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This opinion is nonprecedential except as provided by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
A24-1735

State of Minnesota,
Respondent,

vs.

Kelvin Armando Figueroa-Millan,
Appellant.

Filed September 15, 2025
Affirmed in part and remanded
Slieter, Judge

Olmsted County District Court
File No. 55-CR-23-6791

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

Michael T. Walters, Olmsted County Attorney, James E. Haase, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Eva F. Wailes, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Frisch, Chief Judge; and Ede,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this appeal of the district court’s sentence for second-degree assault, appellant
argues that the district court abused its discretion by denying his motion for a downward
dispositional departure and imposing restitution without considering his ability to pay.
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Because the district court acted within its discretion in imposing the mandatory- minimum
sentence, we affirm in part. But because the district court did not expressly consider
appellant’s ability to pay when awarding restitution, we remand for additional findings.
FACTS
In October 2023, respondent State of Minnesota charged then-18-year-old appellant
Kelvin Armando Figueroa-Millan with second-degree assault with a dangerous weapon in
violation of Minn. Stat. § 609.222, subd. 1 (2022), and reckless discharge of a firearm in
violation of Minn. Stat. § 609.66, subd. 1a(a)(3) (2022). Figueroa-Millan entered a guilty
plea to the second-degree assault charge, and the state agreed to dismiss the remaining
charge.
During Figueroa -Millan’s guilty-plea colloquy, he testified that he was at the
Olmsted County fairgrounds in September 2023 when he “got into an altercation with
another group of people” and engaged in a fight. Figueroa-Millan explained that he
approached the victim, they separated, and then he “fired three shots at him[,] [t]owards
him, not at him, towards him.” Figueroa-Millan admitted that the “victim in this case was
actually walking away” and “the fight had kind of broken up” at the time he fired the three
shots. The district court accepted his plea.
Prior to sentencing, Figueroa-Millan moved the district court for a downward
dispositional departure. In support of his motion, Figueroa-Millan noted that he was raised
in a New Jersey community which involved “a constant environment of violence, where
guns were just accepted and commonly held and used by multiple people.”
Figueroa-Millan asserted that his age, his plan to obtain his GED, his full-time
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employment, and his lack of criminal history made him “particularly amenable to
probation.” The state opposed the dispositional departure based on the severity of the crime
and that Figueroa-Millan was “unapologetic” for the offense.
The district court indicated that it considered the presentence investigation report
(PSI) along with the sentencing worksheet, Figueroa-Millan’s memorandum supporting
the downward dispositional departure, the victim impact statement, and the parties’
arguments for and against the motion. The district court denied the departure motion,
explaining that “this was a very dangerous offense,” that Figueroa- Millan “got this gun
illegally,” that he “shot [the] gun multiple times into a group of people,” and that, “with
this record,” it did “not see[] substantial and compelling reasons to depart.”
The district court imposed the mandatory-minimum sentence of 36 months’
imprisonment and ordered restitution in the amount of $1,532.44.
Figueroa-Millan appeals.
DECISION
I. The district court acted within its discretion by denying a downward
dispositional departure.
Figueroa-Millan asserts that the district court failed to fully consider the Trog
factors in denying his motion for a downward dispositional sentencing departure. See State
v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Specifically, Figueroa-Millan argues that the
district court relied on the facts of the offense without considering his characteristics as the
offender. He claims that his youth, lack of criminal history, remorse, attitude, cooperation,
and motivation to reform support a dispositional departure.
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Figueroa-Millan’s conviction of second-degree assault with a dangerous weapon
carries a mandatory-minimum sentence of 36 months in prison. See Minn. Stat. § 609.11,
subds. 5(a) (2022), 9 (Supp. 2023). A departure from a mandatory-minimum sentence is a
departure under the Minnesota Sentencing Guidelines and is appropriate only “if the court
finds substantial and compelling reasons to do so.” Id., subd. 8(a) (2022). Substantial and
compelling circumstances are those “that distinguish a case and overcome the presumption
in favor of a guidelines sentence.” State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014). The
presence of a mitigating factor, however, does not require that a district court depart. State
v. Pegel, 795 N.W.2d 251, 253-54 (Minn. App. 2011). And departures “are discouraged
and are intended to apply to a small number of cases” because “[t]he sentencing guidelines
seek to maintain uniformity, proportionality, rationality, and predictability in sentencing of
felony crimes.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016) (quotation omitted).
We review a district court’s decision regarding whether to grant a sentencing departure for
an abuse of discretion and will reverse the decision to impose the presumptive sentence
only in a “rare” case. State v. Musse, 981 N.W.2d 216, 220 (Minn. App. 2022) (quotation
omitted), rev. denied (Minn. Dec. 28, 2022).
A dispositional sentencing departure “typically focuses on characteristics of the
defendant.” Solberg, 882 N.W.2d at 623. “[A] defendant’s particular amenability” to
probation may warrant a departure from a presumed prison sentence. Soto, 855 N.W.2d at
308 (quotation omitted). Mere amenability to probation is insufficient; the defendant must
be amenable to probation in a way that “distinguishes [the defendant] from most others and
truly presents the substantial and compelling circumstances that are necessary to justify a
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departure.” Id. at 308-09 (quotation omitted). Factors that may indicate particular
amenability to probation include “age, . . . prior record, . . . remorse, . . . cooperation, . . .
attitude while in court, and the support of friends and/or family.” Trog, 323 N.W.2d at 31.
However, a district court is not required to grant a downward dispositional departure even
if a defendant is particularly amenable to probation. State v. Olson, 765 N.W.2d 662,
664-65 (Minn. App. 2009).
A review of the record demonstrates that the district court considered the
circumstances for and against departure before imposing the mandatory- minimum
sentence. The district court stated that it reviewed all the relevant material in the record,
including the departure motion, the dispositional advisor’s memorandum in support of the
departure request, the PSI, the sentencing worksheet, and the parties’ arguments for and
against departure. See Pegel, 795 N.W.2d at 255 (“A reviewing court may not interfere
with the sentencing court’s exercise of discretion, as long as the record shows the
sentencing court carefully evaluated all the testimony and information presented before
making a determination.” (quotation omitted)).
The district court explained that it agreed with aspects of Figueroa-Millan’s request
for downward departure by stating: “There’ s a lot of statistics, in the dispositional
memorandum that [Figueroa-Millan’s counsel’s colleague] wrote, and I agree with
everything in there. You know, your brain is developing. I don ’t think prison does
anybody any good.” But the court also recognized that, though Figueroa- Millan was
employed at the time of sentencing, he had only been employed for one month and “[t]hat’s
not a real great track record for work.” The district court concluded: “[W]ith this record ,
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I’m just not seeing substantial and compelling reasons to depart. You just haven’t done
enough between the offense and now to convince the Court that you really are serious about
wanting to change your life.”
As to Figueroa-Millan’s argument that the district court did not explicitly consider
all the Trog factors, it is not required to do so when denying a dispositional departure
motion. Though a district court “is required to give reasons for departure, an explanation
is not required when the court considers reasons for departure but elects to impose the
presumptive sentence.” State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985); see
also Pegel, 795 N.W.2d at 254 (rejecting the appellant’s argument that the district court
failed to discuss each of the Trog factors and observing that “there is no requirement that
the district court must do so”). And, as noted, the district court carefully considered all the
arguments for a departure and provided its reasoning for denying the departure.
The district court acted within its discretion by denying Figueroa-Millan’s departure
motion.
II. The district court failed to make the necessary ability-to-pay findings as part
of its restitution order.
“A victim of a crime has the right to receive restitution as part of the disposition of
a criminal charge . . . against the offender if the offender is convicted . . . .” Minn. Stat.
§ 611A.04, subd. 1(a) (2024). “And it is the court’s duty to vindicate a victim’s statutory
right to restitution.” State v. Davis, 907 N.W.2d 220, 226 (Minn. App. 2018) (quotation
omitted), rev. denied (Minn. Apr. 17, 2018).
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“[Appellate courts] generally review a restitution order for an abuse of the district
court’s broad discretion. That discretion, however, is constrained by the statutory
requirements set forth in Minn. Stat. § 611A.045 (2020).” State v. Wigham, 967 N.W.2d
657, 662 (Minn. 2021) (quotation and citation omitted).1 Under Minn. Stat. § 611A.045,
subd. 1 (2024), the district court, “in determining whether to order restitution and the
amount of the restitution, shall consider . . . the income, resources, and obligations of the
defendant.” (Emphasis added.) “[A] district court fulfills its statutory duty to consider a
defendant’s income, resources, and obligations in awarding and setting the amount of
restitution when it expressly states, either orally or in writing, that it considered the
defendant’s ability to pay.” Id. at 664-65.
A review of the record indicates that the district court did not expressly consider
Figueroa-Millan’s ability to pay. Despite this, the state claims that the district court
accounted for Figueroa-Millan’s ability to pay when discussing the waiver of “any fines,
fees and surcharges due to your indigency.” This statement by the district court does not
satisfy the statutory requirement for the district court to consider a defendant’s ability to
pay prior to ordering restitution. See State v. Baker, 20 N.W.3d 897, 900-01 (Minn. App.
2025) (a district court that fails to state, either orally or in writing, that it considered the
defendant’s ability to pay abuses its discretion when ordering restitution).
We therefore remand for additional findings regarding Figueroa-Millan’s “ability to
pay based on an adequately developed record in accordance with Wigham.” Id. at 901. We

1 Minn. Stat. § 611A.045 (2020) is identical to Minn. Stat. § 611A.045 (2024).
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provide no opinion as to whether, once the district court makes findings regarding
Figueroa-Millan’s ability to pay, restitution is to be ordered.
Affirmed in part and remanded.