State of Minnesota v. Julian Sanchez-Sanchez ( 2015 )

This opinion will be unpublished and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UNPUBLISHED OPINION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
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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
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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
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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).
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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.
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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.
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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.
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“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)).
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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).
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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.
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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
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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
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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.
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