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“When a reviewing court concludes that a district court based a departure on both valid and invalid factors, a remand is required unless it determines the district court would have imposed the same sentence absent reliance on the invalid factors.” (quoting Koon v. United States, 518 U.S. 81, 113 (1996)).

And, “[w]hen a reviewing court concludes that a district court based a departure 9 on both valid and invalid factors, a remand is required unless it determines the district court would have imposed the same sentence absent reliance on the invalid factors.” (quoting Koon v. United States, 518 U.S. 81, 113 (1996)).

Rosillo relies here, as he did in the district court, d 147, 152 (Minn. 2011), -96 (Minn. 2009).

In response, a first-degree -criminal-sexual-conduct case in which the supreme court affirmed a double upward durational departure based on two aggravating factors but did not have occasion to consider imposing a greater-than-double upward durational departure.

at 595 (- 96 (Minn. 2009)).

there is insufficient evidence to justify [the] sentence for the offense of which the defendant was convicted.”

Even when some reasons for a departure ar e improper or insufficient, we may affirm a sentence “if we conclude that the district court would have depa rted based on other aggravating factors suppor ted by its findings.” Dillon v. State , review denied (Minn. July 20, 2010); see also State v. Vance , -96 (Minn. 2009) (affirming sentencing departure notwithstanding district court’s reliance on an improper aggravating factor because two remaining departure bases independently supported the departur

If we cannot tell from the verdict whether the jury relied on erroneous instructions on one of two alternative elements required for a conviction, “ we cannot conclude beyond a reasonable doubt that the improper instruction did not have a significant impact on the verdict.” d 303, 311–12 (Minn. 2012).

“[W]hen a reviewing court concludes that a district court based a departure on both valid and invalid factors, a remand is required unless it determines the district court would have imposed the same sentence absent reliance on the invalid factors.” State v. Vance , (quotation omitted).

He also references, among others, State v. Vance , (288 months for two counts of criminal sexual conduct and two aggravating factors) and—in a case cited by the state as support for Incantalupo’s sentence—Adell, d at 779 (288 months based on one count of criminal sexual conduct in the first degree with same aggravating factor, with 30 se

1 These remands followed Blakely v. Washington , 542 U.S. 296, 124 S. Ct. 2531 (2004)

-96 (Minn. 2009) (stating that “when two out of three [aggravating] factors are valid, it is reasonable to conclude that the district court would have imposed the same sentence absent reliance on the [improper ] factor”).

We will reverse the departure decision “only if the reasons for the departure are improper or inadequate and there is insufficient evidence to justify an aggravated sentence for the offense of which the defendant was convicted.”

Guidelines 2.D.3.b.(13) (2016)

State v. Vance , , 393-94 (Minn. 2009).

See State v. Vance , (“The United States Supreme Court has stated that ‘[w]hen 7 a reviewing court concludes that a district court based a departure on both valid and invalid factors, a remand is required unless it determines the district court would have imposed the same sentence absent reliance on the invalid facto

A defendant commits a crime “in the presence” of a child if the child “saw, heard, or otherwise witnessed the offense,” or “some portion of the commissi on of the offense in question.”

Our law clearly establishes that, to depart from a presumptive sentence in any case, the district court must be satisfied that “the defendant’s conduct in the offense of conviction was significantly more or less serious than that typically involved in the commission of the crime in question.” (emphasis added) (citation omitted) (internal quotation marks omitted) .

“[W]hen a reviewing court concludes that a district court based a departure on both valid and invalid factors, a remand is required unless it determines the district court would have imposed the same sentence absent reliance on the invalid factors.” (quotation omitted).

victim was “treated with particular cruelty”; (3) the offense involved “multiple victims”; and (4) the offense occurred in a “public setting,” which put “others in the zone of danger.” Particular cruelty, multiple victims, and putting others in the zone of danger are all permissible aggravating factors which allow a sentencing court to legally impose an upward departure.1 (recognizing particular cruelty as a legally valid aggravating factors); Dominguez, d at 567 (stating that “multiple victims

See, 395-96 (Minn. 2009) (stating that “[w]e have previously concluded that a double upward durational departure is appropriate on finding particular cruelty [to the victim] alone” and affirming 288-month sentence, a departure from presumptive 144-month sentence, for first-degree criminal sexual conduct based on f

-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).

15 Remand Not Necessary “[W]hen a reviewing court concludes that a district court based a departure on both valid and invalid factors, a remand is required unless it determines the district court would have imposed the same sentence absent reliance on the invalid factors.” (quotation omitted).

(“[A] double upward durational departure is appropriate on finding particular cruelty alone.” (citing State v. 12 Martinez, (“We need not decide whether the facts cited by the state made the victim in this case ‘particu

(quotation omitted) (“An erroneous jury instruction does not require a new trial if the error was harmless beyond a reasonable doubt.”).

-95 (Minn.2009) (holding that an instructional error was not harmless where one of the two theories supporting an aggravating factor “materially misstated the law”); (stating that a “fundamentally incorrect definition of the basic elements of the charged crime