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This opinion will be unpublished and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
A19-1101

State of Minnesota,
Respondent,

vs.

Natausha Rae Smith,
Appellant.

Filed June 22, 2020
Affirmed
Hooten, Judge

St. Louis County District Court
File No. 69DU-CR-18-706

Keith Ellison, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

Charles F. Clippert, Special Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Hooten, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this direct appeal from the judgment of conviction for attempted first- and second-
degree murder, third-degree assault, and kidnapping, appellant argues that: (1) the
convictions for attempted first- and second-degree murder must be reversed because the

2
district court failed to obtain a renewed jury trial waiver after the state amended its
complaint to include these charges in the complaint, and (2) the case must be remanded for
resentencing because the district court improperly allocated two criminal-history points to
a foreign conviction. We affirm.
FACTS
In March 2018, appellant Natausha Smith was charged with first-degree assault and
kidnapping following an attack on her roommate. A few days later, the state amended its
complaint the first time to include charges for aiding and abetting attempted first -degree
murder–premeditated (Count I), aiding and abetting first -degree assault (Count II), and
aiding and abetting kidnapping (Count III). The state amended the complaint again in June
2018 to modify Count II from aiding and abetting first-degree assault to aiding and abetting
third-degree assault.
In October 2018, Smith appeared before the district court for a pre-trial hearing and
waived her right to a jury trial. Two weeks after this waiver, the state sought to amend the
complaint for a third time. The state moved the district court to allow a n amendment of
Count I from attempted first-degree murder-premediated to aiding and abetting attempted
first-degree murder while committing a kidnapping , which removed the premeditation
element, and requested an additional count, aiding and abetting attemp ted second-degree
murder (Count IV).
Smith opposed the state’s third amended complaint , arguing that removing the
premeditation requirement from the first -degree murder charge would alter her defense
strategy. The district court , however, granted the motion. But in consideration of the

3
diminished legal standard caused by the removal of the premeditation element, the district
court granted Smith a continuance and scheduled trial for January 2019. Smith did not
renew her jury trial waiver after the state amended the complaint for the third time.
The district court found Smith guilty on all four counts following a three-day trial.
During the sentencing phase, law enforcement discovered that Smith had a 2009 federal
conviction for conspiracy to dist ribute and sell cocaine and had been sentenced to 15
months with three years of supervised release . Because of this conviction, Smith’s
sentencing worksheet included two criminal-history points for the offense, resulting in a
total criminal-history score of two. The district court adopted the sentencing
recommendations and sentenced Smith concurrently to 210 months for aiding and abetting
attempted first -degree murder ; 18 months for third-degree assault; and 122 months for
kidnapping. The district court did not impose a sentence on the second -degree murder
conviction. Smith appeals.
D E C I S I O N
I. The district court erred by failing to obtain a renewed jury trial waiver
following the state’s third amended complaint, but the error did not affect
Smith’s substantial rights.

Smith challenges her attempted first - and second -degree murder convictions,
arguing that the district court erred by failing to renew her jury trial waiver following the
state’s third amended complaint. She argues that the district court’s failure to obtain a
renewed waiver was a structural error. Whether a defendant has been denied the
constitutional right to a jury trial is a question of law that this court reviews de novo. State
v. Kuhlmann, 806 N.W.2d 844, 848–49 (Minn. 2011).

4
Under both the United States and Minnesota Constitutions, a defendant is entitled
to a jury trial. U.S. Const. art. III, § 2, cl. 3; U.S. Const . amend. VI; Minn. Const. art. I ,
§§ 4, 6. A defendant may waive his or her right to a jury trial, provided that such waiver
is: (1) personal, (2) written or on the record in open court, (3) the district court advised the
defendant “of the right to trial by jury,” and (4) the defendant had an opportunity to consult
with counsel. Minn. R. Crim. P. 26.01, subd. 1(2)(a). A jury trial waiver must be knowing,
intelligent, and voluntary. Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469
(1970); State v. Little, 851 N.W.2d 878, 882 (Minn. 2014). “[A] jury-trial waiver only
applies to issues formed at the time of the waiver and not to issues added after the waiver.”
Little, 851 N.W.2d at 882. Therefore, “when the State amends the complaint after a
defendant’s jury trial waiver, the district court must obtain a renewed waiver of the
defendant’s right to a jury trial on the newly added charge.” Id. at 883.
The state charged Smith in March 2018 and then amended the complaint twice
before Smith waived her right to a jury trial in October 2018. The state amended its
complaint a third time in October 2018 following Smith’s waiver. The district court did
not ask—and Smith did not indicate—whether she wished to renew her jury trial waiver
with respect to the charges listed in the third amended complaint . Therefore, the district
court’s failure to obtain Smith’s renewed jury trial waiver after the state amended its
complaint constitutes error. See id. at 882–83 (holding that a district court must obtain a
renewed waiver of a defendant’s right to a jury trial for newly added charges when a state
amends its complaint).

5
Having determined that the district court erred, we next determine what standard of
review to apply in reviewing the error. Smith contends that the denial of her right to a jury
trial constitutes a structural error requiring automatic reversal , while the state argues that
the decision should be reviewed for plain error.
A. The district court’s error was not structural.
Only a small class of constitutional errors are reviewed for structural error .
Kuhlmann, 806 N.W.2d at 851; see also Arizona v. Fulminate, 499 U.S. 279, 306, 111 S.
Ct. 1246, 1263 (1991) (explaining that most constitutional errors are reviewed for harmless
error). A structural error undermines the “structural integrity of the criminal tribunal itself”
and therefore “is not amen able to harmless-error review.” Vaszquez v. Hillery, 474 U.S.
254, 263–64, 106 S. Ct. 617, 623 (1986) (discussing whether discrimination in the grand
jury amounts to a structural error). Structural errors involve errors that affect the entire
“framework within which the trial proceeds, rather than simply an error in the trial process
itself.” Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833 (1999). These errors
“deprive defendants of ‘basic protections’ without which a ‘criminal trial cannot reliably
serve its function as a vehicle for determination o f guilt or innocence . . . and n o criminal
punishment may be regarded as fundamentally fair.’” Id., 527 U.S. at 8 –9, 119 S. Ct. at
1833.
When a structural error exists, the conviction must be automatically reversed. Id.,
527 U.S. at 8, 119 S. Ct. at 1833. Trial errors, on the other hand, include errors “which
occurred during the presentation of the case to the jury, and which may therefore be
quantitatively assessed in the context of other evidence presented in order to determine

6
whether its admission was harmless beyond a reasonable doubt.” Kuhlmann, 806 N.W.2d
at 851.
Our review of Minnesota caselaw indicates that our courts have addressed which
standard of review applies when a district court fails to obtain a renewed jury trial waiver
after the state amends its complaint.
First, in Kuhlmann, the defendant was charged with two counts of domestic assault
and one count of test refusal, “both of which required the State to prove that Kuhlmann had
certain qualifying previous convictions ” in order to convict him. Id. at 847. At trial,
Kuhlmann agreed to stipulate that he had the required previous convictions and the jury
was not asked to find that the state had met its burden in proving that he had the qualifying
convictions. Id. Following his conviction, Kuhlmann appealed and argued that the district
court’s failure to obtain his personal waiver of the right to a jury trial on the previous -
conviction elements amounted to a structural error. Id.
The supreme court determined that although the district court erred by failing to
obtain Kuhlmann’s personal waiver, the error was not structural because “Kuhlmann
received a jury trial on all of the elements of the charged offenses except for the previous-
conviction elements” and “even if the trial court had obtained Kuhlmann’s personal waiver,
the trial would have proceeded in exactly the same manner as it did.” Id. at 852. The
supreme court further indicated that the district court’s error amounted to a procedural error
because “[t]he jury would have been presented with the same arguments and evidence” had
the district court obtained Kuhlmann’s personal waiver, and its failure to do so did not
affect the outcome of the case. Id. The supreme court then analyzed the error under the

7
plain error standard of review and determined that the error did not affect Kuhlmann’s
substantial rights. Id. at 852–53.
Similarly, in Little, the s upreme court was presented with the issue of whether a
district court must renew a defendant’s waiver of his right to a jury trial following an
amendment to the complaint and declined to adopt a per se rule regarding the appropriate
standard of review. 851 N.W.2d at 884. In Little, the defendant was charged with two
counts of criminal sexual conduct and waived his right to a jury trial. Id. at 880. Following
his waiver, the state amended the complaint and added an additional and more serious
charge of first-degree criminal sexual conduct. Id. at 881. Little never personally waived
his right to a jury trial following the state’s amendment, and he was convicted by the district
court and sentenced to 153 months in prison. Id.
Little appealed and t he supreme court determined that a district court errs when it
fails to obtain a personal waiver of a defendant’s right to a jury trial after the state amends
the complaint. Id. at 882. However, the supreme court declined to address the parties’
dispute regarding the appropriate standard of review for this type of error but nonetheless
determined that Little wa s entitled to a new trial under a plain error analysis. Id. at 884.
Relying on the record, the supreme court indicated that there was reason to believe that
Little had no knowledge that the state amended its complaint with an additional, more
serious, charge of first -degree criminal sexual conduct. Id. at 885. The supreme court
pointed to statements made by Little himself during the sentencing phase where he stated
that he “did not know about the added charge until after he was found guilty.” Id. Further,
testimony from Little’s defense counsel also suggested that “Little may not have had a full

8
appreciation of what was happening in the days leading up to [his] trial because” his trial
began two days after the state amended its complaint. Id. Based on these facts, the supreme
court reasoned that it was unlikely that Little and his counsel had fully discussed the
advantages and disadvantages of waiving a jury trial following the state’s amendment and
concluded that there was a reasonable likelihood that the district court’s failure to obtain a
renewed jury trial waiver had a significant effect on Little’s substantial rights. Id. at 884.
Returning to this case, we conclude that, based on the supreme court’s reasoning in
Kuhlmann and Little, the district court’s failure to obtain a renewed jury trial waiver from
Smith following the state’s third amendment of the complaint does not amount to structural
error. The record before us shows that , unlike the defendant in Little, Smith had ample
time and opportunity to raise the jury trial waiver issue with the district court before
proceeding with a bench trial. The state amended its complaint for the third time in October
2018, and Smith argued against the amendment but did not raise the jury trial waiver issue
when the district court granted the state’s motion. The district court’s continuance
following the amendment gave Smith over three months to prepare for trial. Despite the
additional time that Smith had to consider the advantages and disadvantages of a jury trial,
she never stated—and does not assert on appeal—that she changed her mind with respect
to her desire to have a bench trial. Further, she does not suggest that she would have
presented different arguments at her trial or that the trial would have proceeded in a
different manner. See Kuhlmann, 806 N.W.2d at 852 (noting that even if a waiver was
obtained the trial would have proceeded in the same way).

9
Based on this, the district court’s failure to obtain Smith’s renewed jury trial waiver
after the complaint was amended for a third time was therefore not a structural error
because it did not affect the framework within which the trial proceeded. See id. (noting
that a structural error occurs when the error affects the tria l’s framework). Rather, the
failure to secure a second waiver was simply an error in the district court’s procedure when
it accepted the state’s third amendment to the complaint. See Neder, 527 U.S. at 8, 119 S.
Ct. at 1833 (stating that cases involving structural er ror “contain a ‘defect affecting the
framework within which the trial proceeds, rather than simply an error in the trial
process’”).
Smith agrees with the state that Kuhlmann is instructive in this case, but argues that
the fact that the defendant in Kuhlmann received a jury trial on all but the qualifying
previous-conviction elements provides a notable distinction. She maintains that in
Kuhlmann, the supreme court determined that the failure of the district court to obtain a
jury trial waiver on the previous-conviction elements did not amount to structural error
because Kuhlmann did receive a jury trial on all other elements of the crime with which he
was charged and had the d istrict court obtained his jury trial waiver on the previous -
conviction elements, “the trial would have proceeded in exactly the same manner as it did.”
Kuhlmann, 806 N.W.2d at 852. In this case, however, Smith argues that she never received
a jury trial and the state cannot show that her jury trial would have preceded in the sa me
manner as her bench-trial.
Although we agree that this distinction is important, we emphasize that the supreme
court’s analysis in Kuhlmann relied heavily on the defect of which Kuhlmann complained

10
of, rather than whether a jury trial occurred. Specifically, the supreme court reasoned that
the district court’s failure to obtain a jury trial waiver on the previous-conviction elements
was not “a defect in the constitution of the trial” because Kuhlmann had not ever argued
“that he did not want to stipulate to the previous-conviction elements . . . or that he wanted
the jury to determine the previous -conviction elements of the offenses.” Id. Similarly,
Smith has neither pointed to anything in the record, nor argued in her brief, that she wanted
a jury to determine whether the state proved the first- and second-degree murder charges.
She also does not explain why, following the continu ance, she never raised the jury trial
waiver issue with the district court despite months elapsing between the state amending the
charges and her trial. These facts lead us to conclude that the failure of the district court to
renew the jury trial waiver was procedural in nature and not “a defect in the constitution of
the” proceedings. Id.
B. The district court’s error is not subject to a harmless error review.
Smith next argues that if we determine that the district court’s error was not
structural, then we should apply a harmless error standard of review to the district court’s
failure to obtain a renewed jury trial.
“Not every judicial error automatically requires reversal.” State v. Shoen , 598
N.W.2d 370, 375 (Minn. 1999). “Most constitutional errors are reviewed for harmless
error.” Kuhlmann, 806 N.W.2d at 850. The errors for which harmless error does not apply
are “the exception and not the rule.” Rose v. Clark, 478 U.S. 570, 578–79, 106 S. Ct. 3101,
3106 (1986). “[I]f the defendant had counsel and was tried by an impartial adjudicator,

11
there is a strong pre sumption that any other errors that may have occurred are subject to
harmless-error analysis.” Id. 478 U.S. at 579, 106 S. Ct. at 3106.
But we will not review a district court’s error under a harmless error standard of
review if the error was unobjected to at trial. See Kuhlmann, 806 N.W.2d at 852; Roby v.
State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that “appellate courts generally will not
decide issues which were not raised before the district court”). Unobjected-to errors that
affect a criminal defendant’s substantial rights will be reviewed for plain error. Kuhlmann,
806 N.W.2d at 852. Smith never objected to the district court’s failure to obtain a renewed
waiver of her right to a jury trial. Therefore, we conclude that the district court’s error here
should be reviewed for plain error.
C. The plain error standard is not met because Smith has failed to show that the
error affected her substantial rights.

Smith next argues that the district court’s f ailure to obtain a renewed jury trial
waiver amounted to plain error. The state argues that the error did not affect Smith’s
substantial rights.
Under the plain error standard, we must determine whether there was: (1) “an error,”
(2) “that was plain,” and (3) “that affected the defendant’s substantial rights. ” Id. Even
“if each of these prongs is met, we will address the error only if it seriously affects the
fairness and integrity of the judicial proceedings.” Id. at 852–53.
Having already concluded that an error occurred, we must determine whether the
error was plain and whether the error affected Smith’s substantial rights. “An error is plain
if it is clear and obvious at the time of appeal,” meaning that the error “contravenes case

12
law, a rule, or a standar d of conduct.” Little, 851 N.W. 2d at 884 (quotation omitted). It
is well established that “when the State amends the complaint after a defendant’s jury trial
waiver, the district court must obtain a renewed waiver of the defendant’s right to a jury
trial on the newly added charge. Little, 851 N.W.2d at 883 . Because the district court’s
failure to obtain a waiver of Smith’s right to a jury trial was clear and obvious, we conclude
that the error was plain.
We now turn to the third-prong of the plain-error analysis: whether the error affected
Smith’s substantial rights. State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). “An error
affects substantial rights if the error was prejudicial and affected the outcome of the case.”
Little, 851 N.W.2d at 884. Furthermore, “[a]n error is prejudicial if there is a reasonable
likelihood that the error had a significant effect on the proceeding.” Id.
Smith argues that the district court’s error affected her substantial rights because the
state’s third amended complaint removed the premeditation element from the aiding and
abetting attempting murder charge, thereby reducing the state’s evidentiary burden. Smith
maintains that “there is a reasonable likelihood that [she] would not have waived her right
to a jury trial to the amended charges.” The state contends that the unique circumstances
of Smith’s case make it clear that had the dis trict court obtained a new jury trial waiver,
the outcome of the case would not have been different.
We find the suprem e court’s plain -error analysis in Little instructive. As noted
earlier, in Little, the supreme court determined that the district court ’s failure to obtain a
renewed jury trial waiver affected the defendant’s substantial rights because the state’s
amended charges “significantly increased the range of potential punishment” and there was

13
evidence in the record to suggest that the defendant may have not known about the state’s
amended charges prior to his trial and conviction. 851 N.W.2d at 885. For these reasons,
the supreme court reversed the defendant’s conviction for the most serious charge of first-
degree criminal sexual conduct and remanded the case. Id. at 886.
Based on t he supreme court’s analysis in Little, w e conclude that Smith’s
circumstances are quite different from Little’s and do not require the same relief. The
record before us indicates that Smith was aware of her right to a jury trial and to be present
at the pre-trial hearing in which the state sought to amend the charges. During this hearing,
the district court gave Smith the opportunity to speak to her attorney about the state’s
request to amend the charges for a third time and whether a continuance would be
beneficial in consideration of the removal of the premeditation element for the first-degree
murder charge. After deliberating for about 20 minutes, Smith requested, and the district
court granted, a n almost three -month continuance. Smith has pointed to nothing in the
record that refutes the presumption that , following the state’s third amendment of the
charges, she and her counsel discussed her constitutional right to a jury trial and decided
to opt for a bench trial. See State v. Fields , 157 N.W.2d 61, 63 ( Minn. 1968) (“[I]n the
absence of contrary evidence, there is a presumption that appointed counsel consulted with
defendant and advised him of his rights.”).
Further, unlike the charges in Little, the state’s third amended complaint did not
include a “much more serious offense.” 851 N.W.2d at 886. Rather, the charges from the
third amended complaint carried the same severity level and potential penalty as the
charges from the second amended complaint . See Minn. Stat. § 609.17, subd. 4 (2018)

14
(indicating that the charge of aiding and abetting carries a designated punishment). Given
the same severity of the crime and the amount of time Smith and her counsel had to
consider the relatively minor changes in the third amended complaint, and that Smith never
expressed a desire to forgo a bench trial in favor of a jury trial, we conclude that the district
court’s error did not prejudice Smith.
Because Smith has not established that the district court’s failure to obtain a renewed
jury trial waiver affected her substantial rights , she has not demonstrated that the district
court committed plain error. We therefore affirm her conviction.
II. The district court did not err by assigning Smith two criminal-history points
for her federal conviction of conspiracy to distribute.

Smith also argues that the district court incorrectly calculated her criminal -history
score by assigning her two points in connection with a prior federal drug conspiracy charge.
“[A] sentence based on an incorrect criminal -history score is an illegal sentence that may
be corrected on direct appeal, regardless of whether the defendant objected to the score at
sentencing.” State v. Strobel, 921 N.W.2d 563, 573 n.1 (Minn. App. 2018), aff’d, 932
N.W.2d 303 (Minn. 2019). This court reviews “determinations of a defendant’s
criminal-history score for abuse of discretion.” Id. at 573. We review the interpretation of
sentencing guidelines de novo. State v. Zeimet, 696 N.W.2d 791, 793 (Minn. 2005).
“A defendant’s criminal history score is calculated, in part, by allotting ‘points’ for
each of a defendant’s prior convictions for which a felony sentence was imposed.” Strobel,
921 N.W.2d at 574; see also Minn. Sent. Guidelines cmt. 2.B.101 (2018) (noting that, when
computing a defendant’s criminal -history score, “the offender is assigned a particular

15
weight for every felony conviction for which a felony sentence was stayed or imposed ”).
A prior foreign conviction “may be count ed as a felony [for the purpose of sentencing]
only if [the conviction] would both be defined as a felony in Minnesota, and the offender
received a sentence that in Minnesota would be a felony-level sentence.” Williams v. State,
910 N.W.2d 736, 740 (Minn. 2018); see also Minn. Stat. § 609.02, subd. 2 (2018) (defining
felony as a crime that imposes “a sentence of imprisonment for more than one year”).
To determine whether a prior foreign conviction may be considered for the purpose
of a criminal-history score, “ the sentencing court should compare the definition of the
foreign offense with the definitions of comparable Minnesota offenses but also may
consider the nature of the foreign offense and the sentence received by the offender for the
offense.” Hill v. State, 483 N.W.2d 57, 58 (Minn. 1992). In the context of a foreign prior
controlled substance conviction, “the amount and type of the controlled substance should
be considered in the determination of the appropriate weight to be assigned to a prior felony
sentence for a controlled substance offense.” Minn. Sent. Guidelines cmt. 2.B.503 (2018).
The proper weight given to a foreign conviction “must be based on the severity level
of the equivalent Minnesota felony offense.” Minn. Sent. Guidelines § 2.B.5.c (2018). The
state bears the burden to “show that a prior conviction quali fies for inclusion within the
criminal-history score.” Williams, 910 N.W.2d at 740.
We begin by observing that Smith was convicted in 2009 of knowingly and
intentionally conspiring to distribute and possess with intent to distribute 500 grams or
more of cocaine base (“crack”) in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(a) (2006) and
21 U.S.C. § 846 (2006). Smith received a 15-month sentence followed by three years of

16
supervised release for the offense. Because Smith received a sentence of “more than o ne
year,” her sentence qualifies as a “felony -level sentence” in Minnesota. Williams, 910
N.W.2d at 740; Minn. Stat. § 609.02, subd. 2.
Turning to whether Smith’s conviction is defined as a felony in Minnesota, we begin
by comparing the language of Smi th’s federal offense with Minnesota’s controlled
substances statutes. We observe that the federal statutes of which Smith was convicted
prohibit any person from knowingly or intentionally manufacturing, distributing, or
possessing with intent to manufactu re or distribute 280 grams or more of a controlled
substance, including cocaine , and for conspiring to commit these offenses . 21 U.S.C.
§§ 841(a)(1), (b)(1)(A); 21 U.S.C. § 846. Our review of Minnesota statutes indicates that
the equivalent Minnesota offenses for the crime of which Smith was convicted of are Minn.
Stat. § 152.021, subd. 1(1) (2016 ), which criminalizes a defendant’ s sale of 17 grams or
more of a controlled substance as a first-degree controlled substance crime, and Minn. Stat.
§ 152.096, subd. 1 (2016 ), which criminalizes conspiracy to commit a first -degree
controlled substance crime as a felony. The term “sell” includes “to offer or agree to sell,
give away, barter, deliver, exchange, distribute, or dispose of to another.” Minn. Stat.
§ 152.01, subd. 15a (2016) (emphasis added).
Based on our review of these statutes, w e conclude that Minn. Stat. § 152.021 and
Minn. Stat. § 152.096 are the equivalent offenses of Smith’s foreign convictions. Both the
federal and Minnesota statutes indicate that they prohibit the same general activity; namely,
the distribution and the intent to distribute a controlled substance , as well as prohibiting
the distribution of the same type and amount of a controlled substance. Compare Minn.

17
Stat. § 152.021, subd. 1(1) (indicating that a person commits a controlled substance crime
in the first degree if he or she sells 17 grams or more of a substance containing cocaine ,
where the term “sell” includes distribution ), with 21 U.S.C. §§ 841(a)(1), (b)(1)(a) (ii)
(indicating that the statute prohibits distribution of 280 or more grams of a mixture of
cocaine). We also note that both the Minnesota and federal statutes prohibit conspiring to
distribute a controlled substance. See Minn. Stat. § 152.096, subd. 1 (prohibiting
conspiracy to distribute a controlled substance) ; see also 21 U.S.C. § 846 (prohibiting
conspiracy to distribute a controlled substance) . And both statutes impose a felony-level
sentence of more than one year. See Minn. Stat. § 152.021, subd. 3(a) (2016) (explaining
that an individual convicted of a first-degree controlled substance crime “may be sentenced
to imprison ment for not more than 30 years” ); see also 21 U.S.C. § 841(b)(1)(A)
(explaining that an individual convicted under 21 U.S.C. § 841(a)(1) “shall be sentenced
to a term of imprisonment which may not be less than 10 years or more than life”). Based
on these similarities, we conclude that Minn. Stat. § 152.021 and Minn. Stat. § 152.096 are
the equivalent offenses of Smith’s foreign conviction and her foreign conviction may be
considered a felony in Minnesota.
Because Smith’s offense “would both be defined as a felony in Minnesota, and [she]
received a sentence in Minnesota would be a felony-level sentence,” we conclude that the
district court did not abuse its discretion by considering Smith’s federal conviction as a
felony for the purpose of a criminal-history score. Williams, 910 N.W.2d at 740.
Having determined that Smith’s conviction may be considered a felony for the
purpose of determining her criminal-history score, we now turn to whether the district court

18
abused its discretion when it assigned two points for her felony offense . The Minnesota
Sentencing Guidelines require us to look at “the severity level of the equivalent Minnesota
felony offense.” Minn. Sent. Guidelines 2.B.5.c. The severity level of a first -degree
controlled substance crime is D8. Id. at 4.C. An offense with a severity level of D8 is
assigned two criminal -history points. Id. at 2.B.1.a. The distr ict court assigned two
criminal-history points to Smith’s federal conviction. For the foregoing reasons, w e
conclude that the district court properly calculated Smith’s criminal-history score.
We reject Smith’s argument that she should have received only one point in her
criminal-history score because her recommended sentence as determined by the federal
sentencing guidelines was 37 to 46 months, which, in the Minnesota Sentencing
Guidelines, is the presumptive sentence for offenses with a severity level of D6 or D7.
Smith’s application of the sentencing guidelines is incorrect. The sentencing guidelines do
not instruct that severity levels for out -of-state convictions be determined based upon the
sentence that was recommended or imposed for an out -of-state conviction. Rather, the
guidelines instruct that a prior felony conviction from another jurisdiction “be based on the
severity level of the equivalent Minnesota felony offen se.” Id. at 2.B.5.c. We have
concluded that the equivalent Minnesota felony offense in this case is a first -degree
controlled substance crime, which is ranked at a severity level of D8. Minn. Sent.
Guidelines 4.C. Drug offenses with a severity level of D7 or D6 are for second- and third-
degree controlled substance crimes, which are not equivalent to the offense of which Smith
was convicted of. See id. at 4.C; see also Minn. Stat. §§ 152.022, .023 (2016) (defining
second- and third-degree controlled substance crimes). Accordingly, the district court did

19
not abuse its discretion when it followed the guidelines and assigned two points to Smith’s
2009 federal felony conviction.
Affirmed.