1 STATE OF MINNESOTA IN SUPREME COURT A13

- 1071 Court of Appeals Anderson, J. Dissenting, Page, J. , and Gildea, C.J. State of Minnesota, Respondent ,
vs. Filed: August 5 , 2015 Office of Appellate Courts Kabba Kangbateh, Appellant.

________________________ Lori Swanson, Attorney General, Saint Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, Saint Paul, Minnesota, for respondent. Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E

. Jacks , Assistant Public Defender, Saint Paul, Minnesota , for appellant.

________________________ S Y L L A B U S The district cou rt did not err in sentencing because the record does not support appellant’s assertion that the court imposed a greater sentence on remand following

a ppellant’s successful appeal of his conviction of attempted second

- degree murder for the benefit of a gang. Affirmed.2 O P I N I O N ANDERSON, Justice A ppellant Kabba Kangbateh asserts th at on remand following a successful appeal of his convicti on for attempted second

- degree murder for the benefit of a gang , th e district court impos ed a greater sentence for a lesser included offense

. Based o n that assertion, he claims his sentence violates the public policy and fairness concerns articulated in State v. Prudhomme , 303 Minn. 376, 380, 228 N.W.2d 243, 246 (1975). Because the record does not support Kangbateh ’s assertion, we affirm. I. Late in the evening of March 5, 2010 , Kangbateh took a cab to a house party in St. Paul. Many of the party’s atte ndees were affiliated with various street gangs

. Kangbateh testified that he was an associate, but not a member, of the “Selby Siders.” K .W. , 16 , also at the party, was with friends who were members of the “Eastside Boys.” After Kangbateh went inside th e house without paying his cab fare, the driver called the St. Paul Police Department . Police arrived at the house party shortly after midnight and most guests, including K. W

. , left immediately. Minutes later, K.W. was shot through his chest and back as he walked down the street. After hearing a loud gun shot, police observed a male, later identified as Kangbateh, walking in an alley near a garage , and

a fter a foot chase, arrested him . They recovered a

. 303

- caliber, MK

- I, bolt

- action carbine rifle in the garage near where they first saw Kangbateh

. K.W. later recovered from the shooting.3

Kangbateh was charged with attempted second

- degree murder for the benefit of a gang, attempted second

- degree murder, second

- degree assault for the benefit of a gang , and second

- degree assault. After a jury trial, Kangbateh was found guilty and convicted of all four offenses. 1 At th e initial sentencing hearing, the part ies did not agree on the appropriate sentence for Kangbateh’s conviction of attempted second

- degre e murder for the benefit of a gang. The State asked the district court to impose a 165

- month sentence ; Kangbateh requested either a dispositional departure or a sentence of 142 months, which

was at the low end of the presumptive sentencing range under the Minnesota Sentencing Guidelines. The arguments of the parties focused on the seriousness of Kangbateh’s

co nduct and his criminal record. Describing Kangbateh’s conduct as a “totally senseless” and “unprovoked act, ” the district court sentenced Kangbateh to 165 months in pris on for the conviction of attempted second

- degree mur der for the benefit of a gang. In accordance with Minn. Stat. § 609.035 (2014), the court did not impose a sentence for Kangbateh’s conviction of the lesser

- included offens e of attempted second

- degree murder.

1 Because it convicted Kangbateh on the greater “ benefit

- of

- a - gang ” offenses, the district court erred in also convicting Kangbateh on the lesser

- included offenses of second

- degree assault and attempted second

- degree murder. See Minn. Stat. § 609.04 (2014); State v. Lopez

- Rios , 669 N.W.2d 603, 615 (Minn. 2003) (observing that section 609.04 “ forbids two convictions of the same offense or one offense and a lesser

- i ncluded offense on the basis of the same criminal act , ” and that “ [ i ] n a crime committed for the benefit of a gang, the underlying crime is an included crime ” )

. However, this error was remedied when the court of appeals reversed Kangbateh’s two conviction s on the greater offenses. State v. Kangbateh ( Kangbateh I ), No. A11

– 2147, 2012 WL 5990229, at *6 (Minn. App. Dec. 3, 2012)

.4

At no point during the original sentencing hearing did the attorneys, or the district court, mention Minn. Sent. Guidelines 2.G , the age of the victim, the benefit

- of

- a - gang element of the sentenced offense , or the presumptive sentence for the lesser

- included offense of attempted second

- degree murder. Section 2.G of the Minnesota Sentencing Guidelines outlin es the procedure s for calculating the presumptive sentencing ranges for a number of offenses that do not a ppear on the standard Sentencing Guidelines Grid , Minn

. Sent. Guidelines 4.A. The modifiers listed in Minn. Sent. Guidelines 2.G apply to both the “ presumptive duration” (commonly referred to as the middle of the box) , see Minn. Sent. Guidelines 2

. G.1, an d the upper and lower ends of the range found in the g rid cell for the relevant offense. See Minn. Sent. Guidelines 1.B.5(b)

. For example, Minn. Sent

. Guidelines 2.G.10.b( 2 )(ii), provides that when an offender is sentenced for an offense committed for the benefit of a gang, the “presumptive duration is determined by locating the duration in the appropriate cell on the applicable Grid” and adding 12 months to the sentencing r ange if the underlying crime is an attempt and the victim was younger than 18. T he presumptive sentencing range for attempted second

- degree murder is 130 to 183 months, with a presumptive duration of 153 months

. See Minn. Sent. Guidelines 2.G.2, 4.A. Ac cordingly, t he presumptive sentencing range for attempted second

- degree murder for the benefit of a gang when the victim was younger than 18 is 142 to 195 months, with a presumptive duration of 165 months

. Kangbateh filed a direct appeal, arguing , among ot her things, that the State failed to present sufficient evidence on the benefit

- of

- a - gang element. Persuaded by Kangbateh’s argument, t h e court of appeals reversed his conviction s of attempted second

-5

degree murder for the benefit of a gang and second

- degr ee assault for the benefit of a gang , and remanded with instructions to sentence Kangbateh on the conviction of the lesser

- included offense of attempted second

- degree murder. State v. Kangbateh ( Kangbate h I

) , No. A11

– 2147, 2012 WL 5990229, at *6 (Minn. App. Dec. 3, 2012 ) ; s ee also State v. Lopez

- Rios , 669 N.W.2d 603, 615 (Minn. 2003) (noting that the crime underlying an offense of a crime committed for the benefit of a gang is a lesser

- included offense). On remand for sentencing on Kangbateh’s convictio n of the lesser

- included offense of attempted second

- degree murder, the attorneys’ arguments reflect ed an
erroneous assumption that the court of appeals’ decision had no impact on the presumptive sentencing range . T he State sought a 195

- month sentence, while Kangbateh asked for a 142

- month sentence , the high and low ends of the box respectively, for attempted second

- degree murder for the benefit of the gang

. 2 The parties’ arguments again focused on the seriousness o f Kangbateh ’s conduct and his criminal record. Kangbateh became extremely agitated at the re mand sentencing hearing, bec ause he mistakenly believed the court of appeals had reversed both of his attempted second

degree murder convictions. Because of his d isruptive conduct , the district court ordered Kangbateh removed from the courtroom

. In response, he yelled, “ F * * * you all. I’ll kill

2 The presumptive sentencing range for attempted second

- degree murder was 130 months to 18 3 months. Minn. Sent. Guidelines 2.G.2 ; id. , 4.A. The prosecutor at one point referred to 153 months as the “middle of the box.”6

all of you. This is my life.” The court then postponed the sente ncing hearing for one week. At the subsequent hearing , Kangbateh again appeared before the district court. The State and Kangbateh made the same sentencing requests, 195 months and 142 months, respectively. The court declined the State’s request to impose a higher sentence than originally imposed , noting that such a sentence would not be proper, “ as [it] did not wish to appear to be in some way vindictive as the result of the defendant exercising his rights to an appeal .” Kangbateh again became extremely disruptive and again was removed from the cou rtroom
. 3 The court imposed a 1 65

- month prison sentence for Kangbateh’s conviction of the lesser

- included offense of attempted second

- degree murder , emphasizing the “sheer , wanton brazenness” of Kangbateh’s act. The court noted that Kangbateh had fired a weapon into a crowd of people he did not know. On appeal to the court of appeals , Kangbateh assert ed that at the original sentencing hearing the district court had imposed a 153

- month sentence for his conviction of the lesser

- included offense of attempted second

- degree murder , which was automatically increased to 165 months under Minn. Sent. Guidelines 2.G.10.b( 2 )(ii) , because the commission of the lesser

- include d offense benefited a gang an d the victim was younger than 18

. Accordingly , Kangbateh argued th at on remand , because the district court originally imposed a 165

– month sentence for his conviction of attempted

3 Kangbateh claims the court improperly considered his violent courtroom outbursts as a sentencing factor when it chose not to subtract the 12 months from his original 165

- month sentence. Based on our careful review of the record, we conclude that the outburst did n ot influence the district court’s sentencing decision.7

second

- degree murder for the benefit of a gang, the district court abused its discretion by imposing the same sentence for his conviction of at tempted second

- degree murder

. T he court of appeals affirmed the district court , observing that because the
sentence imposed on remand was neither longer than the original sentence nor a departure from the presumptive sentencing guidelines, it did not viola te the public policy and fairness concerns underlying Prudhomme , 303 Minn. at 380, 228 N.W.2d at 246 (holding that a district court may not impose a longer sentence than the sentence originally imposed when a defendant is granted a new trial or when an appellate court sets aside a sentence and remands for resentencing )

. State v. Kangbateh ( Kangbateh II ) , No. A13

- 1071, 2013 WL 6050479, at * 2 (Minn. App. Nov. 18, 2013). II. Before our court, Kangbateh renews his a ssertion that the “sentencing court origin ally imposed a 153

- month sentence for [his] underlying attempted

- murder conviction.” Based on that assertion, he argue s “[u]nder Prudhomme , [the sentencing court] had no authority to increase that sentence on the same offense to 165 months after [he] prevailed on appeal.” He contends that the district court could impose no more than 153 months in prison because the court was imposing a sentence on “the same” offense that was sentenced at the original sentencing hearing. We review sentencing decisions for an abuse of discretion. State v. Ford , 539 N.W.2d 214, 229 (Minn. 1995). This court generally will not interfere with a sentencing court’s decision to impose a term within the presumptive sentence range. State v. Freyer, 328 N.W.2d 140, 142 (Minn. 1 982); see also State v. Kindem , 313 N.W.2d 6, 7 (Minn.8

1981)

. Nevertheless, the trial court’s sentencing power is not absolute. State v. Warren , 592 N.W.2d 440, 451 (Minn. 1999). W e begin by considering whether the record supports Kangbateh ’s assertion t hat the “ sentencing court originally imposed a 153

- month sentence for [his] underlying attempted

- murder conviction .” Based on our careful review of the record, we conclude that at the original sentencing hearing, the district court did not impose any sentence, much less a 153

- month sentence, for Kangbateh’s conviction of the lesser

- included offense of attempted secon d

- degree murder. Instead, the court sentenced Kangbateh for his conviction of the greater offense of attempted second

- degree murder for the benefit of a gang. Because the record does not support Kangbateh’s threshold assertion that he was sentenced for “ the same” conviction at the original and remand sentencing hearings, his Prudhomme argument fails. 4 The dissent is correct that it is “self

- evident” that in determining the presumptive sentencing range for attempted second

- degree murder committed for the b enefit a gang, Minn. Sent. Guidelines 2.G.10.b( 2 )(ii) direct s the court to add 12 months to each end of the sentencing range for the underlying lesser

- included offense. But it does not follow

4 The dissent contends that it is “axiomatic that a defendant may not be punished for an offense for which there is no conviction.” We agree. But , c ontrary to the dissent’s implication, Kangbateh has not been punished for such an offense. At the sentencing hearing after remand, t he district court sentenced Kangbateh for a separate conviction

— albeit a less serious offense

— and imposed the same, but not a greater, sentence . It is neither unfair nor unj ust, as the dissent claims, for a defendant to receive a guidelines sentence for a conviction on which he had never been sentenced, even if the latter sentence is identical to that imposed for a reversed conviction

. Whether the imposition of the same sentence on remand can ever implicate the principle articulated in Prudhomme , 303 Minn. a t 380, 228 N.W.2d at 246, is not a question we need to answer here

.9

that in determining the appropriate sentence for a ny particular defendant, the district
court must start by determin ing what the appropriate sentence would have be en had the lesser

- included offense not been committed for the benefit of a gang and then add 12 additional months to that sentence

. The dissent’s argument p resumes that the district court calculated this particular sentence by first determining that the appropri ate sentence for the lesser

- included offense of attempted second

- degree murder was a middle

- of

- the

- box sentence of 153 months and then add ing 12 months to account for the fact that the lesser

- included offense was committed for the benefit of a gang an d the victim was younger than 18

. Such a presumption is not supported by the record. At the original sentencing hearing, neither the State nor Kangb ateh discussed the 153

- plus

- 12

- month s analysis upon which Kangbateh now relies

. 5 Moreover, the district court never referenced either 153 months

5 The 153

- plus

- 12

- month s analysis is also inconsistent with the presentence investigation report (P SI). The recommendation in the PSI states : Based on the available information, this investigating officer respectfully recommends that the Court sentence the defendant on Count 1 Attempted Intentional Second Degree Murder for the Benefit of a gang in acc ordance with the Minnesota Sentencing Guidelines and commit him to the Commissioner of Corrections for a term of 165 months (minimum incarceration equals 110 months/maximum supervised release equals 55 months), executed. (Emphasis added.) Nowhere in the PSI did the probation officer suggest that t he district court impose a 153

- month sentence for the lesser

- included offense of attempted second

degree m urder and then add 12 months because the lesser

- included offense had been committed for the benefit of the gang. Instead, the PSI recommended that the court impose a 165

- month sentence, which was the presumptive duration for the offense that was actually before the court for sentenci ng
— attempted intentional second

- degree (Footnote continued on next page.)10

or 12 months at the original sentencing hearing

. Similarly, at th e remand sentencing hearing , the district co urt did not reference 153 or 12 month s. Based on the record, it is clear that at the original sentencing hearing, the district court did not impose any sentence, much less a 153

- month sentence, for Kangbateh’s conviction of the lesser

included offense of attempted second

- degree murder. Moreover, the dissent’s interpretation of the record presumes the following facts

. First, the district court calculated Kangbateh’s initial sentence by determining that the appropriate sentence for the lesser

- included offense was 153 months and then adding 12 months solely to account for the fact that the lesser

- included offense was committed for the benefit of a gang and the victim was yo unger than 18 . Second, the court of appeals ruled that the State failed to prove that Kangbateh committed the benefit

- of

- a - gang element . Third, on remand the original justification for the 12

- month addition to Kangbateh’s sentence was no longer valid. F ourth, knowing that the original justification was no longer valid, the district court added 12 months to Kangbateh’s sentence without any legal justification. Such conjecture necessarily presumes that the district court was intentionally vindictive on re mand.

(Footnote continued from previous page.) murder for the benefit of a gang. Put differently, the language of the PSI supports our conclusion that at the original sentencing hearing, the district court did not expressly impose any sentence, much less a 153

- month sentence, for Kangbateh’s co nviction of the lesser

- included offense of attempted second

- degree murder. After all, the district court was prohibited from sentencing him on the lesser

- included offense. See Minn. Stat. § 609. 035

.11

On the record before us , we are unwilling to presume such an intentional vindictive ness . See State v. Munt , 831 N.W.2d 569, 580 (Minn. 2013) (“When reviewing a claim that a judge was partial against the d efendant, we presume the judge ‘ discharged his o r her judicial duties properly.’ ” ) (quoting McKenzie v. State , 583 N.W.2d 744, 747 (Minn. 1998 ) ). Instead, we presume the district court , as it said, concluded that a 165

- month sentence was appropriate based on the “sheer , wanton brazenness” of Kang bateh’s act of firing a weapon into a crowd of people whom he did not know, regardless of whether it was committed for the benefit of a gang. The complete absence of any discussion of the benefit

- of

- a - gang element at the original and remand sentencing hearings demonstrates that it was of little import in determining Kangbateh’s sentences , especially when the 165

- month sentence fell well within t he presumptive sentencing range for attempted second

- degree murder for the benefit of a gang (142 to 195 month s) and the lesser

- include d offense of attempted second

- degree murder (130 to 183 months)

. In sum, t he position that Kangbateh takes is essentially an arith metic proposition without record support . B ecause he cannot point to any direct evidence supporting his claim (e.g., any statement by a lawyer, let alone the district court, that the 165

- month sentence was, in fact, arrived at by adding 12 to 153), he asks us to invoke the prophylactic and prudential rule from Prudhomme , 303 Minn. a t 380, 228 N.W.2d at 2 46, based merely on assumptions about what the parties argued and what the district court ordered. This we are not willing to do, at least on this record. Because there is insufficient support in the record for Kangbateh’s assertion that “the se ntencing court12

originally imposed a 153

- month sentence for [his] underly ing attempted

- murder conviction, ” we affirm. Affirmed.D

- 1 D I S S E N T PAGE, Justice (dissenting). I respectfully dissent. In my view, the sentencing court calculated Kangbateh’s initial sentence of 165 months by adhering to the Minnesota S entencing G uidelines, which required the sentencing court to add 12 months for the offense committed for the benefit of a gang to the presumptive duration for the predicate offense of attempted second

- degree murder

. 1 Because it is axiomatic that a defenda nt may not be punished for an offense for which there is no conviction and because in this case we know that Kangbateh’s original sentence specifically included 12 months for an offense that was

rev er sed on appeal, on remand the sentencing court was required, at a minimum, to subtract 12 months from Kangbateh’s sentence. Kangbateh was initially found guilty of attempted second

- degree murder for the benefit of a gang, attempted second

- degree murder, second

- degree assault for the benefit of a gang, and second

- degree assault. In sentencing Kangbateh on the attempted second

degree murder for the benefit

- of

- a - gang offense , the sentencing court explained, “the normal sentence in this matter would be to sentence at the middle of the box and I don’t see that there’s any reason to do otherwise.” The court then sen tenced Kangbateh to an

1 As of 1990, a “crime .

. . in furtherance of criminal activity by an organized gang” was an aggravating factor that could support a departure

. See Minn. Sent. Guidelines II.D.2.b.(7) (1990). This provision was deleted in 1991

. See Minn. Sent. Guidelines II.D.2.b (1992). T he Sentencing Commissio n clarified this change in the G uidelines by stating: “Gang related criminal activity is now a separate crime under Minn. Stat. § 609.229 and can no longer be used as a reason for departure from the presumptive sentence.” Minn. Sent. Guidelines II.D.205 (1992).D

- 2

executed term of 165 months in prison , wh ich is consistent with a middle

- of

- the

- box sentence under the G uidelines for the offense of attempted second

- degree murder for the benef it of a gang committed by a defendant like Kangbateh with a criminal history score of zero

. 2 Kangbateh appealed all four convictions

. T he court of appeals reversed both of the convictions for the crimes that included the “for the benefit of a gang” offense and remanded for re sentencing

. State v. Kangbateh ( Kangbateh I ), No. A11

- 2147, 2012 WL 5990229, at *6 (Minn. App. Dec. 3, 2012)

. On remand, the sentencing court sentenced Kangbateh to 165 months for the offense of attempted second

- degree murder. In doing so, the court explained: I would state for the record that the Court is aware that this is the same sentence that was originally imposed. However, it is well within the guidelines, and the Court believes that the sentence is appropriate given the sheer wanton, brazenness of the act. The defendant fired a weapon into a crowd of people whom he did not know, obviously intending to harm or to kill someone, in addition to which his behavior in court has been of an e xtremely threatening measure

— extreme ly

— has been extremely threatening, and the C ourt believes that he is, indeed, a dange rous person

2 The 165

- month sentence imposed was also consistent with the pre

- sentence investigatio n report, which was based on the G uidelines. The recommendation i n the report reads as follows: Based on the available information, this investigating officer respectfully recommends that the Court sentence the defendant on Count 1 Attempted Intentional Second Degree Murder for the Benefit of a gang in accordance with the Minnesota Sentencing Guidelines and commit him to the Commissioner of Corrections for a term of 165 months (minimum incarceration equals 110 months/maximum supervised relea se equals 55 m onths), executed. (Emphasis added

. )D

- 3

and should be given

— and should be sentenced accordingly. I do not believe it’d be proper to sentence above this sentence, as the Court did not wish to appear to be in some way vindictive as the result of the defendant exerc ising his rights to an appeal. That’s all. (E mphasis added .) The court of appeals affirmed. State v. Kangbateh ( Kangbateh II ), No. A13

- 1071, 2013 WL 6050479, at *2 (Minn. App. Nov. 18, 2013). On appeal to us , Kangbateh argues that, because he was originally sentenced to 153 months for the offense of attempted second

- degree murder and 12 months for committing the attempted seco nd

degree murder offense for the benefit of a gang, his sentence on remand should have been no longer than 153 months. At the time of Kangbateh’s offense, Section II.G of the Minnesota Sentencing Guidelines (2009) provided: For persons sentenced under Minn . Stat. § 609.229, subd. 3(a) where there is a sentence for an offense commit ted for the benefit of a gang , . . . [t] he presumptive duration is determined by the duration contained in the Sentencing Guidelines Grid cell defined by the offender’s criminal history score and the severity level of the underlying crime with the highest severity level, or the mandatory minimum, whichever is greater, plus an additional 12 months or an additional 24 months if the victim of the crime was under the age of eighteen y ears. If the underlying crime is an attempt, the presumptive duration includes an additional 6 months or an additional 12 months if the victim of the crime was under the age of eighteen years. Any changes to presumptive sentences under this section are a lso applied to the upper and lower numbers of the sentencing range provided on the Sentencing Guidelines Grids. In order to determine a defendant’s sentence, the G uidelines first require a sentencing court to calculate the defendant’s presumptive sentenci ng range for the underlying offense , here, attempted second

- degree murder:D

- 4

For persons convi cted of attempted offenses .

. . , the presumptive sentence is determined by locating the S entencing Guidelines Grids cell defined by the offender’s criminal histor y score and the severity level of the completed

. . . offense .

. . and dividing the duration contained therein by two.

. . . Minn. Sent. Guidelines II.G. (2009)

. In this case, t he presumptive range for second

- degree murder, a severity level 11 offense, for a defendant like Kangbateh with a criminal history score of zero is 261 months to 367 months, and the presumptive duration 3 is 306 months. See Minn. Sent. Guidelines IV (2009). Because the G uidelines provid e that the presumptive sentencing range and presumptive duration for attempted offenses is half of tha t required for completed offense s , see Minn. Sent. Guidelines II.G (2009), Kangbateh’s presumptive sentencing range for attempted second

- degree murder

was 130.5 to 183.5 months, and the presumptive duration was 153 months. Next, b ecause Kangbateh was sentenced for attempted second

- degree murder for the benefit of a gang, the G uidelines required that an additional 12 months be added to the lower and uppe r e nds of the sentencing range , Minn. Sent. Guidelines II.G. (2009), making the bottom of the presumptive range 130.5 months plus 12 months for a total of 142.5 months , and the top of the presumptive range 183.5 months plus 12 months for a total of 195.5 m onths, with the presumptive duration being a total of 165 months. Id

. As previously noted, the sentencing court explained that “the normal sentence in this matter would be to sentence at the middle of the box and I don’t see that there’s any reason to do

3 The current G uidelines define “presumptive duration” as the “recommended fixed sentence length in months found in the appropriate cell on the applicable Grid.” Minn. Sen t. Guidelines 1.B.1 3.b.D

- 5

otherwise.” 4 Thus, c onsistent with the G uidelines ’ p resumptive duration, the court
sentence d Kangbateh to an ex ecut ed term of 165 months in prison. Here, in affirming Kangbateh’s sentence on remand, the court begins by refuting Kangbateh’s argument that the “sentencing court originally imposed a 153

- month
sentence for [his] underlying attempted

- murder conviction.” While the court is correct that Kangbateh’s argument is inconsistent with a proper reading of the G uidelines, the court’s discussion does not end the analysis. In fact, by shortcutting the analysis, the court does a disservice to our obligation of ensuring that, on remand from a sentence reversal, a defendant does not receive an improper sentence. After dismissing Kangbateh’s argumen t , t he court ultimately concludes that the record does not support the con clusion that Kangbateh’s initial sentence included an additional 12 months. The court goes as far as to say, “ t he district court never referenced either 153 months or 12 months at t he original sentencing hearing.” Moreover, the court adds, “t he complete absence of any discussion of the benefit

- of

- a - gang elem ent at the original and remand sentencing hearings demonstrates that it was of little import in determining Kangbateh’s
sentenc es . . . .” Based on these statements, the court ignore s the words used by the sentencing court at Kangbateh’s first sentencing, and ignores the requirements in the G uidelines

. It is self

- evident that the G uidelines mandate d that Kangbateh’s sentence for attempted second

- degree murder committed for the benefit of a gang be calculated , as discussed

4 Courts have used the phrase “middle of the box” synonymously with th e phrase “presumptive duration.”D

- 6

above, by determining the appropriate sentencing range for the predicate offense and then adding a mandatory 12 months to each end of the range for committing th e predicate offense for the benefit of a gang

. Further, it is self

- eviden t that the presumptive duration for Kangbateh’s original sentence under the G uidelines was 165 months , that the sentencing court intended to sentence Kangbateh to the presumptive duration 5 under the G uidelines , and that the sentence imposed by the sentencing court was 165 months. Given these facts and the presumption th at the court complied with the G uidelines when it sentenced Kangbateh, it is also self

- evident that the original sentence imposed included the additional time mandated by the G uidelines when the offense being sentence d was committed “ for the benefit of a gang . ” B ecause Kangbateh’s original sentence included the additional time required for an offense committed “for the benefit of a gang , ” which was reversed on appeal, fairness and justice require that the added time be subtracted on remand

. 6

5 I presume that the sentencing court sentenced Ka ngbateh in accordance with the G uidelines. See State v. Shattuck , 704 N.W.2d 131, 139 (Minn. 2005) (exp laining that in 1997 the legislature amended the statute regarding the Minnesota Sentencing Guidelines by adding the language, “[a]lthough the sentencing guidelines are advisory to the district court, the court shall follow the procedures of the guidelines when it pronounces sentence” ( citation omitted ) (quotation marks omitted) ); see also Hannon v. State , 752 N.W.2d 518, 522 (Minn. 2008) (“ [ W ] e presume that a judge has discharged her duties properly.”).
6 We have held that a court may not impose a more severe sentence upon a defendant after the defendant’s successful appeal results in a remand for a new trial. State v. Holmes , 281 Minn. 294, 304, 161 N.W.2d 650, 656

- 57 (1968). In State v. Prudhomm e , we ex panded on Holmes and held that “procedural fairness and principles of public policy” prohibit a trial court from imposing a more severe sentence for the same (Footnote continued on next page.)D

- 7

In addition to principles of fairness and justice, the principle articulated in Burks v. United States , 437 U.S. 1 (1978) , prohibits the consideration of the offense “for the benefit of a gang” on remand. In Burks , the United States Supreme Court concluded that when a conviction is reversed , as here, fo r insufficient evidence, double jeopardy prohibits retrial. Id . at 18

. Further , as we noted in Hankerson v. State , “[I] f the state [ ] presented insufficient evidence to support the district court’s adoption of the aggravating factors in the first trial, the Burks exception might .

. . preclude any consideration of these aggr avating factors on resentencing.” 723 N.W.2 d 232, 238

- 39 (Minn. 2006). The principle underlying the rule articulated in Burks and Hankerson applies with equal , if not greater , force in this case. Finally, the court notes: [T] he dissent ’s interpretation o f the record presumes the following facts

. First, the district court calculated Kangbateh’s initial sentence by determining that the appropriate sentence for the lesser

- included offense was 153 months and then adding 12 months solely to account for the fact that the lesser

- included offense was committed for the benefit of a gang and the victim was younger than 18. Se cond, the cour t of appeals ruled that the State failed to prove that Kangbateh committed the lesser

- included offense for the benefit of a gang. Third, on remand the original justification for the 12

- month addition to Kangbateh’s sentence was no longer valid. Fourth, k nowing that the original justification was no longer valid, the district court added 12 months to Kangbateh’s sentence wi thout any legal justification. The court is simply wrong when it asserts that , under m y interpretation of the record , the facts it la ys out must be true. In making that assertion, the court misreads the
(Footnote continued from previous page.) crime after a case has been remanded for resentencing. 303 Minn. 376, 38 0, 228 N.W.2d 243, 246 (1 975).D

- 8

record and misconstrues my dissent. Moreover, the court ’s assertion does not have to be true to conclude that Kangbateh’s original sentence included additional time for an offense that was reversed on appeal, and that on remand the sentencing court was required to subtract that additional time from Kangbateh’s sentence. First, as explained in some detail above , if the sentencing court properly followed the G uidelines, which our standar d of review requires us to presume that it did, and intended to originally sentence Kang bateh to the middle of the box for attempted second

- degree murder for the benefit of a gang, which is what the court said it was doing at the time of sentencing , then 165 months was the presumptive G uidelines sentence and the sentence the court imposed. 7 Second, whether the c ourt of appeals ruled that “ the S tate failed to prove that Kangbateh committed the lesser

- included offense for the benefit of a gang ” has no bear ing on the

7 The court contends that : The dissent’s argument presumes that the district court calculated this particular sentence by first determining that the appr opriate sentence for the lesser

- included offense of attempted second

- degree murder was a middle

of

- the

- box sente nce of 153 months and then adding 12 months to accou nt for the fact that the lesser

- included offense was committed for the benefit of a gang and the victim was younger than 18. The court’s characterization of my dissent is simply wrong. T he court ’s myopic focus on Kangbateh’s argument that he was sentenced to 153 months for the offense of attempted second

- degree murder and 12 months for committing the attempted second

- degree murder offense for the benefit of a gang has caused it to misrea d my dissent. I do not presume, as the court suggests, that the sentencing court si mply sentenced Kangbateh to 153 months for attempted second

- degree murder and then added 12 months for the “benefit of the gang” offense

. I only presume that the sentencin g court did what it said it was doing

— sentencing Kangbateh to a middle

- of

- the

- box sentence , and that in doing so the court executed its duties in accordance with the requirements of the sentenc ing G uidelines , as discussed above, and the recommendation from the presentence investigation report.D

- 9

outcome of this case. There is no question that the court of appeals reversed both of Kangbateh’s convictions for the offenses that included the separate offense “for the benefit of a gang” and remanded for resentencing. No appeal was taken fr om that decision. Thus, the reason for the court of appeal s ’ reversal is not relevant to our decision here nor properly before us . Therefore, the court of appeals ’ reasoning does not
matter. What does matter is that after the reversals Kangbateh may not be punished for having committed attempted second

- degree murder for the benefit of a gang, which is what the court does with its holding today. Because Kang b a teh may not be punished for offens es that were reversed on appeal, the court ’ s third point is baffling. There is no question that the sentencing court had no justification for punishing Kangbateh for a conviction that had been reversed and for which therefore there wa s no longer a convict ion. Finally, with respect to the court’s fourth point, it is difficult to tell what rationale the sentencing court used as the basis for Kangbateh’s sentence on remand. What we do know is that , at Kangbateh’s initial sentencing, the sentencing court exp lained that Kangbateh deserved “ normal ” treatment, which was a middle

- of

- the

- box sentence of 165 months. At Kangbateh’s remand sentencing for attempted second

- degree murder , in which the presumptive range was 130.5 to 183.5 months, and the presumptive duration was 153 months, the sentencing court was inconsistent with its earlier statements and did not sentence Kangbateh to the middle of the box. Instead, the court sentenced Kangbateh to an executed sentence that was greater than t he m iddle of the box. Here, theD

- 10

court pretends that the sentencing court did not say what it said or do what it did . This pretext is in direct contradictio n to the record in this case. Thus, I would reverse the court of appeals and remand to the district court for the imposition of a sentence no greater than the presumptive duration for attempted second

degree murder. 8 For these reasons, I respectfully dissent.

GILDEA, Chief Justice (dissenting)

. I join in the dissent of Justice Page.

8 To the extent that there is any question as to whether Kangbateh’s original sentence of 165 months included the mandated additional time for “the benefit of a gang” offense, the court’s resolution of this case is still improper. The proper resolution would be to remand to the sentencing court for clarification as to whether the original sentence included the mandated additional time

.