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This opinion will be unpublished and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
A18-0224

State of Minnesota,
Respondent,

vs.

Cyrus Noel Trevino,
Appellant.

Filed December 10, 2018
Affirmed
Larkin, Judge

Steele County District Court
File No. 74-CR-16-1392

Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul,
Minnesota; and

Daniel McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Connolly, Judge; and Reyes,
Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges his sentence for intentional second -degree murder, arguing
that it should be reduced because he was less culpable than his codefendant, who was
convicted of a lesser offense and received a lower sentence. Because the district court did
not abuse its discretion by imposing a presumptive sentence, we affirm.
FACTS
On June 25, 2016, R.J. was driven to a remote area, his hands were bound, and he
was shot multiple times at close range. The shooting was motivated by the mistaken belief
that R.J. was a “snitch.”
The state accused appellant Cyrus Noel Trevino and G.B. of committing the murder
and charged them with multiple offenses, including premeditated first-degree murder, first-
degree murder while committing a felony, intentional second-degree murder, unintentional
second-degree murder while committing a felony , and possession of a firearm by a
prohibited person.
G.B. and Trevino resolved their cases pursuant to plea agreements with the state.
G.B. pleaded guilty to unintentional second-degree murder, and the district court sentenced
him to serve a 150-month prison term.1
Trevino pleaded guilty to int entional second-degree murder and agreed to serve a
presumptive prison sentence of 350 to 391 months. At sentencing, Trevino argued for a

1 Although the length of G.B.’s sentence is not of record in this appeal, it is undisputed that
he received a 150-month prison sentence.

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sentence of 350 months. The state argued for a sentence of 390 months. The district court
considered the arguments of counsel, a presentence investigation report, and victim-impact
statements, and ordered Trevino to serve 391 months in prison.
This appeal follows, in which Trevino challenges his sentence.
D E C I S I O N
The Minnesota Sentencing Guidelines prescribe “a sentence or range of sentences
that is ‘presumed to be appropriate.’” State v. Soto , 855 N.W.2d 303, 308 (Minn. 2014)
(quoting Minn. Sent. Guid elines 2.D.1). The sentencing guidelines g rid “denote[s] the
discretionary range within which a court may sentence without the sentence being deemed
a departure.” Minn. Sent. Guidelines 4.A (Supp. 2015). The district court is not required
to provide reasons supporting any decision to impose a sentence within the presumptive
range. State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984).
Sentences imposed by the district court are reviewed for
abuse of discretion. This court will not generally review a
district court’s exercise of its discretion to sentence a defendant
when the sentence imposed is within the presumptive
guidelines range. Presumptive sentences are seldom
overturned. Only in a rare case will a reviewing court reverse
imposition of a presumptive sentence. This court will
generally not exercise its authority to modify a sentence within
the presumptive range absent compelling circumstances.

State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010) (quotations and citations omitted),
review denied (Minn. July 20, 2010).
Trevino contends that his “sentence should be reduced because he was less culpable
than his codefendant, but [he] received a much higher sentence.” He acknowledges that
an appellate court generally will not interfere with sentences that are within the

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presumptive sentencing range, but he notes that an appellate court may review a sentence
to “determine whether the sentence is . . . unreasonable, inappropriate, excessive,
unjustifiably disparate, or not warranted by the findings of fact.” Minn. Stat. § 244.11,
subd. 2(b) (2016). Trevino argues that “compelling circumstances may render a sentence
within the presumptive rang e unreasonable or inappropriate ” and concludes that his
sentence is unreasonable or inappropriate because it is more than twice as long as G.B.’s.
The state argues that this court should not consider Trevino’s sentencing argument
because he did not provide a record to support his claim that he is no more culpable than
G.B. The state’s argument has m erit. As support for his argument, Trevino relies on
purported witness statements that are not of record in this appeal. See Minn. R. Civ. App.
P. 110.01 (“The documents filed in the [district] court, the exhibits, and the transcript of
the proceedings, if any, shall constitute the record on appeal in all cases.”). Because
Trevino pleaded guilty, the case was not tried, and a fulsome evidentiary record regarding
each man’s level of culpability was not developed. Moreover, Trevino recognizes that the
evidence regarding who fired the lethal shots was disputed.
The district court would have been the appropriate place to develop a factual record
regarding Trevino’s and G.B.’s relative culpability. See Michaels v. First USA Title, LLC,
844 N.W.2d 528, 532 (Minn. App. 2014) (“Because we are not a fact-finding court, issues
brought to us on review must have been identified, argued fully, and entered into the record
at the district court level.”) ; see also State v. Colvin , 645 N.W.2d 449, 453 (Minn. 2002)
(stating that appellate courts “have no . . . business finding facts”). Yet, Trevino did not
raise the sentencing -disparity issue in district court. Nonetheless, in the interest of

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thorough review, we will assume that Trevino and G.B. are equally culpable—even though
they were convicted of different offenses—for the purpose of our legal analysis and address
Trevino’s argument on the merits.
Although caselaw indicates that a sentencing disparity among similarly situated co-
offenders may be a basis for sent ence reduction, we are aware of only one case in which
the supreme court has reduced a sentence on that basis: State v. McClay, which Trevino
cites.2 310 N.W.2d 683, 685 -86 (Minn. 1981) . However, in that case, the co -offenders
were separately convicted of the same offense and each received an upward durational
sentencing departure. Id. at 684. The supreme court upheld the departures but reduced
one of the sentences so that each offender received the same upward departure. Id. at 684-
85. The supreme co urt held, “Where two separately tried codefendants with identical
criminal history scores are convicted of the same offense based on the same behavioral
incident and the basis for departure in the two cases is identical, the extent of the departure
should be identical in both cases.” Id. at 684.
Unlike McClay, Trevino and G.B. were not convicted of the same offense: Trevino
was convicted of intentional second -degree murder and G.B. was convicted of
unintentional second -degree murder. Moreover, Trevino received a presumptive
guidelines sentence and there is nothing in the record indicating that G.B. received a

2 We also note that we are not aware of any case in which this court reduced a sentence
based on a sentencing disparity between co -offenders. Indeed, t his court has repeatedly
stated that “a defendant is not entitled to a reduction in his sentence merely because a
codefendant received a lesser sentence.” State v. Olson, 765 N.W.2d 662, 665 (Minn. App.
2009); see also State v. Krebsbach, 524 N.W.2d 17, 19 (Minn. App. 1994), review denied
(Minn. Jan. 13, 1995); State v. Starnes, 396 N.W.2d 676, 681 (Minn. App. 1986).

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departure. See Minn. Sent. Guidelines 4.A . Under these circumstances , we discern no
basis to reduce Trevino’s sentence under McClay.
Trevino also cites State v. Vazquez , in which the supreme court considered an
argument that the defendant’s sentence “should be reduced to that received by one of his
two accomplices” because “one of the purposes of the Sentencing Guidelines is to achieve
equity and uniformity in sentencing.” 330 N.W.2d 110, 111 (Minn. 1983). Specifically,
the defendant argued that he was “no more culpable than his accomplice, who [had] the
same criminal history score, and that therefore it [was] unfair and inequ itable for him to
have to serve a term that [was] twice as long.” Id.
Although the supreme court recognized that “[it] has discretion in individual cases
to modify the sentence of an appealing defendant if that appears to be in the interests of
fairness and uniformity,” it also stated that “one must bear in mind that equality and fairness
in sentencing involve more than comparing the sentence the appealing defendant received
with the sentence his accomplices received. It also involves comparing the sentence of the
defendant with those of other offenders.” Id. at 112. The supreme court ultimately refused
to exercise its discretion to reduce the defendant’s sentence, reasoning as follows:
Defendant argues that he is no more culpable than his
accomplice who , although having the same criminal history
score, received a 45 -month prison term. We agree with
defendant that the conduct of the accomplice was at l east as
aggravated as defendant’ s conduct and, if anything, mo re
aggravated than defendant’ s conduct. But we cannot accept
the argument that it nec essarily follows that defendant’ s
sentence must be reduced to that of his accomplice.
Comparing the sentence of defendant with those of other
offenders, we believe that, given his conduct, defendant was
not treated relatively harshly. If both defendant’s sentence and

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that of his accomplice were before us, the appropriate remedy
to the inequity would not be to reduce defendant’s sentence but
to increase his accomplice’ s sentence. However, defendant’s
accomplice pleaded guilty to an amended complaint charging
him with aiding defendant and defendant’s other
accomplice . . . and part of the plea agreement was that the
state would not move for aggravation of sentence. Thus,
because of the plea agreement, the state w as implicitly barred
from appealing the [district] court’ s fail ure to aggravate the
accomplice’s sentence. . . . [W]e are left with a choice between
affirming defendant’s sentence, which is not a relatively harsh
sentence when compared with those given other offenders who
have committed similar misconduct, and reducing defendant’s
sentence to that given his equally culpable accomplice, who
received a sentence that we believe was too lenient. Reducing
defendant’s sentence would be to compound the error r ather
than to limit it.

Id. at 112-13.

Assuming, without deciding, that Trevino’s conduct was no more serious than that
of G.B., it does not necessarily follow that Trevino’s sentence must be reduced just because
G.B. received a lower sentence. We must also compare Trevino’s sentence with those of
other offenders convicted of intentional second -degree murder. See id. at 112. Trevino
was not treated too harshly compared to such offenders. See, e.g., State v. Parker , 901
N.W.2d 917, 920 (Minn. 2017) (defendant received sentence of 480 months for intentional
second-degree murder); Miller v. State, 816 N.W.2d 547, 547-48 (Minn. 2012) (defendant
received sentence of 406 months for intentional second-degree murder); State v. Cross, 771
N.W.2d 879, 880-81 (Minn. App. 2009) (defendant received sentence of 391 months for
intentional second-degree murder), review denied (Minn. Nov. 24, 2009).
Trevino complains that the district court “pointed to no reason why [he] should
receive a sentence more than double the length of his codefendant, save for the plea

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agreements themselves.” We do not fault the district court’s limited consideration of this
issue because Trevino did not raise it in district court. Moreover, in Vazquez, the supreme
court indicated that disparate sentences for codefendants may be based on a plea
agreement. See 330 N.W.2d at 112 -13 (stating that “because of the plea agreement ,” the
supreme court was “left with a choice between affirming [a] defendant’s sentence . . . and
reducing [the] defendant’s sentence to that given his equally culpable accomplice”).
In sum, the caselaw regarding sentencing disparities between co-offenders does not
indicate that this is a rare case in which compelling circumstances warrant reversal of the
district court’s imposition of a presumptive sentence.
Affirmed.