                         This opinion will be unpublished and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
                                    A14-1098

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                              Joseph Duane Gustafson, Jr.,
                                      Appellant.

                                 Filed March 9, 2015
                                       Affirmed
                                    Chutich, Judge
                            Dissenting, Cleary, Chief Judge

                            Hennepin County District Court
                               File No. 27-CR-11-5352

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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Bradford Colbert, Assistant Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and

Chutich, Judge.

                        UNPUBLISHED OPINION

CHUTICH, Judge

      Appellant Joseph Gustafson Jr. challenges his sentence, arguing that the district

court abused its discretion by imposing a sentence of the same length on remand even
though it decreased his criminal history score by one point.          Because, under the

circumstances present here, the district court acted within its broad discretion in imposing

the same sentence on remand, we affirm Gustafson’s sentence.

                                         FACTS

       In March 2012, Joseph Gustafson Jr. was convicted of twelve serious crimes:

racketeering, kidnapping, terroristic threats, one count of controlled substance crime in

the first degree (sale of cocaine), two counts of controlled substance crime in the third

degree (sale of cocaine), two counts of possession of a firearm by an ineligible person,

and four counts of theft by swindle over $35,000.            The convictions stem from

Gustafson’s lengthy leadership of a gang known as the “Beat-Down Posse.”

       At the original sentencing, the district court assigned the racketeering conviction,

an unranked offense, a severity level of X, the second-highest severity level possible

under the sentencing guidelines. Based on Gustafson’s criminal history score of four, the

state requested the statutory maximum sentence of 240 months, which was within the

then-applicable guideline range of 179 and 252 months. Gustafson requested a middle-

of-the-box sentence of 210 months.       The district court sentenced Gustafson to 210

months, noting that this number was within the range in all of the sentencing boxes from

two criminal history points up to six criminal history points. It further explained its

decision by stating that Gustafson’s case was not a typical racketeering case given the

wide variety of crimes and the unusual combination of violent crimes and non-violent

economic offenses.




                                             2
       Gustafson appealed, arguing, among other issues, that his criminal history score

was incorrect. State v. Gustafson, No. A12-1293, 2013 WL 4404241, at *6 (Minn. App.

Aug. 19, 2013), review denied (Minn. Oct. 23, 2013). He claimed that the district court

erroneously considered two prior assaults and a motor vehicle theft that arose out of a

single course of conduct in violation of the Minnesota Sentencing Guidelines. Id.; see

also Minn. Sent. Guidelines II.B.1.d. (2008)1 (“Only the two offenses at the highest

severity levels are considered for prior multiple sentences arising out of a single course of

conduct in which there were multiple victims.”). This court concluded that it lacked

sufficient information to determine if the three convictions arose out of a single course of

conduct and remanded to the district court to consider this issue further. Gustafson, 2013

WL 4404241, at *6.

       On remand, the state argued that the previous incident involved separate courses

of conduct, and therefore the criminal history score was correct. It requested that the

district court impose the same 210-month sentence, but it also noted that a 210-month

sentence fell within the presumptive range even if Gustafson’s criminal history score

were lowered. Gustafson argued that his correct criminal history score was three and also

asked that he be sentenced to 166 months, the low end of the box for a criminal history

score of three. Gustafson asked for the lower sentence based not on the guidelines but

because of his good behavior in prison.

1
  The 2008 Minnesota Sentencing Guidelines are applied because the racketeering charge
involved offenses that occurred between 2005 and 2009. See Minn. Sent. Guidelines 2.
(2014) (“The presumptive sentence for any offender convicted of a felony . . . is
determined by the Sentencing Guidelines in effect on the date of the conviction
offense.”).

                                             3
       The district court considered the issue to be a close call and said that it believed

that all three crimes should be used in calculating Gustafson’s criminal history score. But

for the purposes of remand, the district court only assigned points for the two assaults,

lowering Gustafson’s criminal history score to three. After noting that the guidelines

range with three criminal history points was 166 to 234 months, and after hearing

Gustafson’s reasons for why he should receive a bottom-of-the-box sentence, the district

court said: “On a remand I could not and would not increase a [sentence], but I am also

not going . . . to lower it; I am going to leave it at 210 months. . . . Still 210 months, but

on a cleaner criminal history score.” This appeal followed.

                                      DECISION

       Gustafson first argues that the district court erred by imposing the same 210-

month sentence even though it reduced his criminal history score. He claims that this

sentence contradicts the principles underlying the sentencing guidelines and this court’s

decision in State v. Benniefield, 668 N.W.2d 430 (Minn. App. 2003), aff’d on other

grounds, 678 N.W.2d 42 (Minn. 2004). The state argues, and we agree, that the new

sentence accords with relevant Minnesota caselaw.

       A sentence imposed by the district court is reviewed for abuse of discretion. State

v. Ford, 539 N.W.2d 214, 229 (Minn. 1995).2 The Minnesota Sentencing Guidelines



2
  Gustafson argues that the question presented—whether, after a remand, a district court
may impose the same sentence after lowering the criminal history score—is an issue of
law reviewed de novo. But a district court abuses its discretion if its decision is based on
an erroneous view of the law. Riley v. State, 792 N.W.2d 831, 833 (Minn. 2011).
“Accordingly, to the extent a [sentencing decision] turns on a question of law, reviewing

                                              4
limit a district court’s sentencing discretion by prescribing a sentencing range that is

presumed appropriate. Soto, 855 N.W.2d at 308. When a sentence is imposed within the

presumptive guidelines range, this court will not generally review the district court’s

exercise of discretion; presumptive sentences are seldom overturned. State v. Delk, 781

N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn. July 20, 2010). Only in the

“rare” case will this court reverse the imposition of a presumptive sentence. State v.

Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Absent compelling circumstances, this court

will not exercise its authority to modify a presumptive sentence. State v. Freyer, 328

N.W.2d 140, 142 (Minn. 1982).

       The district court’s original sentence was 210 months, within the presumptive

range based on severity level X and a criminal history score of four. See Minn. Sent.

Guidelines IV. (2008) (listing presumptive range as between 179 and 252 months). On

remand, the district court again sentenced Gustafson to 210 months. The presumptive

range based on a severity level of X and his adjusted criminal history score of three is

between 166 and 234 months; accordingly, Gustafson’s sentence remained well within

the range of a presumptive sentence. See id.; see also State v. Jackson, 749 N.W.2d 353,

359 n.2 (Minn. 2008) (“All three numbers in any given cell constitute an acceptable

sentence[;] . . . the lowest is not a downward departure, nor is the highest an upward

departure.”).




the decision for an abuse of discretion already calls for resolving the legal question de
novo.” State v. Soto, 855 N.W.2d 303, 308 n.1 (Minn. 2014).

                                           5
       Gustafson claims that he must be sentenced to 195 months based upon this court’s

decision in Benniefield. In Benniefield, the parties agreed that the defendant’s criminal

history score was miscalculated. 668 N.W.2d at 437. He was originally sentenced to 37

months based on a criminal history score of three. Id. at 434. This court directed the

district court “to resentence appellant with a criminal history score of two to something

less than 37 months. It would not be due process to move to the high end of the

presumptive range to negate appellant’s successful appeal on calculating his criminal

history score.” Id. at 437.

       Gustafson asserts that this language dictates that he must be resentenced to 195

months, the presumptive middle-of-the-box sentence based on a criminal history score of

three. We are unpersuaded by this argument. Although the supreme court affirmed this

court’s decision in Benniefield, it did not review this aspect of the case. 678 N.W.2d at

45 n.1. More importantly, however, this imprecise statement “of something less” from

Benniefield—made in passing without citation to other authority—runs counter to

previous supreme court decisions addressing the issue of the appropriate length of a new

sentence following retrial or a remand for resentencing.

       The supreme court considered the issue of resentencing after a retrial in State v.

Holmes, 281 Minn. 294, 161 N.W.2d 650 (1968).              The defendant in Holmes was

convicted, the supreme court reversed and granted a new trial, and he was convicted

again. Id. at 295, 161 N.W.2d at 651. The supreme court then considered “whether it

was error to impose a longer sentence after the second trial than that which [the district

court] imposed at the first trial.” Id. The supreme court held that a sentence may not be


                                            6
increased after a retrial because it would discourage a defendant from exercising his legal

rights to appeal. Id. at 298, 161 N.W.2d at 653. The supreme court based this decision

not on constitutional grounds but instead on public policy considerations and procedural

fairness. Id.

       The supreme court also addressed this issue in State v. Prudhomme, 303 Minn.

376, 228 N.W.2d 243 (1975), but this time in the context of resentencing rather than

retrial. But the supreme court found this difference “insignificant” and held that upon

resentencing, the district court could not impose a more severe penalty than it had

previously imposed. Id. at 380, 228 N.W.2d at 246.

       The supreme court once again considered this issue of resentencing in State v.

Hatton, 409 N.W.2d 854 (Minn. 1987). In Hatton, the district court sentenced the

defendant to 130 months, which was double the presumptive sentence of 65 months

based on a criminal history score of two. 409 N.W.2d at 856. But the district court

incorrectly calculated the defendant’s criminal history score, which was actually one. Id.

In his motion to correct his sentence, the defendant stated that the correct presumptive

sentence was 54 months based on his criminal history score of one. Id. The state urged

the district court to impose the same 130-month sentence, which it did. Id.

       This court reversed and directed imposition of a 108-month sentence—double the

presumptive sentence of 54 months. Id. But the supreme court reversed again, holding:

                The punishment concept relied on by the court of appeals
                would come into play if the trial court on resentencing had
                imposed a more severe sentence than that previously
                imposed, i.e., a sentence longer than 130 months. But



                                            7
              under . . . other cases, the trial court was free to impose a
              sentence of up to 130 months on resentencing . . . .”

Id. (citation omitted).

       These supreme court cases demonstrate that the imposition of the same sentence

after remand is permissible. We are unpersuaded by Gustafson’s argument that Hatton

does not apply because it involves a departure; nothing in its discussion so limited its

holding. Nor is Gustafson’s argument that this court should follow Benniefield because it

came later in time compelling. This court may not overrule supreme court precedent.

Mueller v. Theis, 512 N.W.2d 907, 912 (Minn. App. 1994), review denied (Minn. Apr.

28, 1994).

       Benniefield stated that imposing the same sentence “would not be due process.”

668 N.W.2d at 437. But under the United States Constitution, even imposing a greater

sentence after a successful appeal is not a per se violation of due process. See, e.g., North

Carolina v. Pearce, 89 S. Ct. 2072, 2080-81, 395 U.S. 711, 725 (1969) (holding that due

process is violated if a judge imposes a greater sentence after retrial because of

vindictiveness). And the Minnesota Supreme Court affirmatively stated that its decisions

in Holmes and Prudhomme—that a district court may impose the same sentence but not a

longer one—were based not on constitutional grounds but on procedural fairness and

public policy principles. Prudhomme, 303 Minn. at 380, 228 N.W.2d at 246; Holmes,

281 Minn. at 298, 161 N.W.2d at 653.

       Even if Benniefield were precedential, we believe its value would be limited at

best. Benniefield directed the district court to impose a sentence of “something less than



                                             8
37 months,” but it did not state what that number should be. 668 N.W.2d at 437. In

theory, the district court could have imposed a sentence one day less than 37 months and

still have followed our remand instructions. Given that the parties in Benniefield agreed

that the criminal history score was miscalculated, the statement that it would not be due

process to impose the same sentence on remand is not only dicta but is contrary to the

legal reasoning in the controlling Minnesota Supreme Court cases.

       Gustafson next contends that the principles of the sentencing guidelines require

that he receive a lower sentence. At oral argument, Gustafson’s attorney argued that only

two factors matter when sentencing an offender under the guidelines: offense severity and

criminal history. Those factors are certainly the two most critical in determining an

appropriate sentence. But we disagree that they are the only relevant factors to consider,

especially when arriving at a particular sentence within the range of a presumptive

sentence that incorporates those two factors.

       According to the guidelines, offense severity and criminal history “represent the

two dimensions most important in current sentencing . . . decisions.”        Minn. Sent.

Guidelines II. (2008). But these considerations are not the only factors a judge may

consider when imposing a sentence. These two factors lead to a box in the sentencing

grid that contains a “middle-of-the-box” number and also a range of numbers. Minn.

Sent. Guidelines IV. Any number within that range is a presumptive sentence under the

guidelines. Delk, 781 N.W.2d at 428.

       Accordingly, it follows that offense severity and criminal history are the only two

factors used when determining the appropriate range. See Jackson, 749 N.W.2d. at 359


                                                9
n.2. But once that range is determined, a district court is free to choose what it believes is

the correct sentence within that range based on everything it saw at trial or learned during

the sentencing process, including during the sentencing hearing.            At the original

sentencing hearing, the district court explained that it choose 210 months not because it

was the middle-of-the-box sentence, but because—even though the racketeering in this

case was atypical because it included both violent and white-collar crimes—Gustafson

showed positive changes throughout the proceedings. Although the district court was not

required to explain its imposition of a presumptive sentence, we may not interfere with

the district court’s exercise of discretion because the record shows that it “carefully

evaluated all the testimony and information presented before making a determination.”

State v. Van Ruler, 378 N.W.2d 77, 80-81 (Minn. App. 1985).

       We are concerned that to adopt the rule that Gustafson suggests—if a defendant

receives a midpoint sentence and the criminal history score is later adjusted, the midpoint

of the range of the new box must be imposed—would straightjacket district courts.

District courts are given great discretion to sentence within the presumptive range.

Kindem, 313 N.W.2d at 7. To adopt the mechanistic rule that Gustafson suggests would

be the antithesis of our flexible sentencing system once a guidelines range has been

established.

       Even if we were to accept Gustafson’s argument that a sentence is based only on

severity and criminal history, however, we would still not be persuaded that the sentence

here was improper. As we recognize, offense severity and criminal history are the two

most critical sentencing considerations. See Minn. Sent. Guidelines II. Of the two,


                                             10
offense severity is the weightier concern: the guidelines “reduce the emphasis given to

criminal history in sentencing decisions.” Minn. Sent. Guidelines II.B.01.

       This principle is reflected in the guidelines themselves. At severity level X, the

level applicable to Gustafson, the ranges of presumptive sentences contain much overlap,

even when the criminal history score varies as much as from two criminal history points

to six. See Minn. Sent. Guidelines IV. Conversely, within the criminal history column,

very little overlap of the ranges occurs when the offense severity increases; in fact, the

ranges do not overlap at all at the most serious levels of crime, from severity level VII to

XI. See id.

       Gustafson claims that because his criminal history score changed, imposing the

same sentence after changing his criminal history makes his sentence arbitrary and

contrary to the principles of guidelines, which seek to establish “rational and consistent

sentencing standards.” See Minn. Sent. Guidelines I. But based on the overlap between

the boxes, Gustafson’s sentence of 210 months still falls well within the presumptive

range for his adjusted criminal history score and is therefore a presumptive sentence.3

See Delk, 781 N.W.2d at 428. We do not agree that this presumptive sentence is rendered

arbitrary merely because the district court re-imposed it. Because it fell well within the

presumptive range of sentences for an offense with a severity level X and a criminal

history score of three, the rational and consistent object of the guidelines was still

attained.


3
  We note that our decision here may have been different had Gustafson’s criminal
history score been reduced to the point that the 210-month sentence would be a departure.

                                            11
      Moreover, when the district court initially chose 210 months, it did so—in an

exercise of caution and prudence—after considering the presumptive range of not only

the criminal history score of four, but also of three and two, noting that its chosen

sentence was permissible even under a lesser criminal history score.           But most

importantly, the key and legitimate reason that the district court selected 210 months

among the range of permissible months available did not change during the appeal or

upon remand: Gustafson’s criminal conduct of racketeering was more serious than many

racketeering cases because he committed many different types of violent crimes as well

as swindling people out of large amounts of money.

      At oral argument, Gustafson’s attorney clarified that he was not arguing that the

re-imposed 210-month sentence was “punishment.”           This statement accords with

Minnesota caselaw on this issue. See State v. Wallace, 327 N.W.2d 85, 88 (Minn. 1982).

But re-imposing the same sentence after remand does not violate procedural fairness or

principles of public policy, the two concerns identified by our supreme court in its cases

addressing resentencing.

      We recognize that a defendant’s legal victory on appeal may feel hollow if a

reduction in sentence does not automatically follow, but allowing a district court to re-

impose a presumptive sentence does not discourage defendants from exercising their

right to appeal a sentence.    Because a district court cannot impose a more severe

sentence, “there could be no reprisal by the trial court and therefore no prejudice to

defendant. . . . [Defendants] have nothing to lose by testing their sentences and might

gain something under different facts.” Prudhomme, 303 Minn. at 384-85, 228 N.W.2d at


                                           12
248 (Kelly, J., concurring in part and dissenting in part). With no risk but, depending

upon their individual circumstances, the possibility of a sentencing reduction, we cannot

see how defendants will be discouraged from exercising their legal right to appeal.

       Further, we refuse to assume that district courts will conduct re-sentencings with a

vindictive attitude and automatically impose the same sentence in all circumstances upon

remand. In fact, nothing in the present record suggests any improper motivation by the

district court in re-imposing the same sentence.         And, as the supreme court has

recognized, the rule that defendants may not receive a greater sentence upon resentencing

not only protects defendants but it “precludes inquiry into the motives of the sentencing

judge.” Holmes, 281 Minn. at 298, 161 N.W.2d at 653.

       In sum, our thorough review of the record convinces us that the trial court

carefully and thoughtfully selected a sentence of 210 months based upon the nature and

severity of Gustafson’s racketeering conviction. Since that sentence was well within the

permissible range of the presumptive sentence for a severity level X offense with a

criminal history score of three, we affirm the sentence imposed. See State v. Broten, 343

N.W.2d 38, 41 (Minn. 1984) (“Our examination of the record convinces us that the trial

court wanted to impose a [particular] sentence . . . . Since that sentence was within the

permissible range . . . for the offense in question, we affirm the sentence imposed.”).

       Finally, in his pro se supplemental brief, Gustafson further argues that his sentence

exceeds the statutory maximum and the maximum guidelines sentence, violating his right

to a jury trial as stated in State v. Shattuck, 704 N.W.2d 131 (Minn. 2005). But as




                                             13
discussed above, neither sentence he received was a departure. Accordingly, this claim

lacks merit.

       Affirmed.




                                         14
CLEARY, Chief Judge (dissenting)

       I respectfully dissent from the majority’s decision. The purpose of the 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) (emphasis added). While this court will not generally

review the district court’s exercise of discretion when a sentence is imposed within the

presumptive guidelines, State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review

denied (Minn. July 20, 2010), the analysis changes when the district court is asked to

resentence a defendant after a successful appeal.

       When a defendant is granted a new trial on appeal, the trial court may not impose

a greater sentence after a subsequent conviction than was imposed after the first

conviction. See, e.g., State v. Prudhomme, 303 Minn. 376, 380, 228 N.W.2d 243, 246

(1975). This rule is not based on constitutional principles, but rather on “procedural

fairness and principles of public policy.” Id. The public policy rationale has two main

justifications:

                  To permit a greater sentence on resentencing would make it
                  possible for a trial judge who might be irked by having his
                  actions questioned to increase a sentence out of pure
                  vindictiveness rather than by reason of the defendant’s
                  culpability. A rule that would permit greater sentences upon
                  resentencing after a successful appeal might deter some
                  defendants from exercising their rights to have their original
                  sentences reviewed.




                                               D-1
Id. at 383, 228 N.W.2d at 247 (Kelly, J., concurring in part). The supreme court forbids

greater sentences in a resentencing for two reasons: (1) to prevent a trial judge from

punishing defendants for appealing a conviction, and (2) to ensure defendants feel free to

exercise their right to have their sentence reviewed. Id.; see also State v. Holmes, 281

Minn. 294, 298, 161 N.W.2d 650, 653 (1968) (stating that as a matter of public policy,

reducing a sentence protects a district court judge from criticisms of bias or retribution in

resentencing). Such reasoning applies as well to a resentencing following a sentencing

based on erroneous information that results in a lower presumed sentence range.

       This court relied on the public policy rationale in State v. Benniefield, 668 N.W.2d

430 (Minn. App. 2003), aff’d on other grounds, 678 N.W.2d 42 (Minn. 2004). Based on

a mistaken criminal history score of three, the defendant was sentenced to 37 months in

prison, which was in the low end of a presumptive range. The defendant actually had a

criminal history score of two, and the court of appeals ordered the district court to

resentence the defendant to less than 37 months, even though 37 months was within the

high end of the presumptive range for a criminal history score of two. Benniefield, 668

N.W.2d at 437. The court was concerned about the district court punishing an appellant

for a successful appeal by moving from the low end of a presumptive range in the

original sentence to the high end of a presumptive range in the second sentence. Id. The

supreme court did not address the issue in its opinion affirming Benniefield, but it did

state in a footnote that the defendant’s “sentence was subsequently reduced to 33 months

to reflect the proper criminal history score.” State v. Benniefield, 678 N.W.2d 42, 45 n.1

(Minn. 2004).


                                            D-2
        Similar to Benniefield, appellant was sentenced to 210 months, the middle of the

presumptive range for a person with a severity level ten and a criminal history score of

four.   See Minn. Sent. Guidelines IV (2008).          In a subsequent hearing, appellant

successfully argued that his criminal history score was actually three, and that he should

have been sentenced in a lower box. Instead of lowering the sentence to the middle of the

new presumptive range, the district court sentenced appellant to the same 210-month

term, which is at the high end of the presumptive range for someone with a severity level

ten and criminal history score of three. Id. Appellant therefore went from the middle of

a presumptive range to the high end of a presumptive range.4

        The public policy concerns raised in Holmes suggest a sentence in the middle of

the new presumptive range—which correlates to the middle sentence he received in the

higher range—because appellant was originally sentenced based on an incorrect, higher

criminal history score. By imposing a sentence of 195 months, the mid-point of the

correct presumed sentence, the district court insulates itself from any criticism that

appellant’s successful appeal is being ignored. The lower sentence would also send a

message to other defendants that when they successfully appeal mistakes made in

computing their sentences, they are not engaging in an exercise in futility. Instead, they

are correcting a mistake in the calculation of the criminal history score that will result in a

corresponding sentence in a lower presumptive range.


4
  It should be noted that, following the reasoning of the majority, even if the appellant
had successfully shown that his criminal history score was two, rather than four, the
district court would have been free to ignore this even more significant error and could
have legally sentenced appellant to the same 210-month term.

                                             D-3
       If the district court is allowed to give the same sentence to a defendant who has

shown that the original sentence was computed in error due to an incorrect criminal

history score, we are effectively eliminating the “purpose” of the sentencing guidelines.

The sentencing guidelines, and the grid used to compute presumptive sentences, are

based not only on the severity of the offense but on the criminal history score as well. To

suggest that an error in one or the other, brought to the court’s attention by the appellant

in a successful challenge, can be ignored in resentencing, violates the public policy

objectives established by the Minnesota Supreme Court almost a half century ago. While

it is true that the cases invoking public policy involved the possibility of an increase in

sentences after a retrial or resentencing, the compelling logic of the reasoning applies

equally to a case involving resentencing after sentencing at mid-range of a presumed

sentence, without any departures, where the sentence is not increased in terms of time to

serve, but increased in terms of the mid-point of the correct presumed sentence.

       To avoid deterring some defendants from exercising their right to have their

original sentence reviewed and calculated properly and to shield the resentencing judge

from criticism as to motivation, resentencing should properly reflect the corrected

information provided to the court, whether it be a corrected severity level or a corrected

criminal history score.

       In this case, the mid-point of the range for the correct severity level and the correct

criminal history score should be used and appellant should be resentenced to 195 months.




                                            D-4
