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State v. Kangbateh

Court of Appeals of Minnesota

November 18, 2013

State of Minnesota, Respondent,
v.
Kabba Kangbateh, Appellant.

UNPUBLISHED OPINION

Ramsey County District Court File No. 62CR105352

Lori Swanson, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Interim Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schellhas, Presiding Judge; Stauber, Judge; and Crippen, Judge. [*]

STAUBER, Judge

On appeal from his sentence for second-degree attempted murder, following the reversal of his conviction of second-degree attempted murder for the benefit of a gang and a remand with instructions to sentence appellant for second-degree attempted murder, appellant argues that the district court abused its discretion when on remand it sentenced appellant to 165 months in prison, the same sentence that was imposed for his conviction that was reversed, despite the current conviction being for a lesser offense. We affirm.

FACTS

Appellant Kabba Kangbateh was charged with attempted second-degree murder for the benefit of a gang, attempted second-degree murder, second-degree assault for the benefit of a gang, and second-degree assault. Following a jury trial, appellant was found guilty of all four offenses. The district court then sentenced appellant to the presumptive middle-of-the-box 165-month prison term for his conviction of attempted second-degree murder for the benefit of a gang.

On appeal, this court found insufficient evidence to support appellant's convictions of attempted second-degree murder for the benefit of a gang, and second-degree assault for the benefit of a gang. State v. Kangbateh, No. A11-2147, 2012 WL 5990229, at *5 (Minn.App. Dec. 3, 2012). The court, however, upheld appellant's convictions of attempted second-degree murder and second-degree assault. Id. The court then remanded with instructions to resentence appellant for the "most serious remaining conviction, attempted second-degree murder." Id. at 6.

On remand, the state requested a top-of-the-box sentence because of the "brutality of the crime, " and appellant requested a sentence at the "low end of the guidelines." The district court then re-imposed the 165-month sentence, which was 12 months above the 153-month middle-of-the-box guidelines sentence, but below the top-of-the-box guidelines sentence. This appeal followed.

DECISION

Appellant challenges the district court's imposition of a 165-month sentence for his conviction of attempted second-degree murder. The district court enjoys broad discretion in sentencing matters. State v. Ford, 539 N.W.2d 214, 229 (Minn. 1995). Appellate courts "will not generally review a district court's exercise of its discretion to sentence a defendant when the sentence imposed is within the presumptive guidelines range, " and "[p]resumptive sentences are seldom overturned." State v. Delk, 781 N.W.2d 426, 428 (Minn.App. 2010) (quotation omitted), review denied (Minn. July 20, 2010). Only in the "rare" case will this court reverse a district court's imposition of a presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

Appellant was convicted of attempted second-degree murder and has a criminal history score of zero. Under the sentencing guidelines, the presumptive sentence for appellant's offense with his criminal-history score falls within a range of 130.5-183.5 months, and has a presumptive mid-box term of 153 months. Minn. Sent. Guidelines II.G.; IV (sentencing guidelines grid) (2010). Any sentence within this range constitutes a presumptive sentence. See Minn. Sent. Guidelines II, IV (2010) (noting that the presumptive sentence is determined by locating the appropriate cell of the sentencing guidelines grid containing the ranges of months, "within which a judge may sentence without the sentence being deemed a departure"); State v. Jackson, 749 N.W.2d 353, 359 n.2 (Minn. 2008) ("All three numbers in any given cell constitute an acceptable sentence . . . ."). And, a sentence ...


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