This opinion will be unpublished and 

may not be cited except as provided by 

Minn. Stat. § 480A.08, subd. 3 (2014). 

STATE OF MINNESOTA 

IN COURT OF APPEALS 

A16-0262 

State of Minnesota, 

Respondent, 

vs. 

Scott James Boorman, 

Appellant. 

Filed December 12, 2016 

Reversed and remanded 

Smith, Tracy M., Judge 

St. Louis County District Court 

File No. 69VI-CR-15-403 

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

Mark S. Rubin, St. Louis County Attorney, Michelle M. Anderson, Assistant County 

Attorney, Virginia, Minnesota (for respondent) 

Cathryn Middlebrook, Chief Appellate Public Defender, John Donovan, Assistant Public 

Defender, St. Paul, Minnesota (for appellant) 

 Considered and decided by Johnson, Presiding Judge; Reyes, Judge; and Smith, 

Tracy M., Judge. 

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

SMITH, TRACY M., Judge 

 Appellant Scott James Boorman argues that his sentence for third-degree criminal 

sexual conduct must be reversed because the district court did not use a criminal-history 
2 

score of zero in calculating his consecutive sentence and did not explain its departure. The 

state agrees. Because we conclude that the district court erred in not using a criminalhistory score of zero, we reverse and remand for resentencing. 

FACTS 

Scott Boorman pleaded guilty to one count of first-degree criminal sexual conduct 

and one count of third-degree criminal sexual conduct as part of a plea agreement at a plea 

hearing on September 25, 2015. The parties agreed that, under the plea agreement, 

Boorman and the state could argue for different sentences within the Minnesota Sentencing 

Guidelines. Seeking clarification, the district court asked, “[N]o departure is being 

considered in the matter, but there is a range of sentence that counsel can argue within the 

guidelines based upon the charges here. Is that accurate?” Both parties agreed that a 

departure was not being considered. 

 At the sentencing hearing, the state argued for a sentence of 144 months for firstdegree criminal sexual conduct and a consecutive sentence of 84 months for third-degree 

criminal sexual conduct, for a total of 228 months in prison. Minn. Sent. Guidelines 4.B 

(2014). Boorman argued for a sentence of 144 months for first-degree criminal sexual 

conduct and a concurrent sentence for third-degree criminal sexual conduct. The district 

court concluded that consecutive sentencing was appropriate. The district court stated, 

“[T]he range . . . for First Degree Criminal Sexual Conduct is 144 months to 172 months. 

The range for the Third Degree Criminal Sexual Conduct here would be 77 to 108 months.” 

The district court imposed a sentence of 144 months for first-degree criminal sexual 

conduct and a consecutive sentence of 77 months for third-degree criminal sexual conduct. 
3 

Neither the district court nor the warrant of commitment noted a departure from the 

sentencing guidelines. 

 Boorman appeals. 

D E C I S I O N 

Boorman argues, and the state agrees, that the district court abused its discretion by 

failing to use a criminal-history score of zero when sentencing Boorman to a consecutive 

sentence for third-degree sexual misconduct. A reviewing court may “review the sentence 

imposed or stayed to determine whether the sentence is inconsistent with statutory 

requirements.” Minn. Stat. § 244.11, subd. 2(b) (2014). Interpretation of the sentencing 

guidelines presents a question of law subject to de novo review. State v. Misquadace, 644 

N.W.2d 65, 68 (Minn. 2002) (citation omitted). We review a district court’s decision to 

depart from sentencing guidelines for an abuse of discretion. State v. Franklin, 604 N.W.2d 

79, 82 (Minn. 2000). “If no reasons for departure are stated on the record at the time of 

sentencing, no departure will be allowed.” Williams v. State, 361 N.W.2d 840, 844 (Minn. 

1985). 

The sentencing guidelines allow permissive consecutive sentences for first-degree 

criminal sexual conduct and third-degree criminal sexual conduct. Minn. Sent. Guidelines 

6.B (2014). When sentencing a defendant to a permissive consecutive sentence, the district 

court “must use a Criminal History Score of 0, or the mandatory minimum for the offense, 

whichever is longer, to determine the presumptive duration. A consecutive sentence at any 

other duration is a departure.” Id., 2.F.2.a; see also Johnson, 770 N.W.2d at 566 (reversing 

a consecutive sentence where the district court used a criminal-history score of eight 
4 

instead of zero to calculate the defendant’s permissive consecutive sentence). A district 

court “must disclose in writing or on the record the particular substantial and compelling 

circumstances that make the departure more appropriate than the presumptive sentence.” 

Id., 2.D.1.c. 

The district court did not use a criminal-history score of zero in sentencing Boorman 

to a permissive consecutive sentence. Id., 2.F.2.a. The district court stated, “The range for 

the Third Degree Criminal Sexual Conduct here would be 77 to 108 months.” The range 

of 77 to 108 months for third-degree criminal sexual conduct corresponds to a criminalhistory score of three under the sentencing guidelines. Id., 4.B. The district court clarified 

at the plea hearing that neither party was requesting a departure, the warrant of commitment 

states that no departure was made, and nothing in the record appears to explain the district 

court’s departure. Accordingly, the district court erred by using a criminal-history score 

of three in calculating the permissive consecutive sentence without explaining its 

departure. Johnson, 770 N.W.2d at 566. 

Boorman requests that we vacate his sentence for third-degree criminal sexual 

conduct, use a criminal-history score of zero, and impose a bottom-of-the-box sentence of 

41 months. A reviewing court may “vacate or set aside the sentence imposed or stayed and 

direct entry of an appropriate sentence or order further proceedings to be had as the court 

may direct.” Minn. Stat. § 244.11, subd. 2(b). A reviewing court may not remand to allow 

the district court the opportunity to provide reasons for an unexplained departure. State v. 

Geller, 665 N.W.2d 514, 515 (Minn. 2003). In State v. Hutchins, we determined that 

sentencing is a “package” and when “a defendant ‘attacks a portion of a judgment, he is 
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reopening the entire judgment and cannot selectively craft the manner in which the court 

corrects that judgment.’” 856 N.W.2d 281, 285 (Minn. App. 2014) (quoting Gardiner v. 

United States, 114 F.3d 734, 736 (8th Cir. 1997)), cert. dismissed as improvidently granted, 

866 N.W.2d 905 (Minn. 2015). 

Because Boorman is challenging part of the sentencing “package,” we reverse and 

remand to allow the district court to resentence Boorman on both counts, provided that the 

total sentence does not exceed the original sentence of 221 months and that the district 

court does not depart from the sentencing guidelines. State v. Prudhomme, 303 Minn. 376, 

380, 380 n.2, 228 N.W.2d 243, 246, 246 n.2 (1975) (limiting a district court’s discretion in 

resentencing to the “sum total” of the original sentence imposed).1

Reversed and remanded. 

 

1

 The state asks that we require the district court on remand to impose a total sentence of 

no less than 221 months. The state cites no authority for such a requirement, and we do 

not impose it here.