State of Minnesota v. Isaac Gutierrez

This opinion is nonprecedential except as provided by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
A24-1747

State of Minnesota,
Appellant,

vs.

Isaac Gutierrez,
Respondent.

Filed September 2, 2025
Affirmed
Larson, Judge
Dissenting, Larkin, Judge

Olmsted County District Court
File No. 55-CR-24-849

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

Michael T. Walters, Olmsted County Attorney, A. Michael DeBolt, Andrew M.
LeTourneau, Assistant County Attorneys, Rochester, Minnesota (for appellant)

Eric L. Newmark, Newmark Law Office, Minnetonka, Minnesota (for respondent)

Considered and decided by Bentley, Presiding Judge; Larkin, Judge; and Larson,

Judge.

NONPRECEDENTIAL OPINION

LARSON, Judge

Appellant State of Minnesota challenges the district court’s decision to grant

respondent Isaac Gutierrez’s motion for a downward durational departure after a jury found

him guilty of second-degree unintentional felony murder under Minn. Stat. § 609.19,
subd. 2(1) (2022). Because we conclude the district court did not abuse its discretion, we

affirm.

FACTS

In February 2024, the state charged Gutierrez with second-degree intentional

murder under Minn. Stat. § 609.19, subd. 1(1) (2022), second-degree unintentional felony

murder under Minn. Stat. § 609.19, subd. 2(1), and second-degree assault with a dangerous

weapon under Minn. Stat. § 609.222, subd. 1 (2022). The following facts were elicited at

a jury trial.

On February 3, 2024, Gutierrez and his brother (brother) went shopping at a mall.

Afterwards, they drove to a fast-food restaurant. Brother, the driver, attempted to back into

a parking spot but was unable to do so because another vehicle “was in the way.” The

driver of the other vehicle (victim) honked his horn, and a verbal altercation between

brother and victim ensued. Obscenities were exchanged, and victim directed brother to

“pull forward.” Brother and victim both exited their vehicles and continued arguing.

Brother took a gun out of his pants and showed it to victim. Victim’s mother asked brother

to put the gun away, and brother placed it in the driver’s seat of his vehicle, next to

Guiterrez. From the passenger seat, Gutierrez observed brother and victim physically

fighting, but did not join the fight “[b]ecause it was one-on-one.” Gutierrez then observed

another passenger (passenger) from victim’s vehicle join the fight and saw that “brother

was struggling” and “using his hands to keep [victim and passenger] away from him rather

than throwing punches.” At that point, Gutierrez “grabbed the firearm and . . . ran over to

try to assist . . . brother.” Gutierrez, intending to use the gun “as a . . . striking weapon,”

2
tried to pull victim and passenger off brother. Gutierrez “went to push and then . . . went

to strike,” using “the palm of [his] hand and the butt of the gun.” Gutierrez brought the

gun down on victim’s back, the gun fired, and a bullet fatally struck victim in the head.

After shooting victim, Gutierrez handed the gun to brother and called 911. Gutierrez told

the 911 operator that “[s]omeone got shot,” and waited “to make sure [victim] got the aid.”

Law enforcement arrived within minutes and arrested Gutierrez.

At trial, Gutierrez agreed that he did not “know much about the mechanics of

firearms.” Gutierrez testified that he believed that the gun was unloaded and not “in a

position to fire” when he grabbed it. Gutierrez also testified that he did not intentionally

pull the trigger.

Before the case was submitted to the jury for deliberation, the state dismissed the

second-degree assault charge. Thereafter, the jury found Gutierrez not guilty of second-

degree intentional murder and guilty of second-degree unintentional felony murder.

At a later sentencing hearing, Gutierrez moved for a downward dispositional

departure or, in the alternative, a downward durational departure to a 48-month executed

prison term from the presumptive 150-month executed prison term. The state requested

that the district court impose a 180-month executed prison term—a sentence at the top of

the presumptive guidelines range. The district court heard arguments from both parties

and a statement from Gutierrez. The district court reviewed the sentencing worksheet,

presentence investigation report, Gutierrez’s motion and memorandum in support of

departure, letters of support submitted on Gutierrez’s behalf, and a written victim-impact

statement. The district court also heard additional victim-impact statements that were read

3
at the sentencing hearing. After receiving this evidence, the district court indicated that it

needed more time to decide the appropriate sentence and continued the hearing. The

district court expressed that this additional time was necessary so that it could “organize

[its] thoughts” and be “sure [it was] doing the right thing for the family, for the community

and, . . . for [Gutierrez].” The district court also noted that it had requested a data report

from the Minnesota Sentencing Guidelines Commission with statistics regarding

departures in second-degree unintentional felony-murder cases. 1

At the continued sentencing hearing, the district court denied Gutierrez’s motion for

a downward dispositional departure, granted his motion for a downward durational

departure, and sentenced Gutierrez to a 60-month executed prison term. The district court

explained that it arrived at its decision after “review[ing] all of the Olmsted County cases

. . . since 2001 where a defendant was sentenced to [s]econd [d]egree [u]nintentional

[m]urder” with a specific focus on “cases involving a weapon.” Accordingly, based on its

review of these cases, the district court determined that the circumstances of Gutierrez’s

crime were “less onerous” than typical, and provided the following explanation for this

determination:

[Gutierrez] in no way planned to shoot [victim] on
February 3rd. He was just going to [a fast-food restaurant] for
lunch. It was . . . brother who had the permit to carry and
introduced the gun to the situation. Unknown to [Gutierrez],
. . . brother racked the gun previously so a bullet was in the

1
The data report is in the record. The data report advised the district court that, of the 551
second-degree unintentional felony-murder convictions sentenced between 2001 and 2022,
district courts had granted downward durational departures in 86 cases. Of those 86, the
data report reflected “[l]ess onerous/weapon type less serious/gun not loaded” as the reason
for departure in five cases.

4
 chamber when he brought it back to the truck where
[Gutierrez], in a split-second decision, grabbed the gun off the
seat.

Further, there were actions of others that played roles in
this tragedy. [Victim] himself started the entire situation when
instead of patiently waiting for 30 seconds for [brother] to park,
[he] rolled down his window, yelled profanities, and ordered
[brother] to pull forward so they could fight.

Then [brother] did just that, rather than just leaving the
parking lot. The two men confronted each other before
[brother] pulled that gun, which didn’t even seem to faze
[victim].

Then [passenger], rather than just letting this be a one-
on-one fight, decided to join the fray, causing [Gutierrez] to
make that horrible decision to run to . . . brother’s defense with
the loaded gun.

Looking at these facts, and then also considering the fact
that, [Gutierrez], you did not run from law enforcement. You
were cooperative, even calling or attempt[ing] to call 911
yourself.

And finally, even though we had a trial, you accepted
responsibility for the role you played, and you have expressed
and shown remorse.

So[,] with all of that I do believe a durational departure
from the guidelines is warranted.

The district court’s departure report—a form created by the Minnesota Sentencing

Guidelines Commission—indicates that the district court granted the downward durational

departure for the following reasons: “[v]ictim was aggressor in incident” and “[c]rime less

onerous than usual.”

This appeal follows.

5
 DECISION

The state challenges the district court’s decision to impose a downward durational

departure from the Minnesota Sentencing Guidelines. Specifically, the state asserts that

the district court abused its discretion when it determined that Gutierrez’s conduct was

significantly less serious than that typically involved in the commission of second-degree

unintentional felony murder.

“We afford the [district] court great discretion in” sentencing and review departure

decisions for an abuse of discretion. State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). “A

reviewing court generally will not interfere with that discretion unless it has a strong feeling

that the sentence is disproportionate to the offense.” State v. Schenk, 427 N.W.2d 12, 13

(Minn. App. 1988) (quotation omitted). “A district court abuses its discretion when its

reasons for departure are improper or inadequate.” State v. Rund, 896 N.W.2d 527, 532

(Minn. 2017). If a district court’s reasons for granting a departure are stated on the record,

we “will examine the record to determine if the reasons given justify the departure. . . . If

the reasons given justify the departure, the departure will be allowed.” Williams v. State,

361 N.W.2d 840, 844 (Minn. 1985).

The Minnesota Sentencing Guidelines provide presumptive sentencing ranges to

“maintain uniformity, proportionality, rationality, and predictability in sentencing.” Minn.

Stat. § 244.09, subd. 5 (2024). Therefore, “departures from the 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). A district court may depart from a presumptive sentence only if there

are “identifiable, substantial, and compelling circumstances to support a departure.” Minn.

6
Sent’g Guidelines 2.D.1 (2022). “Substantial and compelling circumstances are those

circumstances that make the facts of a particular case different from a typical case.” State

v. Peake, 366 N.W.2d 299, 301 (Minn. 1985). When granting a downward durational

departure, the district court must rely “on factors that reflect the seriousness of the offense,

not the characteristics of the offender.” Solberg, 882 N.W.2d at 623-24. The guidelines

provide a “nonexclusive list of factors” that a district court may use to depart. Minn. Sent’g

Guidelines 2.D.3 (2022). And “a single mitigating factor, standing alone, may justify a

downward durational departure.” Solberg, 882 N.W.2d at 624-25.

“[T]o be the basis for a downward departure, a factor must tend to excuse or mitigate

the offender’s culpability for the offense.” State v. Esparza, 367 N.W.2d 619, 621 (Minn.

App. 1985). Indeed, “[a] downward durational departure is justified only if the defendant’s

conduct was significantly less serious than that typically involved in the commission of the

offense.” Solberg, 882 N.W.2d at 624 (quotation omitted). In determining whether a

defendant’s conduct was significantly more or less serious than the typical offense, “it is

proper for the sentencing court to consider the course of conduct underlying the charge for

which the defendant is being sentenced.” State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984);

see also State v. Weaver, 796 N.W.2d 561, 573 (Minn. App. 2011), rev. denied (Minn.

July 19, 2011).

Here, the primary basis upon which the district court granted a downward durational

departure was its determination that Gutierrez’s crime was significantly less serious 2 than

2
We acknowledge that the district court used the phrase “less onerous” rather than “less
serious” when it granted the downward durational departure. Regardless of the specific

7
a typical second-degree unintentional felony murder. A determination that a defendant’s

conduct was significantly less serious than the typical offense is an adequate reason to

support a downward durational departure. See, e.g., State v. Bauer, 471 N.W.2d 363, 367-

68 (Minn. App. 1991) (affirming a “50 percent downward [durational] departure” for

“aiding a suicide” and “felony fetal homicide” convictions based on conclusion that district

court “was well within its discretion in finding Bauer’s conduct less serious than the typical

felony-murder (or feticide) offense”), rev. denied (Minn. July 24, 1991); see also Solberg,

882 N.W.2d at 627.

We conclude that the record justifies the district court’s decision that Gutierrez’s

offense was significantly less serious than a typical second-degree unintentional felony

murder. Before making its decision, the district court obtained a statewide data report and

word that it used on the record at the hearing, it is clear that the district court’s conclusion
was based on its evaluation of the seriousness of Guiterrez’s conduct as compared to the
typical offense. See State v. Scheldrup, No. A23-0442, 2023 WL 5191189, at *3 (Minn.
App. Aug. 14, 2023) (rejecting the state’s argument that the district court abused its
discretion in granting a downward durational departure in part because it “found that [the
defendant’s] crime was ‘less onerous’ . . . rather than finding it was ‘significantly less
serious’”); see also Minn. R. Civ. App. P. 136.01, subd. 1(c) (“[N]onprecedential opinions
may be cited as persuasive authority.”). Further, the “less onerous” language mirrors the
forms provided to the district court from the Minnesota Sentencing Guidelines
Commission in both the data report and the departure report. And we have frequently
affirmed decisions on motions for downward departures, despite the district court’s use of
the word “onerous” rather than “serious.” See, e.g., id.; State v. Ralford, No. A23-1366,
2024 WL 3248143, at *3-4 (Minn. App. July 1, 2024), rev. denied (Oct. 15, 2024); State
v. Juneau, No. A20-1129, 2022 WL 2298971, at *6-7 (Minn. App. June 27, 2022), rev.
denied (Minn. Sept. 20, 2022); State v. Daniliuk, No. A21-0123, 2021 WL 4059657, at *1
(Minn. App. Sept. 7, 2021); State v. Royster, No. A18-1957, 2019 WL 7049505, at *6
(Minn. App. Dec. 23, 2019); State v. Jentzen, No. A18-0129, 2018 WL 6168725, at *3
(Minn. App. Nov. 26, 2018); State v. Nieznanski, No. A14-2055, 2015 WL 2185319, at *3
(Minn. App. May 11, 2015).

8
reviewed every second-degree unintentional felony-murder case in Olmsted County in the

past 23 years to enable it to determine a “typical” second-degree unintentional felony

murder. Upon doing so, the district court determined Guiterrez’s conduct was significantly

less serious than other similarly charged Olmsted County cases. The district court

highlighted that Gutierrez did not instigate the altercation, did not initially introduce the

gun into the situation, did not involve himself until the fight became two-against-one, did

not plan to shoot victim, did not know the gun was loaded, called 911 after the shooting,

and cooperated with law enforcement. These findings were well supported by the evidence

introduced at both trial and sentencing.

The state disagrees that this was an appropriate basis for a downward durational

departure. According to the state, the district court’s decision was based solely on its

finding that Guiterrez did not plan the crime. The state contends that lack of planning is

already accounted for in the guidelines, which assign a lower severity level to second-

degree unintentional murder than to second-degree intentional murder, resulting in a lower

presumptive sentence. Minn. Sent’g Guidelines 4.A (2022); see also Minn. Stat. § 609.19,

subd. 1(1) (2022) (defining second-degree intentional murder as “causes the death of a

human being with intent to effect the death of that person or another, but without

premeditation”); Minn. Stat. § 609.19, subd. 2(1) (defining second-degree unintentional

felony murder as “causes the death of a human being, without intent to effect the death of

any person, while committing or attempting to commit a felony offense”).

The state is correct that the district court may not grant a downward durational

departure based on “facts [that] were already taken into account by the legislature in

9
determining the degree of seriousness of the offense.” Taylor v. State, 670 N.W.2d 584,

589 (Minn. 2003). But we disagree that the district court relied solely on the lack of

planning to determine that Gutierrez’s crime was significantly less serious. To the

contrary, the district court discussed several characteristics that distinguished Gutierrez’s

offense, including that Gutierrez did not instigate the altercation, did not initially introduce

the gun into the situation, did not involve himself until the fight became two-against-one,

did not plan to shoot victim, did not know the gun was loaded, called 911 after the shooting,

and cooperated with law enforcement. The record therefore reflects that the district court

did precisely what it was charged to do—“consider the course of conduct underlying the

charge” to evaluate whether it was significantly less serious than a typical offense. See

Cox, 343 N.W.2d at 643. Accordingly, we conclude that the district court did not grant the

downward durational departure based on its finding that Gutierrez did not plan to shoot

victim, but simply discussed it as one component of its evaluation of Guiterrez’s overall

course of conduct.

The state makes the related argument that the district court failed to adequately

explain how the cases it discussed were examples of a typical second-degree unintentional

murder or how Gutierrez’s conduct was significantly less serious than the conduct of the

defendants in those cases. The record belies the state’s argument. The district court

explained that it ascertained typical-offense conduct for second-degree unintentional

murder by “review[ing] all of the Olmsted County cases . . . since 2001 where a defendant

was sentenced to [s]econd [d]egree [u]nintentional [m]urder,” with a focus on “cases

involving a weapon.” The district court also explained that Gutierrez’s conduct was

10
significantly less serious for the reasons referenced above. And while the state emphasizes

factual distinctions between the cases the district court highlighted and Gutierrez’s case,

the district court made clear that its decision was based on all of the cases it reviewed—

not the few cases it mentioned by name.

Lastly, we are charged with using “our collective, collegial experience in reviewing

a large number of criminal appeals” to assess whether the district court’s determination

was justified. State v. Mattson, 376 N.W.2d 413, 415 (Minn. 1985) (quotation omitted);

see also Weaver, 796 N.W.2d at 573-74 (“In the final analysis, an appellate court’s decision

whether a particular durational departure is justified ‘must be based on [its] collective,

collegial experience in reviewing a large number of criminal appeals from all the judicial

districts.’” (quoting State v. Norton, 328 N.W.2d 142, 146-47 (Minn. 1982))). In doing so,

we engage in a similar analysis to that conducted by the district court here and make

comparisons to similar cases. See, e.g., Tucker v. State, 799 N.W.2d 583, 587 (Minn.

2011). Our review of recent second-degree unintentional felony-murder cases throughout

the state further supports the district court’s determination that Guiterrez’s crime was

significantly less serious than a typical offense. See State v. Edmondson, No. A23-0736,

2024 WL 910685, at *1-2 (Minn. App. Mar. 4, 2024) (the defendant fired a gun into a car

with five juvenile occupants, killing one victim, and received a presumptive sentence of

240 months in prison); State v. Reed, No. A22-0107, 2023 WL 3048000, at *1-4 (Minn.

App. Apr. 24, 2023) (the defendant shot the victim twice after a physical altercation where

seven other people were present “in a tight space” and received a presumptive sentence of

180 months in prison); Daniels v. State, No. A17-0623, 2018 WL 817286, at *2 (Minn.

11
App. Feb. 12, 2018) (the defendant fired a gun into a group of people causing the victim’s

death), rev. denied (Minn. Apr. 25, 2018).

For these reasons, we conclude the district court did not abuse its discretion when it

determined Gutierrez’s crime was significantly less serious than a typical second-degree

unintentional felony murder.

The state next argues that the district court abused its discretion when it granted the

departure on the basis that victim was an aggressor, arguing the district court’s finding that

victim was the initial aggressor is clearly erroneous. First, as noted above, “a single

mitigating factor, standing alone, may justify a downward durational departure.” Solberg,

882 N.W.2d at 624-25; see also State v. Malone, No. A17-1427, 2018 WL 1040763, at *4

(Minn. App. Feb. 26, 2018) (declining to “reach the state’s argument that the district court

improperly relied on [the defendant’s] remorse, responsibility, and amenability to

treatment” where the district court also determined the crime was significantly “less serious

than typical” as a basis for a downward durational departure). As such, even if the district

court erred in considering that the victim was an aggressor, the decision to grant a

downward durational departure is adequately supported by the conclusion that Gutierrez’s

conduct was significantly less serious that that typically involved in the commission of the

same offense.

Nevertheless, we do not discern that the district court clearly erred when it found

victim was an aggressor. The district court found that “[victim] himself started the entire

situation when instead of patiently waiting for 30 seconds for [brother] to park, [he] rolled

down his window, yelled profanities, and ordered [brother] to pull forward so they could

12
fight.” This finding is well supported by the trial and sentencing record. And, under the

Minnesota Sentencing Guidelines, the district court may consider whether “victim was an

aggressor,” even if not the sole aggressor. Minn. Sent’g Guidelines 2.D.3.a.1; see also

State v. Mayo, No. A15-0511, 2016 WL 952501, at *8 (Minn. App. Mar. 14, 2016), rev.

denied (Minn. May 31, 2016). Accordingly, the district court did not abuse its discretion

when it relied on the role victim played in the incident because its finding that victim was

an aggressor was not clearly erroneous. See, e.g., State v. Hennum, 441 N.W.2d 793, 801

(Minn. 1989) (reducing the defendant’s sentence where “the victim physically abused

defendant on the night of the incident”); State v. Larson, 473 N.W.2d 907, 908, 910 (Minn.

App. 1991) (affirming the district court’s decision to grant a dispositional departure on the

basis that the victim was the initial aggressor because earlier the same day “he hit and

threatened respondent”); State v. Hougen, No. C2-96-144, 1997 WL 3608, at *1-2 (Minn.

App. Jan. 7, 1997) (affirming the district court’s decision to impose a downward departure

for circumstances involving a fight where the defendant was not initially involved).

The state next argues the district court abused its discretion when it granted the

downward durational departure based upon Gutierrez’s remorse. 3 Again, as noted above,

“a single mitigating factor, standing alone, may justify a downward durational departure.”

Solberg, 882 N.W.2d at 624-25; see also Malone, 2018 WL 1040763, at *4. As such, even

if the district court did err in its analysis of Gutierrez’s remorse, for the reasons set forth

3
We note that the district court did not cite remorse as a basis for the departure in the
departure report.

13
above, the decision to grant a downward durational departure remains supported by the

record.

Nevertheless, we again conclude that the district court did not abuse its discretion

when it relied on its factual findings with respect to Gutierrez’s remorse. Remorse may

justify a downward durational departure if it “is directly related to the criminal conduct at

issue and made that conduct significantly less serious than the typical conduct underlying

the offense of conviction.” Solberg, 882 N.W.2d at 626. Here, the district court’s finding

on remorse related to Gutierrez’s conduct at the time of the offense. The district court

found that after shooting victim, Gutierrez “did not run from law enforcement,” was

“cooperative,” and “call[ed] 911.” These findings are well supported by the record, which

shows that Gutierrez “felt terrible” in the immediate aftermath of the shooting. He called

911 to report that someone had been shot and waited at the scene “to make sure [victim]

got . . . aid.” This immediate showing of remorse and acceptance of responsibility is

directly related to Gutierrez’s conduct in this case. Id. (allowing consideration of a

defendant’s remorse when it “bears on a determination of the . . . seriousness of the conduct

on which the conviction was based”); see also Daniliuk, 2021 WL 4059657, at *4

(affirming a downward durational departure based, in part, on remorse where, “[a]fter

causing the accident, Daniliuk got out of the car and expressed remorse through an apology

to one of the victims at the scene of the accident”); State v. Steurer, No. A17-1737, 2018

WL 5316198, at *6 (Minn. App. Oct. 29, 2018) (affirming an upward durational departure

based on lack of remorse where the defendant “did not help [the victim] by trying to stop

14
the bleeding or calling 911”), rev. denied (Minn. Jan. 15, 2019). Therefore, the district

court did not abuse its discretion.

Finally, the state contends that the district court abused its discretion in the length

of the departure ordered. But the Minnesota Sentencing Guidelines recognize that “[a]

departure is . . . an exercise of judicial discretion.” Minn. Sent’g Guidelines 2.D.1. And

we are not aware of any case wherein we have determined that the district court had an

adequate basis for a downward durational departure but reversed for the imposition of a

longer prison term. We also note that the district court’s imposition of a 60-month prison

term appears to reflect its consideration of Gutierrez’s request for a 48-month prison term.

We therefore conclude that, in this case, the downward durational departure granted was

not an abuse of the district court’s broad discretion. See, e.g., State v. Martinson, 671

N.W.2d 887, 891-93 (Minn. App. 2003) (rejecting the state’s argument that the district

court abused its discretion by departing from a presumptive 150-month prison term to a

75-month prison term for second-degree murder after concluding the crime was

significantly less serious because “Martinson had a mental illness before, during, and after

the incident”), rev. denied (Minn. Jan. 20, 2004); State v. Weaver, No. A17-1993, 2018

WL 6442166, at *2, *6 (Minn. App. Dec. 10, 2018) (rejecting the state’s argument that the

district court abused its discretion by departing from a presumptive range of 100-to-140

months to 48 months in part because “the sentencing guidelines recognize that a departure

is an exercise of judicial discretion” (quotation omitted)).

In conclusion, we are “extremely deferential” to a district court’s decision whether

to impose a departure, Dillon v. State, 781 N.W.2d 588, 595-96 (Minn. App. 2010), rev.

15
denied (Minn. July 20, 2010), “and we cannot simply substitute our judgment for that of

the [district] court,” Spain, 590 N.W.2d at 88. “[A]s long as the record shows the [district]

court carefully evaluated all the testimony and information presented before making a

determination,” we do not interfere with the district court’s decision. State v. Pegel, 795

N.W.2d 251, 255 (Minn. App. 2011) (quotation omitted). Here, the district court provided

legally supported reasons for the departure, carefully examined all the information

presented, and conducted an independent inquiry into typical second-degree unintentional

felony-murder offenses before reaching its decision. Under these circumstances,

regardless of whether we would have reached the same decision, we cannot conclude the

district court abused its broad discretion.

Affirmed.

16
LARKIN, Judge (dissenting)

I respectfully dissent. Because the district court’s departure reasons are improper

or inadequate, because my review of the record does not reveal alternative grounds to

support the departure, and because in my judgment, the sanction imposed is not

proportional to the severity of the offense as mitigated by the circumstances, I would

reverse and remand for imposition of a presumptive sentence.

Minnesota’s Guidelines Sentencing System

The Minnesota Sentencing Guidelines establish presumptive sentences for felony

offenses and seek to “maintain uniformity, proportionality, rationality, and predictability

in sentencing.” Minn. Stat. § 244.09, subd. 5 (2022). “Underlying the Guidelines is the

notion that the purposes of the law will not be served if judges fail to follow the Guidelines

in the ‘general’ case.” State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981) (overruled on

other grounds by State v. Givens, 544 N.W.2d 774 (Minn. 1996). “Consequently,

departures from the 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).

“[D]epartures are justified only in exceptional cases.” Id. at 625. A district court

may depart from the presumptive sentence only if there are “identifiable, substantial, and

compelling circumstances to support a departure.” Minn. Sent’g Guidelines 2.D.1 (Supp.

2023). The sentencing guidelines contain a list of recognized departure reasons that “are

intended to apply to a small number of cases.” State v. Misquadace, 644 N.W.2d 65, 68

(Minn. 2002).

D-1
 A district court has broad discretion to depart from a presumptive sentence so long

as substantial and compelling circumstances are present, and we generally will not interfere

with an exercise of that discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

However, “[t]he use of an abuse-of-discretion standard in our review of sentencing

decisions, while deferential, is not a limitless grant of power to the [district] court.” State

v. Soto, 855 N.W.2d 303, 312 (Minn. 2014) (quotation omitted).

If a departure is granted, the district court must provide written reasons, which

specify “the particular substantial and compelling circumstances that make the departure

more appropriate than the presumptive sentence.” Minn. Sent’g Guidelines 2.D.1.c (Supp.

2023). “When the district court gives improper or inadequate reasons for a downward

departure, we may scrutinize the record to determine whether alternative grounds support

the departure.” Solberg, 882 N.W.2d at 623. “Reversal is required when the reasons given

are improper or inadequate and the record contains insufficient evidence to justify the

departure.” State v. Rund, 896 N.W.2d 527, 533 (Minn. 2017).

The Presumptive Sentence Range and Departure Grounds

The presumptive sentence for Gutierrez’s conviction of second-degree felony

murder is 150 months in prison, with a permissible sentence range of 128 to 180 months in

prison. Minn. Sent’g. Guidelines 4.A (Supp. 2023). As support for its durational departure

and imposition of a sentence of only 60 months, the district court endorsed two reasons on

its departure report: (1) “[v]ictim was aggressor in incident” and (2) “[c]rime less onerous

than usual.” In addition, the district court made several statements on the record identifying

the circumstances that influenced its decision to depart. For example, the district court

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noted that the offense involved “a bunch of stupid boys that don’t have fully developed

brains” and “a bunch of undeveloped brains, hormones, just engaging in the most stupid

situation.” At the initial sentencing hearing, the district court judge told Gutierrez, “I don’t

want to send you to prison because, you know, that’s not going to bring anybody back”

and “I do see remorse.” At the continued sentencing hearing, the district court judge told

Guiterrez, “in my heart I don’t want to send you to prison.”

In granting the durational departure, the district court stated the following reasons

on the record: “offender playing a minor or passive role; victim being the aggressor in the

incident; or a crime less onerous than usual.” The district court noted that it had reviewed

all of the local cases in which a defendant had been sentenced to second-degree

unintentional murder and that “in all of the cases, the defendant was the one who brought

the weapon specifically to confront the victim.” The district court said that this case was

less “onerous” than those cases.

The district court explained that Gutierrez “in no way planned to shoot” the victim,

that his brother “introduced the gun to the situation,” and that the victim “himself started

the entire situation.” The district court also explained that the victim’s passenger “decided

to join the fray” as the victim and Gutierrez’s brother fought, “rather than just letting this

be a one-on-one fight,” which caused Gutierrez “to make that horrible decision to run to

his brother’s defense with the loaded gun.” The district court further explained that

Gutierrez did not run from law enforcement, was cooperative, and even called or attempted

to call 911 from the scene. Finally, the district court explained that even though the case

had gone to trial, Gutierrez accepted responsibility for the role he played in the victim’s

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death and had shown remorse. The court concluded, “[s]o with all of that I do believe a

durational departure from the guidelines is warranted.”

The state argues that the reasons cited by the district court do not justify a downward

durational departure. For the reasons that follow, I agree.

Significantly Less Serious

Over 40 years ago, the supreme court stated: “The general issue that faces a

sentencing court in deciding whether to depart durationally is whether the defendant’s

conduct was significantly more or less serious than that typically involved in the

commission of the crime in question.” State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984).

Just as an upward durational departure is justified if the
defendant’s conduct is significantly more serious than that
typically associated with the commission of the offense, a
downward durational departure is justified if the defendant’s
conduct 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). The supreme court has not

abandoned the “seriousness of the offense” as the primary consideration when reviewing a

durational departure. See Solberg, 882 N.W.2d at 624 (“A downward durational departure

is justified only if the defendant’s conduct was significantly less serious than that typically

involved in the commission of the offense.” (emphasis added) (quotation omitted)).

Here, the district court did not address whether the offense was “significantly less

serious.” Id. (quotation omitted). Instead, the district court addressed whether the offense

was less “onerous.” In the district court’s defense, the standard departure report form

provided by the Minnesota Sentencing Guidelines Commission lists “[c]rime less onerous

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than usual” as a reason frequently used as a mitigating factor. Departure Report Form,

Minn. Sent’g Guidelines Comm’n (2022). [https://perma.cc/6ALT-JZSC]. And as the

majority notes, nonprecedential decisions of this court have not questioned the distinction

between “onerous” and “serious” when reviewing departures.

To the extent that the district court—and our nonprecedential caselaw—equates

“onerous” with “serious,” the district court’s description of the offense indicates that

Gutierrez’s conduct was more serious than a typical second-degree felony murder. For

example, at the initial sentencing hearing, the district court noted that the offense

“happened at 2:30 in the afternoon on a Saturday” and that “many people from our

community . . . were traumatized by what they saw that day.” The court recognized that

“a young man lost his life” and that he was “a father, a son, a brother.” At the continued

sentencing hearing, the district court again noted that “this was something that has affected

the community. It was in broad daylight, an afternoon on a nice Saturday with lots of

people around.” Moreover, as the state argued, Gutierrez killed the victim in front of his

sister and his mother.

“An offense may be more serious than a typical crime when a large number of

people are placed at risk or more people are put in fear than in the typical case.” State v.

Fleming, 869 N.W.2d 319, 326 (Minn. App. 2015), aff’d, 883 N.W.2d 790 (Minn. 2016).

The supreme court has “repeatedly held that the risk to bystanders is an appropriate factor

for courts to consider when determining the seriousness of a crime.” State v. Edwards, 774

N.W.2d 596, 607 (Minn. 2009). Given the location, the time of day, and the presence of

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the victim’s relatives and bystanders, Gutierrez’s offense was more serious, and not

significantly less serious.

Minor or Passive Role

The district court noted that the nonexclusive list of permissible departure factors in

the sentencing guidelines includes that the offender played a minor or passive role. Minn.

Sent’g Guidelines 2.D.3.a.(2) (Supp. 2023). The district court stated that “[i]t was

[Gutierrez’s] brother who had the permit to carry and introduced the gun to the situation,”

that “there were actions of others that played roles in this tragedy,” and that the victim

“himself started the entire situation when instead of patiently waiting for 30 seconds for

[Gutierrez’s brother] to park, rolled down his window, yelled profanities, and ordered [him]

to pull forward so they could fight.” The court continued this line of reasoning noting that

Gutierrez’s brother “did just that, rather than just leaving the parking lot” and that the

victim’s passenger, “rather than just letting this be a one-on-one fight, decided to join the

fray, causing [Gutierrez] to make that horrible decision to run to his brother’s defense with

the loaded gun.”

My assessment of whether the district court erred in relying on the minor-or-passive

role factor is influenced by supreme court caselaw. In State v. Carson, 320 N.W.2d 432,

438 (Minn. 1982), the supreme court upheld a downward durational departure based on the

offender’s minor or passive role. In that case, the defendant was one of two women who

robbed a drug store. Carson, 320 N.W.2d at 434. One woman carried a gun and struck a

pharmacist on the head, while the other woman, Carson, “was more passive.” Id. The

supreme court affirmed the district court’s downward durational departure for Carson. Id.

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at 438. And in State v. Stempfley, the supreme court noted that its analysis in Carson, as

well as “the common-sense meaning of minor and passive, show that whether a defendant’s

role in an offense was minor or passive depends on a comparison of the defendant’s

conduct to the conduct of other participants in the crime.” 900 N.W.2d 412, 418 (Minn.

2017) (quotations omitted).

The minor-or-passive-role factor does not favor Gutierrez. Although Gutierrez’s

brother introduced a gun into his verbal dispute with the victim, he returned the gun to his

vehicle and elected to fight the victim unarmed. And there is no indication that the victim

or his passenger were armed. Gutierrez was the one who elected to join the fight armed

with a firearm and to use that firearm as a striking weapon. And Gutierrez’s use of that

firearm was the sole cause of the victim’s death. His role was not minor or passive.

In addition, the district court reasoned that Gutierrez “did a ridiculously stupid thing.

[He] handled a loaded firearm without having the experience or knowledge, and that act

caused the death of another human being.” The district court minimized Gutierrez’s

actions. He did not merely “handle” the firearm. He took possession of the firearm

intending to use it as a striking weapon against the victim and his passenger. The district

court noted that in the local cases it had reviewed and distinguished as more serious, “the

defendant was the one who brought the weapon specifically to confront the victim.” That

is precisely what Gutierrez did. He may not have brought the gun to the crime scene, but

he removed gun from the vehicle “specifically to confront” the victim and his passenger.

The record simply does not support a finding that Gutierrez played a minor or

passive role in the crime.

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 Victim as Aggressor

The guidelines’ list of permissive mitigating factors includes that “[t]he victim was

an aggressor in the incident.” Minn. Sent’g Guidelines 2.D.3(a)(1) (Supp. 2023). The

district court relied on that factor, noting that the victim “himself started the entire

situation.” The district court is correct: the victim began the “situation” by honking his

horn, swearing at Gutierrez’s brother, and challenging him to a fight. But Gutierrez’s

brother is the one who escalated the confrontation. The trial evidence shows that

Gutierrez’s brother brandished a firearm and “cocked” it. After the victim’s mother

pleaded with him to put the gun away, Gutierrez’s brother returned to his truck and placed

the gun inside the vehicle. But Gutierrez’s brother yelled that he “still want[ed] a piece of

[the victim],” approached the victim, and punched the victim. A physical fight ensued, and

the victim’s passenger joined to assist the victim. Gutierrez’s brother fought the victim

and passenger for several seconds. No weapons were involved and all participants in the

fight remained standing. In sum, although the victim was not entirely blameless,

Gutierrez’s brother was the one who approached the victim with a gun and then threw the

first punch.

Caselaw addressing the “victim aggression” factor is sparse. In State v. Larson, this

court concluded that “victim aggression” was a substantial mitigating factor that justified

a mitigated dispositional departure. 473 N.W.2d 907, 910 (Minn. App. 1991). In that case,

the victim picked a fight with the defendant “by spitting on him and punching him in the

face.” Id. at 908. The defendant “did not escalate the fight; he shook [the victim’s] hand

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and said everything was ‘cool.’” Id. “As they parted company, [the victim] threatened to

kill [the defendant] and his friends if he got his hands on them.” Id.

The victim’s actions in this case—honking his horn, swearing, and challenging

another driver to a fight while both men were seated in separate vehicles—do not compare

to the aggression in Larson. And I am not aware of any precedent suggesting that a verbal

exchange of threats alone is sufficient to justify application of the victim-aggression

mitigating-departure factor. I therefore cannot agree that the victim’s conduct in this case

constituted substantial and compelling aggression that made Guiterrez’s offense

significantly less serious.

Offender-Related Reasons

There is a long-standing rule that “[d]urational departures may be justified by

offense-related reasons only.” Rund, 896 N.W.2d at 533. In Rund, the supreme court

explained:

Offender-related reasons—such as particular
amenability to probation or treatment, remorse that does not
reduce the seriousness of the offense, or age—are not legally
permissible reasons for a downward durational departure.
Here, the district court relied on both offender- and offense-
related reasons. The offender-related reasons were Rund’s
age, his remorse and acceptance of responsibility, his lack of
substantial capacity for judgment, and his particular
amenability to probation and treatment. Because these are not
legally permissible reasons for a downward durational
departure, the district court’s reliance on these reasons was an
abuse of discretion.

Id. (emphasis added) (footnote omitted) (citations omitted).

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 Rund was convicted of terroristic threats “in connection with a series of threatening

tweets directed at law enforcement officers.” Id. at 529. In granting the downward

durational departure—which the supreme court reversed—the district court said: “The

only reason this is less onerous is because of your age and of your mental state.” Id. at 531

(emphasis omitted). The district court in Rund explained:

Basically, young and dumb. Pretty good kid who did a bad
thing, and you affected a lot of people, but you got a lot of
promise in your life, too. Okay. That’s what I see when I shake
it all up. That’s really why the Court is doing what I am doing.

Id. at 532. Like the district court in Rund, the district court here relied on appellant’s young

age and lack of intelligence, noting that Gutierrez was a “stupid boy[]” with an

“undeveloped brain[],” who engaged in “the most stupid situation.” Under Rund, the

downward durational departure cannot be supported by offender-related factors such as

Gutierrez’s age or poor judgment.

The district court also noted that Gutierrez had “no criminal history” and “had been

a responsible hard-working member of our community.” But a “[d]efendant’s clean record

could not be a factor in justifying departure because that factor, in the form of defendant’s

criminal history score of zero, was already taken into account by the Guidelines in

establishing the presumptive sentence.” State v. Cizl, 304 N.W.2d 632, 634 (Minn. 1981).

In addition, the guidelines provide that employment factors “should not be used as reasons

for departure.” Minn. Sent’g Guidelines 2.D.2.c (Supp. 2023). In short, the district court

inappropriately relied on offender-related factors as reasons for its downward durational

departure. See State v. Peter, 825 N.W.2d 126, 131 (Minn. App. 2012) (“For the reasons

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just discussed, those additional characteristics of [defendant’s] relative youth, his family

support, his lack of a prior felony record, and his ability to obtain meaningful employment

and education are not bases on which the district court could rest its downward durational

departure.”), rev. denied (Minn. Feb. 27, 2013).

Lack of Intent

The district court mentioned several times that Gutierrez did not intend for the

underlying crime to occur. At the initial sentencing hearing, the district court stated: “I

have no doubt, Mr. Gutierrez, that you did not intend what happened to happen.” And at

the continued sentencing hearing, the district court said, “Gutierrez in no way planned to

shoot” the victim on the day of the offense, “[h]e was just going to Chick-fil-A for lunch.”

I understand the district court’s statements to mean that Gutierrez did not intend to commit

any crime that day, and not that Gutierrez did not intend to kill the victim (i.e., an element

of the offense). See State v. Jones, 745 N.W.2d 845, 849 (Minn. 2008) (“Among the

boundaries identified for proper departure is that the reasons used for departing must not

themselves be elements of the underlying crime.” (quotation omitted)).

The fact that an offender did not initially intend to commit a particular crime is not

a valid reason for a downward durational departure. See State v. Dentz, 919 N.W.2d 97,

102 (Minn. App. 2018). In Dentz, we reversed the district court’s grant of a downward

durational sentencing departure for a conviction of soliciting a minor to engage in

prostitution. Id. at 99. In granting the departure, the district court relied on Dentz’s mental

state and commented on his initial intent to solicit an adult rather than a minor to engage

in prostitution. Id. at 101. The district court stated: “[B]asically [Dentz] solicited for what

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[he] thought was going to be consensual sex with an adult woman . . . and the person on

the other end then interjected . . . by the way, I’m 15 . . . . That’s not the same thing for

me as [Dentz] actively soliciting an underage female.” Id. at 100. We rejected that

reasoning stating, “the crime is not what he intended to do, it is what he actually did.” Id.

at 102.

Here, the crime is what Gutierrez actually did. See id. The fact that he did not

intend to commit any crime when he went to Chick-fil-A for lunch does not change the fact

that he unintentionally murdered the victim, nor does it make that crime significantly less

serious.

Remorse

The district court noted that Gutierrez “accepted responsibility for the role [he]

played, and [he] expressed and show[ed] remorse.” But “[u]nless a defendant can show

that his demonstrated remorse is directly related to the criminal conduct at issue and made

that conduct significantly less serious than the typical conduct underlying the offense of

conviction, remorse cannot justify a downward durational departure.” Solberg, 882

N.W.2d at 626.

During his trial testimony, Gutierrez admitted that he hit the victim with the firearm,

that he unintentionally fired it, and that he shot and killed the victim. He testified that he

“felt terrible” that the victim was shot. We have no reason to doubt that Gutierrez felt

remorse. Indeed, Gutierrez demonstrated remorse by calling or attempting to call 911 to

obtain assistance for the victim and by remaining on the scene to cooperate with the ensuing

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investigation. But the question is whether that remorse made the crime significantly less

serious. The supreme court has stated:

[S]howing the relevance of remorse to a durational departure
will not be an easy task: a durational departure may be granted
only if a defendant’s remorse—or lack of remorse—bears on a
determination of the cruelty or seriousness of the conduct on
which the conviction was based. In other words, unless a
defendant can show that his demonstrated remorse is directly
related to the criminal conduct at issue and made that conduct
significantly less serious than the typical conduct underlying
the offense of conviction, remorse cannot justify a downward
durational departure.

Id. (citation omitted). The Solberg court concluded:

Even crediting Solberg’s expressions of regret as
genuine . . . . Solberg did not engage in any remorse-driven
conduct that lessened the impact of the crime on the victim or
made his crime any less serious than other third-degree
criminal sexual assaults accomplished by coercion.

Id. (emphasis added); see Rund, 896 N.W.2d at 535 (reversing grant of downward

durational departure in part because the record did not reflect any remorse that “lessen[ed]

the impact of the crime on the victims or ma[d]e his terroristic threats any less serious than

the typical terroristic-threats offense”).

Despite Gutierrez’s expression of remorse and his actions consistent with that

remorse, the district court did not find, and my review of the record does not show, that his

remorse-driven conduct “lessened the impact of the crime on the victim” or made the crime

“less serious.” Solberg, 882 N.W.2d at 626.

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 Collective, Collegial Experience

In the final analysis, I have considered whether Guiterrez’s offense is significantly

less serious than that typically involved in the commission of second-degree felony murder

by relying on my “collective, collegial experience in reviewing a large number of criminal

appeals.” See Mattson, 376 N.W.2d at 415 (“On the basis of our collective, collegial

experience in reviewing a large number of criminal appeals, we are satisfied that the

defendant’s conduct, although serious, was significantly less serious than that typically

involved in the commission of the offense of criminal sexual conduct in the second degree.”

(quotation and citation omitted)).

I am aware of only one appellate case in which the district court’s grant of a

downward durational departure in a second-degree felony murder case was challenged and

affirmed: State v. Martinson, 671 N.W.2d 887 (Minn. App. 2003), rev. denied (Minn. Jan.

20, 2004). In that case, the district court found Martinson guilty of second-degree felony

murder and sentenced him to a downward durational departure of 75 months in prison

instead of the presumptive sentence of 150 months. Martinson, 671 N.W.2d at 889, 891.

On appeal to this court, we noted that the guidelines provide that if “the offender, because

of physical or mental impairment, lacked substantial capacity for judgment when the

offense was committed,” that impairment may be a mitigating factor supporting a

downward departure. Id. at 891 (quotation omitted); see Minn. Sent’g Guidelines

2.D.3.a.(3) (Supp. 2023). We affirmed the downward durational departure in Martinson

because it was undisputed that the defendant suffered from “the psychosis of paranoid

schizophrenia” before, during, and after his commission of second-degree felony murder,

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which was a substantial and compelling factor that justified a downward durational

departure. Martinson, 671 N.W.2d at 892.

Here, there is no claim that Gutierrez suffered from a comparable mental illness.

And based on my collective, collegial experience in reviewing a large number of criminal

appeals, I am not satisfied that Gutierrez’s conduct was significantly less serious than that

typically involved in the commission of the offense of second-degree felony murder.

Length of the Departure

The state argues that “[e]ven if a stated reason to depart is affirmed, the appellate

court must also decide if the length of the departure was within the district court’s

discretion.” The state notes that “there is a complete absence of analysis on why [the stated

departure grounds] justified a sentence that was approximately 100-200 months shorter”

than the local cases on which the district court relied for comparative purposes. Finally,

the state argues that the 60-month prison sentence “disregards the significant harm” that

Gutierrez caused.

The guidelines state that “[a] departure is not controlled by the Guidelines, but

rather, is an exercise of judicial discretion constrained by statute or case law.” Minn. Sent’g

Guidelines 2.D.1 (Supp. 2023). As to the permissive length of a departure, the supreme

court has stated that when a departure is justified, “the extent of the departure should be

limited to that justified by the reason for departure.” State v. Schantzen, 308 N.W.2d 484,

487 (Minn. 1981). The supreme court explained:

We are unable at this time to establish or articulate a standard
by which to measure the sanction that should be imposed in
those situations in which a departure from the guidelines’

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 presumptive sentence is proper. We must leave the problem to
the [district] court and modify any sanction imposed only when
we, after consideration of the total record, have a strong feeling
that the sanction imposed exceeds or is less than that
proportional to the severity of the offense of conviction and the
extent of the offender’s criminal history as aggravated or
mitigated by the circumstances of the offense and that the trial
judge exceeded his discretion in assessing the sanction.

Id. (footnote omitted) (quotation omitted).

Here, in addition to concluding that the departure grounds on which the district court

relied were either impermissible, inadequate, or insufficiently supported by the record, I

have a “strong feeling” that the sanction imposed is not proportional to the severity of the

offense as mitigated by the circumstances and that, therefore, the district court exceeded

its discretion by reducing Gutierrez’s sentence to only 60 months. Id. In reaching that

conclusion, I consider only sentences for second-degree felony murder, 4 and I am

influenced by our decision in Martinson. Again, in that case we affirmed a durational

departure from 150 months to 75 months for a second-degree felony murder conviction

because it was undisputed that the defendant suffered from “the psychosis of paranoid

schizophrenia” before, during, and after his commission of the offense. Martinson, 671

N.W.2d at 891-92. Assuming for the sake of argument that a downward durational

4
Although we affirmed a departure from a presumptive range of 100-140 months to 48
months in State v. Weaver, that sentence was for promoting prostitution, and not for
murder. No. A17-1993, 2018 WL 6442166, at *1-3, 6 (Minn. App. Dec. 10, 2018). In
addition, the Weaver majority reasoned that if the defendant “had had zero, rather than
four, criminal-history points, the presumptive guidelines sentence for his offense would
have been 48 months, the sentence that he received” and that the sentence therefore fell
“within the range generally contemplated for such an offense.” Id. at *6. Those are not
the circumstances here.

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departure was warranted in this case, I fail to discern why Guiterrez was entitled to a greater

departure than the actively-psychotic defendant in Martinson.

In sum, the district court abused its discretion both in deciding to depart and in

selecting the length of the departure.

Conclusion

“In sentencing, district courts have a great deal of discretion. Rarely do we hold

that it has been abused. But rarely is not never.” Soto, 855 N.W.2d at 305. In the final

analysis, “an abuse-of-discretion standard in our review of sentencing decisions, while

deferential, is not a limitless grant of power to the [district] court.” See id. at 312 (quotation

omitted). We should not hesitate to closely examine whether the district court’s departure

reasons meet the substantial and compelling standard necessary to justify a departure

because “[t]he sentencing guidelines lose all meaning” if the district courts do not adhere

to that standard when granting a departure. State v. Leja, 684 N.W.2d 442, 450 (Minn.

2004).

I conclude that the district court failed to adhere to the substantial and compelling

standard and that this is a rare case in which the district court abused its sentencing

discretion. Because the district court’s departure reasons are either legally impermissible,

inadequate, or insufficiently supported by the record, and because our deference to the

district court’s sentencing discretion is not unlimited, I would reverse and remand for

imposition of a presumptive sentence.

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