This opinion will be unpublished and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. 
2

U N P U B L I S H E D O P I N I O N

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 Minn. 

Stat. § 609.11, 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 
3

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 Minn. Stat. § 609.11, 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.

D E C I S I O N

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

reviews de novo.” Miller v. State, 714 N.W.2d 745, 747 (Minn. App. 2006). Minn. Stat. 

§ 609.11, 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.
4

(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 Minn. Stat. § 609.11, 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. 587 N.W.2d 53 

(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.” 

Id. at 54. 

[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).

Id. at 56 (quotation and citation omitted) (emphasis added). In Sheppard, the defendant 

requested a sentencing departure, just as appellant has; he had previously been sentenced 
5

to an offense listed under Minn. Stat. § 609.11, subd. 9 (2016), just like appellant; and this

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

§ 609.11, subd. 8(b) applies. Minn. Stat. § 609.11, 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 Minn. Stat. § 609.11, subd. 8(b) applies, the district court 

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

Affirmed.