(dissenting).
I respectfully dissent. I would conclude that the upward sentencing departure for the assault conviction was based on impermissible aggravating factors: conduct underlying the elements of the offense and conduct underlying separate convictions. Nevertheless, because the assault and drive-by shooting convictions are eligible for permissive consecutive sentences, I would vacate Edwards’ sentence and remand to the district court for resentencing. The court’s adoption of an overlapping facts rule, which is unnecessary in this case, in effect overrules our precedent.
Durational Departures. The purpose of the Minnesota Sentencing Guidelines “is to establish rational and consistent sentencing standards which ... are proportional to the severity of the offense of conviction and the extent of the offender’s criminal history.” Minn. Sent. Guidelines I. “Rationality goals were implicit in the creation and design of the commission itself as an independent agency charged with collecting information, drafting guidelines, and monitoring their implementation.” Richard S. Frase, Sentencing Guidelines in Minnesota, 1978-2003, 32 Crime & Just. 131,132 (2005).
To achieve proportionality, the guidelines employ a grid to determine the presumptive sentence for felonies. Minn. Sent. Guidelines II.C., IV (Sentencing Guidelines Grid). The vertical axis of the grid represents the severity of the offense. Id., II.A, TV, V (Offense Severity Reference Table).1 The horizontal axis represents the defendant’s criminal history score. Id., II.B, IV.
Offense severity is determined by the offense of conviction. Id., II.A. To compute the criminal history score, for each felony conviction for which a felony sentence was stayed or imposed before the current sentencing, the offender is assigned a designated number of points; and the value of the points assigned is based upon the severity level of each of the previous offenses. Id., II.B.l.a. To determine the sentence, the court locates the cell on the grid that corresponds to the offense level and the criminal history score. Other than the cells for relatively minor offenses, each cell contains three numbers. “The lowest number is the minimum guidelines sentence for that particular cell, the highest number is the maximum guidelines sentence, and the middle number is what might be referred to as the ‘presumptive fixed sentence.’ ” State v. Jackson, 749 N.W.2d 353, 359 n. 2 (Minn.2008).
In keeping with the guidelines proportionality goals, we have recognized that factors the legislature has taken into account in determining the degree or seriousness of the offense are not grounds for upward departure. State v. Shattuck, 704 *609N.W.2d 131, 140 (Minn.2005). We understood that a fact relied on in determining the degree of the defendant’s guilt “plays a role in determining the offense severity level and ultimately in determining the presumptive sentence.” State v. Brusven, 327 N.W.2d 591, 593 (Minn.1982). We have also recognized that conduct underlying one conviction cannot be used to support a departure on a sentence for a separate conviction. State v. Spaeth, 552 N.W.2d 187, 196 (Minn.1996). The rationale behind these rules “is that a defendant should not be punished twice for the same conduct.” State v. Osborne, 715 N.W.2d 436, 446 (Minn.2006). We recently reaffirmed these rules. State v. Jones, 745 N.W.2d 845, 849-50 (Minn.2008) (concluding that it would be improper to enhance criminal sexual conduct sentence based on conduct underlying neglect and endangerment convictions); Jackson, 749 N.W.2d at 357-58 (concluding that departure for aggravated robbery sentence based on uncharged assault would have been improper had the offense been charged).
Edwards was charged with three counts of attempted first-degree murder (one per victim), first-degree assault (Makara Din), and three counts of drive-by shooting (one per victim). The events prompting the charges began with Matt Watson confronting Phalla Krouch and Sokha Yong at a convenience store at around 2 a.m. on a Saturday. The young men decided to engage in combat at another location. Watson called Edwards for help. Vong called Din, telling Din to meet them at a strip mall. Din drove to the strip mall, bringing two others with him. Believing that Din was going home and concerned about his intoxication, two girls followed Din in another car to see that he got home safely. The girls were surprised when Din turned into the mall parking lot. They were still in or by their car when Edwards’ car made its pass through the parking lot and shots were fired.
The district court found Edwards not guilty of attempted first-degree murder. The court noted that Edwards fired toward the group while traveling at around 30 to 40 miles per hour. While testimonies estimating the distance between Edwards and the group “cluster[ed]” around 30 feet, the court found that forensic evidence and testimonies as to the group’s location in the parking lot indicated that the distance was “easily a multiple of 30 feet,” or “considerably greater than 30 feet.” Given the distance and speed of the car, the court found evidence of intent to kill lacking.
In finding Edwards guilty of the first-degree assault and felony drive-by shootings, the court made the following specific findings:
1. On January 28, 2006, in Olmsted County, Minnesota, Defendant assaulted Makara Din by intentionally inflicting bodily harm on Din, or by doing an act with intent to cause Din to fear bodily harm or death. Specifically, Defendant fired multiple gunshots at or toward Makara Din, one bullet striking Din.
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4. On January 28, 2006, in Olmsted County, Minnesota, Defendant, while riding in a motor vehicle, recklessly discharged a firearm by firing at or toward another person; specifically, Makara Din.
5. On January 28, 2006, in Olmsted-County, Minnesota, Defendant, while riding in a motor vehicle, recklessly discharged a firearm by firing at or toward another person; specifically, Khaosan Ruos.
6. On January 28, 2006, in Olmsted County, Minnesota, Defendant, while riding in a motor vehicle, recklessly discharged a firearm by firing *610[at or] toward another person; specifically, Khaosorn Ruos.
The first-degree assault conviction, a severity level IX offense with Edwards’ criminal history score of four, had a presumptive range of 114 to 160 months. The stated reason for the 30-month upward departure was the drive-by shooting: “that Defendant fired seven times at or toward a group of nine people in the immediate area, exposing all of them to injury or death, and, in addition to Makara Din, seriously injuring Khaosan Ruos.”
The risk-creating conduct, however, factored into Edwards’ greater liability for the assault.2 The great bodily harm resulting from the drive-by shooting catapulted that offense to a first-degree assault, elevating the offense severity level from VIII to IX, and increasing the presumptive “top-of-the-cell” sentence duration by 55 months. The use of the drive-by shooting to support the 30-month upward departure for the assault amounted to punishment twice for the same conduct. Cf. State v. Stanke, 764 N.W.2d 824, 827-28 (Minn.2009) (holding that vulnerability of a peace officer factored into greater liability for fleeing a peace officer resulting in death). I would hold that the upward departure was based on impermissible aggravating factors: conduct underlying the elements of the offense and conduct underlying separate convictions. That, however, would not end the matter because the offenses were eligible for permissive consecutive sentences.
Permissive Consecutive Sentences. When an offender is convicted of multiple current offenses, in certain limited circumstances, consecutive sentences are permissive. Minn. Sent. Guidelines II.F. The guidelines outline the criteria for permissive consecutive sentences. Id., II.F.2. The guidelines provide a list of offenses that are eligible for permissive consecutive sentences in eases of multiple current felony convictions. Id., II.F.2.b. First-degree assault and felony drive-by shooting are eligible offenses. Id., VI. Ordinarily, for each offense sentenced consecutive to another offense, a zero criminal history score is used to determine the presumptive duration. Id., II.F.2. In Edwards’ case, the second drive-by shooting conviction, a severity level VIII offense with a zero criminal history score, has a presumptive range of 41 to 57 months. Mathematically speaking, it seems to me the same 190-month duration could be attained by sentencing within the applicable presumptive range of each offense, such as 142 months for the assault conviction and a consecutive 48 months for the second drive-by shooting conviction.3
The decision to impose a permissive consecutive sentence is discretionary with the district court. See Neal v. State, 658 N.W.2d 536, 548 (Minn.2003). “Consecutive sentences are a more severe sanction because the intent of using them is to confine the offender for a longer period than under concurrent sentences.” Minn. Sent. Guidelines, cmt. II.F.01. “In all cases the Commission suggests that judges *611consider carefully whether the purposes of the sentencing guidelines (in terms of punishment proportional to the severity of the offense and the criminal history) would be served best by concurrent rather than consecutive sentences.” Id.
It is also worth bearing in mind that in response to Blakely,4 the 2005 legislature substantially broadened the sentencing cell ranges. The intent was to reduce upward durational departures by expanding judicial discretion. Jackson, 749 N.W.2d at 360. Consequently, a severity level IX offense with a zero criminal history score now has a sentencing range of 29 months (74-103), and the same offense with a criminal history score of four has a range of 46 months (114-160). Previously, all level IX cells had a range of ten months. Jackson, 749 N.W.2d at 360. The level IX cell on the 2004 grid with a criminal history score of four has a range of 129 to 139 months. Minn. Sent. Guidelines IV (2004). In other words, by operation of the broadened judicial discretion in sentencing, in Edwards’ case, an additional 21 months was allowable without a departure reason.
Although the district court might have reached the same sentence duration with permissive consecutive sentencing, we should not presume that determination, much less assume authority for resentenc-ing in the first place. Consequently, I would vacate Edwards’ sentence and remand the matter to the district court for resentencing, to include consideration of whether permissive consecutive sentencing meets the guidelines criteria; if so, whether the purposes of the guidelines would be served best by consecutive sentences rather than concurrent sentences; and if consecutive sentencing is deemed appropriate, the precise computation of the duration of each sentence.
Overlapping Facts. I further disagree with the court’s new standard, which provides that when several convictions involving multiple victims arise out of a single behavioral incident, the court “may use ‘overlapping’ facts of those offenses” for departures. The court relies on People v. Oates, 32 Cal.4th 1048, 12 Cal.Rptr.3d 325, 88 P.3d 56 (2004). Oates involved a California gun-enhancement law that added “25 years to life” to the defendant’s determinate prison term for discharging a firearm in committing a listed felony.5 Id. at 57. The defendant in Oates was convicted of five counts of attempted murder, one for each person in the group at which he fired. Id. at 58. The Oates court determined that the language, history, and purpose of the law required enhancements for each crime and that the judicially created multiple-victims exception to the statutory bar on multiple punishment permitted the enhancements. Id. at 60, 64-65. I see little connection between California’s indeterminate-enhancements scheme, in which the parole board determines the defendant’s ultimate release date, and our determinate sentencing system in which the ultimate release date is determined by the court-imposed guidelines sentence.
Moreover, we crafted the multiple-victims exception to Minn.Stat. § 609.035 when our sentencing system did not require rationality and proportionality because of the existence of a parole board to decide the defendant’s ultimate release date. Shattuck, 704 N.W.2d at 145 (describing parole board’s authority to parole or discharge a defendant without regard to the length of the sentence). Under indeterminate sentencing systems, as existed *612in Minnesota before the guidelines, rehabilitation was the important goal, and “punishment should fit the offender and not merely the crime.” Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); see Minn.Stat. § 609.115 (1976) (requiring estimates of prospects of defendant’s rehabilitation in presentence report if the court so directs). Appellate review for proportionality of a sentence was not even allowed. Jones, 745 N.W.2d at 849 n. 3.
Proportionality and rationality, however, are central to the guidelines system. While appellate court review of a sentence promotes more rational sentencing policy, “on most issues, the [Sentencing Guidelines Commission] retains primary control over sentencing policy formulation.” Frase, supra at 204. “Using the commission’s expertise and independence, the guidelines seek to coordinate sentencing policy with available correctional resources ... with a specific goal of avoiding prison overcrowding.” Id.
A sentencing commission is well positioned to consider the aggregate effects of all sentencing laws and to make sure that the specific sentencing decisions add up to an overall, sensible policy. It can monitor the sentences for every crime and project the impact on prison resources. The permanent sentencing body thus becomes a de facto interest group for cost concerns and system-wide rationality.
Rachel E. Barkow, Administering Crime, 52 UCLA L.Rev. 715, 811 (2005).
In summary, I would conclude that the upward sentencing departure was improper, vacate Edwards’ sentence, and remand for resentencing to include consideration of the propriety of consecutive service. I would also conclude that the overlapping facts rule supplants the old underlying conduct rule, undercutting guidelines proportionality goals and effectively overruling Jones and Jackson. “[T]he doctrine of stare decisis directs that we adhere to former decisions in order that there might be stability in the law.” State v. Ross, 732 N.W.2d 274, 280 (Minn.2007) (citation omitted) (internal quotation marks omitted). Ordinarily, “[w]e require a compelling reason to overrule precedent.” State v. Her, 750 N.W.2d 258, 272 (Minn.2008) (citation omitted) (internal quotation marks omitted). No such compelling reason exists here. Therefore, I dissent.
. Specified sex offenses are arrayed on a separate grid into eight severity levels. Minn. Sent. Guidelines II.A, IV.
. First-degree assault is an assault which "inflicts great bodily harm.” Minn.Stat. § 609.221, subd. 1 (2008). Second-degree assault is an assault "with a dangerous weapon.” Minn.Stat. § 609.222, subd. 2 (2008). An assault is "an act done with intent to cause fear in another of immediate bodily harm or death.” Minn.Stat. § 609.02, subd. 10(1) (2008). An assault is also "the intentional infliction of or attempt to inflict bodily harm upon another.” Id., subd. 10(2).
. Believing that permissive consecutive sentencing might apply, Court Services included various options in the presentence investigation report. The overall duration of the recommended sentence was close to the duration imposed by the district court.
. Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
. Cal. Ct. R. 4.405(3) (defining an enhancement as "an additional term of imprisonment added to the base term”).