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This opinion will be unpublished and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
A19-0057

State of Minnesota,
Respondent,

vs.

Trevor Daniel Schweitzer,
Appellant.

Filed October 28, 2019
Affirmed
Rodenberg, Judge

Olmsted County District Court
File No. 55-CR-17-7130

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

Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Se nior Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Larkin, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Trevor Schweitzer appeals from the district court’s final judgment of
conviction, arguing that his sentence must be reversed and rema nded because the district

2
court abused its discretion when it denied his motion for a downward durational departure
and imposed a sentence that is excessive when compared to the s entence of his co-
defendants. We affirm.
FACTS
In October 2017, a team of po lice officers executed a search warrant at appellant’s
house. When officers entered th e house, they found appellant a nd his girlfriend together
in a basement bedroom. The crimi nal complaint states that, whi le searching the house,
investigators found a plastic c ontainer filled with hundreds of small plastic bags, a small
bag containing 32.8 grams of methamphetamine under a mattress in the basement bedroom,
and a ledger that appeared to contain information concerning drug sales.
After he was informed of his Miranda rights, appellant admitted to an investigator
that he lived in the house with his girlfriend, last went to “t he cities” two weeks earlier to
pick up drugs, and, if he were to take a drug test, it would come back “dirty.” Investigators
also found an iPhone appearing to belong to appellant that cont ained text messages
indicating that appellant and his girlfriend were actively selling drugs together.
Appellant was charged with first -degree sale of methamphetamine under Minn. Stat.
§ 152.021, subd. 1(1) (2016), and second-degree possession of m ethamphetamine under
Minn. Stat. § 152.022, subd. 2(a)(1) (2016). Appellant pleaded guilty to an amended count
of second-degree sale (possession with intent to sell) under Mi nn. Stat. § 152.022, subd.
1(1) (2016). In exch ange for appellant’s guilty plea, the stat e dismissed the first-degree-
sale charge, agreed to recommend a maximum prison sentence of 7 5 months, and agreed
that appellant could argue for a downward durational departure at sentencing.

3
In his plea testimony, appellant admitted that the methampheta mine1 found under
the mattress in the basement be droom was his and that he intend ed to sell the
methamphetamine. Appellant also admitted to having two prior second-degree controlled-
substance convictions.
Appellant moved the district court for a downward durational s entencing departure,
arguing that his “culpability [was] mitigated by his co-defenda nts” and that his conduct
was less serious than typical for the offense of conviction. B efore sentencing, appellant
cooperated with a presentence i nvestigation which recommended t hat the district court
sentence appellant to 88 months i n prison, consistent with the Minnesota Sentencing
Guidelines. The presumptive sentence for appellant’s offense, based on his four criminal
history points, was from 75 to 105 months in prison. The district court denied appellant’s
motion for a downward durational departure after declining to f ind that appellant “played
a less serious, more passive role” in the offense. It sentence d appellant to 75 months in
prison.
This appeal followed.
D E C I S I O N
Appellant argues that the district court abused its discretion by denying his motion
for a downward durational departure because his conduct was less serious than the conduct

1 Despite the criminal complaint listing the amount of methamphe tamine found at 32.8
grams, the record reflects that appellant admitted to possessin g 27.986 grams of
methamphetamine. Either amount is above the threshold for both second-degree drug sale,
Minn. Stat. § 152.022, subd. 1(1 ), (10 grams) and first-degree drug sale, Minn. Stat.
§ 152.021, subd. 1(1), (17 grams).

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typically associated with a conviction of second-degree possession with intent to sell, and
his sentence was significantly longer than the sentences imposed on his two co-defendants.
In a direct appeal from a final judgment of conviction, sentenc ing issues may be
addressed. See State v. Thomas, 371 N.W.2d 533, 534-35 (Minn. 1985). “The sentences
provided in the [Minnesota Sentencing Guidelines] are presumed to be appropriate for the
crimes to which they apply.” Minn. Sent. Guidelines 2.D.1 (2017). “[A] sentencing court
can exercise its discretion to d epart from the guidelines only if aggravating or mitigating
circumstances are present, and those circumstances provide a su bstantial and compelling
reason not to impose a guidelines sentence.” State v. Soto, 855 N.W.2d 303, 308 (Minn.
2014) (citations and quotations omitted). “We review a distric t court’s decision to depart
from the presumptive guidelines sentence for an abuse of discretion.” State v. Solberg, 882
N.W.2d 618, 623 (Minn. 2016). “A district court abuses its discretion when its reasons for
departure are legally impermiss ible and insufficient evidence i n the record justifies the
departure.” Id. Only in a “rare” case will an appellate court reverse a sentenc ing court’s
refusal to depart. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Ordinarily, appellate
courts will not disturb the district court’s imposition of a presumptive guidelines sentence,
even if reasons exist for a downward departure. State v. Bertsch , 707 N.W.2d 660, 668
(Minn. 2006). “The general issue that faces a sentencing court in deciding whether to
depart durationally is whether the defendant’s conduct was sign ificantly more or less
serious than that typically involved in the commission of the c rime in question.” State v.
Cox, 343 N.W.2d 641, 643 (Minn. 1984).

5
Appellant argues that his conduct was less serious than typica l because, while his
admissions established the “minimum factual basis for the offense,” they did not establish
other factors typically found in a second-degree-drug-sale case . Appellant explains four
“other factors” that he claims make his offense less serious th an typical. First, he argues
that the statute contemplates multiple sales over multiple days, and appellant only admitted
to conduct on one day. Second, he argues that there was not a sale, transaction, or
controlled buy in this case, so appellant was not “engaging in illegal conduct on the street”
but instead “merely had the drugs in his bedroom.” Third, he argues that no weapons were
involved. And fourth, appellant argues that other people were “equally associated” with
the methamphetamine that appellant possessed.
The district court declined to conclude that appellant’s offense was less serious than
is typical. It observed that, based on the factual basis given by appellant’s plea-hearing
testimony, the amount of metham phetamine appellant possessed wa s well above the
threshold for a second-degree offense and would have supported a first-degree conviction
but for the plea agreement.
We see no error in the district court’s reasoning. Appellant admitted to possessing
approximately 27 grams of methamphetamine with the intention of selling it. This is more
than double the amount required by the second-degree-drug-sale statute and would indeed
have been sufficient to support a first-degree conviction. See Minn. Stat. §§ 152.021, subd.
1(1), .022, subd. 1(1). The district court did not clearly err or abuse its discretion in
declining to depart from the guidelines on this basis.

6
Appellant also argues that his sentence is excessive when comp ared to his two co-
defendants who, he claims, were equally culpable yet received s horter sentences than
appellant.
Uniform treatment of offenders does not require comparing the s entences of
co-defendants. State v. Vazquez , 330 N.W.2d 110, 112 (Minn. 1983); see also State v.
Lonergan, 381 N.W.2d 51, 53 (Minn. App. 1986). “The sentence chosen fo r a co-
defendant does not mandate a more lenient sentence for appellant.” Lonergan, 381 N.W.2d
at 53. The district court was not required to detail a compari son of appellant’s sentence
with those of his co-defendants. The district court properly d etermined appellant’s
sentence by applying the guidelin es to appellant’s offense of c onviction and his criminal
history score.
Even if appellant’s sentence were compared to the sentences of his two co-
defendants, it is noteworthy that appellant had a criminal history score of four. Appellant’s
female co-defendant, who pleaded guilty to the same charge as a ppellant, had a criminal
history score of zero. Her presumptive sentence under the guid elines was a stayed prison
term and, like appellant, she was sentenced consistent with the guidelines. Appellant’s
male co-defendant, who pleaded guilty to a first-degree controlled-substance offense, also
had a lower criminal history score than appellant. In short, the sentencing factors relevant
to appellant’s sentence were different from those of his co-def endants. The sentencing
disparity of which appellant complains is a function not of any error by the district court
but of the criminal-history-score component that inheres in app lying the sentencing
guidelines to the facts of the case.

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The district court acted within its discretion in sentencing appellant, and appellant’s
sentence was not excessive.
Affirmed.