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This opinion will be unpublished and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
A17-0595

State of Minnesota,
Respondent,

vs.

Pedro Ayala-Leyva,
Appellant.

Filed March 26, 2018
Affirmed
Bjorkman, Judge

Hennepin County District Court
File No. 27-CR-12-5274

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

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

Daniel P. Repka, Repka Law, LLC, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Bjorkman, Judge; and
Smith, Tracy M., Judge.

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U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges his 309-month sentence for conspiring to commit first-degree
sale of a controlled substance while a member of the conspiracy possessed a firearm . He
argues that (1) severe aggravating circumstances do not exist to justify a sentence of more
than doub le the presumptive term and (2) the district court violated his constitutional
confrontation right by allowing prior trial testimony of unavailable witnesses to be read
into the record at his sentencing trial. We affirm.
FACTS
Appellant Pedro Ayala-Leyva was a principal operator in a large -scale, multi-state
methamphetamine-distribution ring. In 2012, after a nine -month state and federal
investigation, respondent State of Minnesota charged Ayala -Leyva with conspiring to
commit first -degree sale of a contr olled substance while a member of the c onspiracy
possessed a firearm . The state provided notice that it intended t o seek an aggravated
sentence.
At Ayala -Leyva’s jury trial , the state presented extensive evidence of the
methamphetamine conspiracy, which we set forth in detail in our earlier opinion , State v.
Ayala-Leyva, 848 N.W.2d 546, 558 (Minn. App. 2014), review denied (Minn. Aug. 11,
2015). To briefly summarize, the state showed: an extremely high number of calls between
Ayala-Leyva and co-conspirators; Ayala-Leyva receive d cash deposits from co-
conspirators; the organization used vehicles with concealed compartments to transport
methamphetamine from California to Minnesota; police searches of residences and

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vehicles associated with Ayala -Leyva and co -conspirators yielded multiple firearms and
quantities of methamphetamine in excess of 7,200 grams (approximately 16 pounds); and
the organization generated approximately one-half million dollars in revenue in the four-
month period preceding Ayala-Leyva’s arrest. Six of Ayala -Leyva’s co -conspirators
testified at his trial, detailing the California -Minnesota-Wisconsin operation and
establishing Ayala-Leyva’s role as one of its leaders.
The jury found Ayala-Leyva guilty. During the sentencing phase, the district court
asked the jury to determine whether: (1) the offense was a major controlled -substance
crime, (2) Ayala-Leyva’s conduct placed a number of people at risk, and (3) Ayala-Leyva
committed the offense as part of a group of three or more active participants. The jury
answered all three questions in the affirmative, and the district court sentenced Ayala -
Leyva to 360 months’ imprisonment, the statutory maximum. See Minn. Stat. § 152.021,
subd. 3(a) (2010). The sentence is greater than three times the presumptive 103-month
sentence. Minn. Sent. Guidelines 4 (2010); see State v. Parker, 901 N.W.2d 917, 924 n.3
(Minn. 2017) (determining departure duration from top of presumptive sentencing range).
On appeal, we affirmed Ayala -Leyva’s conviction but reversed his aggravated
sentence because it was not based on a jury’s factual findings as to circumstances
supporting severe aggravating factors . Ayala-Leyva, 848 N.W.2d at 558. We remanded
for resentencing, noting that any decision to impose a more-than-double upward durational
departure would have to be supported by a sentencing jury’s factual findings indicating
“severe” aggravating circumstances. Id. at 558-59.

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The district court convened a jury for a resentencing trial. The state presented
numerous witnesses and exhibits, substantially replicating the first trial. But two of Ayala-
Leyva’s testifying co-conspirators, Mario Castro and Obet Moreno -Guerrero, were
deported after the first trial . Over Ayala -Leyva’s objection, the district court permitted
their prior trial testimony to be read to the jury.
The district court asked the jury to answer 34 special -verdict interrogatories, all
related to the same three aggravating factors at issue in Ayala-Leyva’s first trial. Based on
the jury’s findings, the district court determined that all three aggravating factors exist.
And t he district court concluded that those factors constitute severe aggravating
circumstances, making this “one of those rare cases” that warrant a more -than-double
departure from the guidelines sentence. Ayala -Leyva appeals his 309 -month prison
sentence.
D E C I S I O N
I. The district court did not abuse its discret ion by imposing a 309 -month
aggravated sentence.

A district court must impose a sentence within the presumptive sentencing range
unless there are “identifiable, substantial, and compelling circumstances” to warrant an
upward departure. Minn. Sent. Guidelines 2.D (2010 ). “Substantial and compelling
circumstances are those showing that the defendant’ s conduct was significantly more . . .
serious than that typically involved in the commission of the offense in question.” State v.
Edwards, 774 N.W.2d 596, 6 01 (Minn. 2009) (quotation omitted); see also Minn. Sent.
Guidelines 2.D.2 (2010) (providing nonexclusive list of departure reasons). Even when

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such circumstances exist, a double upward departure “is generally the ‘upper limit’ of a
sentencing departure.” Ayala-Leyva, 848 N.W.2d at 558 (quoting State v. Evans , 311
N.W.2d 481, 483 (Minn. 1981)). “ Only in cases of ‘severe aggravating circumstances ’
may the district court impose a greater -than-double departure from the presumptive
sentence; in such cases the only absolute limit on duration is the maximum provided in the
statute defining the offense.” State v. Shattuck, 704 N.W.2d 131, 140 (Minn. 2005).
Appellate courts review upward durational sent encing departures for an abuse of
discretion. Id. But this deferential standard is nuanced, particularly in the case of a more-
than-double upward departure. Dillon v. State , 781 N.W.2d 588, 594 -98 (Minn. App.
2010), review denied (Minn. July 20, 2010) . We review de novo the threshold legal
determinations that underlie such a departure—whether the departure reasons are valid and
whether the valid departure reasons are “severe.” Id. at 598. We then review for abuse of
discretion the decision whether to depart, and to what degree, although this review is less
deferential for sentences beyond the double-departure benchmark. Id. at 595, 598.
Ayala-Leyva does not dispute that the aggravating factors the district court relied
on are factually supported by the record and valid aggravating factors under Minnesota
law. But he challenges both the district court’s determination that the departure reasons
are severe and the extent of the departure. We address each argument in turn.
A. Severity of the Aggravating Factors
Ayala-Leyva argues that the district court erred in determining that the aggravating
factors proved are “severe.” No “easy-to-apply test” exists to guide our independent

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analysis of this issue. Id. at 597 (quotation omitted). Instead, we consider the number of
aggravating factors and the extremeness of the facts relevant to each factor. Id.
As the district court noted in its analysis, Ayala-Leyva’s methamphetamine
conspiracy is marked by three separate aggravating factors. When a district c ourt has
considerable latitude to impose a double upward departure based on a single aggravating
factor, id. at 598-99, the presence of multiple such factors suggests extraordinary severity.
As to the first aggravating factor—the involvement of three or more participants in
the crime—Ayala-Leyva’s conspiracy far exceeded the threshold. The jury’s findings not
only establish that Ayala-Leyva “commit[ted] this crime as part of a group of three or more
people who all actively participated in the crime,” but also expressly reflect the
involvement of four individuals in addition to Ayala -Leyva.1 Two of these four testified
during Ayala-Leyva’s first trial, along with four other co-conspirators, each explaining his
active role in the conspiracy. See Ayala-Leyva, 848 N.W.2d at 551 -52. And the district
court referenced the aggravated sentence of another “top level” co -conspirator in
resentencing Ayala -Leyva. See State v. Sanchez -Sanchez, No. A14 -0584, 2015 WL
1880196, at *1 (Minn. App. Apr. 27, 2015), aff’d as modified on other grounds , 879
N.W.2d 324 (Minn. 2016) . The active involvement of numerous participants, most of
whom operated at Ayala-Leyva’s direction, indicates an unusually high degree of severity.
The major-controlled-substance-crime aggravating factor is even more compelling.
An offense constitutes a “major controlled substance crime” if it involves two or more of

1 The jury found that Koua Yang, Obet Moreno -Guerrero, Daniel Samorano, and Felix
Lopez-Martinez each engaged in sale or transportation activities.

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seven enumerated circumstances. See Minn. Sent. Guidelines 2.D.2(b)(5). The jury found
that five circumstances were proved; the district court applied only three. 2 Those three
nonetheless indicate that Ayala -Leyva’s offense was substantial even within t he category
of major controlled-substance crimes. The jury found that Ayala -Leyva occupied a high
position in the drug distribution hierarchy because members of the conspiracy reported to
him and owed him payments from the sale of methamphetamine. The jury also found seven
distinct controlled -substance transactions and that “ounces and pounds of
methamphetamine [were] regularl y sold by members of th[e] conspiracy,” when the
sentencing guidelines require only three transactions in any amount. And the jury found
the offense involved a high degree of sophistication or planning and occurred over a
lengthy period of time and involved a broad geographic area of disbursement; only one
such circumstance is required. As the district court stated in summarizing the significance
of this aggravating factor, “this was not only a major controlled substance offense, but one
that was particularly severe.”
The third aggravating factor —that the conspiracy put a high number of people at
risk—likewise points to remarkably severe circumstances. The jury found, in relevant part:
the conspiracy involved the sale or possession of more than 7,2 00 grams of
methamphetamine, which amounts to approximately 36,000 individual doses; the number

2 The district court declined to rely on the jury’s finding that the controlled-substance
offense involved quantities substantially larger than for personal use, even though there
was “an incredible amount of meth,” or the findin g that members of the conspiracy
possessed firearms, reasoning that those facts duplicate elements of the offense and
therefore are inappropriate sentencing considerations under State v. McIntosh, 641 N.W.2d
3, 11-12 (Minn. 2002).

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of people involved in the conspiracy allowed for wide distribution of methamphetamine in
a greater number of communities; and methamphetamine use endangers the health and
lives of users. 3 By placing thousands of people in danger, Ayala-Leyva’s conspiracy
constitutes egregious conduct beyond that associated with many crimes of personal
violence.
In sum, the district court did not err in its legal determination t hat the three
aggravating factors proved in this case indicate severe aggravating circumstances that
justify a greater-than-double upward departure.
B. Extent of the Departure
We turn next to whether the district court abused its discretion in imposing a
sentence of 309 months —a triple upward departure. While we review all decisions
regarding sentence duration for an abuse of discretion, our review is “less deferential”
when reviewing sentences that more than double the presumptive sentence. Dillon, 781
N.W.2d at 598. We will “reduce a sentence for uniformity’s sake when the departure
results in a term that is longer than sentences for similar or more serious crimes . . . or
longer than sentences imposed on the appellant’s coconspirators.” Id.
Ayala-Leyva first argues that his 309 -month sentence is unwarranted because it
exceeds sentences imposed for similar crimes. But as the district court observed, finding
cases similar to Ayala-Leyva’s in Minnesota courts is essentially impossible. See Ayala-

3 The legislature has underscored the unique dangerousness of methamphetamine by
making the manufacture of “any amount ” of methamphetamine a first -degree controlled-
substance crime. Minn. Stat. § 152.021, subd. 2a (2016).

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Leyva, 848 N.W.2d at 558 (noting district court’s observation that this case represents the
biggest methamphetamine-distribution case yet in state court). Ayala -Leyva points us to
the 268-month sentence imposed in State v. Osborne, 715 N.W.2d 436 (Minn. 2 006), for
conspiring to commit first-degree sale and other controlled-substance offenses as proof that
his sentence is excessive . We are not persuaded. While the two cases are superficially
similar because they involve defendants who played a high -level role in multi-party
conspiracies to move substantial quantities of controlled substances across state lines for
sale in Minnesota , Ayala-Leyva’s conspiracy dwarfs Osborne’s in all respects. Osborne
distributed heroin and crack cocaine within one city , and law enforcement’s multi-year
investigation uncovered about 55 grams of crack cocaine and 10 grams of heroin. State v.
Osborne, No. C1-03-253, 2004 WL 333469, at * 1-4 (Minn. App. Feb. 24, 2004) , review
granted, cause remanded (Minn. Aug. 17, 2004). In contrast, Ayala-Leyva’s conspiracy
involved distribution of more than 7,200 grams of methamphetamine to a large number of
communities in Minnesota and Wisconsin . Indeed, the combi nation of massive volume4
and a sophisticated distribution system means that there are no similar state cases outside
of this conspiracy with which to compare Ayala -Leyva’s sentence. We therefore turn to
the sentences Ayala-Leyva’s co-conspirators received.
Ayala-Leyva notes that his co-conspirators all received sentences substantially
shorter than 309 months, arguing that this discrepancy demonstrates an abuse of discretion.

4 In one month, police seized more than 700 times the statutory threshold amount for first-
degree sale of a controlled substance . See Minn. Stat. § 152.021, subd. 1(1) (2010) (sale
of ten grams or more of methamphetamine within 90-day period).

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We disagree. Ayala-Leyva recites the sentences of various participants in the conspiracy—
ranging from a stay of imposition to 240 months’ imprisonment —without any discussion
of the individuals’ role in the conspiracy, the charges against them, or the factors that may
have yielded more lenient sentences, such as the fact that many of them pleaded guilty. As
we noted above, the only other apparently comparabl e co-conspirator is Julian Sanchez -
Sanchez, who despite living in California occupied a “top level” position in the drug
network similar to that of Ayala-Leyva. Sanchez-Sanchez, 2015 WL 1880196, at *1. His
240-month aggravated sentence was based on essentially the same aggravating factors at
issue here but also on mitigating factors, including the fact that he pleaded guilty and took
responsibility for his actions. Id. With that case as a reference point, we discern no abuse
of discretion in the district court’s determination that 309 months in prison is an appropriate
sentence for Ayala-Leyva’s aggravated offense.
II. The district court did not abuse its discretion by admitting the prior trial
testimony of two absent witnesses.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the ac cused
shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const.
amend IV ; accord Minn. Const. art. I , § 6 . The Confrontation Clause prohibits the
admission of testimonial statements of witnesses absent from trial unless the declarant is
“unavailable” and the defendant “has had a prior opportunity to cross-examine.” Crawford
v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369 (2004); see also State v. Rodriguez,
754 N.W.2d 672, 680 (Minn. 2008) (holding “that the right of confrontation guaranteed by
the Sixth Amendment applies in jury sentencing trials ”). An unavailable witness’s prior

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testimony “is admissible . . . if the defendant had an adequate opportunity to cross -
examine.” Crawford, 541 U.S. at 57, 124 S. Ct. at 1367. The defendant is thus guaranteed
“an opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.” State v. Holliday , 745
N.W.2d 556, 566 (Minn. 2008) (quotation omitted). Whether a defendant’s confrontation
rights have been violated is a question of law that we review de novo. State v. Warsame,
735 N.W.2d 684, 689 (Minn. 2007).
Ayala-Leyva concedes that co -conspirators Mario Castro and Obet Moreno -
Guerrero were deported after trial and therefore unavailable to testify at his resentencing
trial. But he contends he did not have an adequate opportunity to cross -examine them at
his first trial with respect to the aggravating sentencing factors. We disagree . Ayala -
Leyva’s first trial involved one presentation of all evidence, addressing guilt and sentencing
factors. Minn. R. Crim. P. 11.04, subd. 2(a) (permitting unitary trial on guilt and
aggravated sentence). When Ayala-Leyva cross-examined witnesses, including Castro and
Moreno-Guerrero, he was aware that the state was trying to prove both the elements of the
charged offense and the three aggravating factors . Ayala-Leyva’s resentencing trial
addressed the same three aggravating factors; the only difference is that the jury answered
specific interrogatories related to those factors in the second trial . Because the two trials
involved the same issues and substantially the same evidence , we conclude that Ayala-
Leyva’s prior opportunity to cross-examine Castro and Moreno -Guerrero was more than
adequate under Crawford. See State v. Hannon , 703 N.W.2d 498 , 507 (Minn. 2005)
(holding Crawford’s “key requirements” fulfilled when initial trial and retrial for which

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witness was unavailable involved the same theory of the crime and “largely the same”
evidence).
Moreover, any error in admitting the absent witnesses’ testimony would not require
reversal. Confrontation violations “are subject to harmless error analysis,” and reversal is
not warranted if the verdict actually rendered was “surely unattributable to the error.”
Rodriguez, 754 N.W.2d at 682 (quotation omitted). That is the case here. The evidence at
the resentencing trial included the testimony of six law-enforcement officials and four other
co-conspirators, who collectively described numerous controlled purchases of
methamphetamine, police searches of vehicles a nd residences revealing pounds of
methamphetamine, a sophisticated and extensive network for moving methamphetamine
from California to stash houses in Minnesota and out to communities in Minnesota and
Wisconsin, and Ayala-Leyva’s role at the top of this organization. And all of this testimony
was thoroughly corroborated by hundreds of exhibits. The testimony of Castro and
Moreno-Guerrero may have presented a clearer picture of certain aspects of the aggravating
circumstances, but given the depth and bread th of the state’s evidence, it surely did not
affect the jury’s findings.
Affirmed.