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This opinion will be unpublished and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
A17-1722

State of Minnesota,
Respondent,

vs.

Ilyes Omar Ibrahim,
Appellant.

Filed July 23, 2018
Affirmed
Bratvold, Judge

Benton County District Court
File No. 05-CR-14-1651

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

Philip K. Miller, Benton County Attorney, Foley, Minnesota (for respondent)

Bradford Colbert, St. Paul, Minnesota (for appellant)

Considered and decided by Schellhas, Presiding Judge; Reilly, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this sentencing appeal, appellant argues his sentence for first-degree aggravated
robbery was the result of unobjected-to prosecutorial misconduct . Even assuming that
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prosecutorial misconduct occurred, we conclude it did not affect appellant’s substantial
rights; therefore, we affirm.
FACTS
On September 13, 2014, appellant Ilyes Omar Ibrahim and three other men entered
a gas station store that had two clerks behind the counter. After the clerk opened the cash
register, Ibrahim grabbed money from the register. At about the same time, Ibrahim
brandished what the clerk believed was a handgun for “a short period of time.” The weapon
was actually a BB gun . While Ibrahim took cash from the register, two men took coins
from a safe, assaulted one clerk, and took another clerk’s phone. The group stole cash,
coins, and other items totaling $2,331.11 and then drove away . Police eventually
apprehended and arrested all four men.
The state initially charged Ibrahim with aiding and abetting first-degree aggravated
robbery in violation of Minn. Stat. § 609.245, subd. 1 (2014). The state later amended the
complaint to “remove any reference to ‘Aiding and Abetting.’”1 On August 3 and 4, 2015,
the district court held a jury trial and instructed the jury that a BB gun was a firearm for
the purposes of the first-degree aggravated robbery statute. The jury found Ibrahim guilty
and also found that he committed the crime as part of a group of three or more persons who
all actively participated in the crime, which is an aggravating sentencing factor under Minn.
Stat. § 244.10, subd. 5a(10) (2014).

1 First-degree aggravated robbery requires that the person commit the offense while
carrying a “dangerous weapon” or any article used to lead a victim to believe it is a
“dangerous weapon.” Minn. Stat. § 609.245, subd. 1. A f irearm is a “dangerous weapon.”
Minn. Stat. § 609.02, subd. 6 (2014).
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The presentence investigation report (PSI) stated that Ibrahim’s offense had a
severity level of eight and that he had zero criminal history points, yielding a “presumptive
disposition [of] 48 months.” 2 The PSI recommended an upward durational departure due
to the jury’s finding that Ibrahim committed the robbery in a group of three or more
persons. At sentencing, the state asked the district court to impose a sentence of 96 months,
twice the middle-of-the-box presumptive sentence. Ibrahim asked for a downward
departure, but did not specify the precise sentence. The district court entered a judgment of
conviction, determined that an upward durational departure was warranted, and sentenced
Ibrahim to 72 months in prison.
Ibrahim appealed, arguing that the district court erroneously instructed the jury that
a BB gun was a firearm. After this court’s nonoral conference regarding Ibrahim’s appeal,
the supreme court held that a BB gun was not a firearm for the purposes of Minn. Stat.
§ 609.165 (2014) (ineligible firearm possession). See State v. Haywood, 886 N.W.2d 485,
489-90 (Minn. 2016). In an order opinion, we followed Haywood, held that a BB gun was
not a firearm for purposes of first-degree aggravated robbery, determined that the district
court plainly erred by instructing the jury that a BB gun was a “firearm,” and reversed
Ibrahim’s conviction and remanded for a new trial. See State v. Ibrahim, No. A16 -0049
(Minn. App. Jan. 5, 2017) (order op.).

2 We note that, according to the Minnesota Sentencing Guidelines, Ibrahim’s presumptive
sentence was between 41 and 57 months with 48 months being the middle-of -the-box
sentence. See Minn. Sent. Guidelines IV.A. (2014).
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On June 26, 2017, shortly before his new trial was scheduled to begin, Ibrahim
pleaded guilty to first-degree aggravated robbery without any agreement as to sentencing.
During his plea, Ibrahim admitted to the aggravating factor of committing the robbery
along with three other people and waived his right for a jury to make that finding. Ibrahim’s
attorney stated that Ibrahim would present involuntary intoxication as a mitigating factor
at sentencing.
A second PSI report was submitted, included findings that were almost identical to
the first PSI, noted the “presumptive disposition [was] 48 months,” and recommended an
upward durational departure of 72 months.
During the sentencing hearing on August 9, 2017, the state again asked for a 96-
month prison sentence. Ibrahim argued that involuntary intoxication was a mitigating
circumstance and asked for a guidelines sentence “within [the] box.” After finding a
durational departure was justified, the district court imposed a 72- month prison sentence.
Ibrahim appeals his sentence.
D E C I S I O N
A defendant cannot receive a greater sentence than originally imposed before a
successful appeal. State v. Holmes, 281 Minn. 294, 303- 04, 161 N.W.2d 650, 656-57
(1968). Ibrahim argues that the prosecutor committed prejudicial misconduct because at
Ibrahim’s second sentencing hearing, the prosecutor stated, “[w]ith regard to our argument
for an upward durational departure, we are requesting that the [c]ourt commit [Ibrahim] to
the [c]ommissioner actually for the 96 months, which is double the [middle-of -the-box
sentence] or at very least the 72 months that was previously ordered by the [c]ourt prior to
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remand.” Based on this alleged misconduct, Ibrahim argues his sentence should be reversed
and remanded for imposition of the presumptive sentence.
Ibrahim did not object to the prosecutor’s statement, and so this court reviews the
alleged misconduct under the modified plain- error test. State v. Ramey, 721 N.W.2d 294,
297-99 (Minn. 2006). Under this test, the appellant must show (1) that there was error and
(2) that the error was plain. State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017). If the
appellant satisfies these first two parts, the state carries the burden (3) to “demonstrate lack
of prejudice; that is, the misconduct did not affect [the appellant’s] substantial rights.”
Ramey, 721 N.W.2d at 302. In effect, the state must show that there was no “reasonable
likelihood that the error had a significant effect on the proceeding.” State v. Little , 851
N.W.2d 878, 884 (Minn. 2014). If the state “meets its burden, [appellate courts] need not
decide whether the prosecutor committed an error that was plain.” Parker, 901 N.W.2d at
926-27. But if the state is unable to show the alleged error did not affect the defendant’s
substantial rights, the court considers (4) “whether the error should be addressed to ensure
fairness and the integrity of the judicial proceedings.” Ramey, 721 N.W.2d at 302.
We conclude that the state has satisfied its burden to prove that the alleged
misconduct did not affect Ibrahim’s substantial rights. Id. Thus, we do not address the other
parts of the modified plain-error test. See Parker , 901 N.W.2d at 926-27. Three reasons
support our decision. First, the district court rejected the prosecutor’s sentence request and
imposed the same sentence it had imposed before Ibrahim appealed, leading us to conclude
that that the state’s request did not affect Ibrahim’s sentence or his substantial rights.
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Second, the district court did not abuse its discretion by imposing the 72- month
sentence. The supreme court has stated that “courts may depart from the [sentencing]
guidelines only when substantial and compelling circumstances are present.” Taylor v.
State, 670 N.W.2d 584, 587 (Minn. 2003); see also Minn. Sent. Guidelines II.D.1. (2014).
Determining that substantial and compelling circumstances are present is a discretionary
decision for the district court, but the district court must justify its decision. Taylor, 670
N.W.2d at 588. The legislature has identified a non-exclusive list of aggravating factors,
including committing the crime “as part of a group of three or more persons who all actively
participated in the crime.” See Minn. Stat. § 244.10, subd. 5a(10).
Here, the district court determined that Ibrahim admitted facts that established that
he committed the cri me in a group of three or more people. The district court also
determined that this aggravating factor justified the departure, among other reasons. It
stated:
The fact is undisputed that three or more persons
actively participated in this crime. That is a basis for an upward
departure. And it’s clear from the victim impact statements that
have been offered here today as well as the video . . . that the
victim’s sense of fear was greatly increased by the presence of
multiple offenders on all sides of them . . . .
All of these unified acts of you and the three other
defendants made a terrible act even more terrifying for the
victims. In this court’s opinion that does justify an upward
durational departure, and there are substantial compelling
reasons to impose that sentence.

The district court also discussed Ibrahim’s contention that he was impaired:
I understand your contention that you were under the
influence at the time of the offense. I don’t see a lot of
persuasive evidence that supports that claim, and your actions
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on the day in question don’t really show an impairment; rather,
they show a deliberate, preplanned, joint effort between
yourself and three other codefendants to commit a robbery with
a handgun or, in this case, a pellet gun used in a manner such
as to lead the store employees to believe it was a real centerfire
handgun.
Your actions on the day in question, during the robbery
and your flight from police in the car and on foot after the
robbery, I believe show that your acts were intentional and
deliberate and not the result of an impairment from any
controlled substance.

Ibrahim does not contend that the district court abused its discretion by imposing a 72-
month sentence. Thus, Ibrahim’s substantial rights were not affected.
Third, based on our review of the sentencing transcript, the state’s sentencing
request did not influence the district court’s sentencing decision. The district court
explained its decision on the record and did not mention the state’s request for a 96-month
sentence, beyond stating that it had considered counsels’ arguments. Further, the district
court stated, “I still believe that the 72- month sentence that was imposed initially in this
case is appropriate, and that is what I’m going to impose today.” We are satisfied that the
state’s request did not influence the district court’s sentencing decision.
Ibrahim argues that the alleged prosecutorial misconduct affected his substantial
rights because “it is impossible to tell the impact of the [s]tate’s argument on the dis trict
court’s sentence.” To support this argument he points to State v. Strommen, in which the
supreme court held that a new trial was warranted when a prosecutor incorrectly stated the
law to the jury because the court could not say “with certainty that the prosecutor’s
misstatement of the law did not play a role” in the jury’s rejection of the defendant’s
proffered defense. 648 N.W.2d 681, 689-90 (Minn. 2002).
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But Strommen is distinguishable. First, the prosecutor in Strommen misstated the
law to the jur y, while the prosecutor in Ibrahim’s case allegedly misstated the law to the
district court. Id. A district court is less susceptible to being misguided than a jury. Also,
the district court in this case did not accept the state’s recommendation for a longer
sentence. Second, jury deliberations are private, meaning that outside observers cannot
know the basis for a jury’s decision. See State v. Crandall, 452 N.W.2d 708, 710 (Minn.
App. 1990) (noting the “cardinal principle that the deliberations of the jury shall remain
private and secret in every case”). In contrast, here, the district court explained its
sentencing decision on the record.
We conclude that there is no reasonable likelihood that the prosecutor’s request for
a 96-month sentence had any effect on Ibrahim’s sentence. Accordingly, even assuming
that the prosecutor’s statement was plain error, the state has met its burden of proving any
error did not affect Ibrahim’s substantial rights.
Affirmed.