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State v. Lopez

Court of Appeals of Minnesota

December 23, 2013

State of Minnesota, Respondent,
v.
Jose Amador Lopez, Appellant.

UNPUBLISHED OPINION

Dakota County District Court File No. 19HACR122130.

Lori Swanson, Attorney General, St. Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Kevin J. Golden, Assistant County Attorney, Hastings, Minnesota (for respondent).

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

Considered and decided by Stauber, Presiding Judge; Worke, Judge; and Bjorkman, Judge.

STAUBER, Judge.

Appellant argues that the district court erred by denying his motion for a downward dispositional departure and sentencing him to 74 months in prison after appellant pleaded guilty to first-degree controlled substance crime for the sale of cocaine. Appellant argues that he demonstrated that he was amenable to probation and that most similarly situated offenders received a probationary sentence. We affirm.

FACTS

In October 2011, a confidential informant (CI) working for agents of the Federal Bureau of Investigation's Safe Streets Violent Gangs Task Force arranged to meet appellant Jose Amador Lopez to purchase cocaine. On November 3, 2011, the CI purchased an ounce of cocaine from appellant for $1, 200 using government money. Appellant sold an additional ounce of cocaine to the CI in December 2011.

In June 2012, appellant was charged with one count of first-degree controlled substance crime under Minn. Stat. § 152.021, subd. 1(1) (2010), for the November sale. The December sale was charged separately, and appellant was subsequently acquitted of that charge.

On September 10, 2012, appellant pleaded guilty to first-degree controlled substance crime for the November 2011 sale. The prosecution did not agree to a sentencing deal in exchange for appellant's plea.

A presentence investigation (PSI) report was prepared by a probation officer. The report stated that appellant, age 45, was born in Mexico and came to Minnesota illegally in 1999. Appellant has two children from a prior marriage in Mexico, two children from a prior relationship in Mexico, and one child born in Minnesota who is now ten years old. Appellant is apparently no longer involved with the mother of his American-born son; records indicate that the mother filed an order for protection against appellant in 2006. Appellant had been regularly employed as an auto mechanic. A rule 25 evaluation recommended that appellant receive treatment in jail for alcohol abuse, and appellant was "doing very well in the program."

The PSI recommended that the district court sentence appellant to the presumptive sentence of 86 months in prison. The report identified "several risk factors" indicating that appellant was at "risk to re-offend in a similar manner." "He is surrounded by anti-social companions . . . [h]is behavior demonstrates anti-social attitudes, as he is dealing illegal drugs in the community . . . [and he has] no pro-social leisure activities." Appellant "failed to express any concern about his alcohol use, and even denied any use, despite being in the jail treatment program." Appellant also "significantly downplayed his involvement with illegal drugs . . . [and] [h]is account of the offense is inconsistent with that contained in the official complaint." The probation officer did not find "substantial []or compelling reasons to depart from the presumptive sentence." The officer also concluded that "an executed prison term is the most appropriate means of holding [appellant] accountable."

At sentencing, the state called Officer Sayareth Vixayvong of the St. Paul Police Department as a witness. Officer Vixayvong testified that he observed appellant's behavior during the controlled buys in November and December and that appellant appeared to "act normal" and "wasn't nervous" while he was conducting the drug sales. He also testified that the price appellant named was the "going street rate" for an ounce of cocaine. On cross-examination, Officer Vixayvong admitted that the CI was convicted in federal court for selling three ounces of cocaine and that he did not give the CI any guidance as to what he could or could not offer appellant in exchange for participating in the drug deal. He added that the police did not supervise the negotiations between appellant and the CI leading up to the drug deals. He also testified that until the CI identified appellant, appellant was ...


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