(concurring).
Although I join in the reasoning and analysis of the court’s opinion authored by Justice Stras as it relates to the inapplicability of the aggravating factor of particular cruelty to this case, I write separately because I believe Tucker’s upward departure fails for a more fundamental reason: Tucker’s failure to aid Garley constituted an uncharged offense and thus is an invalid ground for any upward departure.
Under the Minnesota Sentencing Guidelines, a district court may depart from the presumptive sentence only by “disclos[ing] in writing or on the record the particular substantial and compelling” circumstances justifying the departure. Minn. Sent. Guidelines II.D; see State v. Jackson, 749 N.W.2d 353, 360 (Minn.2008). The Sentencing Guidelines provide a non-exhaustive list of factors that may warrant an upward departure, including when the victim was treated in a particularly cruel manner. Minn. Sent. Guidelines II. D.2.b(2). However, the district court is *589“not permitted to impose an upward departure if the sentence will unfairly exaggerate the criminality of the defendant’s conduct, or punish a defendant twice for the same conduct.” State v. Edwards, 774 N.W.2d 596, 601 (Minn.2009). As such, the district court may only rely upon certain facts to justify a departure. See id. at 602.
In Edwards, we articulated several guiding principles to “assist the district court in determining what facts are ‘available’ for departure.” 774 N.W.2d at 601-02. As relevant to this case, one of those guiding principles was to limit “the availability of facts underlying a separate offense to support an upward departure for the conviction at issue.” Id. at 602. We stated that “facts underlying an uncharged separate incident are an impermissible basis for departure because those facts do not show that the offense being sentenced was committed in a particularly serious way.” Id. (discussing State v. Ott, 341 N.W.2d 883, 884 (Minn.1984)).
Although neither party briefed this issue, I believe that Tucker’s failure to aid violates Minn.Stat. § 609.662, subd. 2 (2010). Subdivision 2 provides that “[a] person who discharges a firearm and knows or has reason to know that the discharge has caused bodily harm to another person, shall: (1) immediately investigate the extent of the person’s injuries; and (2) render immediate reasonable assistance to the injured person.” When the discharge of a firearm results in death, the punishment for failing to investigate and/or provide aid is imprisonment for no more than two years and/or a fine of no more than $4,000. Minn.Stat. § 609.662, subd. 2(b)(1). Here, Tucker discharged his .45 caliber pistol into the driver’s side of the windshield of Garley’s car, knowing that Garley was still seated in the driver’s seat of her car. Based on these facts, in my view, and the court of appeals held as much, Tucker either knew or had reason to know that his discharge of the gun very likely caused bodily harm to Garley. See Tucker v. State, 777 N.W.2d 247, 251 (Minn.App.2010).
As a result, I believe that, under section 609.662, subdivision 2(b)(1), Tucker’s failure to aid was a separate offense for which he was not charged and thus as a matter of law cannot be grounds for an upward departure. Consequently, because the upward departure here fails as a matter of law and as a matter of fact, remand to the posteonviction court for resentencing is appropriate.