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This opinion is nonprecedential except as provided by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
A22-0099

State of Minnesota,
Respondent,

vs.

Andre Thomas Buie,
Appellant.

Filed September 12, 2022
Affirmed
Ross, Judge

Steele County District Court
File No. 74-CR-15-1012, 74-CR-15-1606

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

Daniel A. McIntosh, Steele County Attorney, Julia A. Forbes, Assistant County Attorney,
Owatonna, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Christopher L. Mishek, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Frisch, Judge; and Florey,
Judge.∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
ROSS, Judge
Andre Buie was convicted of and on probation for stalking and violating a domestic-
abuse no-contact order when he engaged in a series of crimes , including child neglect,
drunk driving, and swindling. On appeal from the order revoking his probation, Buie argues
that the district court improperly relied on his unemployment and that the record does not
support the finding that the need for his confinement outweighs the policies favoring
probation. Because the district court did not rely on Buie’s unemployment as a ground for
revoking his probation, and because the record supports the district court’s factual findings,
we affirm.
FACTS
Andre Buie pleaded guilty in August 2015 to stalking and violating a domestic-
abuse no-contact order. The district court granted Buie’s motion for a downward
dispositional departure , staying his 39- and 24-month prison sentences on probationary
conditions. The conditions included, among other things, completing chemical-
dependency treatment at Minnesota Adult and Teen Challenge, remaining law abiding, and
abstaining from alcohol. Buie violated his probation in March 2016 by being discharged
from treatment for violating program rules. The district court reinstated probation.
The district court learned in November 2020 that Buie again violated his probation.
His probation officer reported that he was convicted of stalking in 2019, and that in 2020
the state had charged him with driving while impaired, second- and fourth-degree criminal
sexual conduct, and felony theft by swindle. This conduct led to drunk-driving, child-
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neglect, and swindling convictions. Buie admitted to violating his probation, and the
district court found his violations were intentional and inexcusable. The district court
revoked Buie’s probation and executed his sentences. It reasoned that, because Buie had
yet to complete chemical-dependency treatment, was a high risk to reoffend, and had
recently been convicted of new criminal offenses, “execution of these sentences is a part
of what is required for community safety.” The district court commented favorably on
Buie’s community-service work, finding it commendable but not a substitute for
employment and “not enough for the Court to find that public safety can be preserved and
that the seriousness of these violations are overcome.”
Buie appeals.
DECISION
Buie asks us to reverse the district court’s order revoking his probation. We review
a district court’s probation-revocation decision for an abuse of discretion. State v.
Hallmark, 927 N.W.2d 281, 291 (Minn. 2019). Buie argues that the district court abused
its discretion in two ways —by improperly revoking probation because of his
unemployment and by finding that the need for his confinement outweighs the policies
favoring probation. The arguments fail.
We are not persuaded by Buie’s contention that the district court improperly relied
on his unemployment. It is true that the district court may not use “employment factors,
including: . . . employment at time of sentencing,” when determining whether to depart
from a presumptive sentence designated by the sentencing guidelines. Minn. Sent.
Guidelines 2.D.2.c(4) (2014). Buie fails to cite any authority for the premise that the
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restriction on departing dispositionally at sentencing applies to a decision whether to
revoke probation, but we do not base our decision on that omission.
We need not explore whether Buie’s premise is valid because the record does not
support his contention that the district court relied on his unemployment when it decided
to revoke probation. The district court made the following findings at Buie’s resentencing
hearing:
I do want to point out that the Court’s decision is not a
judgment on the person but rather applying the law to the
behavior. And so in each of those cases, Mr. Buie should have
been sentenced to prison originally. He was given a downward
departure in each of these cases. He’s appearing now for
resentencing, still in need of chemical dependency treatment,
and having committed new offenses against the community.
The execution of these sentences is a part of what is required
for community safety when we have someone still in need of
treatment, who is still a high risk assessment.

He’s not employed in the community. We know that
that’s closely tied to the ability for people to be successful. And
so while I applaud the work that he’s been doing with the food
programming in exchange for the food he and his wife are
receiving, that is simply not enough for the Court to find that
public safety can be preserved and that the seriousness of these
violations are overcome by the community work service that
he’s doing. The record is simply insufficient for the Court to
do anything other than execute these two sentences.

The first paragraph reflects the district court’s apparent primary analysis, culminating in
its conclusion that community safet y requires Buie’s confinement. It expressly based that
conclusion on Buie’s failure to complete chemical-dependency treatment, his recently
committing new crimes, and his being a high risk to reoffend. Having already determined
that confinement was “required,” the district court went on to discuss Buie’s employment
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status as it bore on whether he would succeed on probation. The district court may consider
employment status when analyzing whether a defendant will succeed on probation. See
State v. Soto, 855 N.W.2d 303, 312 (Minn. 2014) (holding that district courts may consider
“social or economic factor[s]” at sentencing if they are “relevant to determining whether a
defendant is particularly amenable to probation” (quotation omitted)). The district court’s
discussion does not indicate that it based its revocation decision on Buie’s unemployment.
We also are not persuaded by Buie’s contention that th e district court abused its
discretion by finding that the need for his confinement outweighs the policies favoring
probation. The finding is one of the prerequisites to revoking probation. State v. Austin ,
295 N.W.2d 246, 250 (Minn. 1980). And the findin g is supported here by the district
court’s evidence-based reasoning that the risk he posed to the community “required” Buie’s
confinement. It may be true, as Buie maintains, that the district court could have imposed
intermediate sanctions, but the supreme court has held that imposing intermediate sanctions
is a matter of discretion. State v. Modtland, 695 N.W.2d 602, 607 n.3 (Minn. 2005) (“[T]he
Court may, in light of the nature of the probation violation, alter the terms of the defendant’s
probation—including imposition of intermediate sanctions . . . .” (emphasis added)). Buie
does not establish that the circumstances here so compellingly support continued probation
that the district court lacked the discretion to choose revocation over intermediate
sanctions.
Affirmed.