Elijah Ahmad Milsap, petitioner, Appellant,

This opinion will be unpublished and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
A19-0121

Elijah Ahmad Milsap, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed October 14, 2019
Affirmed
Cochran, Judge

Stearns County District Court
File No. 73-CR-16-3707

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer L. Lauermann, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Janelle P. Kendall, Stearns Count y Attorney, Ole Tvedten, Assis tant County Attorney,
St. Cloud, Minnesota (for respondent)

Considered and decided by Johnson, Presiding Judge; Cochran, J udge; and
Kirk, 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
COCHRAN, Judge
Appellant Elijah Ahmad Milsap appeals the district court’s den ial of his motion to
correct sentence under Minn. R. Crim. P. 27.03, subd. 9, assert ing that his sentence was
not authorized by law. Because Mils ap’s sentence is authorized by statute and is within
the presumptive range of sentences provided by the Minnesota Sentencing Guidelines, we
affirm.
FACTS
In 2016, the state charged appellant Elijah Ahmad Milsap with f o u r c o u n t s o f
second-degree sex trafficking under Minn. Stat. § 609.322, subd. 1a (2014). The complaint
alleged that Milsap sex trafficked two women, Adult A and Adult B. According to the
complaint, Milsap placed online advertisements for the prostitu tion services of Adult A
from March 2016 to April 2016. Later, in mid-April 2016, Milsa p took revealing
photographs of both Adult A and Adult B, placed advertisements for prostitution services
of both women online, and instructed Adult A and Adult B on how to attract prospective
patrons. Milsap communicated with the patrons, and when the wo men received payment
from them, Milsap took the money.
The four charges in the complaint each alleged that Milsap was guilty of
second-degree sex trafficking, b ut each count also referenced a sentence-enhancing
provision under Minn. Stat. § 60 9.322, subd. 1(b) (2014) that i n c r e a s e d t h e m a x i m u m
sentence from 15 years in prison to 25 years in prison. Counts one and two alleged that
Milsap sex trafficked Adult A and Adult B, respectively, and that each offense involved a

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victim who suffered bodily harm during the commission of the of fense. See
Minn. Stat. § 609.322, subd. 1(b)(2). Counts three and four al so alleged that Milsap sex
trafficked Adult A and Adult B, r espectively. Both counts refe renced Minn.
Stat. § 609.322, subd . 1(b)(4), by statute number and listed th e maximum sentence as
25 years in prison. The charge d escription for counts three an d four also specifically
alleged that each “offense involved more than one sex trafficking victim.”
The state charged Milsap with s everal additional offenses (in separate district court
files not appealed here) for incidents that occurred while Milsap was held in Stearns County
jail in connection with this case. Milsap and the state entere d into a plea agreement that
resolved all the cases. One provision of the agreement was that Milsap would plead guilty
to count three in this case, second-degree sex trafficking invo lving more than one
sex-trafficking victim, and receive a 252-month prison sentence. The other three counts in
this case were to be dismissed.
Milsap pleaded guilty pursuant to the agreement. He submitted a plea petition that
incorporated a document summarizing his plea agreement with the state. The document
reflected that the agreement ca lled for Milsap to plead guilty to second-degree sex
trafficking with multiple victims—Adult A and Adult B. In laying the factual basis for his
plea, Milsap testified that in April 2016, he picked up Adult A and Adult B from Duluth
and brought them to St. Cloud. He provided drugs to the women. He testified that he was
“aware” of advertisements for prostitution placed online for both Adult A and Adult B. He
confirmed that he harbored both women for the purpose of engagi ng them in prostitution,
and he accepted money from a patron in exchange for oral sex from Adult B. When asked

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if that was why he was guilty of “[c]ount [three], which is the intentional sex trafficking of
an individual Adult A, and that the offense involved more than one sex trafficking victim,”
Milsap responded, “Yes.” The district court found that Milsap had established a sufficient
factual basis and accepted his plea. Pursuant to the plea agre ement, the district court
sentenced Milsap to 252 months in prison.
In 2018, Milsap filed a motion to correct sentence under Minn. R. Crim. P. 27.03,
subd. 9. Citing State v. Ivy , 902 N.W.2d 652 (Minn. App. 2017), review denied
(Dec. 19, 2017), Milsap argued that his sentence was not authorized by law because count
three, as described in the complaint, only expressly identified Adult A as a sex-trafficking
victim. Milsap also submitted a pro se filing to the district court arguing that the sentence
violated his constitutional rights as described in Apprendi v. New Jersey , 530 U.S. 466,
490, 120 S. Ct. 2348, 2362-63 (2000), and Blakely v. Washington , 542 U.S. 296, 305,
124 S. Ct. 2531, 2538 (2004). The district court denied Milsap’s motions, concluding that
the facts and procedural posture of this case were distinguishable from Ivy and noting that
Apprendi and Blakely were not implicated by a sentence modified by Minn. Stat. § 609.322,
subd. 1(b)(4).
Milsap appeals.
D E C I S I O N
In his primary brief, Milsap argues that the district court erred by denying his motion
t o c o r r e c t s e n t e n c e . H e a r g u e s , b a s e d o n t h e w a y t h e s t a t e c h arged him, that the
multiple-victim sentence modifier under Minn. Stat. § 609.322, subd. 1(b)(4), does not
apply to the offense to which he pleaded guilty. Milsap also m akes several pro se claims

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relating to the sentence. We first address Milsap’s primary ar gument and then turn to his
pro se claims.
I. The district court did not abuse its discretion by denying Mils ap’s motion to
correct sentence.

An appellate court reviews a district court’s denial of a motion to correct a sentence
under rule 27.03, subdivision 9, for an abuse of discretion. Evans v. State , 880 N.W.2d
357, 359 (Minn. 2016). “A postconviction court abuses its discretion when its decision is
based on an erroneous application of the law or is against logic and the facts in the record.”
Nunn v. State, 868 N.W.2d 230, 232 (Minn. 2015).
Minn. Stat. § 609.322, subd. 1a(4), provides that a person who “engages in sex
trafficking of an individual” may be sentenced to a maximum of 15 years’ imprisonment
for second-degree sex trafficking. Minn. Stat. § 609.322, subd . 1(b)(4), provides for a
sentencing enhancement of up to 25 years’ imprisonment for that violation if “the offense
involved more than one sex trafficking victim.” This sentence modifier also increases the
presumptive fixed sentence and the range of presumptive sentenc es provided by the
Minnesota Sentencing Guidelines. See Minn. Sent. Guidelines 2.G.1, .9.a (2015)
(describing the effect of the sentence modifier on the presumpt ive sentence and the
presumptive range of sentences). The district court sentenced Milsap on count three in the
complaint pursuant to the multip le-victim sentence modifier pro vided by Minn.
Stat. § 609.322, subd. 1(b)(4), based on his testimony at the sentencing hearing.
Relying heavily on Ivy, Milsap argues that the multip le-victim sentence modifier
does not apply to the second-degree sex-trafficking charge to w hich he pleaded guilty.

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Based on how the state worded the charge in count three, Milsap contends that the
maximum, and presumptive, sentence for the charge is 15 years (or 180 months) in prison.
The state argues that the district court correctly concluded th at the sentence modifier was
properly applied.
I n Ivy, the state charged the appellant with twelve offenses, including several counts
of second-degree sex trafficki ng and second-degree solicitation to practice prostitution.
902 N.W.2d at 655-56. Each of the sex-trafficking and solicita tion charges involved a
separate victim, and although each count referenced Minn. Stat. § 609.322, subd. 1(b)(4),
by statute number, the state did not include language in any of the charge descriptions
indicating that the offenses i nvolved multiple sex-trafficking victims.
1 Each count also
indicated that the maximum possible sentence was the standard s tatutory maximum for
second-degree sex trafficking without the multiple-victim sentence modifier.
The matter went to jury trial. Ivy, 902 N.W.2d at 656. The jury was not instructed
that multiple victims was an element of the offense on any coun t. Id. at 666. The jury
returned guilty verdicts for ten counts, seven of which were ch arges that referenced the
multiple-victim sentencing modifier in the complaint. Id. at 658. When the district court
sentenced the appellant, it increased the length of his sentence on each of these seven counts
pursuant to Minn. Stat. § 609.322, subd. 1(b)(4), and also impo sed the sentences
consecutively. Id. at 664.

1 The district court accepted the Ivy complaint as an exhibit at a motion hearing on Milsap’s
motion to correct sentence.

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This court reversed the sentence, noting that the offenses that the state charged and
that the jury was instructed on were narrow incidents, each inv olving only one victim.
Id. at 667. Rather than charging one count that alleged a sex-trafficking scheme involving
multiple victims, the state charged several counts that alleged that the appellant sex
trafficked or solicited distinct victims. Id. at 666. Because each individually charged
offense alleged only a single victim and because the jury instr uctions did not list multiple
victims as an element of any of the individual offenses, this c ourt concluded that the
multiple-victim sentence m odifier did not apply. Id. This court also expressed concern
that the district court relied on the multiple-victims factor n ot only to increase the length
of the sentences but also to impose the sentences consecutively , resulting in double
punishment for the same conduct. Id. at 666-67.
Claiming that the state charged him in a similar manner as it c harged the appellant
in Ivy, M i l s a p a r g u e s t h a t h i s s e n t e n c e i s n o t a u t h o r i z e d b y l a w b e c ause it includes a
multiple-victim sentence enhancem ent. We are not persuaded. M ilsap’s argument
overlooks important differences between how he was charged and how the appellant in Ivy
was charged. His argument also overlooks his plea agreement.
As the district court correctly concluded, this case is readily distinguishable from
Ivy. First, in this case, the state specifically alleged in count three that Milsap “intentionally
engaged in the sex trafficking of an individual . . . Adult A,” and that “the offense involved
more than one sex trafficking victim.” In Ivy, there was no language in the complaint
specifically alleging that any of the offenses involved more than a single victim—a factor
this court found to be very important in determining whether the multiple-victim sentence

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enhancement in section 609.322 was properly applied. Id. at 666. Second, in this case, the
complaint expressly specified that the maximum sentence for count three was 25 years in
prison—the maximum sentence that applies if the modifier is charged. In Ivy, none of the
charges indicated that the maximum sentence was 25 years. Thus , in this case, unlike in
Ivy, the complaint was clear that th e charge for second-degree sex trafficking alleged an
“offense involv[ing] more than one sex trafficking victim” unde r Minn. Stat. § 609.322,
subd. 1(b)(4).
Moreover, the procedural posture of this case is significantly different than that of
Ivy. Milsap entered into a plea agreement with the state that cal led for Milsap to plead
guilty to a single count of second-degree sex trafficking and r eceive a 252-month prison
sentence—a sentence that would not be permitted if the modifier did not apply because it
would exceed the statutory maximum sentence of 180 months. In laying a factual basis for
his plea, Milsap testified that th e offense involved more than one victim, and specifically
testified about his conduct towa rds both Adult A and Adult B. 2 Thus, unlike Ivy, this is
not a case where the fact-finder was never instructed on the multiple-victim element. And,
there is no concern that Milsap did not understand that he was pleading guilty to a charge
involving multiple victims. And because Milsap pleaded guilty to only one sex-trafficking
count, there is no concern that his sentence resulted in double punishment like there was in
Ivy.

2 We note that Milsap does not argue that the factual basis for his plea was insufficient to
establish that the offense invol ved multiple victims. Instead, Milsap argues only that the
manner that the state charged him precluded the application of the multiple-victim sentence
modifier provided by Minn. Stat. § 609.322, subd. 1(b)(4).

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Because Milsap pleaded guilty to second-degree sex trafficking with more than one
victim—the offense charged in the complaint—we conclude that the district court did not
abuse its discretion when it sentenced Milsap, pursuant to the plea agreement, to a sentence
enhanced by the multiple-victim s entence modifier under Minn. S tat. § 609.322,
subd. 1(b)(4).
II. Milsap’s pro se claims have no merit.
I n a d d i t i o n t o t h e a r g u m e n t s r a i s ed by Milsap’s attorney regard ing Ivy, Milsap
submitted his own written arguments to the district court raisi ng other issues. Milsap’s
appellate attorney incorporated those arguments into her brief by reference. Generally,
Milsap argues that the district court improperly imposed an aggravated sentence above the
statutory maximum without adhering to the Minnesota Rules of Cr iminal Procedure and
the procedures required by Apprendi, 530 U.S. 466, 120 S. Ct. 2348, and Blakely, 542 U.S.
296, 124 S. Ct. 2531. But, because the district court did not impose an aggravated sentence,
Milsap’s claims have no merit.
First, Milsap argues that the dis trict court violated his const itutional rights as
described in Apprendi and Blakely. In Apprendi, the Supreme Court held that “any fact
that increases the penalty for a crime beyond the prescribed st atutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” 53 0 U.S. at 490, 120 S. Ct.
at 2362-63. In Blakely, the Supreme Court held that to be valid under the Sixth
Amendment, sentencing departures above a statutory maximum must be based on facts
found by the jury, rather than the judge. 542 U.S. at 305, 124 S. Ct. at 2538. In Minnesota,

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the “statutory maximum” sentence referred to in Apprendi and Blakely is the top of the
guidelines range. State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005).
In Ivy, this court addressed a similar argument. We noted that the m ultiple-victim
sentence modifier increases the maximum sentence of the offense and, under the Minnesota
Sentencing Guidelines, the presumptive sentence for the offense. As a result, the sentence
modifier “does not increase the penalty for the offense beyond the prescribed statutory
maximum because such a penalty is established by statute.” Ivy, 902 N.W.2d at 665; see
also Minn. Sent. Guidelines 2.G.9.a (providing the method of calculating the presumptive
sentence when the multiple-victim sentence modifier applies). Thus, neither Apprendi nor
Blakely are implicated solely based on the application of the multiple -victim sentencing
modifier set forth in Minn. Stat. § 609.322, subd. 1(b)(4). Ivy, 902 N.W.2d at 665.
Sentencing under this provision does not require the district c ourt to adhere to the
procedures established in Apprendi a n d Blakely unless the sentence exceeds the newly
calculated range with the sentence modifier.
Next, Milsap asserts that, even factoring in the heightened ran ge of presumptive
sentences established by the mul tiple-victim sentence modifier, the 252-month sentence
that the district court imposed is an upward departure. He con tends that the top of the
guidelines range for the offense is 228 months. Based on this assertion, Milsap argues that
the district court was still required to follow the Blakely procedures for imposing an
aggravated sentence beyond the prescribed range. But Milsap mi scalculates the range of
sentences provided by the guidelines.

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The guidelines rank second-degree sex trafficking a severity level C offense on the
s e x - o f f e n d e r g r i d . M i n n . S e n t . G u i d e l i n e s 5 . A ( 2 0 1 5 ) . F o r a person with eight
criminal-history points, such as Milsap, the guidelines provide that the presumptive fixed
sentence is 180 months’ imprisonment. Minn. Sent. Guidelines 4 .B (2015). Ordinarily,
the sentencing guidelines provide for a range of presumptive sentences that runs from 85%
of the presumptive fixed sentence to 120% of the presumptive fixed sentence. Minn. Sent.
Guidelines 1.B.13.c (2015). A s a result, the presumptive range of sentences for a person
with eight criminal-history points would run from 153 months to 216 months. But because
the maximum sentence for second-d egree sex trafficking is 180 m onths without the
multiple-victim sentence modifier, the highest sentence authori zed by law is 180 months
and the range does not extend to 216 months. Minn. Stat. § 609.322, subd. 1a; Minn. Sent.
Guidelines 4.B; Minn. Sent. Guidelines 2.C.1-2 (2015) (providin g that the standard
presumptive range of sentences is 15% lower and 20% higher than the presumptive fixed
duration displayed in the grid, unless the sentence exceeds the statutory maximum
sentence).
When the multiple-victim sentenc e modifier applies, such as in this case, the
maximum sentence increases to 25 years (or 300 months). Minn. Stat. § 609.322, subd.
1(b)(4). To determine the presumptive sentence when the modifier applies, the guidelines
instruct the sentencing court to locate “the duration in the appropriate cell on the applicable
Grid defined by the offender’s criminal history score and the u nderlying crime with the
highest severity level” and add “48 months, if the underlying crime was completed.” Minn.
Sent. Guidelines 2.G.9.a. For a person with eight criminal-history points, the presumptive

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fixed sentence prescribed by the guidelines becomes 228 months (180 months plus 48
months). The modifier also increases the discretionary range of presumptive sentences by
adding 48 months to the upper and lower ends of the range. See Minn. Sent. Guidelines
2.G.1 (“Any change to the presumptive fixed sentence [when a se ntence modifier such as
Minn. Stat. § 609.322, subd. 1(b)(4) applies] must also be appl ied to the upper and lower
ends of the range found in the appropriate cell on the applicab l e G r i d. ” ) . B e c a us e t he
maximum sentence no longer limits the upper range of presumptiv e sentences, the range
of presumptive sentences is calculated by adding 48 months to t he lower end of the range
for the underlying offense (153 months) and also adding 48 months to the high end of the
range (which, without the maximum sentence limiting the range of the underlying offense
is 216 months). The sentencing guidelines, therefore, provide that the presumptive fixed
sentence for a person with eight criminal-history points is 228 months, with a presumptive
range of 201 months to 264 months (216 months plus 48 months).
The sentencing guidelines also provide that an additional three months must be
added to the presumptive fixed sentence and to each end of the presumptive range of
sentences if the defendant’s criminal-history score includes a custody-status point.
Minn. Sent. Guidelines 2.B.2.c ( 2015). The record reflects, an d no party disputes, that
Milsap was assigned a custody-status point in his criminal-hist ory score calculation.
Consequently, the presumptive fi xed sentence for Milsap’s offen se is 231 months with a
presumptive range of 204 months to 267 months.
The sentence imposed by the district court, 252 months, is with in the presumptive
range of sentences and is therefore not a departure. See State v. Delk , 781 N.W.2d 426,

13
428-29 (Minn. App. 2010), review denied (Minn. July 20, 2010) (noting that any sentence
within the presumptive range con stitutes a presumptive sentence ) . A n d , b e c a u s e t h e
district court sentenced Milsap within the presumptive range prescribed by the guidelines,
Apprendi and Blakely are not implicated. See Ivy, 902 N.W.2d at 665. Because the district
court did not impose a departure from the presumptive range of sentences provided by the
guidelines, we conclude that Milsap’s pro se claims concerning an improper departure do
not have merit.
Affirmed.