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This opinion is nonprecedential except as provided by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
A25-0607

State of Minnesota,
Respondent,

vs.

Cherry Lynn Osborne,
Appellant.

Filed February 2, 2026
Affirmed
Smith, Tracy M., Judge

Cass County District Court
File No. 11-CR-24-949

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

Benjamin T. Lindstrom, Cass County Attorney, Chelsea Langton, Assistant County
Attorney, Walker, Minnesota (for respondent)

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

Considered and decided by Slieter, Presiding Judge; Smith, Tracy M., Judge; and
Harris, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Appellant Cherry Lynn Osborne appeals from the judgment of conviction for
attempted first-degree drug sale, arguing that the district court abused its discretion in
denying her motion for a downward dispositional sentencing departure. We affirm.
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FACTS
In July 2024, respondent State of Minnesota charged Osborne with first-degree sale
of a controlled substance (over 17 grams of methamphetamine), in violation of Minnesota
Statutes section 152.021, subdivision 1(1) (2024), based on a report that law enforcement
recovered 907 grams of methamphetamine from Osborne’s vehicle following a traffic stop.
Pursuant to a plea agreement, Osborne pleaded guilty to an amended count of first-degree
attempted sale of a controlled substance. At the plea hearing, Osborne admitted that she
drove to the Twin Cities to pick up methamphetamine, that she was the primary person
who made the arrangements, that the police found two pounds of methamphetamine in her
vehicle, and that she intended to distribute or sell the methamphetamine.
A presentence investigation was conducted and a report filed before sentencing. The
report addressed Osborne’s income, childhood, mental and physical health, chemical use,
treatment, and sobriety.
Osborne moved for a downward dispositional departure based on particular
amenability to probation and treatment. At the sentencing hearing, her counsel argued that
Osborne’s history, characteristics, and rehabilitative potential warranted a probationary
sentence. Osborne testified, expressing her remorse and describing her commitment to
chemical-dependency treatment. The district court denied Osborne’s motion and sentenced
her to 28 months’ imprisonment—the bottom of the presumptive range of imprisonment
for 28 to 39 months. Osborne appeals, seeking reversal and remand for resentencing with
a downward dispositional departure.
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DECISION
Appellate courts review a district court’s decision whether to grant a sentencing
departure for an abuse of discretion. State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014).
“A court abuses its discretion when its decision is based on an erroneous view of the law
or is against logic and the facts in the record.” Riley v. State, 792 N.W.2d 831, 833 (Minn.
2011). “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.” State v. Pegel, 795
N.W.2d 251, 255 (Minn. App. 2011) (quotation omitted).
The Minnesota Sentencing Guidelines establish presumptive sentences for felony
offenses. Minn. Stat. § 244.09, subd. 5 (2024). Reasons to depart from the presumptive
range must be “substantial, and compelling.” Sent’g Guidelines 2.D.1 & cmt. 2.D.103
(Supp. 2023). Departures from sentencing guidelines “are discouraged and are intended to
apply to a small number of cases.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016).
The sentencing guidelines outline a nonexclusive list of factors that courts may consider in
deciding whether to depart from a presumptive sentence. Minn. Sent’g Guidelines 2.D.3.a
(Supp. 2023). But appellate courts “will not ordinarily interfere with a sentence falling
within the presumptive sentence range, either dispositionally or durationally, even if there
are grounds that would justify departure.” State v. Bertsch, 707 N.W.2d 660, 668 (Minn.
2006) (quotation omitted). A district court’s refusal to depart from the presumptive
sentence would warrant reversal only in a “rare case.” State v. Kindem, 313 N.W.2d 6, 7
(Minn. 1981).
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One mitigating factor is whether a person is “particularly amenable to probation.”
Minn. Sent’g Guidelines 2.D.3.a(7). Particular amenability to probation can be
demonstrated by factors such as the defendant’s age, prior record, remorse, cooperation,
and attitude in court, and the support of friends and family. State v. Trog, 323 N.W.2d 28,
31 (Minn. 1982). A district court may also consider whether a “defendant is particularly
unamenable to incarceration and particularly amenable to individualized treatment in a
probationary setting.” State v. Wright, 310 N.W.2d 461, 462 (Minn. 1981). In deciding
whether to grant a downward dispositional departure, a district court considers “the
defendant as an individual and [focuses] on whether the presumptive sentence would be
best for [the defendant] and for society.” State v. Heywood, 338 N.W.2d 243, 244 (Minn.
1983).
In denying Osborne’s motion and sentencing her to the presumptive executed
sentence, the district court stated:
When looking at this case, some of the things that strike me is
the level of your culpability, meaning your level of blame in
the overall offense, and I find you to be highly culpable,
ma’am, and that cannot be overlooked.
One of the biggest, if not the biggest, issue that people in this
part of the state, this part of the country, all of the United States
have is the use of methamphetamine and associated drugs such
as fentanyl, and you’re a drug dealer, ma’am. You’re not just
an addict, you’re a drug dealer. You were making multiple trips
back and forth to the metro area to pick up drugs “to make
money” is what you said.
And this is one of the largest amounts of controlled substances,
methamphetamine, that I have seen somebody possess with
intent to distribute. . . .
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I think to—and I certainly commend you on completing
treatment, and obviously that’s something that you need to do
for yourself, but I simply cannot overlook the fact that you’ve
already received a huge break, a huge break, by the state
agreeing to allow you to plead guilty to an attempt, which cuts
everything in half. . . . Taking into account the progress that
you made, I am going to commit you to the Commissioner of
Corrections of the State of Minnesota for a period of 28
months. . . . I think to sentence otherwise would seriously
diminish the severity level of the offense and is not consistent
with your culpability and the part you played in committing
this offense.
Osborne argues that the district court abused its discretion. She contends that the
Trog factors demonstrate her particular amenability to probation because she was
remorseful and cooperative, completed a 90-day treatment program, was engaged in
aftercare programming , and had been maintaining sobriety for seven months . She also
argues that she is particularly unamenable to incarceration given her physical-health
problems. And she contends that the district court erred by focusing on the broader impact
of drugs in the community rather than on her specific circumstances. We address her
arguments factor-by-factor.
Age
Osborne argues that her age (58 years old at the time of the incident and sentencing)
makes her particularly amenable to probation . To support her argument, she cites State v.
Hickman, in which we affirmed the district court’s downward dispositional departure. 666
N.W.2d 729, 733 (Minn. App. 2003). But Osborne advances no specific argument as to
why her age makes her particularly amenable to probation , other than stating that she is
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nearly the same age as the 59-year-old defendant convicted of tax evasion in Hickman. Id.
at 732.
Moreover, though in Hickman we cited the defendant’s age (along with other
factors) as support of the district court’s conclusion that he was particularly amenable to
probation, the Trog factor of age is more commonly relied upon when a defendant is young
and immature. See Trog, 323 N.W.2d 28, 30-31 (noting that defendant’s young age
supported a departure); State v. Patton, 414 N.W.2d 572, 575 (Minn. App. 1987)
(upholding a departure where the district court cited a defendant’s immaturity and young
age—19 years old —as a reason for departure). In State v. Soto, the supreme court rejected
the district court’s determination that the fact that the defendant was “‘only’ 37 years old”
made him particularly amenable to probation when the district court’s “only explanation
for its conclusion was that [the defendant] was young enough that he still ‘ ha[d] an
opportunity to correct [his] behavior,’” noting “if that reasoning applies to a 37-year -old,
it is difficult to see which defendants it would not reach .” 855 N.W.2d 303, 310 (Minn.
2014). Similarly, here, Osborne has not explained why her age makes her particularly
amenable to probation in a way that differentiates her from most other defendants.
Prior Record
Osborne points to her criminal-history score of zero as evidence of her amenability
to probation. Though a defendant’s prior record is a consideration, “a defendant ’s clean
record does not by itself justify mitigation of sentence because that factor, in the form of
defendant’s criminal history score, has already been taken into account by the sentencing
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guidelines in establishing the presumptive sentence.” Trog, 323 N.W.2d at 31. Osborne’s
criminal history was therefore taken into account.1
Remorse
Osborne argues that the Trog factor of remorse weighs in favor of dispositional
departure because she has consistently expressed remorse and has demonstrated her
motivation to change, maintained sobriety, and tested negative for drug use. At the
sentencing hearing, Osborne asked for forgiveness and stated she understands “the
extremity of it.” The PSI report noted that Osborne “reiterated several times during the PSI
interview that she is sorry and made a mistake.” The state acknowledges that Osborne was
cooperative throughout the process but argues that Osborne minimized her role in the
crime, noting that at the sentencing hearing she referred to her conduct as a “mishap that I
got into.” The district court heard these arguments at the sentencing hearing and considered
them in determining whether to depart.
Cooperation and Attitude in Court
Osborne argues, and the state agrees, that Osborne was cooperative throughout the
proceedings and pretrial probation. Before announcing Osborne’s sentence, the district
court explicitly stated that, in making its sentencing determination, it considered the
progress Osborne had made.

1 The district court also noted that the parties’ plea agreement allowed Osborne to plead
guilty to an attempt, rather than to a completed crime, which cut her presumptive sentence
in half.
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Support of Friends and Family
Osborne points to the community support that she receives through aftercare
programming and her peer recovery specialist, who submitted a letter on her behalf stating
that Osborne has “continued sobriety” and “has proven to do what she says she is going to
do.” The record shows that the district court heard and considered evidence about
Osborne’s family and community support.
Particular Unamenability to Incarceration
Osborne also argues that she is particularly unamenable to incarceration, citing her
poor health and lack of incarceration history. In deciding whether to depart, a court may
consider whether a “defendant is particularly unamenable to incarceration and particularly
amenable to individualized treatment in a probationary setting. ” Wright, 310 N.W.2d at
462. The district court considered and acknowledged Osborne’s success in a residential
treatment setting while she was awaiting her hearing and sentencing.
Community Needs and Seriousness of the Crime
Osborne argues that the community and Osborne’s needs could be addressed
through her probation and contends that “the district court erred in focusing on wide-
ranging social issues” rather than Osborne’s particular circumstances. Osborne takes issue
with the district court’s comments quoted above describing the impact of
methamphetamine locally and nationally and the large amount of the drug that Osborne
had and intended to distribute.
The argument is unpersuasive. The district court recognized Osborne’s progress in
treatment but was not obligated to conclude that probation would be better for the
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community. And regarding the seriousness of Osborne’s offense and her culpability, as
Osborne recognizes, w hen considering a motion for a downward dispositional departure,
“a district court may consider both offender- and offense-related factors.” State v. Walker,
913 N.W.2d 463, 468 (Minn. App. 2018). Here, the district court appropriately considered
both Osborne’s personal characteristics as well as the community harm that stems from the
sale of drugs and the very large amount of drugs that Osborne intended to sell.
The record makes clear that the district court carefully evaluated the testimony and
information before making its determination. We discern no abuse of discretion in the
district court’s denial of Osborne’s departure motion.
Affirmed.