This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2016).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-1050

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Everett Williams, Jr.,
                                     Appellant.

                               Filed January 30, 2017
                                      Affirmed
                                  Connolly, Judge

                           Hennepin County District Court
                             File No. 27-CR-15-33627


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Daniel C. Guerrero, Meshbesher & Spence, Ltd., Minneapolis, Minnesota (for appellant)



       Considered and decided by Bjorkman, Presiding Judge; Connolly, Judge; and

Reilly, Judge.
                         UNPUBLISHED OPINION

CONNOLLY, Judge

       In this sentencing appeal, appellant argues that the district court abused its discretion

in denying his motion for a downward departure and imposing the 60-month mandatory

minimum sentence on him for the crime of felon in possession of a firearm. Because 

, subd. 8(b) (2016), does not give a district court discretion to depart from

the mandatory sentence, we affirm.

                                           FACTS

       On November 28, 2015, appellant Everett Williams Jr. was arrested after shooting

and killing his neighbor, R.M., with a handgun. On that day, appellant was not allowed to

possess, either actually or constructively, a firearm because of a prior conviction of assault

with a dangerous weapon. Appellant was charged with one count of second-degree murder.

Appellant gave notice of his intent to assert at trial self-defense, defense of dwelling, and

defense of others. The complaint was amended to add one count of possession of

ammunition or a firearm after being convicted for a crime of violence. The state dismissed

the second-degree-murder charge concluding that it was more likely than not that the

shooting was done in self-defense. Because the state could not prove that charge beyond

a reasonable doubt, it determined that it would be inappropriate to go forward on that

charge. But, because appellant was not eligible to possess the firearm he used when he

shot the victim, the case proceeded on the felon-in-possession of a firearm charge.

       After brief arguments regarding necessity as a defense, appellant decided to enter a

straight plea of guilty. He was aware that the state believed the mandatory sentence for


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him, was a minimum of 60 months in prison. The district court found that appellant

voluntarily and intelligently waived his trial rights and admitted facts sufficient to be found

guilty.

          At the sentencing hearing appellant moved for a downward sentencing departure

and argued that the district court was not precluded from granting this motion under the

plain language of 

, subd. 8(b). The district court concluded that it did

not have discretion to depart from the mandatory sentence and sentenced appellant to 60

months in prison.

                                       DECISION

          “The interpretation of sentencing statutes is a question of law, which this court

reviews de novo.” Miller v. State, 

 (Minn. App. 2006). 

, subd. 8 states:

                          Motion by prosecutor. (a) Except as otherwise provided
                in paragraph[] (b) . . . prior to the time of sentencing, the
                prosecutor may file a motion to have the defendant sentenced
                without regard to the mandatory minimum sentences
                established by this section . . . . When presented with the
                motion, or on its own motion, the court may sentence the
                defendant without regard to the mandatory minimum sentences
                . . . if the court finds substantial and compelling reasons to do
                so. . . . (b) The court may not, on its own motion or the
                prosecutor’s motion, sentence a defendant without regard to
                the mandatory minimum sentences established by this section
                if the defendant previously has been convicted of an offense
                listed in subdivision 9 in which the defendant used or
                possessed a firearm or other dangerous weapon.




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(Emphasis added.) It is undisputed that appellant had previously been convicted of an

offense listed in subdivision 9 in which he had used or possessed a firearm or other

dangerous weapon.

       Appellant argues that, because 

, subd. 8(b), does not expressly

preclude “sentenc[ing] a defendant without regard to the mandatory minimum sentences”

when the motion is made by the defendant, as opposed to the court or the prosecution, the

court can exercise its discretion to depart from the mandatory sentence because the

defendant made the motion for departure. We disagree.

       We conclude that State v. Sheppard, is dispositive of the issue. 

(Minn. App. 1998), review denied (Minn. Jan. 27, 1999). In Sheppard, the defendant

entered a guilty plea to a charge of felon-in-possession and “asked the court to depart from

the mandatory-minimum sentence for felon in possession, arguing that the court should,

and had the authority to, sentence without regard to section 609.11, subd. 8(b), which

denied the prosecutor and court discretion to depart from mandatory-minimum sentences.”

.

              [S]ection 609.11, subd. 8(b), is a clear statement of the
              intention of the legislature. Our courts have held that due
              process of law requires that criminal statutes be sufficiently
              clear and definite to warn a person of what conduct is
              punishable. We conclude that the legislature has mandated
              that courts have no discretion to depart from minimum
              sentences under those circumstances described in section
              609.11, subd. 8(b).

 (quotation and citation omitted) (emphasis added). In Sheppard, the defendant

requested a sentencing departure, just as appellant has; he had previously been sentenced



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to an offense listed under 

, subd. 9 (2016), just like appellant; and this

court determined that there was no discretion available to a district court when 

, subd. 8(b) applies. 

, subd. 8(b) has not been amended or

changed by the legislature in any way since our decision in Sheppard.

       Because the plain language of the statute and controlling caselaw prohibit any use

of discretion in sentencing when 

, subd. 8(b) applies, the district court

did not err in sentencing appellant to 60 months in prison.

       Affirmed.




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