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This opinion will be unpublished and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
A19-1898

State of Minnesota,
Respondent,

vs.

Arron Michael Bergstrom,
Appellant.

Filed June 8, 2020
Affirmed
Florey, Judge

Hennepin County District Court
File No. 27-CR-18-28061

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Robert M. Christensen, Robert M. Christensen P.L.C., Minneapolis, Minnesota (for
appellant)

Considered and decided by Florey, Presiding Judge; Worke, Judge; and Larkin,
Judge.

2
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant challenges the district court’s denial of his motion for a downward
dispositional departure, a rguing that he is particularly amenable to probation and
individualized treatment. We affirm.
FACTS
In November 2018, at approximately 1:00 a.m., law-enforcement officers witnessed
a vehicle driving abnormally slow and swerving over several lanes of traffic. The officers
stopped the vehicle and identified the driver as appellant Arron Michael Bergstrom. Upon
approach, the officers noticed an “overwhelming odor of intoxicants.” They administered
a preliminary breath test at the scene which returned an a lcohol concentration of 0.15.
After arresting Bergstrom and taking him to the police station, officers attempted to
administer a second breath test, but Bergstrom refused to provide a sample. Bergstrom
was later charged with one count of refusal to submi t to a chemical test under Minn. Stat.
§ 169A.20, subd. 2(2), and one count of driving while impaired in violation of Minn. Stat.
§ 169A.20, subd. 1(1).
Pursuant to a plea agreement, Bergstrom pleaded guilty to the driving -while-
impaired charge, and th e state dismissed the charge of refusal to submit to a test. With
Bergstrom’s prior convictions, the sentencing guidelines called for a presumptive sentence
of 42 months’ imprisonment with a range of 36 to 50 months. Prior to the sentencing
hearing, Bergstrom filed a motion for a downward dispositional departure, specifically
requesting one year in jail and an extended period of probation, arguing that a number of

3
personal and situational factors favor such a departure. A presentence investigation report
acknowledged the legitimacy of some of the factors Bergstrom identified as making him
particularly amenable to probation, but ultimately concluded that the totality of
Bergstrom’s personal and situational circumstances did not support the requested
departure.
In August 2019, the district court denied Bergstrom’s motion for a downward
departure and sentenced him to 36 months with a five-year conditional release. Citing his
intent to appeal that denial, Bergstrom filed a motion to stay his sentence . The distri ct
court denied the motion, finding that Bergstrom posed a risk to public safety in light of his
“dangerous and continued pattern of driving while intoxicated.” 1 Bergstrom appeals the
denial of his downward-departure motion.
D E C I S I O N
While the presumptive sentence will be appropriate in most cases, the district court
has discretion to depart from it when there are “substantial and compelling circumstances”
supporting such a departure. State v. Peake , 366 N.W.2d 299, 301 (Minn. 1985).
“Substantial and compelling circumstances are those circumstances that make the facts of
a particular case different from a typical case.” Id. This court “may vacate or modify a
sentence on many grounds, including that the sentence is unreasonable or inappropriate, or
that such a result is in the interest of fairness and uniformity.” State v. Bertsch, 707 N.W.2d
660, 668 (Minn. 2006) (citation omitted). “However, we will not ordinarily interfere with

1 The district court identified, in particular, DWI offenses committed in 2003, 2004, 2007,
and 2011.

4
a sentence falling within the presumptive sentence range, e ither dispositionally or
durationally, even if there are grounds that would justify a departure.” Id. (quotation
omitted). Therefore, while Minnesota courts have not seen fit to altogether preclude the
ability to appeal sentencing decisions that comport with the guidelines, the supreme court
has observed that “it would be a rare case which would warrant reversal of the refusal to
depart.” Id. (quoting State v. Kindem , 313 N.W.2d 6, 7 (Minn. 1981). Accordingly, we
review a district court’s denial of a motion to depart for an abuse of discretion. See id.
Bergstrom argues the district court has abused its discretion in denying his motion
to depart. Specifically, Bergstrom argues that his age, vulnerability, amenability to
probation, remorse, record on pr ior probations, cooperation, attitude, social support, and
minimal risk to public safety —as well as the financial cost of his confinement and the
contents of the probation officer’s report and recommendations —all weigh in favor of a
downward departure.
With respect to his age, Bergstrom argues that his forty -seven years give him the
benefit of added intelligence or experience, which make him more likely to succeed in a
rehabilitation program. However, Bergstrom cites to no authority in support of this
proposition. In fact, the only case he cites in which the court expressly considers the
defendant’s age supports the opposite rationale. In State v. Patton, this court affirmed the
district court’s downward departure in part because the court “cited [the de fendant’s]
immaturity, at nineteen years of age, and exhibited a concern that incarceration was not
appropriate for him.” 414 N.W.2d 572, 575 (Minn. App. 1987). Bergstrom’s argument
that his more advanced age renders him more fit for probation is unsubstantiated.

5
Bergstrom also argues that he is “extraordinarily vulnerable” to abuse and sexual
assault in prison due to his “unique smallish physical characteristics.” He cites a number
of cases that take into account a defendant’s vulnerability to abuse whe n considering
dispositional departures. Bergstrom also cites several studies and reports that discuss the
prevalence of abuse in prison and characteristics that statistically make one more likely to
suffer sexual abuse. Specifically, Bergstrom argues tha t he “is virtually the poster child
for a likely target of prison assault” because he is unimposing, a nonviolent offender,
appears younger than he is, and smaller in stature. This argument is unconvincing. While
it is true that prior cases have supported departure from guideline sentences on the basis of
special vulnerability to abuse, all of the cases to which Bergstrom cites contained highly
unusual circumstances that rendered the defendant exceptionally vulnerable. There is no
support for his argument that appearing somewhat smaller and less imposing than average
justifies a dispositional departure —much less renders a refusal to depart an abuse of
discretion.
Bergstrom argues that he has demonstrated that he is particularly susceptible to
rehabilitation, given that he enrolled in a dependency program after his arrest and received
treatment for his mental-health conditions. For this argument, he cites State v. McCalister.
462 N.W.2d 407 (Minn. App. 1990). However, the McCalister court affirmed a downward
departure despite the fact that “the trial court had a proper concern for [the defendant’s]
future ability to stay straight.” Id. at 409. While this court observed that the district court
“did not consider [the defendant] totally unamenable to probation,” this was not framed as
a justification or reason for the departure—only as something that did not weigh as heavily

6
against the departure as it might otherwise have. Id. Bergstrom simply cites no authority
that enrollment and success in a substance-abuse program after arrest warrants a downward
departure.
Bergstrom identifies a number of other considerations courts have used to support
downward departures, but he provides little more than bare assertions that those
considerations would support depar ture in this case. He identifies remorse, cooperation,
attitude, and completion of prior probations as relevant factors, but then only states that
these weigh in his favor in this case, sometimes pointing to isolated elements of the case
or transcript tha t do not preclude that inference. Notably, Bergstrom asserts that he has
successfully completed prior probations, but then he also argues that he displayed
cooperation by freely admitting that he managed to continue drinking while on past
probations. Fin ally, Bergstrom argues, without any legal authority, that the fact that
incarceration is financially costly for the state should be considered and support departure.
The district court considered all of these factors and did not abuse its discretion by finding
them insufficient to support departure.
With respect to the social-support consideration, Bergstrom had many of his family
and friends write to the district court to express their commitment to supporting him. While
we agree that this consideration would support a decision to depart, we cannot say that the
district court abused its discretion by declining to depart on this basis alone —especially
given that the district court sentenced Bergstrom to the lowest end of the presumptive
range. We agree wi th the state that Bergstrom is essentially asking us to substitute our

7
judgment for that of the district court, which we cannot do on review for an abuse of
discretion.
Affirmed.