Luke Joshua Cain, 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This opinion is nonprecedential except as provided by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
A25-1850

Luke Joshua Cain,
Respondent,

vs.

State of Minnesota,
Appellant.

Filed April 27, 2026
Affirmed
Bratvold, Judge
Dissenting, Ross, Judge
Hennepin County District Court
File No. 27-CR-24-29006

Marsh J. Halberg, Debbie E. Lang, David J. Risk, Halberg Criminal Defense, Bloomington,
Minnesota (for respondent)

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

Mary F. Moriarty, Hennepin County Attorney, Elizabeth Scoggin, Assistant County
Attorney, Minneapolis, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Ross, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
Respondent pleaded guilty to second -degree unintentional murder. At sentencing,
the district court granted respondent a downward durational departure from the
presumptive sentence under the Minnesota Sentencing Guidelines on the grounds that he
2
was remorseful and that his offense was significantly less serious than the typical offense
of its kind based on a comparison of the circumstances in his case to the elements of
second-degree manslaughter. The State of Minnesota appeals, arguing that the district court
abused its discretion by relying on improper grounds for departure and in the length of its
departure. Because the reasons supporting the departure justify it, we conclude that the
district court did not abuse its discretion. Thus, we affirm.
FACTS
Respondent Luke Joshua Cain awoke abruptly in his downstairs bedroom at about
3:30 a.m. on December 6, 2024. His dog was going “absolutely ballistic, barking really
loud,” and woke him from “a deep sleep.” Cain thought that an intruder was inside his
house. He grabbed a firearm from his desk so he could check to see what was going on.
During the three months preceding this incident, Cain experienced three break-ins at his
Richfield home—to his garage, his car, and his girlfriend’s car, from all of which items
were taken.
As Cain came around the corner, his girlfriend told him from the top of the stairs
that someone was inside his van parked outside. The van held Cain’s drywall equipment—
saws, drill, batteries, stilts, and ladders. Cain ran outside and saw that the thieves “started
fleeing.” They got into a pickup truck and started driving away. Cain raised his firearm and
shot twice. Cain was “trying to scare them away and make sure they didn’t come back.”
The truck continued speeding away. Cain did not think that he had hit the truck or anyone
inside it.
3
Shortly afterward, Minneapolis law enforcement officers responded to a 911 call
and found the pickup truck in south Minneapolis with one person inside. Police later
identified her as S.O.; they transported her to a hospital, where she died from her injuries.
S.O. had a single gunshot wound to the back of her head.
Law enforcement investigators followed up on a shots- fired report from a location
near Cain’s home and spoke to Cain later that morning. Cain told investigators that he saw
people who appeared to be stealing from his van and that Cain confronted the thieves, who
fled in a grey Ford F-150 pickup truck. Cain did not tell police that he had a firearm or that
he fired at the pickup truck. Sometime later, Cain hid his gun at his Aitkin cabin.
Law enforcement investigators spoke with Cain again on December 18. Cain
identified some of his stolen property from items found in the grey pickup truck with S.O.
When asked, Cain denied that the thieves threatened him and denied hearing any shots.
When investigators told Cain that police were aware shots had been fired, Cain admitted
shooting at the pickup truck. Cain also told investigators that his gun was in his cabin.
Police took Cain into custody.
The next day, appellant State of Minnesota charged Cain with one count of
second-degree unintentional murder under Minnesota Statutes section 609.19,
subdivision 2(1) (2024), based on an underlying felon y of second -degree assault with a
firearm.
About five months later, the parties reached a n agreement in which Cain would
plead guilty to the offense as charged, the state would ask for a guidelines sentence of
128 months’ imprisonment, and Cain would ask for downward departures at sentencing.
4
At his plea hearing, Cain testified to the facts described above.1 The district court accepted
Cain’s plea, ordered a presentence-investigation (PSI) report, and set the matter for
sentencing. The PSI report stated that, based on Cain’s criminal-history score of zero and
the severity of the offense at level ten, the writer recommended a guidelines sentence of
128 months’ imprisonment. The presumptive sentencing range for Cain’s offense under
the Minnesota Sentencing Guidelines was 128 to 180 months’ imprisonment, but the plea
agreement capped the sentence duration at 128 months.
Cain filed a sentencing brief arguing for both downward durational and dispositional
departures from the presumptive sentence. Cain contended that two factors favored a
durational departure: his crime was significantly less serious than a typical second-degree
unintentional murder offense, and his remorse related to the seriousness of the offense.
Cain argued that he admitted guilt and expressed genuine remorse when law enforcement
told him that someone inside the pickup had been killed and that he quickly pleaded guilty
to end the litigation and bring closure for S.O.’s family.
Acknowledging that durational departures are “not common,” Cain attached a data
report from the Minnesota Sentencing Guidelines Commission. The report tabulated the
frequency of downward durational departures for convictions identical to Cain’s offense
over the course of five years. The report found that 13 of 172 offenders convicted of
second-degree unintentional murder received downward durational departures. The most

1 In his plea colloquy, Cain also acknowledged that the state’s complaint was substantively
accurate. See Rosendahl v. State, 955 N.W.2d 294, 300-01 (Minn. App. 2021) (explaining
that the factual basis of a guilty plea includes evidence that the defendant expressly admits
is truthful and accurate).
5
common justification was remorse and acceptance of responsibility (about 60%) along with
the justification that the offense was less serious than the typical offense (about 30%) . In
Hennepin County, seven downward durational departures were granted out of the 60 total
convictions of this type over the same five-year period. Cain also attached criminal
complaints and nonprecedential opinions concerning second-degree unintentional murders
and, as comparators of his offense’s seriousness, second-degree manslaughter convictions.
At sentencing, the district court denied Cain a dispositional departure, granted him
a downward durational departure, and sentenced him to 60 months in prison. The district
court stated that it “reviewed very carefully” the materials submitted to it along with the
cited cases. The district court identified two “substantial and compelling” justifications for
departing. First, the district court found that Cain showed “genuine and deep remorse” and
that his remorse led to “resolving this case quickly.” Second, the district court determined
that the “facts and the context and circumstances of [Cain’s] crime do make it different
from a typical second -degree murder” and “make it more analogous” to the crime of
“reckless manslaughter.” The district court reasoned that Cain “was not in a heated
argument, drawing a g un, or committing a robbery gone bad,” but “[h]e made a horrible,
reckless decision in the context of being victimized multiple times and awakened in the
middle of the night.”
After the sentencing hearing, the district court filed a form report stating that the
reason for departure was “See below and significant mitigating factors not amounting to a
defense.” The district court checked the box for “Crime less onerous than usual” as a reason
6
“Related to Nature of Current Offense.” The district court did not check a box for “Shows
remorse/accepts responsibility,” listed under reasons “Related to Individual Offender.”2
The state appeals.
DECISION
The Minnesota Sentencing Guidelines provide presumptively appropriate sentences
for convicted offenders based on their criminal history and the severity of their offense.
Minn. Sent’g Guidelines 1.A.3, 2.D.1 (2024). The guidelines also provide that the
“sanctions used in sentencing convicted felons should be the least restrictive necessary to
achieve the purposes of the sentence.” Minn. Sent’g Guidelines 1.A.5 (2024).
District courts must impose a sentence within the guidelines unless “identifiable,
substantial, and compelling” reasons support a departure. Minn. Sent’g Guidelines 2.D.1.
Even when factors supporting a departure are present, granting a departure is discretionary.
Id. The reasons supporting a downward durational departure must be germane to the
conduct of the offense itself, demonstrating that a defendant’s offense was “significantly
less serious” than a typical offense of that kind. State v. Mattson, 376 N.W.2d 413, 415
(Minn. 1985). Offender characteristics are irrelevant to a durational departure. State v.
Solberg, 882 N.W.2d 618, 623-24 (Minn. 2016). If a district court depart s from the

2 The state asserts that the district court’s departure report was not in the record until after
the state filed its appeal, attaching to its reply brief an affidavit from the appellate-team
supervisor of the Hennepin County Attorney’s Office. But the departure report appears in
the appellate record as properly filed on the same day as Cain’s sentencing hearing. In any
event, the report does not add to the district court’s departure rationale—the sole issue on
appeal. Thus, even if we assume that the departure report is not in the appellate record, it
does not affect our analysis.
7
sentencing guidelines, it must state its reasons for doing so in writing or on the record.
Minn. Sent’g Guidelines 2.D.1.c.
The state raises two issues on appeal. First, it argues that the district court abused
its discretion by relying on similarities between Cain’s offense and a typical manslaughter
offense and by citing remorse as a ground for its durational departure. Second, it argues in
the alternative that, even if Cain’s departure were warranted, the district court abused its
discretion in the length of its departure. We address each issue in turn.
I. The district court did not abuse its discretion in granting Cain a durational
departure.
The state argues that the district court abused its discretion in granting Cain a
downward durational departure because its manslaughter comparison lacks record support
and remorse is an improper justification for a durational departure. Even if we agree with
the state that Cain’s remorse does not support a durational departure, we affirm the district
court’s departure decision because its manslaughter comparison properly focuses on the
conduct underlying Cain’s offense and is supported by the record.
A. The district court did not abuse its discretion by departing on the
grounds that Cain’s offense was similar to a manslaughter offense.
A district court must find an offense “significantly less serious” than typical to
justify a downward durational departure. Mattson, 376 N.W.2d at 415. We review de novo
whether a particular reason for a departure is appropriate. Dillon v. State, 781 N.W.2d 588,
595 (Minn. App. 2010), rev. denied (Minn. July 20, 2010). If the district court’s reason for
departure is appropriate, we review the district court’s departure decision for abuse of
8
discretion. Solberg, 882 N.W.2d at 623; see also Minn. Sent’g Guidelines 2.D.1 (“A
departure is . . . an exercise of judicial discretion . . . .”).
District courts deserve deference because of their “unique perspective” on the
proceedings; “the trial judge is in the best position to evaluate the offender’s conduct and
weigh sentencing options.” State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999) (quotation
omitted). This court must affirm a departure if the district court identified a proper reason
for the departure and the reason is sufficiently supported by the record. State v. Williams,
361 N.W.2d 840, 844 (Minn. 1985).
Based on the analysis that follows, we conclude that the district court did not abuse
its discretion in granting a downward departure by concluding that Cain’s offense was
significantly less serious than a typical second-degree unintentional murder. Nor did the
district court err by comparing Cain’s second-degree unintentional murder conviction to a
“reckless manslaughter” offense as a way of determining that Cain’s offense was
significantly less serious than the typical second-degree unintentional murder.3 Simply put,
Cain’s conduct is akin to manslaughter offenses in which the offender intended to shoot

3 Cain was convicted of second-degree unintentional murder under Minn. Stat. § 609.19,
subd. 2(1), which provides that a person is guilty of this offense if they cause “the death of
a human being, without intent to effect the death of any person, while committing or
attempting to commit a felony offense.”
While the district court at sentencing referred to “reckless manslaughter,” it appears
the court was referring to second- degree manslaughter under Minn. Stat. § 609.205(1)
(2024), which provides that a person is guilty of this offense if they cause the death of
another “by the person’s culpable negligence whereby the person creates an unreasonable
risk, and consciously takes chances of causing death or great bodily harm to another.”
9
but did not intend to hit a victim and Cain’s conduct is less egregious than offenses in
which the offender intended to hit, but not kill, the victim.
The district court relied on caselaw and record materials to demonstrate the
atypicality of Cain’s conduct.4 We consider two categories of support for the district court’s
departure decision. First, the record includes examples of manslaughter offenses that, Cain
argued, typified the conduct underlying second-degree manslaughter under Minn. Stat.
§ 609.205(1), a severity-level-eight offense. Minn. Sent’g Guidelines 5.A (2024). For
example, in State v. Swanson, Swanson shot a gun in the victim’s direction during an
argument indoors before shooting the victim three more times and killing him. 240 N.W.2d
822, 824-25 (Minn. 1976). Swanson testified that he intended to shoot the victim but not
to kill him. Id. at 825. The jury convicted Swanson of second -degree manslaughter, and
the Minnesota Supreme Court affirmed. Id. at 823-24. The supreme court determined that
the evidence supported the verdict because Swanson’s acts were negligent, explaining that
Swanson’s “intentional act of shooting [the victim] while not intending to kill him is an act
which a reasonably prudent man would recognize as involving a strong probability of
death” to the victim. Id. at 825.
Cain also submitted the criminal complaint from a district court case in which the
defendant pointed a gun at his friend to “scare” him, pulled the trigger, and killed his friend.
The complaint alleges that the defendant did not know the gun was “cocked” and loaded;

4 The state asserts that the materials on which Cain based these comparisons are not in the
record. But these materials are either decisions of this court or the supreme court or, if
district court records, appear in the appellate record as exhibits supporting Cain’s
sentencing memorandum.
10
the state charged him with second-degree manslaughter under Minn. Stat. § 609.205(1).
With these examples, Cain argued that a typical second-degree manslaughter offense
involves the offender pointing and firing a gun in the direction of his victim, perhaps in a
moment of anger, killing the victim but without intending to hit and kill them.
Second, the record includes examples to establish a typical second-degree
unintentional murder involving a firearm and distinguish it from Cain’s conduct. For
example, the district court stated that robbery is a typical felony included in second-degree
unintentional murder. The district court may have been referring to State v. Back, in which
the supreme court affirmed the district court’s decision to durationally depart upward.
341 N.W.2d 273, 276-78 (Minn. 1983). The supreme court stated that, “[i]f there is such a
thing as a typical felony-murder, it probably is an unintentional killing that occurs in the
course of robbery or some other crime against the person.” Id. at 276-77.5 The state argues,
and we acknowledge, that “some other crime against the person” includes second-degree
assault, the felony included in the second-degree unintentional murder offense to which
Cain pleaded guilty. Id. The supreme court chose, however, to enumerate robbery as the
typical offense underlying felony murder; therefore, the district court did not abuse its
discretion by stating that robbery is a typical felony included in second-degree
unintentional murder.

5 The state is incorrect that Cain’s brief selectively omitted language from this quote—“o r
some other crime against the person.” This language is quoted in respondent’s brief to this
court.
11
More specifically, Cain points to the nonprecedential opinion in State v. Nelson as
a typical example of second-degree unintentional murder. No. A17-1429, 2018 WL
3966353 (Minn. App. Aug. 20, 2018), rev. denied (Minn. Nov. 13, 2018). 6 In Nelson, the
victim’s friend and Nelson argued in a bar and the argument moved to the parking lot. Id.
at *1. Nelson got into his truck but continued to argue. Id. The victim punched Nelson
through his open truck window; Nelson intentionally shot the victim twice, then drove
away. Id. The jury found Nelson guilty of second-degree unintentional murder, and he was
sentenced to 150 months in prison; this court upheld the sufficiency of the evidence
because the record included evidence that Nelson intended to shoot his victim but did not
intend to kill him. Id. at *1-2.
Cain argues that his behavior is significantly less serious than the second-degree
unintentional murder typified by Nelson because, unlike Nelson, Cain did not intend to
shoot the pickup or those inside and he did not knowingly point a gun at a person. The
district court explained that it found Cain’s offense significantly less serious because he
was not “committing a robbery gone bad” or “in a heated argument [or] drawing a gun”
directly on a person. The district court’s analysis reflects its careful review of the record
and the exercise of its discretion.
Overall, the district court’s departure decision rested on caselaw and record
materials showing that a typical second-degree manslaughter could involve an offender
shooting a firearm in the victim’s direction during a moment of anger without intending to

6 Nonprecedential opinions are not binding but may be cited as persuasive authority. Minn.
R. Civ. App. P. 136.01, subd. 1(c).
12
hit or kill them and that a typical second-degree unintentional murder could involve a
defendant intentionally shooting a victim without intending to kill the victim. In
durationally departing, the district court described Cain’s “horrible, reckless decision” in
response to what he believed was a middle-of-the-night home invasion after previous
break-ins and thefts at his home. The district court aptly concluded that Cain’s behavior
was “extremely reckless conduct [that] cost one person her young life.”
Still, the district court applied its criminal-law experience and agreed with Cain’s
characterizations of what is a “typical” second-degree manslaughter and second-degree
unintentional murder. The district court found that Cain’s conduct fit the former because
he intended to shoot but not to hit the pickup or its occupants, and the district court
determined that Cain’s offense therefore was significantly less onerous than the typical
second-degree unintentional murder. Cf. Mattson, 376 N.W.2d at 415 (acknowledging
appellate courts’ ability to apply their experience to determine the typicality of an offense).
The state challenges these comparisons and emphasizes the factual dissimilarities
between Cain’s offense and the comparator cases. The state also cites other cases to argue
that Cain’s second-degree unintentional murder was atypically serious. There are details of
Cain’s offense that cut against any comparison to second-degree manslaughter, but this is
inevitable given the fact-specific nature of these comparisons and departure decisions. See
Minn. Sent’g Guidelines cmt. 2.D.301 (2024) (explaining that factors supporting a
departure should speak to the “specific situations” of the rare cases warranting departure).
Cain also pleaded guilty to each element of second-degree unintentional murder.
13
Because the record establishes meaningful similarities between second-degree
manslaughter and Cain’s offense, we cannot say that the district court abused its discretion
by finding this comparison persuasive and then using it to conclude that Cain’s offense was
significantly less serious than usual.
B. Even assuming that the district court abused its discretion by relying on
Cain’s remorse to justify a durational departure, it did not abuse its
discretion in granting a durational departure.
The state argues that the district court abused its discretion by relying on Cain’s
remorse to justify a durational departure, maintaining that Cain’s remorse does not relate
back to his criminal conduct such that it could justify his departure. Courts typically treat
remorse as a factor supporting a downward dispositional departure because it speaks to a
defendant’s amenability to probation. See State v. Soto, 855 N.W.2d 303, 311 (Minn.
2014). But remorse can be a factor supporting a downward durational departure when it
relates back to the offender’s crime to somehow make it significantly less serious than a
typical offense. Solberg, 882 N.W.2d at 626.
The district court found that Cain’s “genuine and deep remorse” was a substantial
and compelling reason to grant the durational departure. The district court described Cain’s
remorse as a “sadness at the loss that he’s caused” that “is palpable.” The district court also
stated that Cain’s remorse led to “resolving this case quickly,” which is supported by Cain’s
guilty plea less than six months after his crime. Still, nothing in the record shows that S.O.’s
family experienced relief or closure—none of her three sisters spoke of it when they gave
their victim-impact statements at the sentencing hearing.
14
The state makes a strong argument that any reliance by the district court on Cain’s
“genuine remorse” was improper because his remorse was not a substantial and compelling
circumstance relating to his criminal conduct. Caselaw establishes that, to support a
downward durational departure, the offender’s remorse must relate back to the offender’s
conduct and somehow mitigate its effect on the victim to justify a downward durational
departure. Id. at 625-26. Yet the Minnesota Sentencing Guidelines Commission reported
that remorse is the most frequent justification for granting a downward durational departure
when sentencing an offender for second-degree unintentional murder.
We need not further consider Cain’s remorse as a justification for the district court’s
departure decision. A single mitigating factor may justify a downward durational departure.
Id. at 624-25. And here, the district court’s departure report omitted remorse as a reason
for departure. We affirm the district court’s decision to depart on the ground that Cain’s
offense was significantly less serious than usual through its comparison to a typical
second-degree manslaughter offense.
II. The district court did not abuse its discretion in the length of sentence imposed
by its departure.
We review the length of a district court’s departure for abuse of discretion. See State
v. Martinson, 671 N.W.2d 887, 892-93 (Minn. App. 2003) (concluding district court did
not abuse its discretion based on the length of a sentence imposed in granting a downward
durational departure), rev. denied (Minn. Jan. 20, 2004); Minn. Sent’g Guidelines 2.D.1.
Even when a departure is justified, the sentence imposed must be proportional to the
15
offense, considering any mitigating or aggravating factors and the offender’s criminal
history. State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981).
The district court did not abuse its discretion because the length of its departure was
rationally connected to the second-degree manslaughter comparison discussed above. In
his sentencing memorandum, Cain argued that, if the district court were to durationally
depart, it should sentence him to “a period of 48 months as this is the guideline sentence
for second-degree manslaughter.”
The district court’s decision to impose a 60-month prison sentence is proportional
given its analysis of second-degree unintentional murder, second-degree manslaughter, and
the facts of Cain’s offense. All but two second-degree manslaughter offenses have a
severity level of eight. 7 Minn. Sent’g Guidelines 5.A. This severity level assigns
second-degree manslaughter a presumptive sentence duration of 48 months and a range of
41 to 57 months for an offender with a criminal-history score of zero, such as Cain. Minn.
Sent’g Guidelines 4.A (2024). Because the district court determined that Cain’s offense
was less serious than a typical second-degree unintentional murder based on its similarities
to second-degree manslaughter, the duration imposed adheres to this analysis.
In short, the district court’s departure decision and the sentence duration imposed
reflect the mitigating circumstances of Cain’s offense. At the same time, Cain committed
a more serious crime than second-degree manslaughter, which is also reflected in the
district court’s duration decision. Because the district court’s sentence was proportional

7 Those two offenses, second-degree manslaughter of an unborn child and for a hunting
accident, carry a lower severity level of five. Minn. Sent’g Guidelines 5.A.
16
considering the mitigating circumstances, the district court did not abuse its discretion by
imposing a 60-month sentence based on granting a durational departure. Thus, we affirm.
Affirmed.

D-1
ROSS, Judge (dissenting)
The majority concludes that the district court’s halving of Luke Cain’s presumptive
prison term is justified because Cain’s criminal conduct was significantly less serious than
conduct in an ordinary second-degree felony-murder case. I believe instead that the
additional factual details from the record lead to a different conclusion. I therefore
respectfully dissent.
When Luke Cain learned that someone was rummaging through his parked work
van outside his house, he charged outside with his loaded handgun, clearly saw that the
presumed pilferers had entered their pickup truck and begun to drive away, and
intentionally fired two shots toward them—one of which passed through the rear window
of the pickup and into the back of Sofia Rose O’Hotto’s head, killing her. Cain then
reported to a police investigator that someone had broken into his van, and he boasted to a
friend that he had chased away the would-be burglars (whom, according to the prosecutor’s
statements to the district court, Cain described with a racial slur). Next he lied to police
when they asked if he had heard any gunshots. Cain then secreted his gun from his home
and drove it to his cabin to prevent it from being discovered by police, and then he lied to
police once more by again denying he was involved in any shooting. At last, 12 days into
the homicide investigation and only after police informed him that one of his gunshots had
killed someone, Cain finally admitted to police what they already suspected, which is that
he was the shooter who fired the fatal shot.
Five months after the state charged Cain in December 2024 with second-degree
unintentional felony murder, he petitioned the district court to change his plea to guilty in

D-2
a defendant-friendly deal that capped his prison sentence at 128 months—the very bottom
of the presumptive 128-to-180-month imprisonment range under the guidelines. Cain had
not finished lying to diminish his culpability; he lied again, this time under oath during his
plea hearing. He falsely testified that he had moved his gun from his house to his cabin not
to hide evidence of his crime, claiming instead, “I was hunting that weekend, and I always
carry a firearm with me in the woods.”
Cain nevertheless asked the district court at sentencing to depart downward from
his presumptive prison term. The district court responded in part by explaining how Cain’s
conduct included “facts . . . that are aggravating rather than mitigating,” including that Cain
“fired a gun twice at people fleeing the scene of a theft.” It bluntly and accurately
recounted, “This is intentionally pulling the trigger while aiming at a [vehicle] with people
inside.” It emphasized, “Not at the ground, not at the sky, [but] at the fleeing vehicle.” It
imagined aloud that Cain’s “extremely reckless conduct cost one person her young life,
and could easily have hit a cashier coming home from their late shift, could have hit a
doctor or nurse going out on call in the middle of the night, could have hit any innocent
night-owl who was unlucky enough to be in the area.” It clarified that “Cain knew [that]
the people attempting to steal his van were not in his home, that he fired at them when they
were leaving the scene, and that he knew his conduct was wrong right away,” and it added
that he nevertheless “denied hearing any shots . . . knowing . . . at that time that he was the
one who fired those shots.” It also recognized that Cain continued to falsely minimize his
conduct even in his plea hearing, observing that, although “[h]e also hid the gun at his

D-3
cabin . . . he now claims he took it out for hunting.” This claim, the district court naturally
found, “strikes as not credible.”
I believe that this series of events cannot support the conclusion that Cain’s criminal
conduct was less serious than the typical conduct in a felony-murder case. But the district
court decided differently. It announced, “I find . . . substantial and compelling reasons” to
depart downward from the guidelines sentence “based on, first, Mr. Cain’s genuine and
deep remorse,” and second, based on the district court’s assessment that “the circumstances
of the crime . . . make it different from a typical second-degree murder” in that the
circumstances here are “more analogous to . . . reckless manslaughter.” Neither of these
stated reasons, in my view, has the necessary legal and factual support to justify the
reduction to 60 months’ incarceration—a sentence of less than half the very bottom of
Cain’s presumptive sentencing range.
The sentencing guidelines promote fairness by establishing a system of uniform
punishment, requiring district courts to treat similar offenses similarly. See Minn. Sent’g
Guidelines 2.D.1 (2024). Uniform sentencing helps to avoid both the appearance of
injustice and actual injustice. A district court therefore has no discretion to depart from a
presumptive guidelines sentence unless “identifiable, substantial, and compelling
circumstances” justify a departure. Id.; State v. Pegel, 795 N.W.2d 251, 253 (Minn. App.
2011). For the following reasons, neither the district court’s primary reason (Cain’s alleged
remorse) nor its secondary reason (the supposed similarity between Cain’s conduct and the
elements of second- degree manslaughter) constitutes a substantial and compelling
circumstance supporting its durational departure.

D-4
Remorse Does Not Justify the Downward Departure
Cain’s alleged remorse is not a compelling circumstance justifying the district
court’s departure decision. The remorse basis is flawed primarily because “[a] durational
departure must be based on factors that reflect the seriousness of the offense, not the
characteristics of the offender,” which is why the supreme court emphasized that it has
“consistently treated remorse as a factor that may support a downward dispositional
departure” rather than a factor bearing on a durational departure. State v. Solberg, 882
N.W.2d 618, 623, 625 (Minn. 2016); see also State v. Soto, 855 N.W.2d 303, 311 (Minn.
2014) (confirming that remorse is a permissible factor for determining particular
amenability to probation); State v. Back, 341 N.W.2d 273, 275 (Minn. 1983) (holding that
“a defendant’s remorse bears only on a decision whether or not to depart dispositionally,
not on a decision to depart durationally”). We have followed the supreme court’s lead. See,
e.g., State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994) (recognizing that remorse
“generally bears on the defendant’s amenability to probation, and is relevant to a
dispositional departure”), rev. denied (Minn. Oct. 27, 1994). The general rule that remorse
bears on a dispositional rather than a durational departure is well established.
The supreme court reasoned in 1984, however, that “there may be cases” when an
offender’s lack of remorse might justify an upward durational departure because it relates
back to the cruel nature of the defendant’s criminal conduct. State v. McGee, 347 N.W.2d
802, 806 n.1 (Minn. 1984). Thirty-two years later it recognized that “[t]he logical inverse”
allows for “the possibility that cases may exist in which the defendant’s remorse could
relate back and be considered as evidence of remediation that makes the conduct

D-5
significantly less serious than the typical conduct underlying the offense of conviction.”
Solberg, 882 N.W.2d at 625–26. Since the supreme court announced that possibility, it has
never—and we have only twice —affirmed a downward durational departure based on a
defendant’s remorse.
A divided panel of this court did so in State v. Gutierrez, and Cain invites us to treat
that case as “analogous” to this one. No. A24-1747, 2025 WL 2502564, at *1 (Minn. App.
Sept. 2, 2025) (relying on remorse as an alternative basis to affirm a downward durational
departure). No analogy can be drawn. In that nonprecedential opinion, the defendant had
been convicted of second-degree unintentional murder after a shooting, but that case
otherwise bears no similarity to this one. Id. Gutierrez had intervened to stop two men who
were punching his brother in a two-against-one fight in a parking lot. Id. Gutierrez had seen
the fight begin, but he did not involve himself until his brother became outnumbered. Id.
He then grabbed a gun that he thought was unloaded and that his brother had just dropped
onto the car seat beside him. Id. And Gutierrez used the gun to hit—not shoot—one of the
men to stop him from punching his brother. Id. The gun discharged by accident on contact,
and the bullet struck the man. Id. Gutierrez immediately handed the gun to his brother,
dialed 9- 1-1 to report what had happened and to obtain aid for the injured man, and
remained at the scene for police to arrive. Id. This court affirmed a downward sentencing
departure, concluding that Gutierrez’s remorse related back to the offense because his
remorse led him to remain at the scene rather than run from law enforcement, he had dialed
9-1-1, he waited at the scene to ensure the gunshot victim received aid, and he cooperated
with police. Id. at *6. Cain’s reliance on Gutierrez is misplaced.

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I reiterate that our Gutierrez opinion is not precedential. And the dissenting judge
in that case rejected the notion that the defendant’s remorse related back to his offense,
pointing out that the district court at sentencing, like the district court at Cain’s sentencing,
never found that his remorse lessened the impact on the victim or made the crime less
serious. Id. at *12 (Larkin, J., dissenting). In any event, unlike Gutierrez’s immediate
demonstration of remorse and the idea that it immediately benefited the victim of his
accidental discharge, Cain expressed no immediate remorse after his intentional discharge,
lied to police about the shooting, and boasted about his having chased the alleged burglars
from his property. His tardy remorse was not unlike the remorse that most defendants
emphatically claim in the face of a sentencing judge. I’m not suggesting that Cain’s
remorse was insincere; I’m saying that it had no value to the deceased Sofia and in no
logical way relates back to lessen the impact of his crime. The district court’s reliance on
it as a basis for departing durationally therefore calls for our reversal and a remand for
resentencing.
The majority casts some doubt about the propriety of the district court’s decision to
base Cain’s departure on his remorse, but it affirms the departure without addressing the
remorse basis on its merits. It does so on the precept that even a single mitigating factor
can justify a downward departure, Solberg, 882 N.W.2d at 624–25, and on its holding that
the departure can stand because the “offense was significantly less serious than usual.” For
the reasons that follow, I disagree with the less-serious-than-typical basis for departure in
this case. But I first emphasize that, even if that basis were supported in this case, still we
should reverse and remand because the record does not establish that the district court

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would have imposed the same sentence had it not erroneously relied on Cain’s remorse as
a factor justifying the departure. See State v. Stanke, 764 N.W.2d 824, 828 (Minn. 2009)
(“Only if we conclude that the district court would have imposed the same sentence absent
the improper . . . factor will we affirm the sentence imposed by the court.”). The majority
says that “the district court’s departure report omitted remorse as a reason for departure,”
but the majority had previously accurately recognized what appears to be the reason for the
omission, which is that the report is a checklist of options that (rightly) does not provide
“remorse” as one of the options for a durational departure. The district court’s failure to
indicate “remorse” on the form in no way indicates that it retreated from remorse being its
primary reason for durationally departing, as it declared on the record during the hearing.
I turn to the atypically-less-serious basis for the departure.
Atypicality Does Not Justify the Downward Departure
The atypically- less-serious basis for the departure is also not a substantial and
compelling circumstance justifying the district court’s decision because Cain’s murder was
so typical of a second- degree murder offense that we need not consider whether it was
“significantly less serious than the typical conduct underlying the offense” so as to justify
a downward departure. Solberg, 882 N.W.2d at 626 (emphasis added). The majority affords
deference to the district court’s determination of atypicality. But our analysis should
include no deference to this determination because the atypicality of an offense is not
determined from the district court’s perspective but on a statewide basis by the appellate
courts. State v. Norton, 328 N.W.2d 142, 146 –47 (Minn. 1982) (stating that determining
whether severe aggravating circumstances exist “must be based on our collective, collegial

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experience in reviewing a large number of criminal appeals from all the judicial districts”);
see also State v. Yaritz, 791 N.W.2d 138, 150 (Minn. App. 2010) (incorporating Norton in
recognizing that the district court’s decision whether the offense occurred in a particularly
serious way depends “[i]n the final analysis [on] an appellate court’s decision whether a
particular durational departure is justified . . . based on its collective, collegial experience”
of reviewing cases statewide (alterations omitted) (quotation omitted)), rev. denied (Minn.
Feb. 23, 2011). And I believe our de novo appellate perspective demands that Cain’s
conduct squarely typifies the conduct in second-degree felony-murder cases.
That Cain’s criminal conduct is not less serious than the typical second-degree
felony-murder case is exactly what the supreme court has already declared: “If there is such
a thing as a typical felony-murder, it probably is an unintentional killing that occurs in the
course of robbery or some other crime against the person.” Back, 341 N.W.2d at 276–77.
The majority seems to suggest that the Back court intentionally identified “robbery as the
typical offense” in a felony-murder case and that this particularized reference justifies the
district court in ignoring the fact that, in the very same phrase, the Back court included
“some other crime against the person” as typifying an unintentional, felony-murder
offense. This seems clearly to overemphasize Back’s reference to “robbery,” and Cain’s
underlying crime of second-degree assault was in fact a crime against the person resulting
in an unintentional killing. Indeed, Cain could have been charged with and convicted of
both the underlying assault against the pickup’s driver and felony murder against Sofia.
When the district court correctly pointed out some of the multiple ways in which Cain’s
conduct included aggravating rather than mitigating circumstances, it overlooked that one.

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The Back court also emphasized that “the felony-murder rule can be used even when the
underlying felony is a property offense if that offense, as committed, involves special
danger to human life.” Id. at 277. In other words, not only is it inaccurate to say that Cain’s
felony-murder conduct of unintentionally killing a person while he was committing a crime
against persons was less serious than the typical case, but it is especially wrong because
committing a felony murder in that fashion is the most serious of the two felony-murder
types the Back court described. Because the supreme court described the manner of Cain’s
offense as typical, I do not think we can accurately describe it as atypical.
A comparison of Cain’s conduct to the conduct involved in several relatively recent
second-degree unintentional-murder cases proves that Cain’s conduct is not less serious,
let alone significantly less serious, than the typical case. The majority’s deference to the
district court leads it to implicitly accept the legal conclusion that the criminal conduct in
State v. Nelson provides “a typical example of second-degree unintentional murder.” No.
A17-1429, 2018 WL 3966353, at *1 (Minn. App. Aug. 20, 2018), rev. denied (Minn. Nov.
13, 2018). It likewise seems to accept the district court’s legal assessment that Cain’s
“behavior is significantly less serious than the second-degree unintentional murder typified
by Nelson.” I believe that the district court is mistaken. I agree that Nelson includes conduct
of a typical second-degree unintentional-murder case. But I cannot agree with the
conclusion that Cain’s conduct was significantly less serious than Nelson’s, justifying the
downward departure. I am convinced that Cain’s conduct was not at all less serious; it was
more serious. Nelson was sitting in a parking lot in his truck when another man walked up
and “punched him through [an] open window.” Id. The blow was so forceful that Nelson

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had to seek emergency medical treatment the next day. Id. Instantly after he was punched
in the head, Nelson fired two shots at the man. Id. When police spoke with Nelson, he
promptly admitted that he had shot the man. Id. Nelson, like Cain, was convicted of second-
degree felony murder. Id. Let’s compare. Nelson was the victim of a violent crime against
his person. Cain was not. Nelson fired “immediately” as he was being victimized. Cain did
not. Nelson admitted to the shooting as soon as police asked him about it. Cain did not,
instead lying when police asked about the shooting. Nelson shot toward only one person.
Cain shot toward two. Nelson killed a man who remained in a position to continue
physically harming him. Cain killed a woman who had never harmed him and who was in
no position to do so. The majority has concluded that Cain’s conduct was significantly less
serious than Nelson’s. I am certain that this is not so. Indeed, Cain’s conduct was
objectively more serious than Nelson’s.
The Gutierrez majority surveyed statewide cases and presented three typical
second-degree unintentional felony murders, all more recent than Nelson and none
materially distinguishable from this case. See 2025 WL 2502564, at *5. It first identified
State v. Edmondson, where the convicted defendant had fired a gun into an occupied car,
killing one person and resulting in a presumptive sentence of 240 months’ imprisonment.
No. A23-0736, 2024 WL 910685, at *1–2 (Minn. App. Mar. 4, 2024). It next identified
State v. Reed, where the convicted defendant had shot a man twice in the vicinity of others
after the man shoved him, resulting in a presumptive 180-month prison sentence. No. A22-
0107, 2023 WL 3048000, at *1–4 (Minn. App. Apr. 24, 2023). And third, it identified
Daniels v. State, where the convicted defendant had fired three shots toward a group of

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men who were fighting with a group the defendant was with, killing one man and resulting
in a presumptive 180- month prison sentence. No. A17-0623, 2018 WL 817286, at *2
(Minn. App. Feb. 12, 2018), rev. denied (Minn. Apr. 25, 2018); see also No. A19-1279,
2020 WL 2118897, at *1 (Minn. App. May 4, 2020) (recounting Daniels’s imprisonment
term), rev. denied (Minn. Sept. 15, 2020). It is plain to me that Cain’s conduct was at least
as serious as, or more serious than, (but surely not significantly less serious than) the
conduct in Nelson, Edmondson, Reed, Daniels, or any other typical second -degree
unintentional felony-murder case I am aware of. Cain’s 60-month sentence, in the context
of the sentences these defendants received for essentially the same conduct, is at odds with
the state’s commitment to uniform sentencing.
I believe our analysis must focus particularly on how the seriousness of Cain’s
felony-murder conduct compares with the conduct in the typical felony-murder cases. The
majority bases its affirmance in substantial part on its conclusion that “the record
establishes meaningful similarities between second-degree manslaughter and Cain’s
offense” based on the district court’s assessment. I think this approach faces three
problems. First, I believe it rests on the wrong issue. The issue is not whether the convicted
defendant’s conduct resembles conduct that the district court believes resulted in
convictions of a lesser crime. Whether the defendant’s conduct is typical of some other
offense in the district court’s view or this court’s view is not relevant to the issue of whether
the defendant’s conduct was significantly less serious than the conduct typically occurring
in the charged offense. My disagreement lies in the fact that I believe the answer to that
question is plainly no. The second problem with the majority’s approach is that it does not

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seem to rest on binding appellate precedent establishing how we review durational
departures. And the third problem is that this approach would invite a large number of
durational departures for felony murders when departures are instead supposed to be the
narrow exception. See Solberg, 882 N.W.2d at 623. Applying the typicality approach the
majority has taken—comparing a defendant’s conduct to the conduct typically associated
with a lesser crime rather than to the conduct typically associated with the charged crime—
would result in more departures and, consequently, less uniformity in sentencing. For
example, that approach could likely have opened the door for departures in all the typical
felony-murder cases the Gutierrez court identified (Edmondson, Reed, and Daniels) and
Nelson also.
For all these reasons, I agree with the state that the district court misapplied the law
and erroneously granted Cain’s motion for a downward durational departure. I would
reverse and remand for resentencing.