State v. Fleming, Minn.S.Ct., 8/17/2016. Someone cut Mr. Fleming with a knife while the two were apparently playing basketball on a court in some park; illegal screen perhaps. In any event, Mr. Flemming pulled a gun out of his backpack and fired off six rounds. There were lots of adults and kids around when this happened.
Mr. Fleming pled guilty to both assault and possession of a firearm by an ineligible person. The trial court imposed a 90 month sentence on the firearm possession conviction; the trial court initially stayed that sentence but when Mr. Fleming violated probation the court executed the sentence. Mr. Fleming appealed. He said that although his possession of the firearm created a greater than normal danger to the safety of other people, he created that greater danger by committing the assault. That being the case, Mr. Fleming then said that a court can't rely on conduct underlying one conviction to support a sentencing departure for a separate conviction.
Both the trial court and the court of appeals rejected this argument, relying upon a 2009 amendment to Minn.Stat. 244.10, subd. 5a(b):
Notwithstanding section 609.04 or 609.035, or other law to the contrary, when a court sentences an offender for a felony conviction, the court may order an aggravated sentence beyond the range specified in the sentencing guidelines grid based on any aggravating factor arising from the same course of conduct.
The supreme court accepted review. Justice Dietzen doesn't really have a whole lot to say about this beyond what the court of appeals already said. The "plain language" of the statute means just what it says: the statute authorizes a departure based on "any aggravating factor" "notwithstanding" whatever either 609.04 or 609.035 say.