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This opinion will be unpublished and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
A18-1122

State of Minnesota,
Respondent,

vs.

Juan Andres Gonzalez, Jr.,
Appellant.

Filed June 3, 2019
Affirmed
Smith, Tracy M., Judge

Polk County District Court
File No. 60-CR-16-1442

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Greg Widseth, Polk County Attor ney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Sm ith, Tracy M., Presiding Judge; Halbrooks, Judge;
and Klaphake, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment 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
SMITH, TRACY M., Judge
Following his guilty pleas, appellant Juan Andres Gonzalez Jr. was convicted of
multiple offenses, including two controlled-substance offenses. The district court denied
Gonzalez’s motion for a downward dispositional departure from the presumptive executed
prison sentences under the Minnes ota Sentencing Guidelines. The district court also
determined that the two controll ed-substance offenses did not a rise out of the same
behavioral incident and imposed a sentence for each, to run con currently. Gonzalez
challenges both of these decisions. We affirm.
FACTS
In August 2016, the state char ged Gonzalez in Polk County with four criminal
counts, all in connection with the sale of controlled substance s in 2014. Count one was
conspiracy to commit first-degree controlled-substance crime—sa le (the conspiracy
count); count two was first-degree controlled-substance crime—sale (the sale count); count
three was failure to affix a tax stamp; and count four was gros s-misdemeanor carrying a
pistol without a permit.
The complaint described in deta il a drug investigation jointly conducted by the
Crookston Police Department, the East Grand Forks Police Depart ment, and the Polk
County Sheriff’s Office. That investigation included a chain of controlled buys and arrests
leading up to the arrest of Gonzalez and his brother, Jerardo G onzalez, on July 7, 2014.
The complaint identified individuals who tipped off the police about the next person in the

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chain. Jerardo1 was the last of these informant s; he gave the police Gonzalez’ s name and
identified Gonzalez as his drug source. The record suggests tha t, shortly after his arrest,
Gonzalez also acted as a confidential informant with the Grand Forks Narcotics Task Force
and conducted two controlled buys.
According to the complaint, Go nzalez admitted to the following facts when he was
in police custody:
[Gonzalez] “fronted” (sold on credit) some cocaine to Jerardo
Gonzalez at Jerardo Gonzalez’s residence . . . [on July 6,
2014]; Jerardo Gonzalez owed him $600 for the cocaine; he
got back from Texas three weeks ago; he brought back two
ounces of cocaine from Texas; he also obtained a couple of
ounces of cocaine from his supplier in North Dakota two to
three weeks ago; he still had up to one ounce of cocaine at his
residence . . . ; [and] he sold and/or possessed approximately
four ounces of cocaine during the past few weeks . . . .

. . . .

[H]e sold Jerardo Gonzalez app roximately 1.75 of the two
ounces of cocaine he brought back from Texas; he sold cocaine
to Jerardo Gonzalez every week; he also sold Jerardo Gonzalez
some of the two ounces of cocaine he brought back from North
Dakota; he gave Jerardo Gonzalez four “8-balls” of cocaine the
previous Sunday . . . ; he only sold cocaine to Jerardo Gonzalez,
except for one person he sold cocaine to through Jerardo
Gonzalez; and he also used some of the cocaine himself.

The complaint also contains statements made by Jerardo and others who were interviewed,
and those statements generally corroborate what Gonzalez admitted to the police.

1 Because appellant and his brother share the same last name, for clarity’s sake we refer to
Jerardo Gonzalez by his first name in this opinion.

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In May 2017, Gonzalez pleaded g uilty to all four counts. At the plea hearing, when
the state began questioning Gonzalez to establish the factual bases for his pleas, Gonzalez
affirmed that he was guilty of the charged offenses and that th e complaint as a whole and
his statements to the police contained in the complaint were “f air and accurate.” Upon
further questioning by the state, Gonzalez admitted that he gav e his brother cocaine, that
he admitted to law enforcement that he was fronting cocaine to his brother, that he provided
more than ten grams of cocaine t o his brother, and that his bro ther was in turn selling the
cocaine to others. Gonzalez then complained that “the words were put in [his] mouth” when
he was told he was going to get a deal, but then “this came bac k a few years later.” The
prosecutor told the district court he was “not going to waste [ his] time going through a
factual basis pulling teeth” from the defendant. After a recess , Gonzalez’s counsel began
questioning Gonzalez and Gonzalez admitted that, on or about Ju ly 4, 2014, he gave
Jerardo over ten grams of cocaine that he had brought from Texa s. However, Gonzalez
denied that he had a source in No rth Dakota; that Jerardo was t o pay him for the cocaine
he brought from Texas; that he was compensated by Jerardo for t he cocaine; and that he
knew Jerardo was going to sell the cocaine that he provided. The district court accepted the
guilty pleas.
A presentence investigation (PSI) report was completed, in whi ch the probation
officer recommended concurrent guidelines sentences for all cou nts. Gonzalez moved for
a downward dispositional departure on counts one to three—his d rug-related felony
counts—arguing that his “age, c omplete cooperation with the pol ice immediately upon
being arrested, post-arrest ass istance as an informant, accepta nce of responsibility, . . .

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strong community character, community support, and post-offense rehabilitation” provide
substantial and compelling circumstances for departure. He also argued that his “minor role
in the entirety of the drug scheme” served as a mitigating fact or and that an executed
sentence would be disproportionately severe in light of sentencing statistics.
The district court found that Gonzalez’s role in the offense was not minor. The court
declined to consider the remaining factors as a basis for depar ture, concluding that they
related to amenability to probation and that, under Minn. Stat. § 152.152 (2012),
amenability to probation was not available as a basis for depar ture because Gonzalez had
not been accepted into a qualified treatment program. The court denied the motion for a
downward dispositional departure.
The district court also determined that the conspiracy and sal e offenses did not arise
out of the same behavioral incident. The district court sentenc ed Gonzalez to a 56-month
prison term on the conspiracy count; a concurrent 73-month prison term on the sale count,
a concurrent 39-month sentence on the tax-stamp count; and a concurrent 360 days in jail
on the unlawful-carrying-of-a-pistol count. Sentences for the felony counts were all at the
low end of the presumptive ranges.
This appeal follows.
D E C I S I O N
I. The district court did not abuse its discretion by denying G onzalez’s motion to
depart and imposing guidelines sentences.

Appellate courts “afford the [district] court great discretion in the imposition of
sentences and reverse sentencing decisions only for an abuse of that discretion.” State v.

6
Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quotation omitted). “A d istrict court abuses
its discretion when its decision is based on an erroneous view of the law or is against logic
and the facts in the record.” State v. Guzman, 892 N.W.2d 801, 810 (Minn. 2017). Gonzalez
argues that the district court’s denial of his motion to depart was based on an erroneous
interpretation of Minn. Stat. § 152.152. “Statutory interpretation presents a question of law,
which [appellate courts] review de novo.” State v. Riggs , 865 N.W.2d 679, 682 (Minn.
2015).
Section 152.152 places limits on when a district court may dep art from the
presumptive prison sentence for certain controlled-substance cr imes on the basis of the
offender’s amenability to probation:
If a person is convicted [of c ertain controlled-substance
crimes] . . . , and the Sentenci ng Guidelines grid calls for a
presumptive prison sentence for the offense, the court may stay
imposition or execution of the sentence only as provided in this
section. The sentence may be s tayed based on amenability to
probation only if the offender presents adequate evidence to
the court that the offender has been accepted by, and can
respond to, a treatment program that has been approved by the
commissioner of human services. The court may impose a
sentence that is a mitigated dispositional departure on any other
ground only if the court inclu des as a condition of probation
incarceration in a local jail or workhouse.

Minn. Stat. § 152.152.
Gonzales does not challenge the district court’s finding that he did not play a minor
or passive role in the offenses. Also, he does not dispute that he did not present “adequate
evidence to the court that [he] ha [d] been accepted by, and can respond to, a treatment
program that has been approved by the commissioner of human ser vices.” Id. Gonzalez’s

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sole argument is that the distri ct court erred by concluding th at the facts he asserted as
bases for departure ultimately go to his amenability to probati on and therefore could not
be considered absent his acceptance in a treatment program. Gon zalez contends that the
facts he asserted are separate and independent mitigating factors.
To resolve this case, we must consider what “amenability to pr obation” under
section 152.152 means. Appellate courts “generally interpret words and phrases according
to their common and ordinary meaning, but . . . interpret techn ical words and phrases
according to their special, technical meaning.” State v. Schouweiler, 887 N.W.2d 22, 25
(Minn. 2016). “To decide whether w ords in a statute have a tech nical meaning or an
ordinary meaning, [appellate courts] consider the context in which the phrase appears.” Id.
The phrase “amenability to probation” is a technical term that has a well-developed legal
meaning within the realm of sentencing.
Particular amenability to probation was first recognized as a mitigating factor in
State v. Wright, 310 N.W.2d 461 (Minn. 1981). In Wright, the district court, justifying a
downward dispositional departure, had “focused more on defendan t as an individual and
whether the presumptive sentence would be best for him and for society” than on “the
degree of the defendant’s culpa bility” in the offense. 310 N.W. 2d at 462. The supreme
court affirmed and characterized the district court’s approach as having found the
defendant “particularly unamenabl e to incarceration and particu larly amenable to
individualized treatment in a probationary setting.” Id.
In State v. Trog , the supreme court affirmed a downward dispositional departure
based, again, on a determination that “a defendant is particularly suitable to individualized

8
treatment in a probationary setting.” 323 N.W.2d 28, 31 (Minn. 1982). As compared to
Wright, where the district court specif ically relied upon the recomme ndations of a
psychiatrist, 310 N.W.2d at 461, Trog cited “[n]umerous factors, including the defendant’s
age, his prior record, his remorse, his cooperation, his attitu de while in court, and the
support of friends and/or family,” in concluding that the distr ict court had not abused its
discretion in finding that the appellant was particularly amenable to probation, 323 N.W.2d
at 31. These six factors are commonly called the Trog factors.
Although courts predominantly use the Trog factors as the framework when
analyzing whether a defendant is particularly amenable to probation, the supreme court has
stated that they “are not the only factors that can bear on a d efendant’s amenability to
probation, and they may not all be relevant in any given case.” Soto, 855 N.W.2d at 310.
For instance, a defendant’s motivation to reform is a factor that can inform the particular-
amenability-to-probation decision. State v. Malinski , 353 N.W.2d 207, 210 (Minn. App.
1984) (“[A]menability [to probation] may . . . be premised on timely observation of motive
to reform.”), review denied (Minn. Oct. 16, 1984).
In sum, caselaw suggests that the meaning of particular amenability to probation is
expansive. Minnesota courts have not reduced it to a set number of factors, nor have they
given it a limiting definition. Therefore, we conclude that the term “amenability to
probation” in section 152.152 sh ould also be interpreted broadl y to mean information
regarding the offender as an individual that goes to “whether t he presumptive sentence
would be best for him and for society.” See Wright, 310 N.W.2d at 462; see also Wells v.
State, 839 N.W.2d 775, 778 (Minn. App. 2013) (“In weighing whether to grant a downward

9
dispositional departure from the presumptive sentence, a distri ct court considers the
defendant as an individual and focuses on whether the presumptive sentence would be best
for him and for society.” (quotation omitted)), review denied (Minn. Feb. 18, 2014).
Applying this broad interpretation, we conclude that the facts that Gonzalez asserted
as bases for departure are facts about him as an individual tha t go to whether probation,
rather than imprisonment, would be best for him and society. Go nzalez cited his age,
cooperation with and assistance t o law enforcement, his accepta nce of responsibility,
community character and support, and post-arrest rehabilitation. All of these asserted facts
ultimately go to the contention th at Gonzalez, as an individual , is suitable for—in other
words, amenable to—probation.
Gonzalez does not expressly propose an alternative interpretation of section 152.152
that would make the facts he asserted for departure separate an d independent from
amenability to probation. He asserts that, under the statute, e ven if some of the facts he
cited overlap with amenability to probation, they may still exist as independent grounds for
departure, and that other facts he cited do not overlap with am enability to probation and
are independent grounds for departure. But, as we explain above, our review of the caselaw
leads us to conclude that all of the facts he asserted are rele vant to determining his
individual suitability to probation, and section 152.152 would be stripped of its regulatory
effect if its limit on the availability of an amenable-to-probation departure could be avoided
by considering each of the relevant subfactors as independent grounds. See State v. Dendy,
598 N.W.2d 4, 6 (Minn. App. 1999) (“[A] court must reject a construction that leads to . . .

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unreasonable results that utterly depart from the purpose of th e statute.”), review denied
(Minn. Sept. 28, 1999).
We briefly address Gonzalez’s reliance on sentencing statistic s from the Sentencing
Guidelines Commission. Although sentencing statistics may infor m our determination
whether a stayed sentence is ina ppropriate and disproportionate, see Soto, 855 N.W.2d at
314, Gonzalez does not cite any cases in which statistics were the basis for reversing the
imposition of a presumptive sentence. Even assuming that, in so me cases, statistics may
prove that a presumptive sentence is inappropriate and dispropo rtionate, the statistics
Gonzalez cites prove the opposite in this case. According to the statistics he cites, 46% of
the offenders who were purportedly in similar situations receiv ed no dispositional
departure. Gonzalez’s sentence is not statistically deviant or rare.
Because Gonzalez sought a depar ture based on amenability to probation and he did
not satisfy the condition requir ed by section 152.152 for a dep arture on that basis, and
because the presumptive sentence was not disproportionate, the district court did not abuse
its discretion.
II. The district court did not err by pronouncing multiple sent ences on the
conspiracy count and the sale count.

In general, the law prohibits multiple sentences for two or mo re crimes that were
committed during a singl e behavioral incident. Minn. Stat. § 60 9.035 (2012). Gonzalez
argues that the district court erred by concluding that the con spiracy count and the sale
count were not part of the same behavioral incident. “Whether the offenses were part of a
single behavioral incident is a mixed question of law and fact, so [appellate courts] review

11
the district court’s findings of fact for clear error and its a pplication of the law to those
facts de novo.” State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016).
“Whether multiple offenses arose out of a single behavior[al] incident depends on
the facts and circumstances of the particular case.” State v. Bookwalter, 541 N.W.2d 290,
294 (Minn. 1995). The state has the burden of demonstrating by a preponderance of the
evidence that the defendant’s conduct did not occur as part of a single behavioral incident.
State v. Williams , 608 N.W.2d 837, 841-42 (Minn. 2000). In determining whether “ two
intentional crimes are part of a single behavioral incident” fo r purposes of imposing
multiple sentences, courts “consider factors of time and place and whether the segment of
conduct involved was motivated by an effort to obtain a single criminal objective.” State
v. Bauer, 792 N.W.2d 825, 828 (Minn. 2011) (quotation omitted).
In this case, the district cour t concluded that the conspiracy and sale counts were
separate behavioral incidents because the conspiracy was the ar rangement of the sale that
was distinct from the sale itself. It is undisputed that the sale count related singularly to the
July 4 sale that Gonzalez admitted to at the plea hearing. The district court found that
Gonzalez’s conspiracy to sell cocaine was larger than the July 4 sale. The court explained
that the conspiracy involved “m ultiple contacts with multiple p eople” based on the
complaint and the amount of coca ine at issue. Gonzalez argues t hat the record does not
support the finding that the conspiracy was larger than the sal e because he specifically
admitted only to the July 4 sale.
The record reasonably supports t he district court’ finding. Al though Gonzalez
eventually denied certain portions of the complaint at the plea hearing, he affirmed the

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complaint as a whole, and his st atements contained within, as b eing “fair and accurate.”
And the defense attorney requested the district court to “adopt the probable cause portion
of the complaint into [its] fact ual findings,” which it did. Ac c o r d i n g t o t h e p a r t o f t h e
complaint that was not denied by Gonzalez, Gonzalez brought two ounces of cocaine from
Texas; gave approximately 1.75 of the two ounces to Jerardo; sold cocaine to Jerardo every
week; and, on one occasion, sold cocaine to a third person thro ugh Jerardo. Based on the
amount of cocaine involved and the history of transactions between Gonzalez and Jerardo,
the district court could reasonably conclude that the conspiracy and the sale were not part
of a single behavioral incident. The district court did not clearly err.
Affirmed.