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affirming assignment of severity-level eight to racketeering offense involving drug crimes
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No. C1-03-298.
Filed: February 17, 2004.
Appeal from the District Court, Olmsted County, File No. K3-01-4046.
Raymond F. Schmitz, Olmsted County Attorney, James P. Spencer, Assistant County Attorney, and Mike Hatch, Attorney General, (for respondent)
John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, and Melissa Sheridan, Assistant State Public Defender, (for appellant)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Schumacher, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
On appeal from a conviction of and sentence for racketeering and various controlled substance offenses, appellant argues that (1) the district court abused its discretion by limiting him and his co-defendant to a total of six peremptory challenges; (2) evidence that he was involved with family members and acquaintances in selling drugs was insufficient to prove there was an ongoing and continuing organization, or activities extending beyond the commission of the underlying crimes, as required for racketeering; (3) all the offenses arose from the same behavioral incident and therefore use of Hernandez sentencing was improper; and (4) the district court abused its discretion in ranking the racketeering, which involved nothing more than small-time, street-level drug sales, as a severity-level-eight offense. We affirm in part, reverse in part on the Hernandez issue, and remand for resentencing.
FACTS
On April 4, 2001, appellant, Willie Wolff Perry, Jr. was arrested and later charged with 30 crimes, including racketeering, conspiracy to commit first-degree controlled-substance crime, and various individual controlled-substance crimes. In connection with the charges against appellant, the State of Minnesota (respondent) also charged Anthony Osborne, Sr. (Osborne Sr.) with a variety of drug-related crimes, including racketeering, conspiracy to commit first-degree controlled-substance crime, and solicitation of a juvenile. Respondent alleged that Osborne Sr. was the head of a drug-trafficking organization that primarily conducted its business in the area of Rochester, Minnesota, and imported the drugs from Chicago, Illinois. According to respondent, Osborne Sr. utilized his two sons, Anthony Osborne, Jr. (Osborne Jr.) and Ricky Osborne, to run his drug organization. Respondent also contended that appellant was one of Osborne Sr.'s main street-level distributors. Because the Osborne family was known to package their drugs in aluminum foil, Osborne Sr. was known to some of his customers as "Tin-Foil Tony."
The charges against appellant and Osborne Sr. stemmed from a series of controlled buys staged by the Rochester Police Department (RPD). The following is a chronological summary of the evidence gathered from RPD's investigation:
On January 26, 1999, the RPD used Thomas Brazier, a confidential informant, to conduct a controlled buy. Brazier contacted the Osbornes and arranged to purchase some crack cocaine. After calling the cellular telephone number subscribed to by Ben Nichols, Brazier agreed to purchase .6 grams of crack. Brazier went to the Osborne family's residence in Rochester and purchased the crack from an unknown person. Two of the rocks were packaged in foil and four were packaged in plastic.
On February 21, 1999, the RPD used Brazier to conduct another controlled buy. Brazier contacted Osborne Jr. and then bought .3 grams of crack from Juniata Bennett at the Osbornes' residence in Rochester. Bennett testified that she was related to the Osborne family and that she got the crack from Ricky Osborne, who was inside the house when the transaction occurred. The crack was wrapped in foil and plastic.
Brazier was used to conduct another controlled buy on March 9, 1999. On that day, Brazier purchased four rocks of cocaine from Osborne Jr. at the Osborne residence. The four rocks were wrapped in plastic.
On July 13, 1999, Brazier, acting as an informant, notified the RPD that he was en route from Chicago with Osborne Jr. and a load of drugs. The RPD prepared a search warrant and stopped a Grand Am on Highway 52 in Rochester. Osborne Jr., Lisa Tannice Johnson, Terrell Datania Phillips, Maurice McDonald, and Brazier were all passengers in the car, and a search of the car revealed 49.4 grams of crack cocaine and 6.8 grams of heroin. Brazier testified at trial that while the group was in Chicago, he observed Osborne Sr., among others, buying and preparing drugs for sale.
On August 3, 2000, a Wisconsin State Patrolman stopped a 1989 Chevrolet Caprice for speeding. None of the five occupants had a valid driver's license, and all of the passengers gave the officer false names. Eventually, the officer was able to identify the individuals, and one of the passengers, Ricky Osborne, informed the officer that they were en route from Chicago to the Twin Cities. After obtaining the driver's consent, the police searched the car and discovered 105.161 grams of cocaine and 2.024 grams of heroin.
On August 30, 2000, Joe Conlin assisted the RPD with a controlled buy. Conlin, acting as a confidential informant, contacted appellant, and they agreed to meet at a gas station located across the street from an elementary school. Appellant arrived in a Chevrolet Caprice and Conlin purchased .3 grams of crack cocaine from appellant. The drugs were wrapped in plastic.
On September 1, 2000, Conlin again purchased crack cocaine from appellant at the same location. Conlin contacted appellant and arranged to meet him at the gas station. With police observing, appellant arrived in a Chevrolet Caprice and Conlin purchased 2.1 grams of crack from him.
On November 22, 2000, Officer Charlene West assisted the RPD with a controlled buy. West contacted Osborne Sr. by calling a cellular telephone number that was previously supplied by Osborne Sr. She then arranged to purchase the drugs from Sandra Brown at an apartment in Rochester. West went to the apartment where she met Sandra Brown, who said that Osborne Sr. had sent her. West then purchased .6 grams of crack that was wrapped in foil. Brown later admitted that Osborne Sr. was present inside her apartment at the time of the transaction. Officer West testified that in the recorded telephone conversation between West and Osborne Sr., she identified Osborne Sr.'s voice because it is very distinct.
On November 29, 2000, Adrian King assisted the RPD with a controlled buy. King purchased .2 grams of cocaine from appellant in front of appellant's stepdaughter's home in Rochester. At the time of the transaction, appellant was driving a silver Volkswagon Jetta that was registered to Della Ree Mayweathers. Mayweathers's driver's license was found in Osborne Sr.'s possession when he was arrested on July 11, 2001.
The RPD did not find out that the Jetta was registered to Mayweathers until December 2, 2000.
On November 30, 2000, King assisted the RPD with another controlled buy. This time, King met appellant at a restaurant and purchased 1.5 grams of crack from him. King arranged the purchase by calling appellant's cellular telephone, and appellant arrived at the restaurant driving a silver Volkswagon Jetta.
On December 1, 2000, King purchased 1.0 gram of crack from appellant at the Galaxy Motel. King was again acting as a confidential informant for the RPD, and the purchase was arranged after King contacted appellant by calling him on his cell phone. On December 2, 2000, King assisted the RPD with another controlled buy. King contacted appellant on his phone number, and arranged to meet appellant outside a motel. Appellant and Osborne Sr. arrived in a silver Volkswagon Jetta, and King proceeded to purchase a small amount of cocaine from Osborne Sr.
On December 12, 2000, the RPD again used King as a confidential informant in a controlled buy. The RPD rented a room at a different motel, and King called appellant's cell phone and arranged for appellant to meet him at the hotel. Appellant arrived at the motel as a passenger in a red pickup truck driven by an unknown male. Appellant then went to King's room and sold him 2.2 grams of cocaine. The drugs King bought were packaged in plastic.
On January 12, 2001, King purchased .3 grams of cocaine from appellant outside an apartment in Rochester. King, acting as an informant for the RPD, arranged the deal by contacting Osborne Sr. and appellant via their cell phones. The crack King bought that day was wrapped in foil.
On April 4, 2001, the police were called to the Barclay Square shopping center in Rochester to investigate a "suspicious vehicle." When police arrived at the scene, Officers Sobczak and Anderson observed a woman and a man sitting in a car parked in a handicapped spot. The officers then observed appellant walk into a nearby salon and the two individuals sitting in the car get out and walk into a clothing store.
When appellant exited the salon, Officer Sobczak approached him and asked him a few questions. According to Sobczak, appellant was acting "very weird," and Sobczak asked appellant if they could search him and his car, a Chevrolet Caprice. Appellant consented and the officers found cash, a crack pipe, a cell phone and some drugs in appellant's pockets. The drugs were wrapped in foil and totaled 3.2 grams of crack and .13 grams of heroin. In addition, the cell phone found in appellant's possession listed a cellular phone number that the police believed was used by Osborne Sr. Appellant was subsequently arrested.
In the meantime, the woman and the man who had gone into the clothing store came out of the store and the police detained them. The woman, Janet Lambert, admitted that she threw away drug paraphernalia in the store's bathroom and that she had cocaine concealed in her vagina. At appellant's trial, Lambert testified that earlier in the day on April 4, she, Gary Hanson (the other individual in the car with Lambert), and appellant stopped at Todd Brown's house. While they were at Brown's house, Lambert testified that appellant, Hanson, and a man named "PD" went into the bathroom for a few minutes. Lambert stated that when they came out, she and Hanson left with appellant and drove to Barclay Square.
On May 22, 2001, officers conducted a traffic stop in Rochester. The driver of the vehicle was William Moore, and Ricky Osborne and Demetrius Johnson were passengers in the car. The officer arrested Moore because the car was reported stolen and Moore had a habit of driving after revocation charges. After Moore was arrested, the police found .4 grams of cocaine on him. Police also discovered $840 cash on Ricky Osborne. Moore later testified that he had gotten the cocaine from Ricky Osborne earlier in the day.
On May 24, 2001, the RPD used Tiffany Stevens as a confidential informant to assist them with a controlled buy. Stevens contacted Osborne Jr. by calling his cell phone. She then met him at a motel in Rochester, where she purchased 1.0 gram of cocaine from Osborne Jr.
On May 29, 2001, Stevens again contacted Osborne Jr. on his cell phone and arranged to meet him at a park in Rochester. While acting again as a confidential informant, Stevens purchased .145 grams of heroin, packaged in plastic, from Osborne Jr.
On May 31, 2001, Stevens arranged another controlled buy for the RPD by calling Osborne Sr. on his cell phone. Osborne Sr. told Stevens to go to Todd Brown's Rochester apartment. When she arrived at the apartment, Stevens gave Brown $40 to give to Osborne Sr. for some heroin that he had previously "fronted" her. She also purchased two bindles of heroin that were wrapped in foil. Officer Wilson testified that he and Stevens both saw Osborne Sr. walking in the area immediately after the controlled buy was completed. On June 5, 2001, Terrence Blandford acted as a confidential informant for the RPD by calling Osborne Jr.'s cell phone and arranging to meet Osborne Jr. at a house on Fourth Avenue in Rochester. Once inside the residence, Blandford purchased .17 grams of cocaine wrapped in tin foil from Osborne Jr. and Osborne Sr. Officer Kaase testified that he recognized both Osborne Jr. and Osborne Sr.'s voices during the controlled buy.
On June 6, 2001, the RPD set up another controlled buy with Stevens. Stevens arranged the purchase by calling Osborne Sr.'s cell phone and agreed to meet him outside a bar in Rochester. Stevens then purchased five tin foil bags of heroin from an unknown male and Osborne Sr. Before giving the heroin to police, Stevens used some of it in the bathroom of a nearby gas station.
On June 12, 2001, Stevens made another controlled buy for the RPD. Stevens called both Osborne Sr. and Osborne Jr. on their cell phones, and arranged to meet Osborne Jr. at Todd Brown's apartment. Stevens initially went to the apartment, but Osborne Jr. was not there. She then left and called him twice before going back to the apartment and purchasing .116 grams of heroin from Osborne Jr. Stevens testified that Osborne Jr. kept the heroin concealed in his mouth and that Todd Brown was present at his apartment during the sale.
On June 13, 2001, Stevens participated in another controlled buy for the RPD. This time, Stevens arranged to meet Osborne Jr. at Antonio Snell's house located at 839 Second Street Southwest in Rochester. While she was at Snell's house, Osborne Jr. and Snell went into a back room before they sold .2 grams of cocaine and .03 grams of heroin to Stevens.
On June 15, 2001, Blanford contacted Osborne Sr. and Osborne Jr. via cell phone and arranged to purchase a cocaine/heroin mixture from Todd Brown. While acting as a confidential informant for the RPD, Blanford negotiated over the price of the drugs and eventually proceeded to Brown's apartment where he purchased .03 grams of the cocaine/heroin mixture.
On July 11, 2001, the RPD executed a search warrant at the Fourth Avenue house in Rochester. Antonio Snell and Osborne Sr. were arrested when the warrant was executed. Snell had .351 grams of cocaine and .068 grams of heroin concealed between his buttocks when he was arrested, and police also seized a cell phone and $686 cash from Snell. Located on Osborne Sr.'s person at the time of his arrest was: a cell phone, $20 cash, and Della Ree Mayweathers's driver's license. Also discovered pursuant to the search warrant was a plate with powder cocaine on it, baggies with the corners cut/twisted off, one baggie with a corner torn off, small bags with "$" on them, and a box of baggies. Officer Seidel testified at trial that a common method for packaging crack cocaine is in the torn or twisted off corners of plastic sandwich baggies and that such evidence indicated sales, not use.
On August 21, 2001, Robert Jarmon assisted the RPD with two controlled buys. Jarmon called Osborne Jr.'s cell phone and arranged to purchase $100 worth of crack from Ricky Osborne at the Fourth Avenue address in Rochester. Later on in the day, Jarmon went to a second house in Rochester and purchased more crack and powder cocaine from Osborne Jr. Officer Kaase testified that Osborne Sr.'s wife lived at the second house, and she and Osborne Sr. were in the house when the transaction occurred.
On August 22, 2001, Jarmon again assisted the RPD with a controlled buy. Jarmon went to the 4th Avenue address and purchased .392 grams of crack wrapped in tin foil from Osborne Sr. While they were alone in the bathroom, Osborne Sr. gave Jarmon the drugs, and they discussed the $20 that Osborne Sr. owed Jarmon for a previous ride that he had given Osborne Sr.
On August 24, 2001, Jarmon participated in another controlled buy for the RPD. Jarmon again went to the Fourth Avenue address and purchased .1 grams of heroin wrapped in foil from Osborne Sr. Jarmon testified that Michael Lewis delivered the heroin to Osborne Sr. from the back of the residence, and Billie Ollie gave Osborne Sr. a plastic bag to put the heroin in before he gave it to Jarmon.
On October 3, 2001, the RPD executed a search warrant at Osborne Sr.'s wife's house in Rochester, which was also the Osborne Sr.'s residence at that time. Osborne Sr. was present at the time the warrant was executed, and $255 in cash and a cell phone were found on his person. Also discovered at the residence were plastic bags and a plate with drug residue, a crack pipe, and a triple-beam scale.
After charges were bought against appellant and Osborne Sr., the state moved to try the defendants jointly; the motion was granted over appellant's objection. Prior to voir dire both defendants requested that the district court grant them five peremptory challenges each. Respondent did not oppose the request but did ask that if the court increased the defendants' number of challenges, that respondent's number of challenges be increased proportionately. The district court denied the request, but did increase the number of defense challenges to six and increased respondent's challenges to four.
Pursuant to respondent's motion, Ricky Osborne Jr.'s case was also joined with appellant and Osborne Sr.'s case. However, immediately before trial, Osborne Jr. pleaded guilty pursuant to a plea agreement.
Following a lengthy trial, the jury convicted Osborne of all 28 charges against him, including racketeering and conspiracy to commit first-degree controlled substance crime. The jury convicted appellant of racketeering and 14 counts of controlled-substance crimes, but acquitted appellant of conspiracy to commit first-degree controlled-substance crime and the remaining 14 counts of controlled-substance crimes. The court sentenced appellant to 86 months in prison for the racketeering conviction (count one), and concurrent prison terms of 68, 78, 98, and 108 months for counts three, five, twelve and fourteen of the controlled-substance crime convictions. This appeal followed.
DECISION I. Peremptory Challenges
Appellant argues that the district court abused its discretion by denying appellant's request for additional peremptory challenges, arguing that appellant and Osborne Sr. had adverse interests and each was entitled to his own full complement of peremptory challenge. A defendant's right of peremptory challenge is "essential * * * to the impartiality of the trial." State v. Reiners, 644 N.W.2d 118, 126 (Minn. App. 2002) (quoting Lewis v. United States, 146 U.S. 370, 378, 13 S.Ct. 136, 139 (1892)). This right to challenge a given number of jurors without a showing of cause is one of the most important rights secured to a criminal defendant. Id. "Any system for the impaneling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of that right must be condemned." Id. (quoting Pointer v. U.S., 151 U.S. 396, 408, 14 S.Ct. 410, 414 (1894)).
The Minnesota Rules of Criminal procedure provide that:
If the offense charged is punishable by life imprisonment the defendant shall be entitled to 15 and the state to 9 peremptory challenges. For any other offense, the defendant shall be entitled to 5 and the state to 3 peremptory challenges. If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly, and in that event the state's peremptory challenges shall be correspondingly increased. All peremptory challenges shall be exercised out of the hearing of the jury panel.
Minn. R. Crim. P. 26.02, subd. 6. The denial or impairment of the right of peremptory challenge is reversible error without a showing of prejudice. Reiners, 644 N.W.2d at 126.
Here, appellant argues that because there are no Minnesota cases directly on point, this court should look to civil cases as guidance in determining whether the district court erred by declining to grant appellant's request for five peremptory challenges. We disagree. Rule 26.02, subd. 6, states that "if there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly." Minn. R. Crim. P. 26.02, subd. 6. Although multiple defendants at a joint trial have a logical argument otherwise, it is clear that "peremptory challenges belong to a `side,' not an individual." See State v. Greenleaf, 591 N.W.2d 488, 501 n. 6 (Minn. 1999) (noting that on appeal from a conviction of aiding and abetting first-degree murder, Greenleaf's argument that he was prejudiced by his co-defendant's peremptory challenges failed because as a preliminary matter, a defendant cannot challenge the peremptory challenges made by a co-defendant). This rule gives the district court discretion in determining whether to allow criminal defendants additional peremptory challenges.
Appellant does not claim that the jury was partial or unfair, only that he should have had five peremptory challenges to himself. Without a showing of prejudice, and based on caselaw, the district court did not abuse its discretion by denying appellant's request for five individual peremptory challenges.
II. Racketeering
Appellant contends that the evidence was insufficient to prove beyond a reasonable doubt that he was guilty of racketeering because respondent did not prove that appellant was employed by or associated with an enterprise. In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Pursuant to Minn. Stat. § 609.903, subd. 1(1) (2002), a person is guilty of racketeering if the person "is employed by or associated with an enterprise and intentionally conducts or participates in the affairs of the enterprise by participating in a pattern of criminal activity." An "enterprise" is defined as "a sole proprietorship, partnership, corporation, trust, or other legal entity, or a union, governmental entity, association, or group of persons, associated in fact although not a legal entity, and includes illicit as well as legitimate enterprises." Minn. Stat. § 609.902, subd. 3 (2002). To prove the existence of an enterprise, the state must prove:
(1) a common purpose among the individuals associated with the enterprise; where
(2) the organization is ongoing and continuing, with its members functioning under some sort of [decision-making] arrangement or structure; and where
(3) the activities of the organization extend beyond the commission of the underlying criminal acts either to coordinate the underlying criminal acts into a pattern of criminal activity or to engage in other activities.
State v. Huynh, 519 N.W.2d 191, 196 (Minn. 1994).
Here, appellant argues that respondent failed to prove beyond a reasonable doubt that there was an organization that was "ongoing and continuing, with its members functioning under some sort of decision-making arrangement or structure." We disagree. The record reflects that the series of controlled buys orchestrated by the RPD was conducted on a regular basis over a period of approximately three years. This three-year period of selling drugs could constitute an "ongoing" and "continuing" process as discussed in Huynh. Therefore, the question becomes whether the Osborne family and their associates functioned under some sort of decision-making structure.
The Minnesota Supreme Court has stated that an "enterprise" must consist of more than mere cooperation on the part of the participants; otherwise, the offense "collapses into nothing more than the enhanced punishment of recidivists." Huynh, 519 N.W.2d at 195. To avoid this collapse, the racketeering statute must focus on "organized crime" rather than ordinary, "run-of-the-mill" criminal activity. Id.
The evidence here suggests that there was more than "mere cooperation" on the part of appellant and his associates. Although the issue is close, the record shows that appellant and his accomplices functioned under a decision-making structure. Appellant or one of the Osbornes would receive a phone call from an individual looking to purchase a controlled substance. The transaction would then occur between a purchaser and appellant or any one of a number of people. The fact that the confidential informants often purchased the drugs from somebody other than the individual with whom the original arrangement was made indicates a system of delegation and hierarchy. The racketeering conviction is further supported by evidence that appellant and his associates shared cell phones and automobiles. Consistently, the cell phone numbers and addresses supplied by appellants and others in the drug trafficing were accurate. This repetitive information bolsters the evidence of an organized structure and gang activity. Appellant and his associates were not involved in an extremely complex drug organization; but the evidence was sufficient to prove beyond a reasonable doubt that appellant was guilty of racketeering.
Appellant argues that even if the evidence was sufficient to convict him of racketeering, he is at least entitled to a new trial based on the district court's failure to properly instruct the jury. Appellant contends that despite his request, the district court declined to include in the jury instructions the second factor in Huynh which states that an enterprise is an organization that "is ongoing and continuing, with its members functioning under some sort of [decision-making] arrangement or structure." Huynh, 519 N.W.2d at 196.
The jury instructions included the following instruction:
[T]he distinct structure of a racketeering enterprise must be demonstrated by proof that the group engaged in a diverse pattern of crimes or that it had an organizational pattern or system of authority beyond what was necessary to perpetrate the predicate crimes.
This language states that an enterprise must have some sort of organizational pattern or system of authority. The district court did not fail to properly instruct the jury; thus, appellant is not entitled to a new trial on the racketeering charge on this issue.
III. Hernandez
Appellant contends that the district court abused its discretion by using the Hernandez method to increase his criminal-history score. Under Hernandez, a trial court sentencing a convicted defendant on the same day for multiple convictions based on multiple offenses that were not part of "a single behavioral incident or course of conduct" can increase the defendant's criminal-history score incrementally as each successive sentence is imposed. State v. Hernandez, 311 N.W.2d 478, 481 (Minn. 1981). This court will not interfere with the district court's exercise of its broad discretion in sentencing as long as the sentence is authorized by law. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Here, the district court sentenced appellant to 86 months in prison for the racketeering conviction (count 1) and concurrent prison terms of 68, 78, 98, and 108 months for counts three, five, twelve, and fourteen of the controlled-substance crime convictions. Appellant contends that the sentence was in error because all of the convictions arose from the same behavioral incident, and thus the district court was not permitted to use the Hernandez method.
Respondent argues that appellant's contention should fail because appellant did not object to the district court's calculation of his sentence at the time the sentence was imposed. "The general rule is that if defense counsel fails to object to error at trial, the defendant * * * is deemed to have forfeited his right to have this court consider that error on appeal." State v. Gustafson, 610 N.W.2d 314, 318 (Minn. 2000) (quoting State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983)). However, it is just as clear that even when there is no objection at trial, this court has the discretion to consider on appeal whether there was plain error affecting substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). The three-prong test for plain error requires that there be (1) error; (2) that is plain; and (3) the error must affect substantial rights. Id.
Respondent contends that the district court did not commit "plain error" when it sentenced appellant because, even if it committed error, the court could have reached the same sentence through other means without departing from the sentencing guidelines. Although we understand respondent's position, we reject the "other means" argument. A situation where a defendant's sentence was incorrectly calculated is an error that affects substantial rights. Further, there is no indication that the district court would have reached the same sentence without using the Hernandez method. See United States v. Wheeler, 322 F.3d 823, 827-28, (5th Cir. 2003) (stating that a sentence that was reached erroneously is harmless only if the appellate court is satisfied that the district court would have imposed the same sentence absent the erroneous factor). We conclude that the error affected substantial rights.
We now turn to appellant's argument that the district court abused its discretion by using the Hernandez method to increase his criminal-history score. The Minnesota Supreme Court has held that the Hernandez method may not be used to increase the criminal-history score for the subsequent offenses if the offenses arose from a single course of conduct within the meaning of Minn. Stat. § 609.035. State v. Hartfield, 459 N.W.2d 668, 670 (Minn. 1990). Multiple crimes are part of a single behavioral incident if "one crime is committed with the intent of facilitating another or is but a means toward committing another." State v. Huynh, 504 N.W.2d 477, 483 (Minn. App. 1993).
In Huynh, this court held that the defendant's racketeering and extortion offenses were part of a single behavioral incident because the extortion offenses were a means toward committing the racketeering offense. Huynh, 504 N.W.2d at 483. Here, similar to Huynh, appellant's controlled-substance offenses were also a means toward facilitating and sustaining the drug "enterprise" because the "enterprise" could not have been sustained without the sale of the controlled substances. Accordingly, appellant's controlled substance and racketeering offenses were part of the same behavioral incident, and thus multiple sentences were not authorized by Minn. Stat. § 609.035.
In State v. Fraction, No. C3-01-1657, 2002 WL 31748928 (Minn. App. Dec. 10, 2002), the defendant was convicted of racketeering and numerous controlled-substance crimes. On appeal, this court held that the defendant's controlled-substance offenses were a means toward facilitating and sustaining the RICO enterprise, and therefore the trial court abused its discretion by using the Hernandez method to increase his criminal-history score.
Minn. Stat. § 609.910, subd. 1 (2002), provides that a criminal penalty imposed under Minnesota's RICO Act "does not preclude the application of any other criminal penalty or civil remedy for the separate criminal acts." Thus, even though Minn. Stat. § 609.035 precludes sentencing appellant for the racketeering offense and the controlled-substances offenses, the district court's imposition of multiple sentences here was permissible pursuant to Minn. Stat. § 609.910, subd. 1. Appellant acknowledges that multiple sentencing is permissible under Minn. Stat. § 609.910, subd. 1, but he argues that the Hernandez method (heightening criminal-history scores and lengthening of the presumptive sentence) was inappropriately used because appellant's convictions arose from the same behavioral incident. We agree. Although the statutory exception for racketeering offenses in Minn. Stat. § 609.910, subd. 1, permits multiple sentencing, this statutory exception does not support use of the time-enhancing Hernandez method. Hyhn 504 N.W.2d at 484 (citing Hartfield, 459 N.W.2d at 670. Because appellant's controlled-substance offenses were a means toward facilitating and sustaining the drug "enterprise," his convictions of racketeering and the controlled-substance offenses were part of the same behavioral incident. We conclude that the district court abused its discretion by using the Hernandez method to increase appellant's criminal-history score, and we therefore vacate the sentence and remand for resentencing.
IV. Severity Level
Finally, appellant argues that the district court abused its discretion by ranking his conviction for racketeering as a severity-level-eight offense. Racketeering is an unranked offense. "When persons are convicted of offenses excluded from the Offense Severity Reference Table, judges should exercise their discretion by assigning an offense a severity level which they believe to be appropriate." Minn. Sent. Guidelines, advisory comm. note II.A.05.
When assigning a severity level to unranked offenses, the sentencing court should consider the following factors: (1) the gravity of the specific conduct underlying the unranked offense; (2) the severity level assigned to any ranked offense whose elements are similar to those of the unranked offense; (3) the conduct of and severity level assigned to other offenders for the same unranked offense; and (4) the severity level assigned to other offenders who engaged in similar conduct. State v. Kenard, 606 N.W.2d 440, 443 (Minn. 2000). This list of factors is not meant to be exhaustive nor is any particular factor controlling. Id.
Appellant argues that based upon the appropriate factors, his conviction should have been assigned a severity level of seven. We are not persuaded. In State v. Kujak, 639 N.W.2d 878 (Minn. App. 2002) review denied (Minn. Mar. 25, 2002), the defendant pleaded guilty to racketeering. In assigning a severity level of eight to the defendant's racketeering offense, the trial court found the following "aggravating factors" justified an upward departure: (1) the defendant committed a major controlled-substance crime because he was involved in 13 separate transactions; (2) the defendant transferred cocaine for resale by another; (3) packaging the drugs constituted manufacturing the drugs for use by other persons; (4) the defendant occupied a high position in the drug-distribution hierarchy; (5) the offense required a high degree of sophistication; (6) racketeering occurred over a lengthy period of time; and (7) the defendant committed the crime as one in a group of three or more persons actively participating in the crime. Kujak, 639 N.W.2d at 882. On appeal, the defendant argued that, absent weapons, violence, and large amounts of drugs and money, these factors are "typical" for racketeering and do not justify an upward departure. Id.
The court stated that "Minnesota has no body of law by which this court can compare drug-related racketeering activities and define a `typical' drug-related RICO offense." Id. The court also noted that the defendant
set up a business to hide his illegal activities, investigated competition in the drug business, and used pagers, cell phones, and customer identification numbers to conduct his business. He also admitted to using juveniles, those mentioned in the indictment and others, to sell cocaine, and to setting up another individual in the cocaine business in September 1998. [The defendant] typically packaged the cocaine in baggies and specifically avoided touching it to avoid detection by his probation officer. From illegal cocaine sales, he made significantly more than the $12,200 reported as his gross income for the tax year 1998.
Id. at 883. Because the defendant's racketeering involved a high degree of sophisticated planning, the court held that the district court properly exercised its broad discretion by imposing an upward durational departure. See id.; see also Huynh, 519 N.W.2d at 198 (upholding the imposition of a severity level of eight for a racketeering charge involving extortion).
Here, similar to Kujak, appellant participated in a relatively involved drug operation. There were various cell phones and automobiles used, along with a variety of different drug dealers. The operation involved different individuals going to Chicago to buy drugs at "reasonable" prices, then selling the drugs in the Rochester area for more money, and large amounts of money were made as a result of the continued drug trade. We cannot say the district court erred when it imposed a severity level of eight.