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People v. Steanhouse

Supreme Court of Michigan

July 24, 2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
ALEXANDER JEREMY STEANHOUSE, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
ALEXANDER JEREMY STEANHOUSE, Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
MOHAMMAD MASROOR, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
MOHAMMAD MASROOR, Defendant-Appellee.

          Argued January 10, 2017

          Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen Kurtis T. Wilder

         Syllabus

         Alexander J. Steanhouse was convicted by a jury in the Wayne Circuit Court of assault with intent to commit murder (AWIM), MCL 750.83, and receiving and concealing stolen property, MCL 750.535(3)(a). The court, Patricia P. Fresard, J., departed from the sentencing guidelines' recommended minimum range of 171 to 285 months and sentenced Steanhouse to 30 to 60 years' imprisonment for AWIM, to run concurrently with a sentence of one to five years' imprisonment for receiving and concealing stolen property. Steanhouse appealed his convictions and sentences by right, arguing in part that the trial court had violated the Sixth and Fourteenth Amendments by basing his scores for several offense variables on judicially found facts in violation of Apprendi v New Jersey, 530 U.S. 466 (2000), and Alleyne v United States, 570 U.S. ___ (2013). The Court of Appeals, Wilder, P.J., and Owens and M. J. Kelly, JJ., affirmed the convictions but ordered a remand under the procedure adopted in People v Lockridge, 498 Mich. 358 (2015), from United States v Crosby, 397 F.3d 103 (CA 2, 2005), to determine whether the sentences were reasonable. The panel held that the proper standard for determining whether a sentence was reasonable was not the approach employed by federal courts, which is guided by the factors in 18 USC 3553(a), but rather the principle of proportionality set forth in People v Milbourn, 435 Mich. 630 (1990). 313 Mich.App. 1 (2015). Both the defendant and the prosecution sought leave to appeal. The Supreme Court granted the prosecution's application for leave to appeal in Docket No. 152849, ordered the appeal to be argued and submitted with the prosecution's application for leave to appeal in People v Masroor, Docket Nos. 152946 through 152948, and kept Steanhouse's application for leave to appeal in Docket No. 152671 pending. 499 Mich. 934 (2015).

         Mohammad Masroor was convicted by a jury in the Wayne Circuit Court of 10 counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b, and five counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c. At sentencing, defense counsel objected to the scoring of the guidelines on the basis of judicial fact-finding and also objected that the scores of several offense variables were unsupported by a preponderance of the evidence. The court, Michael M. Hathaway, J., departed from the sentencing guidelines' recommended minimum range of 108 to 180 months and imposed concurrent prison terms of 35 to 50 years for each of the CSC-I convictions and 10 to 15 years for each of the CSC-II convictions. The Court of Appeals, Gleicher, P.J., and Murphy, J. (Sawyer, J., concurring in the result only), affirmed Masroor's convictions but ordered a Crosby remand and directed the trial court to apply the proportionality standard adopted in Steanhouse. However, the majority stated that but for the Steanhouse decision, it would have affirmed Masroor's sentences by applying the federal "reasonableness" standard from Gall v United States, 552 U.S. 38 (2007), which was specifically rejected in Steanhouse, and it called for a conflict panel to determine which standard was the proper one. 313 Mich.App. 358 (2015). The Court of Appeals declined to convene a conflict panel. Both Masroor and the prosecution applied for leave to appeal in the Supreme Court. The Supreme Court granted the prosecution's application for leave to appeal in Docket Nos. 152946 through 152948, ordered those cases to be argued and submitted with the prosecution's application for leave to appeal in Steanhouse, Docket No. 152849, and kept Masroor's applications for leave to appeal in Docket Nos. 152871 through 152873 pending. 499 Mich. 934 (2015).

         In an opinion by Justice McCormack, joined by Justices Viviano, Bernstein, and Larsen, the Supreme Court held:

         The legislative sentencing guidelines are advisory in all applications. The proper inquiry when reviewing a sentence for reasonableness is whether the trial court abused its discretion by violating the principle of proportionality set forth in Milbourn. It was unnecessary to reach the question whether People v Stokes, 312 Mich.App. 181 (2015), correctly held that the remedy for a Sixth Amendment sentencing violation should be the same regardless of whether the sentencing error was preserved in light of the fact that both defendants received departure sentences and therefore could show no harm from the application of the mandatory guidelines. For the same reason, Crosby remands were unnecessary. The judgments of the Court of Appeals in both cases were reversed to the extent that they remanded to the trial court for further sentencing proceedings under Crosby. In lieu of granting defendants' applications for leave to appeal in Docket Nos. 152671 and 152871 through 152873, the cases were remanded to the Court of Appeals under MCR 7.305(H)(1) for plenary consideration of whether the departure sentences imposed by the trial courts were reasonable under the standard set forth in this opinion. In all other respects, leave to appeal with regard to those applications was denied.

         1. The remedial holding in Lockridge that rendered the guidelines advisory in all applications was reaffirmed. The constitutional holding in Lockridge was premised on the interplay between the requirement of judicial fact-finding to score the guidelines and their mandatory nature. What made the guidelines unconstitutional was the combination of the two mandates of judicial fact-finding and adherence to the guidelines. MCL 769.34(2), which imposed the second mandate, was therefore held to be constitutionally deficient. Assuming without deciding that mandatory guidelines would remain constitutional in some applications, MCL 8.5 does not require a different result. Even if the proposed bifurcated mandatory/advisory guidelines system fully avoided any constitutional problems, it would be an inoperable scheme if trial courts were statutorily directed to score the highest number of points possible but were constitutionally constrained from treating the guidelines as mandatory only if facts relied on to justify the scoring of the guidelines are found by a judge rather than by a jury or admitted by a defendant. The distinction between judge-found facts and facts sufficiently admitted by a defendant that they may be used to increase the defendant's sentence is unclear, and it is not always evident whether a jury's findings on a point of fact are sufficiently conclusive to determine that it found that fact beyond a reasonable doubt. Further, it is unclear what standard trial judges would use to determine whether a jury had made the requisite finding to support a proposed OV score or what standard appellate courts would apply when reviewing those determinations. The result of adopting a system in which the guidelines' mandatory-versus-advisory nature hinged on whether judicial fact-finding had occurred in a particular case would be endless litigation and perpetual uncertainty, and MCL 8.5 does not require this result. Finality interests also strongly supported adherence to the holding in Lockridge, given that scores of Crosby remands have been ordered since Lockridge was decided and that trial courts have seemingly uniformly understood Lockridge to have imposed a purely advisory system.

         2. The rule of decision to be applied by the trial courts is the principle of proportionality set forth in Milbourn, not the federal statutory factors listed in 18 USC 3553(a). The statutory factors in 18 USC 3553(a) were created by Congress for use by the federal courts and include reference to policy statements issued by the Sentencing Commission or by act of Congress that have no counterpart in Michigan law, whereas the principle of proportionality has a lengthy jurisprudential history in this state. None of the constitutional principles announced in United States v Booker, 543 U.S. 220 (2005), or its progeny compelled a departure from Michigan's longstanding principles applicable to sentencing, and the principle of proportionality was not irreconcilable with Gall, 552 U.S. at 46, because it did not create an impermissible presumption of unreasonableness for sentences outside the guidelines range.

         3. Remand for a Crosby hearing in cases involving departure sentences is unnecessary. The Crosby remand procedure was adopted for the specific purpose of determining whether trial courts that had sentenced defendants under the mandatory sentencing guidelines had their discretion impermissibly constrained by those guidelines. Departure sentences were specifically exempted from that remand procedure, at least for cases in which the error was unpreserved, because a defendant who had received an upward departure could not show prejudice resulting from the constraint on the trial court's sentencing discretion. Therefore, the purpose for the Crosby remand is not present in cases involving departure sentences. The analysis of the Masroor panel was affirmed to the extent that it rejected the Steanhouse panel's decision to order a Crosby remand, and the Steanhouse panel should have reviewed the departure sentence for an abuse of discretion using the "principle of proportionality" standard. Both cases were remanded to the Court of Appeals to consider the reasonableness of the defendants' sentences under the standards set forth in this opinion, and if the Court of Appeals determined that either sentencing court abused its discretion in applying the principle of proportionality by failing to provide adequate reasons for the extent of the departure sentence imposed, it must remand to the trial court for resentencing.

         In Docket Nos. 152849 and 152946 through 152948, Court of Appeals judgments affirmed to the extent they held that appellate review of departure sentences for reasonableness required review of whether the trial court abused its discretion by violating the principle of proportionality set forth in Milbourn; Court of Appeals judgments reversed to the extent they ordered Crosby remands.

         In Docket Nos. 152671 and 152871 through 152873, in lieu of granting leave to appeal, cases remanded to the Court of Appeals for plenary review of whether defendants' sentences were reasonable under Milbourn; leave to appeal denied in all other respects.

         Justice Larsen, joined by Justice Viviano, concurring, wrote separately to address the points raised by the partial dissent, stating that, while some of the language in Lockridge could raise a question about the extent of Lockridge's remedial holding if read in isolation, the Court in Lockridge clearly chose to render the guidelines fully advisory as a remedy for the constitutional violation identified in that case, and the fact that Lockridge imposed this remedy has been clearly understood by the participants in Michigan's criminal justice system. Justice Larsen noted that the question whether this remedy was the one most reasonably consistent with the Legislature's intentions was the issue before the Court in Lockridge, not in the present case, and she stated that any changes to the remedy adopted in Lockridge would require upending criminal sentencing in this state for a second time in two years and would set off another round of litigated questions, including whether and how to resentence the resentenced. Justice Larsen further noted that if the Lockridge remedy was not the best effectuation of the Legislature's intent, it was within the Legislature's power to install a different sentencing scheme.

         Chief Justice Markman, joined by Justice Zahra, concurring in part and dissenting in part, concurred in the majority opinion to the extent that it (1) reaffirmed the holding that a defendant receiving a sentence that represents an upward departure is not entitled to a Crosby remand and (2) held that the proper inquiry when reviewing a departure sentence for reasonableness is whether the trial court abused its discretion by violating the principle of proportionality set forth in Milbourn. He dissented from the portion of the majority opinion that held that the legislative sentencing guidelines are always advisory, regardless of whether a mandatory application of the guidelines would violate the Sixth Amendment, on the ground that, under separation-of-powers principles, the Court has the authority to strike down statutes only to the extent that they are unconstitutional and is required to give the constitutional portions of a statute effect as long as they are not inoperable or rendered inconsistent with the manifest intent of the Legislature. Chief Justice Markman noted that there were multiple alternative remedies that were more consistent with the Legislature's intent to impose mandatory guidelines, including rendering the floor advisory and the ceiling mandatory, rendering both the floor and the ceiling mandatory but prohibiting judicial fact-finding when determining the floor, rendering the guidelines advisory when the court engages in fact-finding to score offense variables that increase the guidelines range and mandatory when it does not, allowing the guidelines to be mandatory by prohibiting judicial fact-finding when scoring offense variables, and allowing the guidelines to be mandatory by requiring the jury to find any facts that the defendant did not admit when scoring the offense variables. Chief Justice Markman would have held that the guidelines are mandatory to the extent that a mandatory application does not run afoul of a defendant's Sixth Amendment right to a jury trial.

          Justice Wilder took no part in the decision of this case.

         BEFORE THE ENTIRE BENCH (except WILDER, J.)

          OPINION

          McCormack, J.

         Two terms ago, in People v Lockridge, 498 Mich. 358; 870 N.W.2d 502 (2015), this Court, applying binding United States Supreme Court precedent, held that Michigan's sentencing guidelines scheme violates the Sixth Amendment of the United States Constitution. To remedy the constitutional violation, we held that the guidelines would thereafter be merely advisory rather than mandatory. In these consolidated cases, we address residual issues stemming from our decision in Lockridge. We hold the following:

         (1) In Lockridge, we held, and today reaffirm, that the legislative sentencing guidelines are advisory in all applications.

         (2)We affirm the Court of Appeals' holding in People v Steanhouse, 313 Mich.App. 1; 880 N.W.2d 297 (2015), that the proper inquiry when reviewing a sentence for reasonableness is whether the trial court abused its discretion by violating the "principle of proportionality" set forth in People v Milbourn, 435 Mich. 630, 636; 461 N.W.2d 1');">461 N.W.2d 1 (1990), "which requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender."

         (3) We decline to import the approach to reasonableness review used by the federal courts, including the factors listed in 18 USC 3553(a), into our jurisprudence.

         (4) We agree with the Court of Appeals that defendant Alexander Steanhouse did not preserve his Sixth Amendment challenge to the scoring of the guidelines and that defendant Mohammad Masroor did preserve his challenge, but we decline to reach the question whether People v Stokes, 312 Mich.App. 181; 877 N.W.2d 752 (2015), correctly decided that the remedy is exactly the same regardless of whether the error is preserved or unpreserved in light of the fact that both defendants received departure sentences, and that, therefore, neither defendant can show any harm from the application of the mandatory guidelines.[1]

         (5) We reverse, in part, the judgments of the Court of Appeals in both cases to the extent they remanded to the trial court for further sentencing proceedings under United States v Crosby, 397 F.3d 103 (CA 2, 2005).[2] Both of the trial courts imposed upward departure sentences on the defendants, and we made clear in Lockridge that defendants who receive upward departure sentences cannot show prejudice from the Sixth Amendment error. Accordingly, the Court of Appeals in People v Masroor, 313 Mich.App. 358, 396; 880 N.W.2d 812 (2015), correctly concluded that ordering Crosby remands in such cases "unnecessarily complicates and prolongs the sentencing process." Instead, the proper approach is for the Court of Appeals to determine whether the trial court abused its discretion by violating the principle of proportionality.

         (6) Because of our ruling in (5), in lieu of granting leave to appeal in the defendants' appeals (Docket Nos. 152671 and 152871 through 152873), pursuant to MCR 7.305(H)(1), we remand those cases to the Court of Appeals for plenary consideration of whether the departure sentences imposed by the trial courts were reasonable under the standard set forth in this opinion. In all other respects, leave to appeal with regard to those applications is denied because we are not persuaded that the questions presented should be reviewed by this Court.

         I. LEGAL BACKGROUND

         In Lockridge, we relied on the United States Supreme Court's recent decision in Alleyne v United States, 570 U.S. ___; 133 S.Ct. 2151; 186 L.Ed.2d 314 (2013), to conclude that Michigan's mandatory sentencing guidelines violated the Sixth Amendment because they require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increased the floor of the guidelines' minimum sentence range. As a remedy for the constitutional infirmity, we held that the guidelines were advisory only and that many defendants sentenced under the mandatory guidelines were entitled to Crosby remands for the trial court to determine whether it would have imposed a materially different sentence if it had been aware that the guidelines were not mandatory. We also held that departure sentences post-Lockridge would be reviewed for reasonableness, though we did not elaborate on the proper standard for this reasonableness review. Lockridge, 498 Mich. at 392.

         Notably for purposes of these cases, we also held that the defendant in Lockridge was not entitled to a Crosby remand because he had received an upward departure sentence; we concluded that "[b]ecause he received an upward departure sentence that did not rely on the minimum sentence range from the improperly scored guidelines (and indeed, the trial court necessarily had to state on the record its reasons for departing from that range), the defendant cannot show prejudice from any error in scoring the OVs in violation of Alleyne." Id. at 394.

         II. FACTS AND PROCEDURAL HISTORY

         A. STEANHOUSE

         The defendant was jury-convicted of assault with intent to murder (AWIM), MCL 750.83, and receiving and concealing stolen property with a value between $1, 000 and $20, 000, MCL 750.535(3)(a). Defense counsel objected at sentencing to the evidentiary basis for scoring OVs 5, 6, and 7, MCL 777.35, MCL 777.36, and MCL 777.37. The trial court upheld the scoring of OVs 5 and 6 but eliminated points for OV 7 for lack of factual support. The trial court departed from the applicable guidelines range (calling for a minimum prison term of 171 to 285 months) and imposed a 30- to 60-year (360- to 720-month) prison sentence for the AWIM count, concurrent with a 1- to 5-year sentence for the stolen-property count.

         The Court of Appeals affirmed the defendant's convictions in a published opinion but ordered a Crosby remand. The panel then proceeded to evaluate two potential approaches it could adopt to frame the "reasonableness" review of sentences post-Lockridge: (1) the standard currently employed by the federal courts, which is guided by the factors in 18 USC 3553(a), or (2) the "principle of proportionality" standard from Milbourn. The panel adopted the latter standard. Steanhouse, 313 Mich.App. at 46-47.

         Both the defendant and the prosecution sought leave to appeal in this Court. We granted the prosecution's application for leave to appeal, ordered it to be argued and submitted with the prosecution's application for leave to appeal in Masroor, and kept the defendant's application for leave to appeal pending. People v Steanhouse, 499 Mich. 934 (2016).[3]

         B. MASROOR

         The defendant, in three cases tried together, was jury-convicted of 10 counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b, and five counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c. At sentencing, defense counsel made a general objection to scoring the guidelines on the basis of judicial fact-finding, citing Alleyne, 570 U.S. ___; 133 S.Ct. 2151, and objected to the scoring of several OVs on the basis that the scoring was unsupported by a preponderance of the evidence. After resolving those challenges, the trial court departed from the applicable guidelines range (calling for a minimum prison term of 108 to 180 months) and imposed concurrent prison terms of 35 to 50 years (420 to 600 months) for each of the CSC-I convictions and 10 to 15 years for each of the CSC-II convictions.

         The Court of Appeals affirmed the defendant's convictions in a published opinion but ordered a Crosby remand and directed the trial court to apply the "proportionality" standard adopted in Steanhouse. But the panel majority said that but for the Steanhouse decision, it would have affirmed the defendant's sentences by applying the federal "reasonableness" standard from Gall v United States, 552 U.S. 38, 46; 128 S.Ct. 586; 169 L.Ed.2d 445 (2007), which was specifically rejected in Steanhouse, and it called for a conflict panel to resolve which standard was the proper one and "so that the procedure established by [the Steanhouse] panel may be more carefully considered by a larger number of the judges of this Court."[4] Masroor, 313 Mich.App. at 361.

         On December 17, 2015, the Court of Appeals issued an order announcing that a special panel would convene pursuant to MCR 7.215(J) to resolve the conflict between these cases "concerning the standards applicable to review for reasonableness of sentences constituting departures from the recommendations of the sentencing guidelines, and the extent to which remands are required in cases involving sentencing decisions before People v Lockridge, 498 Mich. 358 (2015), was decided"; the next day, however, the Court issued another order vacating that order because of a polling error and stating that a special conflict panel would not be convened. People v Masroor, 313 Mich.App. 801 (2015).

         As in Steanhouse, both the defendant and the prosecution appealed in this Court. We granted the prosecution's application for leave to appeal, ordered it to be argued and submitted with the prosecution's application for leave to appeal in Steanhouse, and kept the defendant's application for leave to appeal pending. People v Masroor, 499 Mich. 934 (2015).

         III. ANALYSIS

         A. THE LOCKRIDGE REMEDIAL HOLDING/MCL 8.5

         The prosecution contends that this Court's decision in Lockridge rendered the legislative sentencing guidelines advisory only in cases that involved judicial fact-finding that increased the applicable guidelines range and that the guidelines remain mandatory in all other cases. Despite its argument that our holding in Lockridge was unclear, the prosecution has cited no case-and we have found none-in which a lower court has held that the guidelines remained mandatory in any application post-Lockridge. Additionally, we note that no party in Lockridge-including the prosecution as amicus-argued that the remedy set forth in United States v Booker, 543 U.S. 220; 125 S.Ct. 738; 160 L.Ed.2d 621 (2005), should extend only to cases in which judicial fact-finding occurred. Indeed, in Lockridge, "the prosecution . . . ask[ed] us to Booker-ize the Michigan sentencing guidelines, i.e., render them advisory only. We agree[d] that this [wa]s the most appropriate remedy." Lockridge, 498 Mich. at 391. The prosecution, albeit a different prosecutor's office than in Lockridge, [5] now asks us to Booker-ize the Michigan sentencing guidelines only in part. The prosecution cites MCL 8.5[6] for the proposition that we lacked the authority in Lockridge to impose fully advisory guidelines when the guidelines were not unconstitutional in all their applications.[7]

         We disagree and reaffirm Lockridge's remedial holding rendering the guidelines advisory in all applications. As we stressed in Lockridge, our constitutional holding was premised on the interplay of two key aspects of the guidelines: the requirement of judicial fact-finding to score them and their mandatory nature. Lockridge, 498 Mich. at 364 (outlining the constitutional error as "the extent to which the guidelines require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e., the 'mandatory minimum' sentence under Alleyne"). What made the guidelines unconstitutional, in other words, was the combination of the two mandates of judicial fact-finding and adherence to the guidelines. United States v Pirani, 406 F.3d 543, 551 (CA 8, 2005) (describing the constitutional error as "the combination of" a sentencing enhancement based on judge-found facts and a mandatory guidelines regime). We therefore held MCL 769.34(2), which imposed the second mandate, to be constitutionally deficient.

          Assuming without deciding that mandatory guidelines would remain constitutional in some applications-i.e., cases in which no judicial fact-finding occurs that increases the applicable guidelines range[8]-we believe MCL 8.5 does not require a different result. Even if the proposed bifurcated mandatory/advisory guidelines system fully avoided any constitutional problems, we reject the operability of a guidelines scheme in which trial courts are statutorily directed to score the "highest number of points" possible but are constitutionally constrained from treating the guidelines as mandatory only if facts relied on to justify the scoring of the guidelines are found by a judge rather than by a jury or admitted by a defendant. See MCL 8.5 (providing that the remaining constitutional applications of the statute are to be given effect unless determined to be "inoperable").

         First, the distinction between judge-found facts and facts sufficiently admitted by a defendant that they may be used to increase the defendant's sentence is unclear.[9] Second, whether a jury's "findings" on a point of fact are sufficiently conclusive to determine that it "found" that fact beyond a reasonable doubt is not always evident.[10] Third, what standard would trial judges use to determine whether a jury in fact made the requisite finding to support a proposed OV score? Moreover, what standard would appellate courts apply to those determinations by the trial court to decide whether they were correctly made? All of these issues would be left unsettled in a system in which the guidelines' mandatory-versus-advisory nature hinged on whether judicial fact-finding had occurred in a particular case. The result would be endless litigation and perpetual uncertainty. See Booker, 543 U.S. at 266 (noting the "administrative complexities" that such a bifurcated system would create). We will not travel that ill-advised road when MCL 8.5 does not require us to.[11]

         Finally, we believe that finality interests strongly support adherence to our holding in Lockridge. We decided Lockridge almost two years ago and have ordered scores of Crosby remands in the interim. Trial courts have seemingly uniformly understood our decision to have imposed a purely advisory system.[12] It would sow much greater confusion to retreat from Lockridge than to adhere to it.[13]

         We therefore decline to modify the remedial holding in Lockridge, which rendered the sentencing guidelines advisory in all cases. "Sentencing courts must . . . continue to consult the applicable guidelines range and take it into account when imposing a sentence . . . [and] justify the sentence imposed in order to facilitate appellate review." Lockridge, 498 Mich. at 392.

         B. REASONABLENESS REVIEW

         Next, we turn to an issue that divided the Steanhouse and Masroor panels: the proper standard to use to determine whether a defendant's departure sentence is so unreasonable as to constitute an abuse of the trial court's discretion and warrant reversal on appeal.[14] One important note on which the panels did not disagree is significant: the standard of review to be applied by appellate courts reviewing a sentence for reasonableness on appeal is abuse of discretion. See Steanhouse, 313 Mich.App. at 45; Masroor, 313 Mich.App. at 394. The sticking point is the rule of decision to be applied by the trial courts: the principle of proportionality adopted by our opinion in Milbourn, or the federal statutory factors listed in 18 USC 3553(a). In other words, is the relevant question for appellate courts reviewing a sentence for reasonableness (1) whether the trial court abused its discretion by violating the principle of proportionality or (2) whether the trial court abused its discretion in applying the factors set forth in 18 USC 3553(a)?

         In light of the substantial overlap and the identical standard of review for appellate courts, little likely separates the two approaches in terms of the outcomes they would produce in a given case. But we affirm the Steanhouse panel's adoption of the Milbourn principle-of-proportionality test in light of its history in our jurisprudence. The statutory factors in 18 USC 3553(a) were created by Congress for use by the federal courts and include reference to "policy statements" issued by the Sentencing Commission or by act of Congress that have no counterpart in Michigan law.

         The principle of proportionality has a lengthy jurisprudential history in this state. See Milbourn, 435 Mich. at 650, quoting Weems v United States, 217 U.S. 349, 367; 30 S.Ct. 544; 54 L.Ed. 793 (1910). In Milbourn, we described that principle as one in which

a judge helps to fulfill the overall legislative scheme of criminal punishment by taking care to assure that the sentences imposed across the discretionary range are proportionate to the seriousness of the matters that come before the court for sentencing. In making this assessment, the judge, of course, must take into account the nature of the offense and the background of the offender. [Milbourn, 435 Mich. at 651.]

         In describing how that principle interacted with the then-existing advisory judicial sentencing guidelines, we said that "the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines' recommended range." Id. at 661.

         In People v Babcock, 469 Mich. 247; 666 N.W.2d 231 (2003), this Court held that the Legislature had incorporated the principle of proportionality into the newly adopted legislative sentencing guidelines. Id. at 263 (stating that the Legislature "subscribed to this principle of proportionality in establishing the statutory sentencing guidelines"); see also People v Smith, 482 Mich. 292, 304-305; 754 N.W.2d 284 (2008) (holding that in order "to complete our analysis of whether the trial judge in this case articulated substantial and compelling reasons for the departure, we must, of necessity, engage in a proportionality review").

         Although in Lockridge we followed the lead of the United States Supreme Court in Booker, 543 U.S. at 233, in the remedy we adopted for the constitutional flaw in the sentencing guidelines (making the guidelines fully advisory), and the United States Court of Appeals for the Second Circuit in Crosby, for its remand procedure, nothing else in our opinion indicated we were jettisoning any of our previous sentencing jurisprudence outside the Sixth Amendment context. Moreover, none of the constitutional principles announced in Booker or its progeny compels us to depart from our longstanding practices applicable to sentencing. Since we need not reconstruct the house, we reaffirm the proportionality principle adopted in Milbourn and reaffirmed in Babcock and Smith.[15]

         That being said, we feel compelled to address the Masroor panel's concern that our proportionality test cannot be reconciled with Gall v United States, 552 U.S. 38; 128 S.Ct. 586; 169 L.Ed.2d 445 (2007). Masroor, 313 Mich.App. at 398. Our proportionality test differs from the one the United States Supreme Court rejected in Gall. In Gall, the United States Supreme Court rejected a federal circuit court's requirement that deviations from the guidelines range be justified in proportion to the extent of the deviation. Gall, 552 U.S. at 47. In particular, the Supreme Court held:

In reviewing the reasonableness of a sentence outside the Guidelines range, appellate courts may . . . take the degree of variance into account and consider the extent of a deviation from the Guidelines. We reject, however, an appellate rule that requires "extraordinary" circumstances to justify a sentence outside the Guidelines range. We also reject the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence. [Id.]

         The Court reasoned that these approaches would "come too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range." Id. The Michigan principle of proportionality, however, does not create such an impermissible presumption. Rather than impermissibly measuring proportionality by reference to deviations from the guidelines, our principle of proportionality requires "sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender." Milbourn, 435 Mich. at 636. The Masroor panel was concerned that dicta in our proportionality cases could be read to have "urg[ed] that the guidelines should almost always control, " thus creating a problem similar to that identified in Gall. Masroor, 313 Mich.App. at 398, citing Milbourn, 435 Mich. at 656, 658; see also Milbourn, 435 Mich. at 659 (stating that departure sentences should "alert the appellate court to the possibility of a misclassification of the seriousness of a given crime by a given offender and a misuse of the legislative sentencing scheme"). We agree that such dicta are inconsistent with the United States Supreme Court's prohibition on presumptions of unreasonableness for out-of-guidelines sentences, see Gall, 552 U.S. at 51, and so we disavow those dicta. We repeat our directive from Lockridge that the guidelines "remain a highly relevant consideration in a trial court's exercise of sentencing discretion" that trial courts " 'must consult' " and " 'take . . . into account when sentencing, ' " Lockridge, 498 Mich. at 391, quoting Booker, 543 U.S. at 264, and our holding from Milbourn that "the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines' recommended range, " Milbourn, 435 Mich. at 661.

         C. THE NEED FOR A CROSBY REMAND

         Regarding the appropriate procedures for review of departure sentences, we agree with the Masroor panel's conclusion that "remand for a Crosby hearing in cases like that now before us unnecessarily complicates and prolongs the sentencing process." Masroor, 313 Mich.App. at 396. This Court adopted the Crosby remand procedure for a very specific purpose: determining whether trial courts that had sentenced defendants under the mandatory sentencing guidelines had their discretion impermissibly constrained by those guidelines. We specifically exempted departure sentences from that remand procedure, at least for cases in which the error was unpreserved, [16] because a defendant who had received an upward departure could not show prejudice resulting from the constraint on the trial court's sentencing discretion. Lockridge, 498 Mich. at 395 n 31 (stating that "[i]t defies logic that the court in those circumstances would impose a lesser sentence had it been aware that the guidelines were merely advisory").

         Therefore, the purpose for the Crosby remand is not present in cases involving departure sentences. We therefore affirm the Masroor panel's analysis to the extent that it rejected the Steanhouse panel's decision to order a Crosby remand; the panel in Steanhouse should have reviewed the departure sentence for an abuse of discretion, i.e., engaged in reasonableness review for an abuse of discretion informed by the "principle of proportionality" standard. We therefore remand these cases to the Court of Appeals to consider the reasonableness of the defendants' sentences under the standards set forth in this opinion. If the Court of Appeals determines that either trial court has abused its discretion in applying the principle of proportionality by failing to provide adequate reasons for the extent of the departure sentence imposed, it must remand to the trial court for resentencing. See Milbourn, 435 Mich. at 665 (stating that "[i]f and when it is determined that a trial court has pursued the wrong legal standard or abused its judicial discretion according to standards articulated by the appellate courts, it falls to the trial court, on remand, to exercise the discretion according to the appropriate standards"); Smith, 482 Mich. at 304 (noting that "an appellate court cannot conclude that a particular substantial and compelling reason for departure existed when the trial court failed to articulate that reason").

         IV. CONCLUSION

         In Docket Nos. 152849 and 152946 through 152948, we reaffirm our holding in Lockridge that the sentencing guidelines are advisory only. We affirm the Court of Appeals' holding in Steanhouse that appellate review of departure sentences for reasonableness requires review of whether the trial court abused its discretion by violating the principle of proportionality set forth in our decision in Milbourn. But we reverse the Court of Appeals to the extent it ordered Crosby remands to the trial courts. In Docket Nos. 152671 and 152871 through 152873, we remand to the Court of Appeals for plenary review of whether the defendants' sentences are reasonable under the standard elucidated in our opinion; in all other respects, leave to appeal is denied because we are not persuaded that the remaining questions presented should be reviewed by this Court.

          Larsen, J. (concurring).

         I join the Court's opinion in full but write separately to address the points raised by the dissent. Two terms ago, in People v Lockridge, 498 Mich. 358; 870 N.W.2d 502 (2015), this Court announced two propositions that dramatically altered sentencing law and practice in Michigan. First, compelled by the United States Supreme Court's decision in Alleyne v United States, 570 U.S. ___; 133 S.Ct. 2151; 186 L.Ed.2d 314 (2013), this Court held that Michigan's system of applying mandatory sentencing guidelines was unconstitutional. Lockridge, 498 Mich. at 388-389. Second, as a remedy for that unconstitutionality, the Court "Booker-ize[d]" the Michigan guidelines-which is to say, it adopted the remedy chosen by the United States Supreme Court in United States vBooker[1] to remedy similar unconstitutionality in the operation of the federal sentencing guidelines. Lockridge, 498 Mich. at 391. The dissent acknowledges, with some lament, the first of these events of 2015, but, curiously, writes as if the second had never happened-as if this Court were today, for the first time, announcing a remedy for the constitutional violation ...


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