State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0359

State of Minnesota,
Respondent,

vs.

Eli Jermel Anderson,
Appellant.

Filed January 7, 2019
Affirmed
Kalitowski, Judge*

Hennepin County District Court
File No. 27-CR-17-1713

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

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

Cathryn Middlebrook , Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Florey, Judge; and Kalitowski,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
KALITOWSKI, Judge
On appeal from his convictions of i neligible person in possession of a firearm and
fifth-degree possession of a controlled substance, appellant argues that the district court
abused its discretion by denying his motion for a downward dispositional departure. We
affirm.
D E C I S I O N
A district court is afforded “great discretion in the imposition of sentences.” State
v. Rund, 896 N.W.2d 527, 532 (Minn. 2017) (quotation omitted). This court reviews a
district court’ s decision not to depart from the sentencing guidelines for an abuse of
discretion. State v. Stempfley , 900 N.W.2d 412, 417 -18 (Minn. 2017). A district court
abuses its discretion when its decision is premised on legal errors or clearly erroneous facts.
State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016).
The Minne sota Sentencing Guidelines “prescribe[e] a sentence or range of
sentences that is presumed to be appropriate.” State v. Soto, 855 N.W.2d 303, 308 (Minn.
2014) (quotation omitted). A district court may depart from the presumptive sentencing
guidelines only if substantial and compelling circumstances warrant doing so. Solberg,
882 N.W.2d at 623. Substantial and compelling circumstances are those that make a case
atypical. Taylor v. State , 670 N.W.2d 584, 589 (Minn. 2003). “The substantial and
compelling circumstances justifying departure by staying a sentence include a finding that
a defendant is particularly amenable to correction on probation and unamenable to
correction by imprisonment.” State v. Malinski, 353 N.W.2d 207, 209 (Minn. App. 1984)

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(citing State v. Heywood, 338 N.W.2d 243 (Minn. 1983)), review denied (Minn. Oct. 16,
1984). Factors relevant in determining if a defendant is particularly amenable to treatment
in a probationary setting include “the defendant’ s age, his prior record, his remorse, his
cooperation, his attitude while in court, and the support of friends and/or family.” State v.
Trog, 323 N.W.2d 28, 31 (Minn. 1982).
Appellant Eli Jermel Anderson pleaded guilty to ineligible person in possession of
a firearm and fifth -degree possession of a controlled substance after police discovered a
loaded 9mm pistol and 289.1 grams of marijuana during the execution of a search warrant
at Anderson’s residence. Prior to sentencing, Anderson moved for a downward
dispositional departure, arguing that a departure was warranted because he was particularly
amenable to probation. The district court denied the motion.
Anderson argues that the district court abused its discretion by denying his motion
for a downward dispositional departure becaus e “the probation officer determined,” and
“the record demonstrates,” that he is particularly amenable to probation. We disagree. The
recommendations of a probation officer are “not determinative.” State v. Halverson, 373
N.W.2d 618, 621 (Minn. App. 1985 ) (“Sentencing is a judicial function, not a probation
officer’s function.”). And although the probation officer recommended “a dispositional
departure,” the presentence investigation “was more equivocal” than Anderson
acknowledges, which was demonstrated by the probation officer’s determination that “the
mitigating factors in this case appear limited.” Moreover, it is well settled that a district
court is not required to depart even if substantial and compelling circumstances are present.
State v. Walker, 913 N.W.2d 463, 468 (Minn. App. 2018); State v. Olson, 765 N.W.2d 662,

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664-65 (Minn. App. 2009) (“[T]he district court has discretion to impose a downward
dispositional departure if a def endant is particularly amen able to probation, but is not
required to do so.”).
Here, in denying Anderson’s departure motion, the district court found:
I would have to find that you’re particularly amenable to
probation, and the problem with that is you’ve been on
probation before and you had multiple violations on your third-
degree case, and then you’ve probation violations as recently
as a couple years ago on your DWI case.

And, you know, here we’ve got the drug and gun
combo, which is a really bad combination. And you got kids in
the house, and you got a gun that was loaded in the house. So
again, I’ve reviewed the whole thing, and I just don’t think this
is a departure case.

The record supports the district court’s findings. The record reflects that after being
convicted of a third-degree controlled substance crime in 2006, Anderson had five
probation violations for using drugs and failing in treatment. The record also reflects that
after being convicted of DWI in 2014 and placed under court supervision, Anderson had
two more probation violations. And the record re flects that Anderson admitted to using
marijuana even after he pleaded guilty to the current offense. The district court considered
Anderson’s motion and determined that based upon the facts and circumstances presented,
a departure was not warranted. Therefore, the district court did not abuse its discretion by
denying Anderson’s motion for a downward dispositional departure.
Affirmed.