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This opinion is nonprecedential except as provided by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
A21-1255

State of Minnesota,
Respondent,

vs.

Duncan Nyanaro Osoro,
Appellant.

Filed May 31, 2022
Affirmed
Worke, Judge

Carver County District Court
File No. 10-CR-21-35

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

Mark Metz, Carver County Attorney, Kevin A. Hill, Assistant County Attorney, Chaska,
Minnesota (for respondent)

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

Considered and decided by Worke, Presiding Judge; Reilly , Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant argues that the district court abused its discretion by denying his motion
for a sentencing departure. We affirm.
2
FACTS
On January 12, 2021, officers responded to a call of a vehicle in a ditch. Officers
arrested the driver, appellant Duncan Nyanaro Osoro, after he admitted to consuming
alcoholic beverages and showed signs of impairment. Osoro submitted to a breath test.
The result was 0.30 alcohol content (AC). Osoro was charged with two counts of felony
driving while impaired (DWI) and driving after cancellation —inimical to public safety .
He pleaded guilty to one count of DWI. He admitted that he drove a vehicle into a ditch,
and he did not dispute that his AC was 0.30.
Osoro moved for a dispositional departure, or alternatively, for a downward
durational departure. A sentencing worksheet showed that, with six criminal-history
points, Osoro’s presumptive sentence was 72 months in prison (range between 62 and 84
months).
At Osoro’s sentencing hearing, the prosecutor requested the presumptive prison
sentence because Osoro has six DWI-related convictions, including three felonies, and the
present offense was not a “run of the mill DWI” but was “yet another instance in which
[Osoro] was so intoxicated that he crashed his own vehicle into a ditch.” Osoro
acknowledged that his criminal history was concerning and indicative of his lifetime
struggle with alcohol. He also acknowledged that after three months of treatment he was
not a zero risk. But he argued that he changed every aspect of his life. He entered treatment
six days after the offense, he has stable housing after being homeless and in and out of
prison for seven years, he has a full-time job, he volunteers, he established friendships to
further his commitment to a sober lifestyle, he attends AA, and he is remorseful.
3
The district court noted that it reviewed the record, which supported Osoro’s
progress, and stated that it was impressed with Osoro’s accomplishments. The district
court stated: “[S]ince January, you really have tried absolutely to do everything right. And
it sounds like you were really able to flip the switch.” The district court stated that Osoro
showed that he changed his life and has “done all the right things.” But the district court
stated:
[I]f it wasn’t for the public safety factor, I would be much more
inclined to do a departure in this case. But when you’re driving
at .30, and you get into an accident, and you’ve done it six
times prior, not necessarily the accident, not necessarily a .30,
but you’ve had six priors, and this is your 7th, I just have to
consider public safety.

The district court sentenced Osoro to 62 months in prison, emphasizing that it did
so because of the implications for public safety but recognizing “the tremendous progress
[Osoro] made.” This appeal followed.
DECISION
Osoro argues that the district court abused its discretion by denying his motion for
a sentencing departure.
The district court imposed a presumptive sentence. A sentence prescribed by the
sentencing guidelines is presumed appropriate. State v. Soto, 855 N.W.2d 303, 308 (Minn.
2014). A district court may depart from a presumptive sentence only if “identifiable,
substantial, and compelling circumstances” warrant a departure. 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
4
from a typical case.” State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985). Appellate courts
“afford the [district] court great discretion in the imposition of sentences and reverse . . .
only for an abuse of that discretion.” Soto, 855 N.W.2d at 307- 08 (quotation omitted).
“[I]t would be a rare case which would warrant reversal of the refusal to depart.” State v.
Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Dispositional departure
Osoro first argues that the district court should have granted him a dispositional
departure because substantial and compelling circumstances show that he is particularly
amenable to probation.
In considering a dispositional departure, a district court focuses on the defendant
and whether he is particularly amenable to probation. State v. Trog, 323 N.W.2d 28, 31
(Minn. 1982) (stating that in assessing whether a defendant is particularly amenable to
probation, a district court may consider age, prior record, remorse, cooperation, attitude in
court, and support of family and friends). The district court may also weigh offense-related
factors in considering a departure request. See State v. Walker, 913 N.W.2d 463, 468
(Minn. App. 2018). Even if a defendant is amenable to probation, a district court may deny
a dispositional departure. State v. Olson, 765 N.W.2d 662, 664-65 (Minn. App. 2009).
Osoro argues that he is 37 years old, placing him in an age group wherein less arrests
occur. He argues that he completed treatment, he has an AA sponsor, his criminal-history
score indicates his lifetime struggle with alcohol, he made all court appearances, he
cooperated, he complied with his release conditions, and he has community support.
5
These assertions are supported by the record and were acknowledged by the district
court. The district court stated that Osoro was “able to flip the switch” and has “done all
the right things.” Doing all the right things makes this case atypical and may show that
Osoro is amenable to probation. The district court stated: “[I]f it wasn’t for the public
safety factor, I would be much more inclined to do a departure in this case.”
After considering the Trog factors, the offense, and the need to protect the public,
the district court denied the departure request. See State v. Heywood, 338 N.W.2d 243,
244 (Minn. 1983) (stating that in determining whether to grant a dispositional departure a
district court considers what i s best for the defendant and society). And the district court
appropriately exercised its discretion in doing so. See State v. Pegel, 795 N.W.2d 251, 255
(Minn. App. 2011) (stating that this court will not reverse the district court’s denial of a
departure request when the record shows that the district court “carefully evaluated all the
testimony and information presented before making a determination”).
Durational departure
Osoro argues that even if a probationary sentence was not warranted, he should have
received a downward durational departure because his conduct in committing the offense
was less serious than a typical DWI because he immediately showed remorse and
cooperated.
Unlike a dispositional departure that focuses mainly on the defendant, a durational
departure is based on factors that reflect the seriousness of the offense. Solberg, 882
N.W.2d at 623. “[A] downward durational departure is justified if the defendant’s conduct
6
is significantly less serious than that typically involved in the commission of the offense.”
State v. Mattson, 376 N.W.2d 413, 415 (Minn. 1985).
While the facts here show that Osoro has made, as the district court described,
“tremendous progress,” which would support a dispositional departure, the same facts do
not support a durational departure. Osoro’s conduct cannot be considered significantly less
serious than that typically involved in the commission of the offense. As the prosecutor
stated, this was not a “run of the mill DWI.” The district court noted that Osoro’s AC was
0.30 and that this was his seventh DWI offense. In fact, the conduct involved in the
offense—driving while impaired —was the reason that the district court denied a departure
because it implicated public safety.
Thus, the record does not support a durational departure, and the district court did
not abuse its discretion by denying the departure request.
Affirmed.