State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0214

State of Minnesota,
Respondent,

vs.

Damien Damonte Carey,
Appellant.

Filed January 19, 2021
Affirmed
Bryan, Judge

Hennepin County District Court
File No. 27-CR-18-22958

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

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

Cathryn Middlebrook, Chief Appellate Publi c Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Segal, Chief Judge; Ross, Judge; and Bryan, Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this direct appeal from the judgments of conviction and sentences for two counts
of aggravated robbery, appellant challenges the district court’s decision to deny his motion
for a downward dispositional departure. Specifically, appellant argues that the district
court failed to consider the reasons supporting his depart ure motion. Because the district

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court adequately considered the reasons for and against the downward departure motion,
we conclude that the district court’s decis ion to sentence appellant to the presumptive
sentences was within the district court’s discretion, and we affirm the sentences imposed.
FACTS
Respondent State of Minnesota charged appellant Damien Damonte Carey with two
counts of first -degree aggravat ed robbery in violation of Minnesota Statutes section
609.245, subdivision 1 (2018). Carey pleaded guilty to both counts. At the plea hearing,
Carey admitted that he, along with two codefendants, went to an apartment where the two
victims were present. Once inside the apartment, Carey brandished an air -powered BB
gun. Then he and the two code fendants demanded that the two victims give them
“property.”1 Carey also admitted that the two codefendants took property from the victims.
At the end of the plea hearing , the district court ordered a Rule 25 evaluation and a PSI.
Carey requested a psychological evaluation, but the district court denied this request.
In the PSI, the probation officer stated that Carey “minimized the level of fear” he
imposed on the victims. Although Carey pointed the BB gun at them, he told the probation
officer his actions did not threaten the victims because he had a BB gun as opposed to a
firearm. The probation officer also noted that Carey scolded himself for his choices and
exhibited remorse for the vict ims. The probation officer opined that although Carey
indicated a “desire to start anew,” his “willingness to procure money in various manners,
including violence, is alarming, and he continues to be a marked risk to reoffend.” The

1 The parties used the term “property” at the plea hearing and did not refer to any of the
specific items listed in the complaint and in the presentence investigation report (PSI).

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probation officer did not identify any substantial or compelling mitigating factors to justify
departure from the presumptive sentence s. Instead, the probation office r identified
multiple aggravating factors that were present. Despite these aggravating factors, however,
the probation officer ultimately recommended that the district court sentence Carey to the
presumptive 78-month term of commitment for count one and 98 -month term for count
two.
Carey moved for a d ownward dispositional departure, requesting probationary
sentences. Carey argued that he had a troubled upbringing and th at he needs “long term
care and treatment .” He explained that he is amenable to treatment and probation given
his “young age” and desire to “change his direction.” He further argued that it was in the
best interests of society to rehabilitate him on probation rather than “institutionalize” him.
The state opposed the departure motion and sought aggravated sentences. The state
argued that there were not substantial or compelling reasons to depart downward and that
Carey was not amenable to probation. The state noted that Carey committed the offense s
while on “intensive supervised release” and that, per the PSI report, Carey had many rule
violations in the past. The state also argued that the offenses were more serious than typical
offenses because Carey and the two codefendants planned ahead of time to rob the victims
at gunpoint. In addition, the state emphasized that Carey was “instrumental” in the crime
because he drove the car to the apartment, brought the BB gun to the apartment, displayed
the BB gun to the victims, and ordered the victims to relinquish their property.
After hearing from the state, Carey’s counsel, and Carey himself, the district court
concluded that the facts did not support departing from the presumptive guidelines range:

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I do not find any substantial and compelling reasons to depart
from the presumptive sentence. In fact, this case would qualify
for permissive consecutive sentencing and Blakely, an upward
departure based upon the fact that there were more than three
people involved in the case, there’s an expectation of privacy
where the victims were robbed.

This case is distinguishable from the codefendant, the
defendant Mr. Carey. You were t he one with the gun, or the
BB gun.

The district court imposed the presumptive prison sentence s of 78 months for count one
and 98 months for count two, to be served concurrently. Carey appeals.
DECISION
Carey argues that the district court erred when it failed to consider his argument for
a downward sentencing departure. We disagree and conclude that the district court acted
within its discretion when it sentenced Carey to the presumptive sentences.
The Minnesota Sentencing Guidelines establish presumptive sentences for felony
offenses. Minn. Stat. § 244.09, subd. 5 (2018). A sentence prescribed under the Minnesota
Sentencing Guidelines is presumed to be appropriate. State v. Soto, 855 N.W.2d 303, 308
(Minn. 2014). A district court “may” depart from the presumptively appropriate guidelines
sentence only if “identifiable, substantial, and compelling circumstances” warrant doing
so. State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016) (quotation omitted). “Substantial
and compelling circumstances are those circumstances that make the facts of a particular
case different from a typical case.” State v. Peake , 366 N.W.2d 299, 301 (Minn. 1985).
To maintain uniformity and proportionality in sentencing, depar tures from the guidelines
sentence are discouraged. State v. Rund, 896 N.W.2d 527, 532 (Minn. 2017).

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If the defendant requests a departure, the district court must “exercise [its] discretion
by deliberately considering circumstances for and against depart ure.” State v. Pegel, 795
N.W.2d 251, 253 (Minn. App. 2011) (quo tation omitted). To exercise sentencing
discretion, the district court must consider circumstances supporting a downward departure
from the presumptive sentence , and the district court errs when it fails to consider
“[l]egitimate” and “significant” reasons for a departure. See State v. Curtiss, 353 N.W.2d
262, 263-64 (Minn. App. 1984) (discussing a downward durational departure); see also
State v. Mendoza, 638 N.W.2d 480, 483 (Minn. App. 2002), review denied (Minn. Apr. 16,
2002). But the district court is not required to depart even if there are grounds to do so.
State v. Bertsch , 707 N.W.2d 660, 668 (Minn. 2006) . This court will affirm a district
court’s refusal to depart as long as ther e are valid reasons for doing so. State v. Kindem,
313 N.W.2d 6, 7-8 (Minn. 1981). Only in a “rare” case will we reverse the district court’s
refusal to depart from the presumptive sentence. Id. at 7. When the record demonstrates
that an exercise of discretion has not occurred, the case must be remanded for consideration
of the departure issue. Curtiss, 353 N.W.2d at 264.
Carey argues that because the district court did not explicitly address the grounds
for his requested departure (that he is partic ularly amenable to probation and that a
probationary sentence would benefit society), the district court f ailed to consider his
request. We are not persuaded for two reasons. First, although the district court did not
specifically analyze Carey’s arguments, district courts are not required to do so. See Pegel,
795 N.W.2d at 254 (holding that the district court is not required to discuss every
sentencing factor when declining to depart); State v. Van Ruler, 378 N.W.2d 77, 80 (Minn.

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App. 1985) (stating that the district court need not provide an explanation when it considers
reasons for departure but imposes a presumptive sentence) . Because the district court
imposed the presumptive sentences, it was not required to explain its decision.
Second, the district court did consider the circumstances for and against the
departure. The district court stated: “I do not find any substantial and compelling reasons
to depart from the presumptive sentence.” We do not assume, as Carey’s argument does,
that this statement shows that the district court ignored Carey’s arguments or was unable
to identify Carey’s arguments. Instead, we consider the context of this statement by the
district court. Immediately after making this statement, the district court acknowledged
the presence of the following circumstances: (1) more than three people were involved in
the offenses; (2) the offenses occurred in a location where the victims had an expectation
of privacy; and (3) Carey brought a BB gun with him to commit the planned robbery. The
reasoning reflects that when balanced against the state’s arguments, the grounds identified
by Carey were not sufficiently substantial and compelling to the district court to justify a
departure. The district court , therefore, balanced the circumstances weighing for and
against Carey’s requested departure and explained the valid reasons for its decision. We
conclude that the district court acted within its discretion.
Affirmed.