Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  December 9, 2009                                                                         Marilyn Kelly,
                                                                                               Chief Justice

  139157                                                                             Michael F. Cavanagh
                                                                                     Elizabeth A. Weaver
                                                                                      Maura D. Corrigan
  PEOPLE OF THE STATE OF MICHIGAN,                                                   Robert P. Young, Jr.
            Plaintiff-Appellee,                                                      Stephen J. Markman
  v                                                       SC: 139157                 Diane M. Hathaway,
                                                          COA: 283133                               Justices
                                                          Jackson CC: 07-004100-FH
  TODOCIO ESQUEDA GUERRA,
           Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the May 19, 2009
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

         MARKMAN, J. (concurring).

          I respectfully disagree with the Court of Appeals that the trial court did not rely
  upon defendant’s status as an illegal alien as a “substantial and compelling” factor to
  support its sentencing departure in this case. Rather, the trial court stated to the
  defendant, “You’re not only here illegally, but you’re committing crimes.” The trial
  court also repeatedly referenced that defendant was the citizen of a different country, and
  stated as the first reason on the departure evaluation form that “[d]efendant was an illegal
  alien at the time he committed this offense.” I do not know how much more clear the
  trial court could have been that defendant’s illegal status constituted a factor, indeed
  apparently a significant factor, in the court’s decision to depart upwardly from the
  guidelines range and impose a minimum sentence of 36 months, rather than one of 12-24
  months.

          Because, in my judgment, the trial court made itself quite clear, I would affirm its
  decision. It is hard to imagine a more compelling basis for an upward departure than that
  a defendant at the very time of his criminal conduct is in violation of other substantial
  criminal laws of this country. Defendant violated the laws of this country by entering it
  illegally, and he has violated the laws of this country by remaining here illegally. He was
  in violation of our laws before, during and after his home invasions in Lenawee County,
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and he was in violation of our laws before, during, and after his home invasions in
Hillsdale County. Either by itself or in conjunction with other grounds for upward
departure, defendant’s status as an illegal alien constitutes a substantial and compelling
basis for a sentence above the guidelines range, and it is inconceivable that it could be
otherwise.

      KELLY, C.J., and CAVANAGH, J., would grant leave to appeal.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         December 9, 2009                    _________________________________________
       p1202                                                                 Clerk
