), review granted on other grounds (Minn.

Aug. 5, 2014); State v. Hernandez-Espinoza, A13-1081, 2014 WL 2441129 (Minn. App.

June 2, 2014) (affirming 172-month sentence, a double-upward departure from the

presumptive sentence), review denied (Minn. Aug. 19, 2014); State v. Lopez-Martinez,

A13-0253, 2014 WL 902662 (Minn. App. Mar. 10, 2014) (affirming 172-month

sentence, a double-upward departure from the presumptive sentence), review denied

(Minn. May 20, 2014).

       If the legislature wishes to promote the stated purposes of the guidelines of

reducing sentencing disparity and ensuring that sentences are proportional, perhaps a

statutory framework similar to the theft statutes should be considered. There is a broad

range of behavior that constitutes “theft,” but available sentences for theft offenses range

from misdemeanors to 20-year felonies.        See Minn. Stat. § 609.52, subd. 2 (2014)

(defining variety of acts constituting theft). Most of the differences between levels of

                                           CS-5
offenses are based on the value of the property taken. See id., subd. 3 (2014). But the

legislature also has included a number of other factors bearing on the severity of the

offense, including whether the property was taken from public funds, from a grave or

coffin, from a motor vehicle, or from a building after a civil disaster. See id. The

legislature also has separated identity theft as a specific type of theft that is punishable

based on consideration of the number of victims and the total of direct and indirect

monetary loss. Minn. Stat. § 609.527, subds. 1, 3 (2014). The legislature’s careful

identification of specific attributes of theft offenses as distinguishing one from another

for sentencing purposes results in theft offenses under the sentencing guidelines ranging

from severity level 1 (theft from an abandoned building, for example) to severity level 8

(identity theft). Minn. Sent. Guidelines 5.A. In theft cases, a sentencing judge has little

occasion to depart from the sentencing guidelines as the definition of the crime of

conviction is narrowly tailored to the minimum conduct proscribed.

       District court judges have considerable discretion in sentencing, but may depart

from the sentencing guidelines only when substantial and compelling reasons for

departure are shown. See, e.g., Taylor, 670 N.W.2d at 587. We review sentencing

departures for abuse of discretion. State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).

If the reasons for an upward departure are legally permissible and supported by the

record, we will affirm the departure. State v. Edwards, 774 N.W.2d 596, 601 (Minn.

2009). Because the district court has broad discretion in sentencing, “we generally will

not interfere with the exercise of that discretion.” State v. Kindem, 313 N.W.2d 6, 7

(Minn. 1981) (noting that it is a rare case wherein reversal of a refusal to depart from the

                                           CS-6
presumptive guidelines sentence is warranted because, even when substantial and

compelling circumstances are present, the district court has discretion).

       Here, applying this deferential standard of review, the majority correctly

determines that the district court did not err in its findings, nor did it abuse its discretion,

in sentencing appellant as it did. But, as appellant rightly notes, the resulting sentence is

inconsistent with other first-degree controlled substance crime offenders, including some

others prosecuted in this conspiracy who received less severe sentences for criminal

conduct apparently as serious, and perhaps more serious, than appellant’s conduct. This

is at odds with the principal purpose of the sentencing guidelines, which is to achieve

consistent sentences for the same offenses committed by similarly situated offenders. As

long as the definition of first-degree drug crimes includes significantly different criminal

behavior, there will be departures from the guidelines by judges properly exercising their

judicial discretion. But the resulting sentences will not conform to the ideals expressed

by the sentencing guidelines.




                                             CS-7
