State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (201 8).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1034

State of Minnesota,
Respondent,

vs.

Phuc Trong Nguyen,
Appellant.

Filed May 18, 2020
Affirmed in part, reversed in part, and remanded
Segal, Chief Judge

Hennepin County District Court
File No. 27-CR-18-21369

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, 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 Segal, Chief Judge; Ross, Judge; and Cochran, Judge.
U N P U B L I S H E D O P I N I O N
SEGAL, Chief Judge
In this direct appeal from final judgments of conviction and sentences for 13 counts
of possession of a firearm by an ineligible person, appellant argues that the district court

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abused its discretion by sentencing him to an upward durational departure and erred by
imposing multiple sentences. We affirm in part, reverse in part, and remand.
FACTS
On August 22, 2018, law enforcement executed a search warrant at a storage unit
owned by appellant Phuc Trong Nguyen after receiving information that he may be in
possession of firearms and ammunition . Nguyen is ineligible to possess firearms and
ammunition due to his prior conviction of a crime of violence. Law enforcement seized
3 rifles, 11 handguns, at least 60 high -capacity magazines, 10 regula r-capacity magazines,
several hundred rounds of ammunition, various firearm accessories and materials used to
build firearms. On August 24, respondent State of Minnesota charged Nguyen with
13 counts of posse ssion of a firearm by an ineligible person in violation of Minn . Stat.
§ 624.713, subd. 1(2) (2018). The state later filed a notice of intent to seek an upward
durational sentencing departure.
Nguyen pleaded guilty to all 13 counts of possession of a firearm by an ineligib le
person and waived his right under Blakely v. W ashington, 542 U.S. 296, 124 S. Ct. 2531
(2004), to a jury trial to determine whether aggravating factors existed for an upward
sentencing departure. Nguyen’s plea was pursuant to an agreement that his sentence would
be between 60 and 180 months. The district court held a bench trial to determine whether
aggravating factors existed to support an upward durational departure. In its findings of
fact and conclusions of law regarding the aggravating factors, t he district court determined
that Nguyen’s criminal history and the fact that he was a danger to public safety constituted
aggravating factors that justified an upward durational departure.

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At the sentencing hearing, t he state argued that the severity of the offense warranted
sentences of 120 months on each count in light of the amount and nature of the weaponry
and ammunition found in Nguyen’s possession, the fact that Nguyen was on supervised
release for a prior conviction of being an ineligible person in possession of a firearm at the
time the wea pons were discovered, and the length and frequency of his criminal history.
Defense counsel argued that mitigating factors warranted concurrent 60 -month sentences
on counts 1 -10 with consecutive 60 -month probationary sentences on counts 11 -13. The
district court ultimately sentenced Nguyen to 108 months in prison on all 13 counts, to be
served concurrently. This appeal follows.
D E C I S I O N
I. The district court did not abuse its discretion in granting an upward durationa l
departure.

Nguyen challenges the upward durational departure, arguing that the record does
not support the district court’s determination. We review departures from the sentencing
guidelines for an abuse of discretion. State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016).
Where aggravating factors are present that provide a “substantial and compelling reason
not to impose a guideline sentence ,” a district court has the discretion to depart from the
sentencing guidelines. State v . Soto, 8 55 N.W.2d 303, 308 (Minn. 2014) (quotatio n
omitted). The imposition of an upward durational departure will be affirmed so long as the
district court’s reasons for departing are “legally permissible and factually supported in the
record.” State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015) (quotation omitted).

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A district court may impose an upward departure when sentencing an offender for
a violent felony if (1) that “offender has two or more prior convictions for violent crimes ”1
and (2) “the fact-finder determines that the offender i s a danger to public safety. ” Minn.
Stat. § 609.1095, subd. 2 (2018). The fact -finder may base its determination that the
offender is a danger to public safety on either of two factors. Id., subd. 2(2). The first
factor is the criminal history of the o ffender, including the frequency of criminal activity
and length of involvement. Id., subd. 2(2)(i). The second factor is the presence of an
“aggravating factor that would justify a durational departure.” Id., subd. 2(2)(ii). Here,
the district court found that both factors were present and supported the determination that
Nguyen is a danger to public safety. Nguyen challenges the district court’s findings on
each factor.
Criminal History

Turning first to the criminal -history factor, t he district court determined that
Nguyen’s criminal history consisted of the following convictions: first -degree criminal
sexual conduct (convicted 1995), theft of a motor vehicle (convicted 2013), and possession
of a firearm by an ineligible person (convi cted 2016). 2 First-degree criminal sexual
conduct and possession of a firearm by an ineligible person are violent crimes under Minn.
Stat. § 609.1095, subd. 1(d) (2018). The district court made the following finding:

1 Nguyen does not dispute that he has two prior convictions for violent crimes.

2 Nguyen was also convicted of fifth -degree controlled -substance crime in 2011. The
district court received a certified copy of this conviction into evidence, but did not make a
factual finding regarding the conviction or reference it in the order determin ing that
Nguyen is a danger to public safety.

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11. Since defendant has a felony rec ord dating back to
1995 when he was convicted of Criminal Sexual Conduct in
the First Degree, his past demonstrates long involvement in
criminal activity. While defendant was not the most prolific
criminal, his recent purchases of many firearms and
ammunition and possession of them while still on supervised
release for a weapons offense shows that, at least of late, he is
engaged in criminal activity at a high frequency.

The district court determined that , with this criminal history, Nguyen posed a danger to
public safety.
Nguyen argues that his criminal history does not support the district court’s
determination because there are mitigating factors surrounding his prior convictions that
make them less serious. Nguyen points to the fact that he received only probation for his
criminal-sexual-conduct conviction and argues this was because the victim was a n
“underage willing participant” who was physically “larger and more mature than he was.”
Nguyen also emphasizes that he never violated the term s of his probation resulting from
that conviction and has never been charged with a similar offense. With regard to his
conviction for theft of a motor vehicle, Nguyen notes that he co-owned the car and further
points out that his drug -possession conviction was a low -level offense. Even though
Nguyen describes his criminal history as “nonviolent” and “benign,” he has prior felony
convictions spanning from 1995 to 2016, two of which qualify as crimes of violence under
Minn. Stat. § 609.1095, subd. 1(d). Additionally, Nguyen was on s upervised release for a
violent felony conviction at the time he was charged with the present offenses.
Moreover, the record reflects that the district court carefully considered Nguyen’s
criminal history and his arguments. T he district court observed that Nguyen was “not the

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most prolific criminal,” but that his recent behavior of stockpiling weapons and
ammunition while on supervised release for a weapons offense established that, as of late,
he was engaged in criminal activ ity at a high frequency. The district court further noted
that his felony record dating back to 1995 demonstrated “long involvement in criminal
activity.” Thus, the district court weighed the relevant factors under Minn. Stat.
§ 609.1095, subd. 2 (2)(i), and the record supports the district court’s determination that
Nguyen’s criminal history established that he is a danger to public safety. Because the
reason provided by the district court for imposing an upward departure is “lega lly
permissible and fact ually supported in the record ,” the district court did not abuse its
discretion by concluding that the departure was warranted based on his criminal history .
Hicks, 864 N.W.2d at 156 .
Aggravating Factor
As an independent second ground justifying a durational departure, t he district court
found the existence of an aggravating factor —that this offense was significantly more
serious than the typical offense . Pursuant to Minn. Stat. § 609.1095, subd. 2(2)(ii), the
fact-finder “may base its determination that the offender is a danger to public safety . . . on
the fact that the present offense of conviction involved an aggravating factor that would
justify a durational departure.” “[A]n aggravating factor is conduct that renders the
sentenced offense significantly more serious than typically involved in the commission of
the sentenced offense.” State v. Fleming, 883 N.W.2d 790, 797 (Minn. 2016). When such
conduct is found, the district court may impose an aggravated sentence. State v. Edwards,
774 N.W.2d 596, 601 (Minn. 2009).

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Here, the district court made the following finding:
10. The defendant’s stockpiling of many firearms,
including high -caliber guns, assault -style rifles and high -
capacity magazines, despite his felony convictions, makes
defendant d angerous and a significant threat to public safety
and makes each count more serious than a typical offense of
Possession of a Firearm or Ammunition by a Person Convicted
of a Crime of Violence.

Nguyen argues that the district court abused its discretio n because it improperly
considered the number of weapons he possessed. Because he was separately charged and
convicted for the possession of each firearm , he claims that this , in essence, amounts to
double counting. But in Fleming, the supreme court expl ained that a district court may
“base an upward sentencing departure on any aggravating factor, even if the aggravating
factor relates, or arises in connection with another offense committed during the same
course of conduct.” 883 N.W.2d at 797.
The district court was not engaged in any double counting here. The district court’s
findings make clear that the determination of seriousness was not based simply on the
number of weapons. Rather, the findings reflect the court’s concern that Nguyen possessed
not just weapons, but that he had an “arsenal” of military-grade weapons, including high-
caliber guns and assault-style rifles, along with 60 high-capacity magazines and thousands
of rounds of ammunition to arm those weapons. It is also important to note that Nguyen
was not charged for possession of the ammunition, even though it was unlawful for him to
possess it. It is appropriate under Fleming to consider the nature of the weaponry and the
ammunition as an aggravating factor. Id. We conclude that the district court did not abuse
its discretion in determining that Nguyen’s conduct was significantly more serious than the

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typical offense. The nature of the weapons Nguyen possessed and the amount of
ammunition to arm those weapons rend ers his offense significantly more serious than the
typical possession of a firearm case. We, thus, affirm the upward durational departure on
both grounds—Nguyen’s criminal history and the aggravating factor .
II. The district court erred by imposing multiple sentences.
Nguyen next challenges the imposition of multiple sentences arguing that the
offenses all arose out of the same behavioral incident.3 Pursuant to Minn. Stat. § 609.035,
subd. 1 (2018), “if a person’s conduct constitutes more than one of fense under the laws of
this state, the person may be punished for only one of the offenses.” The statute prohibits
multiple sentences, including concurrent ones, for offenses that were committed as part of
a single behavioral incident. State v. Ferguson, 808 N.W.2d 586, 589 (Minn. 2012). But,
as argued by the state, there are statutory exceptions to that prohibition. See Minn. Stat.
§ 609.035, subds. 3-6 (2018).
The determination of whether multiple offenses were committed as part of a single
behavioral incident requires factual determinations that will not be reversed unless clearly
erroneous. State v. O’Meara, 755 N.W.2d 29, 37 (Minn. App. 2008). When the facts are
not in dispute, the determination of whether multiple offenses are part of a single behavioral
incident presents a question of law that is reviewed de novo. Ferguson, 808 N.W.2d at
590.

3 Nguyen did not object to the impositio n of multiple sentences at his sentencing hearing .
But the prohibition against multiple sentences arising out of the same behavioral incident
cannot be waived. State v. Johnson, 653 N.W.2d 646, 650 -51 (Minn. App. 2002).

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Firearms Exceptions
The state’s first line of argument is that the multiple sentences were proper under
the firearms exception to the single -behavioral-incident rule. Under the firearms
exception:
[I]f a person’s conduct constitutes more than one offense under
the laws of this state, the person may be punished for only one
of the offenses and a conviction or acquittal of any one of them
is a bar to prosecution for any other of them. . . .

. . . .

. . . [A] prosecution for or conviction of a violation of
section 609.165 or 624.713, subdivision 1, clause (2), is not a
bar to conviction of or punishment for any other crime
committed by the defendant as part of the same conduct.

Minn. Stat. § 609.035, subds. 1, 3 . Nguyen was convicted of 13 counts of possession of a
firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(2) (2018).
The state argues that each count is an “other crime” that Nguyen may be sentenced for
under the firearms exception.
The resolution of this issue turns on the phrase “any other crime” in Minn. Stat.
§ 609.035, subd. 3. This phrase has not been interp reted in the context of the firearms
exception to the single-behavioral-incident rule, but it has been interpreted in the context
of the burglary exception. See State v. Holmes , 778 N.W.2d 336, 340 -41 (Minn. 2010)
(interpreting Minn. Stat. § 609.585 (2008 )). In Holmes, the question before the supreme
court was whether the defendant was properly sentenced for his convictions of aiding and
abetting first-degree burglary with assault and aiding and abetting third -degree assault. Id.
at 338. The supreme court observed that “Minnesota law generally prohibits a person from

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being punished twice for conduct that is part of the same behavioral incident, with certain
exceptions.” Id. at 339.
Under Minn. Stat. § 609.585 (2018), “a prosecution or conviction of the crime of
burglary is not a bar to conviction of or punishment for any other crime committed on
entering or while in the building entered.” In Holmes, the supreme court determined:
We read the statute to allow a convi ction of another crime
committed in the same course of conduct as the burglary,
provided that the statutory elements of that crime are different
than the crime of burglary. The phrase “any other crime”
means a crime that requires proof of different statut ory
elements than the crime of burglary.

Id. at 341. The supreme court held that, because the statutory elements of the crimes for
which Holmes was convicted were not identical, Holmes could be convicted of and
sentenced for both crimes. Id.
The Holmes case, however, involves a different scenario from the present case.
While it is true that the state was required to show that Nguyen possessed 13 different
firearms to obtain 13 convictions, the question under Holmes was whether the offenses for
which he was convicted contain different statutory elements. In Holmes, this determinatio n
was made by comparing the elements based on the language of the statutes under which
Holmes was convicted. Id. Here, the statutory elements for each conviction were
identical—the state was required to show that Nguyen was ineligible to possess a firearm,
and that he possessed a firearm. Minn. Stat. § 624.713, subd. 1(2). The specific firearms
were not part of the statutory elements of the offense. We therefore conclude that the

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firearms exception does not apply because the offenses are not “any other crime” under
Minn. Stat. § 609.035, subd. 3.
Single Behavioral Incident
The state argues that, even if the firearms exception is not applicable, the multip le
sentences were still proper because the offenses were not committed during a single
behavioral incident. Whether offenses were committed during a single behavioral incident
depends on whether the conduct shares a unity of time and place and “was motivated by
an e ffort to obtain a single criminal objective. ” State v. Bauer , 792 N.W.2d 825, 828
(Minn. 2011). Here, the firearms were discovered by law enforcement at the same time
and in the same location. The state argues, however, that this fact does not end the inquiry
when the crimes charged are possession offenses.
The state reasons that because the offenses were possession crimes, they occurred
at the time Nguyen took possession of each firearm. The state cites to State v. Bakken, in
which the supreme court determined that the defendant could receive multiple sentences
for possession of separate images of child pornography because the images were obtained
at different times. 883 N.W.2d 264, 270 -71 (Minn. 2016). In that case , the images were
downloaded to the defendant’s computer, and law enforc ement was able to determine the
exact time and date each image was downloaded. Id. at 270. In determining that the
offenses were not part of a single behavioral incident, the supreme court observed that the
offenses were not committed “at substantially the same time” because two of the offenses
were separated by five days, and the other offenses were separated by over a month. Id.

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In this case, the record is insufficient for us to review whether the offenses were
committed as part of a single behavioral incident. This determination “involves an
examination of all the facts and circumstances” and factual findings from the district court.
O’Meara, 755 N.W.2d at 37. Because Ng uyen did not object to the imposition of multip le
sentences below, the district court did not make these findings. Nguyen admitted that he
purchased the firearms at gun shows to avoid background c hecks and an officer testified
that the firearms were obtai ned through private-party sales. Thus, it is possible that the
firearms were purchased, and therefore possessed, at different times. But this
determination requires additional factual findings from the district court. We therefore
reverse and remand to the district court to make factual findings to determine whether the
offenses occurred as part of a single behavioral incident.
Affirmed in part, reversed in part, and remanded.