                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 16, 2017
              Plaintiff-Appellee,

v                                                                  Nos. 322280; 322281; 322282
                                                                   Wayne Circuit Court
MOHAMMAD MASROOR,                                                  LC No. 14-000869-01-FC;
                                                                           14-000858-01-FC;
                                                                           14-000857-01-FC
              Defendant-Appellant.


                                         ON REMAND

Before: GLEICHER, P.J., and SAWYER and MURPHY, JJ.

PER CURIAM.

        This case is before us on remand from the Supreme Court to review whether defendant’s
upward departure sentences for his 15 criminal sexual conduct (CSC) offenses are proportionate
and reasonable under the standard set forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d
1 (1990). See People v Steanhouse, 500 Mich 453; ___ NW2d ___ (2017) (Steanhouse II). As
the trial court more than adequately justified the particular departure sentences imposed in this
case, we affirm.

                                                I

        As noted in our previous opinion, defendant’s minimum sentencing guidelines range was
calculated at 108 to 180 months. The court ordered “that defendant serve a term of 35 to 50
years’ imprisonment for each of the 10 counts of [CSC-I]. Defendant’s minimum sentences
exceed the maximum minimum sentences calculated under the guidelines by 20 years, or 133%.”
People v Masroor, 313 Mich App 358, 370; 880 NW2d 812 (2015) (Masroor I). Although we
would have adopted a different test for considering the reasonableness of a sentence departing
from the advisory legislative sentencing guidelines, we followed the test set forth in People v
Steanhouse, 313 Mich App 1, 42-48; 880 NW2d 297 (2015) (Steanhouse I). Masroor I, 313
Mich App at 372-373. Specifically, we described our duty to

       review[] a departure sentence for “reasonableness” under an abuse-of-discretion
       standard governed by whether the sentence fulfills the “principle of
       proportionality” set forth in Milbourn “and its progeny.”          In a nutshell,
       Milbourn’s “principle of proportionality” requires a sentence “to be proportionate
                                               -1-
         to the seriousness of the circumstances surrounding the offense and the offender.”
         Milbourn, 435 Mich at 636. Milbourn instructs that departure sentences “are
         appropriate where the guidelines do not adequately account for important factors
         legitimately considered at sentencing” so that the sentence range calculated under
         the guidelines “is disproportionate, in either direction, to the seriousness of the
         crime.” Id. at 656-657. The extent of the departure must also satisfy the principle
         of proportionality. Id. at 660. [Masroor I, 313 Mich App at 373-374.]

       We then summarized at great length the trial court’s reasoning for imposing the particular
departure sentences imposed. Id. at 374-377. We ultimately concluded that we were required to
remand for resentencing, however:

         But even were we to find that the trial judge’s allocution inadvertently satisfied
         Milbourn, we understand Steanhouse [I] to nevertheless require remand for a
         Crosby hearing.[1] The Court’s language in Steanhouse [I] leaves little room for
         deferential review:

            While the Lockridge Court did not explicitly hold that the Crosby procedure
            applies under the circumstances of this case, we conclude that this is the
            proper remedy when, as in this case, the trial court was unaware of, and not
            expressly bound by, a reasonableness standard rooted in the Milbourn
            principle of proportionality at the time of sentencing. [Masroor I, 313 Mich
            App at 377, quoting Steanhouse I, 313 Mich App at 48.]

        In Steanhouse II, the Supreme Court considered the consolidated appeals from
Steanhouse I and Masroor I. Relevant to the matters now before us, the Court accepted
Steanhouse I’s adoption of the Milbourn test. Steanhouse II, 500 Mich at 471. But it agreed
with our statement in Masroor I, 313 Mich App at 396, “that remand for a Crosby hearing in
cases like that now before us unnecessarily complicates and prolongs the sentencing process.”
The Court continued:

         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, because
         a defendant who had received an upward departure could not show prejudice
         resulting from the constraint on the trial court’s sentencing discretion. [People v
         Lockridge, 498 Mich 358, 395 n 31; 870 NW2d 502 (2015)] (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”).




1
    United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005).


                                                 -2-
               Therefore, the purpose for the Crosby remand is not present in cases
       involving departure sentences. We therefore affirm the Masroor [I] panel’s
       analysis to the extent that it rejected the Steanhouse [I] panel’s decision to order a
       Crosby remand; the panel in Steanhouse [I] 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”); [People v Smith, 482 Mich 292, 304;
       754 NW2d 284 (2008)] (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”). [Steanhouse II, 500 Mich at 475-476.]

                                                 II

       Following the Supreme Court’s remand, we took supplemental briefing from the parties.
We now find that the trial court acted within its discretion and imposed proportional and
reasonable upward departure sentences for defendant’s 10 CSC-I and five CSC-II convictions.

        The starting point for evaluating the reasonableness of defendant’s sentences is Milbourn.
Finding that the Legislature “clearly expressed its value judgments concerning the relative
seriousness and severity of individual criminal offenses,” the Court in Milbourn opined that the
“statutory sentencing scheme embodies the ‘principle of proportionality,’ ” which requires that
criminal offenses be punishable by “sentences [that] are proportionate to the seriousness of the
matter for which punishment is imposed.” Milbourn, 435 Mich at 635. In other words, “the
Legislature . . . intended more serious commissions of a given crime by persons with a history of
criminal behavior to receive harsher sentences than relatively less serious breaches of the same
penal statute by first-time offenders.” Id. The means to effectuate this purpose was identified as
“requiring judicial sentencing discretion to be exercised according to the same principle of
proportionality that has guided the Legislature in its allocation of punishment over the entire
spectrum of criminal behavior.” Id. at 635-636. Thus, a court abuses its discretion in imposing
sentence “if that sentence violates the principle of proportionality, which requires sentences
imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding
the offense and the offender.” Id. at 636.

       The Milbourn Court emphasized “that the purpose of the Legislature in creating sentence
ranges and, thereby, providing for discretion in sentencing was to allow the principle of
proportionality to be put into practice.” Id. at 651-652. While recognizing the subjective
components involved that lead to unjustified disparity in sentencing, the Court cautioned, with
respect to the “principle of proportionality,” “that the imposition of the maximum possible

                                                -3-
sentence in the face of compelling mitigating circumstances would run against this principle and
the legislative scheme,” resulting in an “abuse of discretion.” Id. at 653. Thus, to properly
effectuate the discretion afforded by the Legislature, a trial court should “not . . . apply[] its own
philosophy of sentencing,” but rather “determin[e] where, on the continuum from the least to the
most serious situations, an individual case falls and by sentencing the offender in accordance
with this determination.” Id. at 653-654.

        In ascertaining a methodology to apply the principle of proportionality, the Milbourn
Court opined that “[t]he guidelines represent the actual sentencing practice of the judiciary,” and
comprise “the best ‘barometer’ of where on the continuum from the least to the most threatening
circumstances a given case falls.” Id. at 656. The guidelines were intended “to reflect actual
sentencing practice,” with trial judges being permitted “to depart from the guidelines when, in
their judgment, the recommended range under the guidelines is disproportionate, in either
direction, to the seriousness of the crime.” Id. at 657. Thus, the guidelines were characterized as
“a useful tool” in determining “the seriousness and harmfulness of a given crime and given
offender within the . . . authorized range of punishments.” Id. at 657-658. The Court stated that
departure sentences are “appropriate where the guidelines do not adequately account for
important factors legitimately considered at sentencing.” Id. at 657.

       In application, the Milbourn Court found that “departures from the guidelines,
unsupported by reasons not adequately reflected in the guidelines variables, 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 . . . sentencing scheme.” Id. at 659. The Court explained:

       Where there is a departure from the sentencing guidelines, an appellate court’s
       first inquiry should be whether the case involves circumstances that are not
       adequately embodied within the variables used to score the guidelines. A
       departure from the recommended range in the absence of factors not adequately
       reflected in the guidelines should alert the appellate court to the possibility that
       the trial court has violated the principle of proportionality and thus abused its
       sentencing discretion. Even where some departure appears to be appropriate, the
       extent of the departure (rather than the fact of the departure itself) may embody a
       violation of the principle of proportionality. See People v McKinley, 168 Mich
       App 496, 512; 425 NW2d 460 (1988) (“We do not dispute that a prison
       sentence—even a lengthy one—is in order. We conclude, however, that a fifteen-
       year minimum sentence for the events that occurred here is disproportionate to the
       specific acts committed and the danger involved. Too frequently reasons are
       given for a sentence that apply equally to a lesser or greater sentence unless an
       explanation is offered on the record for the specific sentence given. Such was the
       case here.”) [Milbourn, 435 Mich at 659-660 (emphasis omitted).]

An example of a relevant factor that may not be adequately reflected by the guidelines was
identified as “[a] prior relationship . . . between the victim and the offender,” which could serve
as either a “mitigating circumstance or a[n] . . . aggravating circumstance[.]” Id. at 660-661.

        To permit the continued evolution of the guidelines, trial court judges must “remain
entitled to depart from the guidelines if the recommended ranges are considered an inadequate

                                                 -4-
reflection of the proportional seriousness of the matter at hand.” Id. at 661. The Court identified
the “key test” as being “whether the sentence is proportionate to the seriousness of the matter,
not whether it departs from or adheres to the guidelines’ recommended range.” Id.

        Subsequently, in Smith, 482 Mich at 292, our Supreme Court provided an example
regarding the practical application of the principle of proportionality. The Smith Court
emphasized the need for “a rationale for the sentences . . . imposed,” and required trial courts to
also “establish why the sentences imposed were proportionate to the offense and the offender.”
Id. In other words, the Court stated that a sentencing judge must “articulate[] adequate reasons
to support a departure” in conjunction with the need “to justify the extent of the departure.” Id.
In turn, the Court explained that a departure cannot be based “on an offense characteristic or
offender characteristic already taken into account in determining the appropriate sentence range
unless the court finds from the facts contained in the court record, including the presentence
investigation report, that the characteristic has been given inadequate or disproportionate
weight.” Id. at 300, quoting MCL 769.34(3)(b).

        Although dealing with statutory language referencing MCL 769.34, which is no longer
applicable due to Lockridge, 498 Mich at 391 (regarding substitution of the words “may” for
“shall”), the Smith Court’s guidance with regard to appellate review and provision of a
methodology to effectuate the principle of proportionality remains relevant. Addressing
appellate review of departure sentences, the Smith Court stated:

       Appellate courts are obliged to review the trial court’s determination that a . . .
       reason exists for departure. Accordingly, the trial court’s justification “must be
       sufficient to allow for effective appellate review.” In [People v Babcock, 469
       Mich 247, 258-259; 666 NW2d 231 (2003)], this Court explained that an
       appellate court cannot conclude that a particular . . . reason for departure existed
       when the trial court failed to articulate that reason. Similarly, if it is unclear why
       the trial court made a particular departure, an appellate court cannot substitute its
       own judgment about why the departure was justified. A sentence cannot be
       upheld when the connection between the reasons given for departure and the
       extent of the departure is unclear. When departing, the trial court must explain
       why the sentence imposed is more proportionate than a sentence within the
       guidelines recommendation would have been. [Smith, 482 Mich at 304 (citations
       omitted).]

Also identified as assisting appellate review of the proportionality of a departure sentence is
“when a court explains the similarity between the facts justifying the departure and the facts
describing a crime meriting the same sentence under the guidelines. A comparison of a
defendant’s characteristics and those of a hypothetical defendant whose recommended sentence
is comparable to the departure sentence is a valuable exercise.” Id. at 310.

        In analyzing the proportionality of a defendant’s departure sentence, the Smith Court
suggested that a “potential means of offering . . . a justification [for a departure] is to place the
specific facts of a defendant’s crimes in the sentencing grid.” Id. at 306. The Court reasoned
that “reference to the grid can be helpful, because it provides objective factual guideposts that
can assist sentencing courts to ensure that the offenders with similar offense and offender

                                                -5-
characteristics receive substantially similar sentences,” id. at 309 (quotation marks and citation
omitted), and thus “minimize idiosyncrasies” in sentencing. Id. at 311. Importantly, the Smith
Court emphasized that it was not suggesting “that trial courts must sentence defendants with
mathematical certainty,” and indicated that “precise words [are not] necessary . . . to justify a
particular departure.” Id. Additional factors recognized post-Lockridge for consideration under
the “proportionality standard” have been found to include, but are not limited to:

       (1) the seriousness of the offense . . ., (2) factors that were inadequately
       considered by the guidelines . . ., (3) factors not considered by the guidelines,
       such as the relationship between the victim and the aggressor . . ., the defendant’s
       misconduct while in custody . . ., the defendant’s expressions of remorse . . ., and
       the defendant’s potential for rehabilitation. [People v Walden, 319 Mich App
       344, 352-353; ___ NW2d ___ (2017), lv pending, citing Steanhouse I, 313 Mich
       App at 46.]

        The next step is to apply the above criteria and considerations to the facts of this case to
determine the proportionality of defendant’s departure sentences. The starting point in this
analysis is the scoring of the various prior record variables (PRVs) and offense variables (OVs)
in the sentencing guidelines.

         Defendant’s original PRV score was 0 points, but was amended with the parties and the
trial court agreeing that 20 points should be assessed for PRV 7, placing defendant in PRV Level
C.2 OV 4 (psychological injury to a victim) is governed by MCL 777.34. The trial court
increased the OV 4 score from 0 to 10 points to reflect “[s]erious psychological injury requiring
professional treatment occurred to a victim.” MCL 777.34(1)(a). For OV 9 (number of victims),
MCL 777.39(1), the trial court reduced defendant’s original score from 10 points to 0 points
because, although there were multiple victims, none of the victims was placed into jeopardy of
danger or physical injury while in the presence of another victim. The court increased the
scoring of OV 10 (exploitation of a vulnerable victim), MCL 777.40, from 10 points to 15 points
to reflect that the crimes involved “predatory conduct.” MCL 777.40(1)(a), (b). The trial court
determined that OVs 11 and 12 were incorrectly scored at 50 points and 25 points, respectively.
OV 11 considers criminal sexual penetrations, MCL 777.41, whereas OV 12 considers
contemporaneous felonious criminal acts, MCL 777.42. The trial court increased defendant’s
score for OV 13, MCL 777.43, from 0 points to 50 points to reflect that “the sentencing offense
is first degree criminal sexual conduct.” MCL 777.43(a)(1) and (2)(d). Finally, the court
reduced the score for OV 17 (degree of negligence exhibited), MCL 777.47, from 5 points to 0
points. Before the adjustments to the variables, defendant’s scores placed him in PRV Level A
and OV Level VI, resulting in a sentencing guidelines range of 108 to 180 months under the




2
  MCL 777.57 pertains to “subsequent or concurrent felony convictions,” with MCL
777.57(1)(a) requiring that 20 points be assessed if “[t]he offender has 2 or more subsequent or
concurrent convictions.” Defendant’s 14 contemporaneous criminal convictions met and
exceeded the statutory criteria to justify this score.


                                                -6-
applicable sentencing grid, MCL 777.62. As a result of the scoring changes, defendant was
placed in PRV Level C and OV Level IV, which did not alter his guidelines range. MCL 777.62.

        Based on the factual circumstances of this case and defendant’s multiple convictions, the
trial court expressed the need to depart from the guidelines range, ultimately concurring with the
prosecutor’s suggestion that defendant be sentenced to 35 to 50 years’ imprisonment for each
CSC-I conviction. In electing to depart from the guidelines range, the trial court explicitly
recognized “the proportionality factor” and suggested that the PRVs and OVs failed to
sufficiently reflect the factual circumstances in this case. The court referenced PRV 7, MCL
777.57(1)(a), which allows for a maximum of 20 points if “[t]he offender has 2 or more
subsequent or concurrent convictions.” The court observed that defendant had 14 CSC
contemporaneous convictions, well beyond the two necessary to justify a 20-point score. Based
on “the verdict alone,” the court reasoned, “we can easily score 140 [points] on PRV 7 which
would just all by itself push the defendant way over into the top grid on his PRV points.”

        In relation to OV 4, the court indicated that MCL 777.34 did not reflect that three victims
were involved in this matter, stating: “OV 4, psychological injury occurred to a victim, ten
points. Well, it occurred to three victims. So we could . . . theoretically give him . . . 30 points if
we were using OV 4 as a springboard for a proportionality description of a departure reason.
And that’s objective and verifiable. There were three victims.” Similarly, the trial court
determined that OV 13, MCL 777.43, failed to adequately reflect the extent of the crimes in this
case. ”[T]he pattern of criminal activity” involving three or more sexual penetrations against a
person, the trial evidence and the jury’s verdict demonstrated that there were vastly more than
three acts of CSC that occurred with each of the three victims, which were “objective and
verifiable.”

        Increasing the PRV and OV scores would place defendant in a higher cell range;
defendant would be at PRV Level F and OV Level VI. As the trial court observed, “If we were
to give the defendant just 25 more points on the [OVs] which can easily be calculated with 30
points on OV 4, more points on OV 13, that pushes him solidly into the bottom right-hand cell
range of 270 to 450.”

        The trial court’s explanation for why the scoring of the PRVs and OVs did not adequately
reflect defendant’s circumstances and the seriousness of the offenses supports the imposition of a
departure sentence. Moreover, in an effort to explain or justify the particular departure sentence
imposed, and the extent of the departure from the guidelines range, the court discussed other
factors deemed relevant to its departure from the guidelines range, and it endeavored to
determine how these factors would comparatively extend the sentencing grid in accordance with
Smith, 482 Mich at 310. The court’s methodology comports with the concept of proportionality.

        The trial court identified and considered several factors. First, the court recognized the
seriousness of the offenses. Walden, 319 Mich App at 353. As noted, the trial court opined that
defendant’s conduct involved “one of the most horrific and horrible sexual abuse crimes I’ve
seen on so many levels.” Particularly noteworthy were the multiple levels of relationships that
existed between defendant and his three victims. Id. at 352-353; Milbourn, 435 Mich at 660-
661. Specifically, defendant was a blood relative of the three victims and simultaneously served
as a teacher and religious leader in this family. The trial court stated: “[I]t wasn’t just the uncle

                                                 -7-
and niece [relationship], it was the uncle slash religious leader and cultural leader and nieces who
were victims of his religious orthodoxy as well as his sexual predatory conduct.” Defendant’s
status as an imam was deemed a significant factor, as demonstrated by an objectively observable
effect on the victims and evincing a “really tenacious hold on their . . . religious beliefs and their
cultural traditions.” As explained by the trial court:

       [The] sexual violations that they experienced, their own sort of superstition about
       how that would be consequential in their lives and what would happen to them if
       anybody found out, and that they had to respect their, their uncle, the imam, even
       while he was sexually assaulting them really makes this case especially uniquely
       horrible in terms of their – of the psychological impact that these crimes had on
       them, and, and the great trauma that they obviously were experiencing just in
       testifying in this case many years after the fact.

        Defendant’s poor potential for rehabilitation and lack of remorse, Walden, 319 Mich App
at 353, further justified the departure sentence. Defendant’s five children testified at trial,
relating incidents of sexual assault against them similar in kind and character to those perpetrated
against the victims in this case. This comprises a factor separate and distinct from the scoring of
OV 10, MCL 777.40, regarding defendant’s predatory behavior, because his sexual assaults of
his children were not considered in the scoring of OV 10 and instead are relevant to defendant’s
rehabilitative potential, or lack thereof. In addition, when given the opportunity for allocution at
sentencing, defendant, using an interpreter, expressed no remorse for his actions, but requested
that the court show him “mercy,” and stated, “I didn’t do anything,” serving to further exemplify
and call into question his rehabilitative potential.

        Another factor touched upon at sentencing pertains to the severity of the crime, as
reflected by the statutory penalty for CSC-I. After the offenses were committed, MCL 750.520b
was amended to require a statutory minimum sentence for adults convicted of CSC-I against
children. As amended, MCL 750.520b(2) provides:

               [CSC-I] is a felony punishable as follows:

                (a) Except as provided in subdivisions (b) and (c), by imprisonment for
       life or for any term of years.

              (b) For a violation that is committed by an individual 17 years of age or
       older against an individual less than 13 years of age by imprisonment for life or
       any term of years, but not less than 25 years.

               (c) For a violation that is committed by an individual 18 years of age or
       older against an individual less than 13 years of age, by imprisonment for life
       without the possibility of parole if the person was previously convicted of a
       violation of this section or section 520c, 520d, 520e, or 520g committed against
       an individual less than 13 years of age or a violation of law of the United States,
       another state or political subdivision substantially corresponding to a violation of
       this section or section 520c, 520d, 520e, or 520g committed against an individual
       less than 13 years of age.

                                                 -8-
               (d) In addition to any other penalty imposed under subdivision (a) or (b),
       the court shall sentence the defendant to lifetime electronic monitoring under
       section 520n.

               (3) The court may order a term of imprisonment imposed under this
       section to be served consecutively to any term of imprisonment imposed for any
       other criminal offense arising from the same transaction.

Although defendant was not subject to a mandatory minimum sentence because the offenses
were committed before the statute was amended, the current mandatory minimum sentence
required by MCL 750.520b(2)(b) serves to highlight the seriousness of the offense and supports
the court’s decision to impose a departure sentence. It is also relevant in evaluating the extent of
the court’s departure from the guidelines range. While the degree of departure for defendant’s
sentence is significant, the difference between the sentence imposed and the current statutory
requirement is considerably less than when defendant’s departure sentence is compared to the
unmodified guidelines range.

        In conclusion, the trial court sufficiently explained and justified both its imposition of a
departure sentence and the extent of the departure imposed. The court’s explanation and analysis
adhered to the principle of proportionality by demonstrating that the circumstances regarding the
characteristics of the offenses and the offender were “not adequately embodied within the
variables used to score the guidelines.” Milbourn, 435 Mich at 659. Additional factors, such as
the relationship between defendant and his victims, serve to further support the sentences
imposed and their reasonableness. Defendant had 15 concurrent convictions of CSC-I and CSC-
II, involving three victims under 13 years of age. The victims were defendant’s blood relatives.
Defendant’s sexual abuse of the three victims violated not only any familial trust that should
have been sacrosanct, but also violated his role as the children’s teacher, religious leader, and
religious authority. The abuse was repetitive and prolonged, and defendant threatened his
victims with various repercussions should they disclose the abuse. Evidence was adduced that
the three victims involved in this matter were part of a larger predatory history, which involved
defendant’s similar abuse of his own five children. The risk posed by defendant, given his
acknowledged lack of remorse and inability to discern the disturbing and wrongful nature of his
conduct, raised special concerns regarding the need for his imprisonment. Although defendant’s
departure sentences are significant, they were was justified, proportional, and reasonable.

       We affirm.




                                                             /s/ Elizabeth L. Gleicher
                                                             /s/ David H. Sawyer
                                                             /s/ William B. Murphy




                                                -9-
