                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  October 16, 2018
              Plaintiff-Appellee,

v                                                                 No. 339553
                                                                  Saginaw Circuit Court
REUBEN RAUL MARTINEZ, SR.,                                        LC No. 13-038695-FC

              Defendant-Appellant.


Before: CAVANAGH, P.J., and MARKEY and LETICA, JJ.

PER CURIAM.

        Defendant was convicted by jury of two counts of first-degree criminal sexual conduct
(CSC-I), MCL 750.520b(2)(b) (sexual penetration of a victim less than 13 years of age by a
defendant 17 years of age or older), and two counts of second-degree criminal sexual conduct
(CSC-II), MCL 750.520c(2)(b) (sexual contact with a victim less than 13 years of age by a
defendant 17 years of age or older). The victim was defendant’s granddaughter. The trial court
originally sentenced defendant to serve concurrent prison terms of 25 to 40 years for each CSC-I
conviction and 12 to 20 years for each CSC-II conviction. But our Supreme Court vacated
defendant’s sentences for CSC-II because the minimum sentence exceeded two-thirds of the
statutory maximum1 and remanded for resentencing on those offenses. People v Martinez, 500
Mich 957 (2017). On remand, the trial court resentenced defendant within the recommended
sentencing guidelines range to concurrent prison terms of 6½ to 15 years for the CSC-II
convictions. Defendant appeals by right, arguing that his sentences for CSC-II are unreasonable.
We affirm.

                                        I. ANALYSIS

      Defendant argues that his non-departure sentences must be reviewed for reasonableness
under People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), its progeny, and federal


1
  “The court shall not impose a minimum sentence, including a departure, that exceeds 2/3 of the
statutory maximum sentence.” MCL 769.34(2)(b).


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precedent. Defendant contends that the first sentence of MCL 769.34(10) is invalid and not
mandatory, thereby permitting this Court to engage in a review of defendant’s sentences,
notwithstanding that they are within the applicable sentencing guidelines range. We disagree.

        Defendant’s argument is foreclosed by the first sentence of MCL 769.34(10), which
provides, in pertinent part, “If a minimum sentence is within the appropriate guidelines sentence
range, the court of appeals shall affirm that sentence and shall not remand for resentencing
absent an error in scoring the sentencing guidelines or inaccurate information relied upon in
determining the defendant’s sentence.” This Court held in People v Schrauben, 314 Mich App
181; 886 NW2d 173 (2016) that “Lockridge did not alter or diminish MCL 769.34(10).” Id., at
196 n 1. “When a trial court does not depart from the recommended minimum sentencing range,
the minimum sentence must be affirmed unless there was an error in scoring or the trial court
relied on inaccurate information.” Id. at 196.2

        Defendant notes that in Lockridge, 498 Mich at 365 n 1, our Supreme Court stated: “To
the extent that any part of MCL 769.34 or another statute refers to use of the sentencing
guidelines as mandatory or refers to departures from the guidelines, that part or statute is also
severed or struck down as necessary.” We are, however, bound to follow Schrauben, in which
this Court explicitly held that “Lockridge did not alter or diminish MCL 769.34(10)” and
reaffirmed that “[w]hen a trial court does not depart from the recommended minimum sentencing
range, the minimum sentence must be affirmed unless there was an error in scoring or the trial
court relied on inaccurate information.” Schrauben, 314 Mich App at 196 n 1.

        Moreover, a sentence is reviewed for proportionality only when it departs from the
applicable guidelines range. See People v Steanhouse, 500 Mich 453, 477; 902 NW2d 327
(2017) (“[A]ppellate review of departure sentences for reasonableness requires review of
whether the trial court abused its discretion by violating the principle of proportionality . . . .”);
Lockridge, 498 Mich at 392 (“A sentence that departs from the applicable guidelines range will
be reviewed by an appellate court for reasonableness.”); People v Anderson, 322 Mich App 622,
636; 912 NW2d 607 (2018) (reaffirming Schrauben and holding that this Court is “required to
review for reasonableness only those sentences that depart from the range recommended by the
statutory guidelines”). Because defendant was sentenced within the applicable guidelines range
for his CSC-II convictions and because he does not challenge the propriety of the guidelines




2
  We acknowledge that the Supreme Court declined to address “whether MCL 769.34(10), which
requires the Court of Appeals to affirm a sentence that is within the guidelines absent a scoring
error or reliance on inaccurate information in determining the sentence, survives Lockridge,”
People v Steanhouse, 500 Mich 423, 471 n 14; 902 NW2d 327 (2017), and has directed briefing
on whether MCL 769.34(10) has been rendered invalid by Lockridge to the extent that it requires
the Court of Appeals “to affirm sentences that fall within the applicable guidelines range ‘absent
an error in scoring the sentencing guidelines or inaccurate information relied upon in
determining the defendant’s sentence,’ ” People v Ames, 501 Mich App 1026; 908 NW2d 303
(2018).


                                                 -2-
scoring or the accuracy of the information on which the trial court relied in sentencing him, we
must affirm his sentences. Anderson, 322 Mich App at 636-637.

       We affirm.

                                                           /s/ Mark J. Cavanagh
                                                           /s/ Jane E. Markey
                                                           /s/ Anica Letica




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