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This opinion is nonprecedential except as provided by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
A21-0013

State of Minnesota,
Respondent,

vs.

Jesse John Jacobson,
Appellant.

Filed December 6, 2021
Affirmed
Bratvold, Judge

Pine County District Court
File No. 58-CR-19-1021

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

Reese Frederickson, Pine County Attorney, Michelle R. Skubitz, Chief Deputy County
Attorney, Pine City, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Larkin , Judge; and Jesson ,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this appeal from a final judgment of convictio n for first-degree
controlled-substance crime, appellant argues that his sentence must be reversed and
remanded for resentencing because the district court erroneously calculated his
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criminal-history score. Because we conclude the district court did not abuse its discretion,
we affirm.
FACTS
On September 30, 2019, the Pine County sheriff’s office received reports of an
apparently impaired man sleeping in a parked sedan. Upon arriving at the sedan, a sheriff’s
deputy found appellant Jesse John Jacobson in the driver’s seat and noticed two baggies in
his lap—one with crystalline substance and the other with pills. The deputy and another
officer searched Jacobson and the sedan and found a .40-caliber handgun and other baggies
with crystalline substances. Later testing determined the crystalline substances were
methamphetamine.
Respondent State of Minnesota charged Jacobson with three counts: aggravated
first-degree possession of methamphetamine under Minn. Stat. § 152.021, subd. 2b(1)
(2018) (count one), first -degree possession of methamphetamine under Minn. Stat.
§ 152.021, subd. 2(a)(1) (2018) (count two), and possession of ammunition/firearm by an
ineligible person under Minn. Stat. § 624.713, subd. 1(2) (2018) (count three).
At a hearing, Jacobson pleaded guilty to count two in ex change for the state’s
agreement to dismiss counts one and three; the parties also agreed they would ask the
district court to impose a “top of the box” sentence . The district court found the factual
basis sufficient and deferred accepting Jacobson’s plea pending sentencing.
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The probation office prepared Jacobson’s sentencing worksheet, which stated the
presumptive sentence ranged from 115 months to 138 months.1 The worksheet stated a
current-offense severity of D8 and a criminal-history score of 5 on the Drug Offender Grid.
Minn. Sent. Guidelines 4.C . Jacobson’s criminal -history score included, among other
things, one and one-half criminal-history points for a 2014 conviction for third -degree
possession of methamphetamine under Minn. Stat. § 152.023 (2012).
Jacobson moved to correct his criminal-history score. Jacobson’s motion argued his
2014 conviction was based on possession of 3.1 grams of methamphetamine.2 Jacobson
next argued ten grams of methamphetamine are required for third-degree drug possession
because the legislature in 2016 enacted the Drug Sentencing Reform Act (DSRA) and
amended the statute used to charge Jacobson in 2014. Under the DSRA amendments, as of
Jacobson’s 2019 offense, 3.1 grams of methamphetamine is sufficient to prove fifth-degree
drug possession. Minn. Stat. § 152.023 (2018). Based on these statutory changes, Jacobson
argued that the district court should not assess one and one-half points, as stated in the
sentencing worksheet , “when under current guidelines [fifth -degree drug possession]
would be assessed 0.5 points.”3 The state opposed Jacobson’s motion.

1 This sentencing range was discussed at Jacobson’s plea hearing.

2 Jacobson cited the complaint for his 2014 conviction, which referred to laboratory testing.

3 Jacobson’s brief to this court contends that i f his 2014 conviction had been assigned
one-half of a point, his total criminal-history score would have been four points and yielded
a presumptive sentencing range of 105-126 months—lower than the sentence imposed by
the district court.
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After hearing arguments, the district court denied Jacobson’s motion and imposed
a sentence of 138 months in prison. This appeal follows.
DECISION
On appeal, Jacobson argues the district court erred by assigning one and one-half
criminal-history points to his 2014 conviction for third-degree drug possession. Jacobson’s
argument relies on the DSRA amendments, which became effective on August 1, 2016.
2016 Minn. Laws ch. 160 §§ 1–22. Jacobson argues that his criminal-history score should
have been corrected to reflect one-half of a point for his 2014 conviction for third -degree
drug possession because the facts of his prior offense would be fifth-degree possession
under the law in effect at the time of his current offense. The state argues the district court
did not abuse its discretion.4
A. Criminal history under the Minnesota Sentencing Guidelines
In felony cases, a defendant’s presumptive sentence under the Minnesota
Sentencing Guidelines is determined by reference to a grid with two axes: (1) the severity
of the current offense (“primary factor”) and (2) the defendant’s criminal-history score

4 Besides the arguments discussed below, the state argues that the amelioration doctrine is
inapplicable, as explained in State v. Kirby , 899 N.W.2d 485 (Minn. 2017) and State v.
Otto, 899 N.W.2d 501 (Minn. 2017). Jacobson does not contend otherwise and in his brief
argues that Kirby and Otto do not apply to his case. We agree. The amelioration doctrine
“establishes a presumption in Minnesota that an amendment mitigating punishment applies
to non-final cases.” Kirby, 899 N.W.2d at 490 (emphasis added). In Kirby, the supreme
court explained that the amelioration doctrine requires the resentencing of a defendant
whose conviction was not yet final on the effective date of the DSRA , and that the
defendant must receive a sentence that follows the DSRA. Id. at 496. Jacobson’s 2014
conviction was final when the DSRA took effect in 2016. Thus, the amelioration doctrine
is inapplicable.
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(“secondary factor”). Minn. Sent. Guidelines 2.B.01 (Supp. 2019). “An offender’s criminal
history score is the sum of points from eligible” prior felonies, among other prior offenses
or adjudications. Minn. Sent. Guidelines 2.B. Stated slightly differently, “ [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.” State v. Strobel, 921 N.W.2d
563, 574 (Minn. App. 2018), aff’d, 932 N.W.2d 303 (Minn. 2019) (quotation omitted) .
“The Guidelines provide uniform standa rds for the inclusion and weighting of criminal
history information.” Minn. Sent. Guidelines 2.B.02.
Generally, we review a criminal -history score for abuse of discretion. Strobel,
921 N.W.2d at 573. The “[i]nterpretation of the Minnesota Sentencing Guidel ines is a
question of law that [appellate courts] review de novo.” Strobel, 932 N.W.2d at 306. When
interpreting the guidelines, appellate courts “apply the same principles . . . as [they] apply
to statutes, including the canons of statutory interpretation set forth in Minn. Stat.
§ 645.08.” Id. at 306-07. “If the language of the Guidelines is plain and unambiguous, it is
presumed to manifest the intent of the Minnesota Sentencing Guidelines Commission.” Id.
at 307.
B. The district court did not abuse its discretion by assigning one and
one-half points to Jacobson’s 2014 conviction.

On appeal, Jacobson does not argue the guidelines are ambiguous and acknowledges
his criminal-history score is governed by guideline 2.B.1. Jacobson contends, “[t]he weight
assigned to an offender’s prior felony convictions is determined according to the severity
level of the offense at the time of the current offense.” To be precise, guideline 2.B.1
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instructs the district court to “[a]ssign a particular weight, as set forth in paragraphs a and
b, to each . . . [prior] felony conviction” and “[t]he severity level ranking in effect at the
time the current offense was commit ted determine s the weight assigned to the prior
offense.” (Emphasis added.)
Tracking the language of guidelines 2.B.1., Jacobson’s “current offense” is
first-degree drug possession committed on September 30, 2019. Jacobson focuses on “the
prior offense” that was used to determine his sentence for the 2019 offense , which is his
2014 conviction for third -degree drug possession. Guideline 2.B.1. expressly refers to
“paragraph a,” which includes a chart that provides the severity level for third-degree drug
possession is D6. Minn. Sent. Guidelines 2.B.1.a. The same chart assigns one and one-half
points for a D6 severity level. Id.; see also Minn. Sent. Guidelines 5.B. Thus, the district
court followed guideline 2.B.1 when it determined Jacobson’s criminal-history score by
assigning one and one-half points for his 2014 third-degree drug-possession conviction.
Jacobson contends this conclusion is flawed given the DSRA. W hile 3.1 grams of
methamphetamine was sufficient to sustain a third-degree possession conviction in 2014,
the DSRA increased the amount of a controlled substance required for a conviction under
each degree of drug possession. After the DSRA , a conviction of third -degree drug
possession requires evidence of ten grams of methamphetamine. Minn. Stat. § 152.023
(2018). After the DSRA, evidence of 3.1 grams of methamphetamine is sufficient to sustain
a conviction of fifth-degree drug possession . Minn. Stat. § 152.025 (2018). Because
Jacobson’s 2014 conviction rested on evidence he possessed 3.1 grams of
methamphetamine, Jacobson argues the district court erred. In other words, Jacobson
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contends he should receive a half-point for the prior conviction because it is “the equivalent
of fifth-degree controlled substance crime.”
Jacobson cites no caselaw directly supporting his position. Instead, he draws an
analogy to two other circumstances described in the sentencing guidelines.
First, Jacobson argues that “the analysis is similar” to classification of a prior
offense as a felony or gross misdemeanor. When determining a criminal- history score
under the sentencing guidelines, “[t]he classification of a prio r offense as a petty
misdemeanor, misdemeanor, gross misdemeanor, or felony is determined by current
Minnesota offense definitions.” Minn. Sent. Guidelines 2.B.7.a (emphasis added).
In State v. Strobel , the Minnesota Supreme Court examined a district court’s
determination of Strobel’s criminal-history score for a 2012 conviction of fifth-degree drug
possession. T he supreme court stated that “offense definitions” referred specifically to
“element-based d efinitions of crimes .” 932 N.W.2d at 309 -10.5 Because the DSRA
amended fifth-degree drug possession to revise the weight thresholds for a violation to be
classified as a felony or gross misdemeanor ,6 the supreme court held that severity of
Strobel’s 2012 conviction should be determined by comparing the facts of his prior offense

5 While Jacobson also cites State v. Scovel , 916 N.W.2d 550 (Minn. 2018) , for this
proposition, we do not find Scovel helpful. As the supreme court noted in Strobel, because
the offense sentenced in Scovel occurred before the effective date of the DSRA, the
supreme court did not interpret the guidelines language later discussed in Strobel. Strobel,
932 N.W.2d at 307 n. 8.

6 Fifth-degree drug possession is a felony if the amount possessed is greater than 0.25
grams (or 0.05 grams of heroin) and is a gross misdemeanor if the amount possessed is less
than 0.25 grams. Minn. Stat. § 152.025, subd. 4.
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to the current element-based offense definitions. Id. The supreme court first determined the
state offered no evidence of a specific possession amount for Strobel’s 2012 offense. The
supreme court then concluded Strobel’s prior offense should have been classified as a gross
misdemeanor when determining his criminal -history score for his current offense . Id. at
307.
Second, Jacobson argues that the weighting of a prior Minnesota conviction “can be
likened to the weighting of an out -of-state offense.” He urges us to reason, “if Mr.
Jacobson’s 2014 conviction were from a different state, under the Guidelines it would only
be weighted at a half-point after comparison of the elements.” Jacobson is correct that when
calculating the criminal-history score for a prior out-of-state offense, the guidelines instruct
district courts to “[f]ind the equivalent Minnesota offense based on the elements of the
prior non-Minnesota offense.” Minn. Sent. Guidelines 2.B.5.b. The guidelines also state
that “[f]or prior non-Minnesota controlled substance convictions, the amount an d 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 2.B.503.
We are not persuaded by Jacobson’s analogy to other guidelines provisions. No
caselaw applies the guidelines related to classification of prior offenses or prior out-of-state
offenses to determining the weight assigned to a prior Minnesota conviction . B oth
guideline 2.B.7.a on classification of a prior offense and guideline 2.B.5.b on prior
out-of-state offenses contain specific provisions narrowly tailored to assigning weight for
prior convictions in two circumstances. These sections explicitly limit their application to
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“classification of prior offense[s]” and “prior non -Minnesota offense[s].” Minn. Sent.
Guidelines 2.B.7.a; Minn. Sent. Guidelines 2.B.5.b . On the other hand, guideline 2.B.1
governs how to assign weight for prior Minnesota convictions and instructs that district
courts are to “[a]ssign a particular weight , as set forth in paragraphs a and b, to
each . . . [prior] felony conviction,” and that “ [t]he severity level ranking in effect at the
time the current offense was committed determines the weight assigned to the prior
offense.”
It is undisputed that in 2014 Jacobson was convicted of third-degree possession of
methamphetamine and the severity level “in effect at the time of the current offense” —
Jacobson’s 2019 offense—was D6, as stated in the chart found in paragraph a of the 2019
guidelines. This yields a criminal-history weight of one and one-half points, according to
the chart included with the guidelines. See Minn. Sent. Guidelines 2.B.1.a. Having resolved
the narrow issue presented to us by Jacobson’s brief to this court, we conclude the district
court did not abuse its discretion by denying Jacobson’s motion to correct his
criminal-history score.
Affirmed.