State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0045

State of Minnesota,
Respondent,

vs.

Arlen Dean Silberg,
Appellant.

Filed October 9, 2017
Affirmed
Bratvold, Judge

Dakota County District Court
File No. 19HA-CR-16-1435

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

James C. Backstrom, Dakota County Attorney, Chip Granger, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Bjorkman, Judge; and
Bratvold, Judge.
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U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant challenges his conviction of second-degree drug possession, arguing that
the provisions of the 2016 Drug Sentencing Reform Act (DSRA), 2016 Minn. Laws. Ch.
160 §§ 4-5, require that his conviction be reduced to a third-degree offense. We affirm.
FACTS
On October 9, 2015, police arrested appellant Arlen Silberg for attempting to steal
from a store. During a search, police found a pipe and a bag containing .215 and 13.7 grams
of methamphetamine, respectively. In April 2016, the state charged Silberg with second-
degree possession of methamphetamine, fifth-degree possession of methamphetamine, and
attempted misdemeanor theft. In September 2016, a jury convicted Silberg of all three
counts.
The case proceeded to sentencing in October 2016. Silberg had a criminal history
score of nine and a custody-status point, which resulted in a presumptive sentencing range
of 95 to 132 months under the sentencing grid in effect at the time of his offenses. Minn.
Sent. Guidelines 4.A. 2.B.2(c) (2014).
During sentencing, Silb erg argued that he should have his conviction reduced to
third-degree drug possession under the DSRA, which, if applicable to him, would result in
a presumptive sentencing range of 52 to 71 months. 2016 Minn. Laws, ch. 160, §§ 4-5,
18(b), at 5- 6, 16. Compare Minn. Stat. § 152.022, subd. 2(a)(1) (2014) (providing that a
person who possesses between 6 and 25 grams of methamphetamine is guilty of second-
degree possession), and Minn. Sent. Guidelines 4.A (2014) (sentencing grid in effect at the
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time of Silberg’s offenses), with Minn. Stat. § 152.023, subd. 2(a)(1) (2016) (providing
that a person who possesses between 10 and 25 grams of methamphetamine is guilty of
third-degree possession), and Minn. Sent. Guidelines 4.C (2016) (DSRA-amended
sentencing grid). The district court denied Silberg’s request, adjudicated him guilty of
second-degree drug possession, and sentenced him to an executed sentence of 111 months
for that count. Silberg appeals.
D E C I S I O N
Silberg argues that he is entitled to a reduction of his conviction from second-degree
to third-degree drug possession based on the mitigating provisions of the DSRA, which
went into effect while his case was pending. Silberg also requests resentencing under the
DSRA, but only if his conviction is reduced to third degree. The state responds that the
DSRA does not apply to Silberg’s conviction and sentence because he committed his
offense before the DSRA amendments went into effect.
After the parties completed briefing in this court, the supreme court decided two
cases addressing the issue presented in this appeal. In State v. Kirby, the supreme court
announced the “amelioration doctrine,” which provides that an amended criminal statute
applies to crimes committed before its effective date if: (1) there is no clear statement by
the legislature that it intends to abrogate the amelioration doctrine; (2) “the amendment
mitigates punishment”; and (3) final judgment has not been entered as of the effective date.
899 N.W.2d 485, 490 (Minn. 2017). Kirby held that the amelioration doctrine applies to
section 18 of the DSRA, which directed amendment of the sentencing grid for drug
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offenses and became effective on May 23, 2016. Id.; see also 2016 Minn. Laws, ch. 160,
§ 18, at 16; Minn. Sent. Guidelines 4.C (2016).
In State v. Otto, released on the same day as Kirby, the supreme court rejected an
argument identical to Silberg’s and held that the amelioration doctrine does not apply to
the DSRA provisions that amended the weight requirements for drug offenses. 899 N.W.2d
501, 503 (Minn. 2017). Sections 4 and 5 of the DSRA increased the weight requirement
for second- and third- degree drug possession and stated that they became “effective
August 1, 2016, and appl[y] to crimes committed on or after that date.” 2016 Minn. Laws,
ch. 160, §§ 4-5, at 5- 7. The supreme court concluded that the legislature’s intent was
“crystal clear: to abrogate the amelioration doctrine.” 899 N.W.2d at 503. Otto therefore
held that the DSRA amendments to the weight requirements for drug offenses do not apply
to crimes that were committed before August 1, 2016. Id. at 504. Because Silberg
committed his offense in October 2015, we conclude that he is not entitled to have his
conviction reduced from second degree to third degree under the amelioration doctrine.
Silberg argues that he is entitled to be resentenced, but only if his conviction is
reduced to third-degree drug possession. Silberg has not asked for relief under section 18
of the DSRA, and we affirm his second-degree conviction. McKenzie v. State, 583 N.W.2d
744, 746 n.1 (Minn. 1998) (“[I]ssues not argued in briefs are deemed waived on appeal.”
(alteration in original) (citation omitted)). We also note that remand for resentencing would
be unnecessary in Silberg’s case because the presumptive sentencing range under the 2014
and 2016 DSRA-amended guidelines for second-degree drug possession is the same.
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Compare Minn. Sent. Guidelines 4.A (2014), with Minn. Sent. Guidelines 4.C (2016).
Therefore, Silberg is not entitled to resentencing.
Consistent with Kirby and Otto, we conclude that Silberg is not entitled to a
reduction of his conviction from second- degree drug possession to third-degree drug
possession under the DSRA, and that Silberg is not entitled to resentencing under the
DSRA-amended sentencing grid.
Affirmed.