People of Michigan v. Samer Nachaat Salami ( 2017 )


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  •                           STATE OF MICHIGAN
    COURT OF APPEALS
    PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
    December 19, 2017
    Plaintiff-Appellant,
    v                                                                   No. 323073
    Wayne Circuit Court
    SAMER NACHAAT SALAMI,                                               LC No. 13-003689-FH;
    13-003690-FH
    Defendant-Appellee.
    ON REMAND
    Before: MURRAY, P.J., and METER and RIORDAN, JJ.
    PER CURIAM.
    On July 26, 2016, the Michigan Supreme Court entered an order holding the application
    in this matter in abeyance pending the Court’s decisions in “the cases of People v Steanhouse
    (Docket No. 152849) and People v Masroor (Docket Nos. 152946-8) . . . .” People v Salami,
    ___ Mich ___; 882 NW2d 525 (2016).
    Subsequently, on October 31, 2017, the Michigan Supreme Court reversed “the judgment
    of the Court of Appeals remanding this case to the trial court” and remanded it to this Court for
    “a plenary review of the prosecutor’s claim that the defendant’s sentence was disproportionate
    when applying the standard set forth in People v Milbourn, 
    435 Mich. 630
    , 636 (1990). See
    People v 
    Steanhouse, 500 Mich. at 460-461
    .” People v Salami, ___ Mich ___; 902 NW2d 603
    (2017). We now vacate defendant’s sentence and remand this matter to the trial court for
    resentencing.
    The issue here is whether defendant’s departure sentence is reasonable, as we considered
    in our previous opinion in People v Salami, unpublished per curiam opinion of the Court of
    Appeals, issued December 10, 2015 (Docket No. 323073), p 4. People v Lockridge, 
    498 Mich. 358
    , 392; 870 NW2d 502 (2015). The controlling standard of reasonableness is the principle of
    proportionality pursuant to People v Milbourn, 
    435 Mich. 630
    , 636; 461 NW2d 1 (1990). See
    People v Steanhouse, 
    500 Mich. 453
    , 471-472; 902 NW2d 327 (2017). Unfortunately, at the time
    of sentencing, the trial court fixated on the highly speculative, apparently looming, yet also
    apparently still unfulfilled, prospect of potential federal charges against defendant. We
    previously cautioned the trial court to refrain from speculation and only consider the facts in the
    record when sentencing the defendant and we do so once again. The trial court’s apparent
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    displeasure with the United States Attorney’s office, and the trial court’s speculation that
    defendant would be charged with federal crimes, were not proper considerations when
    sentencing. Such considerations have absolutely nothing to do with the seriousness of the matter
    before the trial court and we have found no authority holding that such considerations are proper
    under the “principal of proportionality” method of review. Cf. People v Dixon-Bey, ___ Mich
    App ___, ___; ___ NW2d ___ (2017) (Docket No. 331499); slip op at 18-19 & n 9 (explaining
    proper considerations when departing from the sentencing guidelines).
    As this Court recently explained in Dixon-Bey, ___ Mich App at ___; slip op at 16:
    “A sentence that departs from the applicable guidelines range will be
    reviewed by an appellate court for reasonableness.” People v Lockridge, 
    498 Mich. 358
    , 392; 870 NW2d 502 (2015). “[T]he standard of review to be applied
    by appellate courts reviewing a sentence for reasonableness on appeal is an abuse
    of discretion. 
    [Steanhouse, 500 Mich. at 471
    .] In Steanhouse, the Michigan
    Supreme Court clarified that ‘the relevant question for appellate courts reviewing
    a sentence for reasonableness’ is ‘whether the trial court abused its discretion by
    violating the principle of proportionality[.]’ [Id.] The principle of proportionality
    is 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.” [[Id. at 472], quoting Milbourn, 435 Mich [at 651].]
    Under this principle, “ ‘[T]he 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.’ ” 
    [Steanhouse, 500 Mich. at 472
    ,] quoting
    
    Milbourn, 435 Mich. at 661
    . [Dixon-Bey, ___ Mich App at ___; slip op at 16.]
    The sentencing guidelines are an “aid to accomplish the purposes of proportionality . . . .”
    Id. at ___; slip op at 18. The sentencing guidelines “‘provide objective factual guideposts that
    can assist sentencing courts in ensuring that the offenders with similar offense and offender
    characteristics receive substantially similar sentences.’ ” 
    Id., quoting People
    v Smith, 
    482 Mich. 292
    , 309; 754 NW2d 284 (2008) (brackets omitted). The Michigan Supreme Court has been
    clear that while the sentencing guidelines are now only advisory, they “remain a highly relevant
    consideration in a trial court’s exercise of sentencing discretion . . . .” 
    Lockridge, 498 Mich. at 391
    . See also 
    Steanhouse, 500 Mich. at 474-475
    . As this Court recently explained:
    Because the guidelines embody the principle of proportionality and trial courts
    must consult them when sentencing, it follows that they continue to serve as a
    ‘useful tool’ or ‘guideposts’ for effectively combating disparity in sentencing.
    Therefore, relevant factors for determining whether a departure sentence is more
    proportionate than a sentence within the guidelines range continue to include (1)
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    whether the guidelines accurately reflect the seriousness of the crime, People v
    Houston, 
    448 Mich. 312
    , 321-322; 532 NW2d 508 (1995), see also 
    Milbourn, 435 Mich. at 657
    , (2) factors not considered by the guidelines, 
    Houston, 448 Mich. at 322-324
    , see also 
    Milbourn, 435 Mich. at 660
    , and (3) factors considered by the
    guidelines but given inadequate weight, 
    Houston, 448 Mich. at 324-325
    , see also
    
    Milbourn, 435 Mich. at 660
    n 27. [Dixon-Bey, ___ Mich App at ___; slip op at
    18-19.]
    Other factors to consider “include ‘the defendant’s misconduct while in custody, 
    Houston, 448 Mich. at 323
    , the defendant’s expressions of remorse, 
    id., and the
    defendant’s potential for
    rehabilitation, id.’ ” Dixon-Bey, ___ Mich App at ___; slip op at 19 n 9, quoting 
    Steanhouse, 313 Mich. App. at 46
    . On remand, these are the factors that the trial court should employ when
    re-sentencing the defendant.
    The “key test” applicable to sentencing is “whether the sentence is proportionate to the
    seriousness of the matter . . . .” 
    Milbourn, 435 Mich. at 661
    (emphasis supplied). In this case,
    the trial court’s sentencing decision had little, if anything, to do with the seriousness of
    defendant’s crimes. At the defendant’s original sentencing, the trial court acknowledged that its
    sentencing decision was not a reflection of the seriousness of the offense and defendant’s
    background, but rather, an application of the trial court’s subjective philosophy with regard to the
    interplay between state and federal prosecutions. In fact, at the time, the trial court recognized
    that the circumstances of the case warranted a more severe sentence and it went so far as to
    explain that defendant “ ‘committed some very serious crimes,’ ” which were “ ‘repeated’ ” and
    “ ‘calculated[.]’ ”
    Therefore, we vacate defendant’s sentence and remand for resentencing pursuant to this
    opinion.
    We do not retain jurisdiction.
    /s/ Christopher M. Murray
    /s/ Patrick M. Meter
    /s/ Michael J. Riordan
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Document Info

Docket Number: 323073

Filed Date: 12/19/2017

Precedential Status: Non-Precedential

Modified Date: 12/21/2017