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This opinion is nonprecedential except as provided by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
A21-0439

State of Minnesota,
Respondent,

vs.

Jeffrey Richard Schwab,
Appellant.

Filed March 7, 2022
Affirmed
Ross, Judge

Hennepin County District Court
File No. 27-CR-20-3809

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Worke, Presiding Judge; Ross, Judge; and Larkin,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
Jeffrey Schwab pleaded guilty to fleeing a police officer and possessing ammunition
while he was ineligible to do so. The district court denied Schwab’s motion for a downward
departure from the statutory 60-month sentence on the ammunition-possession conviction.
2
Schwab argues on appeal that the district court unlawfully denied the motion by
considering facts underlying the separate fleeing offense. Because Schwab presented no
substantial and compelling reason to depart, we affirm the sentence with no need to address
his challenge to the district court’s fleeing-offense discussion.
FACTS
Jeffrey Schwab led Robbinsdale police in a vehicle chase that ended when Schwab
plowed into a snowbank and disabled the car. Police arrested Schwab and searched the car,
finding a jacket with a pocket that contained a single nine-millimeter caliber bullet.
Because Schwab had been convicted of felony domestic assault in 2019, Minnesota law
prohibited him from possessing the ammunition.
The state charged Schwab with the crimes of fleeing a peace officer and possessing
ammunition while he was ineligible to do so. Schwab pleaded guilty and indicated that he
intended to seek a downward dispositional and durational departure from the sentence
presumed by the sentencing guidelines and from the 60-month mandatory minimum term
of imprisonment arising from his ammunition-possession offense. The district court denied
Schwab’s departure motion and sentenced him to an executed, 60- month prison term for
the ammunition conviction and a concurrent, 22-month term for the fleeing conviction.
Schwab appeals his sentence.
DECISION
Schwab challenges his sentence by contesting the district court’s decision denying
his motion for a downward durational departure from the statutory, 60-month prison term
for illegally possessing the ammunition. We review the district court’s decision declining
3
to depart for an abuse of discretion. State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016).
Our deference to the district court rests on the fact that a guidelines-generated sentence is
presumed to be correct, departures are by nature uncommon, the district court is not
required to give reasons justifying its denial of a departure motion, and the district court is
not obligated to depart even if the circumstances would support it. State v. Soto,
855 N.W.2d 303, 308 (Minn. 2014); State v. Abrahamson, 758 N.W.2d 332, 337 (Minn.
App. 2008), rev. denied (Minn. Mar. 31, 2009). We see no abuse of discretion for the
following reasons.
Schwab argues specifically that the district court erroneously rejected his motio n
for a durational departure from his statutorily mandated ammunition -possession sentence
by improperly relying on circumstances underlying his separate and legally unrelated
fleeing conviction. We need not address this argument directly. Even if Schwab’s argument
contesting the district court’s reasoning has merit, we would consider reversing only if
Schwab also identified sufficient support for his departure motion. He did not.
Whether Schwab proffered sufficient support for his departure motion is framed by
statute. His conviction of possessing ammunition illegally under Minnesota Statutes
section 624.713, subdivision 1(2) (2018), carries a mandatory minimum prison term of five
years. Minn. Stat. § 609.11, subd. 5(b) (2018). The district court could depart downward
from that mandatory sentence if Schwab identified “substantial and compelling reasons to
do so.” Id., subd. 8(a) (2018). And the offender’s conduct in committing the offense
constitutes a substantial and compelling reason to depart durationally only if it “was
significantly less serious than that typically involved in the commission of the offense.”
4
Solberg, 882 N.W.2d at 627. The only conduct Schwab identified to the district court when
asking for a downward departure was the observation, “I will just point out [that] what we
are talking about on the ammunition possession is a single round, a single 9 millimeter
round, no gun involved, no box of ammunition.” He followed by urging, “It is really outside
the norm of the types of cases . . . involving ammunition possession. And . . . that fact
really sets this case apart.”
By denying Schwab’s motion, the district court implicitly determined that he failed
to provide a substantial and compelling reason to depart. Schwab interprets the district
court’s decision as if it agreed with his position that his possessing a single round is
significantly less serious than the usual case and necessarily found that he provided a
substantial and compelling reason to depart. He misreads the record. It is true that the
district court briefly addressed Schwab’s argument about a single bullet and opined that
“it’s arguable . . . that that fact is less serious than a usual case.” But the district court never
concluded that (or even considered on the record whether) the cited circumstance was
significantly less serious than conduct typically involved in the crime. Speculating that a
circumstance is arguably less serious falls far short of concluding that it is significantly
less serious. The district court never concluded that the circumstances of Schwab’s offense
were significantly less serious than a typical offense, and we therefore turn to whether that
decision was an abuse of discretion.
The district court did not abuse its discretion by finding that possessing one bullet
is not significantly less serious than the typical offense. The statute and its obvious
public-safety objective and the means to reach the objective frame our analysis. The
5
legislature is charged with defining criminal offenses and the punishment for those
offenses. State v. Osterloh, 275 N.W.2d 578, 580 (Minn. 1978). And the legislature
has established that an ineligible person “shall not be entitled to possess ammunition
or a . . . firearm.” Minn. Stat. § 624.713, subd. 1 (2018). The legislature defines
“ammunition” broadly to include “cartridge cases, primers, bullets, or propellent powder
designed for use in any firearm.” Minn. Stat. § 609.02, subd. 17 (2018). Because the
legislature has indirectly established that plural “bullets” in that definition includes a
singular “bullet,” see Minn. Stat. § 645.08(2) (2018), Schwab’s carrying even the single
bullet undisputedly violates the statute. The legislature has therefore established that
Schwab’s particular act was serious enough to warrant a five -year executed prison term.
Minn. Stat. § 609.11, subd 5(b). Cf. State v. Thompson, 720 N.W.2d 820, 830 (Minn. 2006)
(“[A] sentencing court may not base an upward durational departure on factors that the
legislature has already taken into account in determining the degree of seriousness of the
offense.”). We observe that the legislature directed district courts to imprison previously
violent offenders for five years whether they possessed ammunition without a gun or a gun
without ammunition, indicating that both means of committing the crime are similarly
serious. The statutory scheme is plainly prophylactic; it intends to prevent a violent
offender from having even the opportunity to shoot another person by prohibiting him from
possessing either of the two independently ineffectual elements.
Understanding the statutory scheme and purpose, we have no difficulty rejecting
Schwab’s argument that his conduct is significantly less serious than possessing several
bullets or a firearm, which he suggests is the typical case. His conduct implicates the harm
6
the legislature intended to prevent—the opportunity for an ineligible person to possess the
means to injure any other person with a firearm. It is true that a single bullet fired from a
gun would likely harm no more than one individual, but protecting even one individual
squarely fits the legislative purpose. And as for whether a dangerous person’s possessing
a single bullet is significantly less serious than his possessing several bullets, common
knowledge and hundreds of single-shot murder victims in our caselaw would disagree.
Considering the harm a single gunshot can cause in relation to the harm the statute seeks
to avoid, possessing a single bullet is less serious than possessing several bullets only in
the sense that falling from a 25-story window is less serious than falling from 50.
We do not suggest that an ineligible person who possesses a single bullet under
unique circumstances will always fail to meet the durational departure standard. We
conclude only that Schwab’s conduct did not meet that standard here. Because the district
court implicitly found no substantial and compelling reason to depart and the record does
not call that finding into doubt, the district court did not abuse its discretion by denying
Schwab’s motion. Given the lack of any basis to warrant a departure here, we need not
address Schwab’s argument that the district court improperly considered the conduct of his
fleeing conviction.
Affirmed.