This opinion is nonprecedential except as provided by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
                                       A23-0605

                                     State of Minnesota,
                                        Respondent,

                                              vs.

                                     Brandon Lee Berry,
                                         Appellant.

                                    Filed March 18, 2024
                                          Affirmed
                                         Ross, Judge

                               Otter Tail County District Court
                                   File No. 56-CR-22-1959

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

Michelle M. Eldien, Otter Tail County Attorney, Kathleen J. Schur, Assistant County
Attorney, Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Schmidt, Presiding Judge; Ross, Judge; and Gaïtas,

Judge.

                            NONPRECEDENTIAL OPINION

ROSS, Judge

         Brandon Berry pleaded guilty to first-degree criminal sexual conduct after the state

accused him of having engaged in vaginal intercourse with a thirteen-year-old girl. Berry

unsuccessfully moved the district court to depart downward dispositionally from the
presumptive sentence designated by the sentencing guidelines. Because the district court

acted within its discretion by imposing the presumptive sentence, we affirm.

                                          FACTS

       Nineteen-year-old Brandon Berry met a thirteen-year-old girl in June 2022 at a high-

school graduation party. Berry left the party with the girl and drove her to an abandoned

house. There he subjected the girl to vaginal intercourse with him. The state charged Berry

with first-degree criminal sexual conduct. Berry pleaded guilty.

       Berry moved the district court for a downward dispositional sentencing departure

and supported his motion with a memorandum that included research on brain development

in males under 25 years old. Berry relied mostly on his age, but he referenced other factors,

such as his alleged remorse. The district court was unconvinced by any of Berry’s

assertions and denied his departure motion. It imposed a guidelines sentence of 144

months’ imprisonment. Berry appeals.

                                        DECISION

       Berry argues that he was entitled to a downward dispositional sentencing departure.

We will reverse a district court’s sentencing decision only when the sentence reflects an

abuse of the district court’s discretion. State v. Soto, 

, 307–08 (Minn.

2014). The district court sentences defendants based on a policy of uniformity in

sentencing, which is facilitated by applying the calculations detailed in the Minnesota

Sentencing Guidelines. See Minn. Sent’g Guidelines 1.A (2020); Soto, 

.

The district court must impose the presumptive sentence determined by those calculations,

and it may depart from a presumptive guidelines sentence only if it finds substantial and


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compelling reasons to do so. Soto, 

. We therefore generally will not

interfere with a district court’s decision to impose a guidelines sentence, even when the

record contains grounds that could justify a departure. State v. Bertsch, 

 (Minn. 2006). We consider Berry’s appeal in this structure.

       Berry maintains that his age, prior record, remorse, attitude in court, and willingness

to engage in sex-offender treatment require the conclusion that he was particularly

amenable to probation and therefore deserving of a dispositional departure. In rare

circumstances, some combination of these factors might establish a person’s particular

amenability to probation. See State v. Trog, 

 (Minn. 1982). But the

district court found that Berry’s circumstances do not make him particularly amenable to

probation, and Berry gives us no persuasive reason to disregard that finding. He argues

mainly that the district court erroneously failed to conclude that his age justifies a

departure, relying on his contention that his brain is not yet fully developed. Reading

between the lines of his contention, it appears that he is arguing that the district court should

not have sentenced him as if he is truly culpable for his crime because his underdeveloped

brain left him unable to control impulsive behavior. This is not a persuasive argument

against the district court’s conclusion that he is not particularly amenable to probation but

an unpersuasive argument that district court should have sentenced him based on alleged

diminished responsibility.

       We are similarly unpersuaded by Berry’s arguments relating to his prior criminal

history, remorse, willingness to engage in treatment, and cooperation in court. The district

court thoroughly analyzed these circumstances and concluded that they do not support his


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dispositional-departure request. The district court properly balanced Berry’s criminal-

history score of zero against his substantial record of prior offenses, including a 2017

juvenile adjudication as a petty offender for damage to property, a 2019 delinquency

adjudication for terroristic threats, and a 2020 delinquency adjudication for using an

explosive device attempting to set fire to a car. The district court observed that, despite

having received rehabilitative treatment after those offenses, Berry continued his criminal

behavior. Rather than prove that he is particularly amenable to probation, Berry’s history

supports the district court’s conclusion that he is not at all amenable. The district court also

expressed doubt that Berry was remorseful about his criminal sexual conduct.

       We hold that the district court acted within its discretion by concluding that neither

Berry’s claimed brain-development assertions nor the other factors establish that he is

particularly amenable to probation. And we add that, even if the district court had found

otherwise, it still would have acted within its discretion by sentencing Berry to prison and

not placing him on probation.

       Affirmed.




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