                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 17, 2018
                Plaintiff-Appellee,

v                                                                  No. 337094
                                                                   Saginaw Circuit Court
STEVEN MICHAEL BERG,                                               LC No. 13-039277-FC

                Defendant-Appellant.


Before: O’BRIEN, P.J., and CAVANAGH and STEPHENS, JJ.

PER CURIAM.

        Following a jury trial, defendant was convicted of four counts of criminal sexual conduct
in the first degree (CSC-I), MCL 750.520b; two counts of criminal sexual conduct in the second
degree (CSC II), MCL 750.520c; one count of criminal sexual conduct in the third degree (CSC-
III), MCL 750.520d; one count of criminal sexual conduct in the fourth degree (CSC-IV), MCL
750.520e; one count of engaging in child sexually abusive activity, MCL 750.145c(2); and two
counts of possession of child sexually abusive material, MCL 750.145c(4). Defendant was
sentenced as a third habitual offender, MCL 769.11, to concurrent prison terms of 337 months to
60 years for the CSC-I convictions; 200 months to 30 years for the CSC-II convictions; 240
months to 30 years for the CSC-III conviction; 30 months to 4 years for the CSC-IV conviction;
240 months to 40 years for the child sexually abusive activity conviction; and 60 months to 8
years for the possession of child sexually abusive material conviction. We affirmed defendant’s
convictions,1 but our Supreme Court reversed in part and remanded to the trial court for a
Crosby2 remand.3 On remand, the trial court issued an order declining to resentence defendant
and defendant appeals that order by right. We affirm.

       At defendant’s original sentencing, his status as a third habitual offender as well as the
scoring of his offense variables resulted in a minimum sentencing guidelines range of 135 to 337


1
 People v Berg, unpublished opinion per curiam of the Court of Appeals, issued November 24,
2015 (Docket No. 321977).
2
    United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005).
3
    People v Berg, 499 Mich 925; 878 NW2d 868 (2016).


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months for his CSC-I convictions. The trial court sentenced defendant at the top of those
guidelines, imposing a minimum sentence of 337 months. On remand, the trial court was
instructed by our Supreme Court to determine whether it would have imposed a materially
different sentence in light of People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), which
made the sentencing guidelines advisory. Defendant submitted a sentencing memorandum
urging the court not to rely on judicial fact-finding in calculating his sentencing guidelines.
However, the trial court declined to resentence defendant, holding that the same sentences would
have been imposed absent the unconstitutional restraint on its discretion and that the sentences
were proportionate as originally imposed, i.e., they were proportionate to the circumstances and
seriousness of the offense and the background of defendant.

      On appeal, defendant argues that the trial court erred by not resentencing him because the
337-month minimum sentence is unreasonably and disproportionately long. We disagree.

       We review a trial court’s denial of a motion for resentencing for an abuse of discretion.
People v Puckett, 178 Mich App 224, 227; 443 NW2d 470 (1989). An abuse of discretion
occurred if “the trial court chose an outcome that is outside the range of principled outcomes.”
People v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010).

        In Lockridge, our Supreme Court held that Michigan’s sentencing guidelines, which
required judicial fact-finding in the scoring of the offense variables to create a mandatory
minimum sentence range—thereby constraining the sentencing court’s discretion—violated a
defendant’s Sixth Amendment right to a jury trial. Lockridge, 498 Mich at 364, 373-374, 392.
Therefore, the guidelines were rendered advisory only, but trial courts are still required to consult
the guidelines and take them into account when imposing sentence. Id. at 391. Thereafter,
defendants sentenced prior to Lockridge who could “demonstrate that their guidelines minimum
sentence range was actually constrained” by the mandatory guidelines, and who did not receive
an upward departure, could establish “a threshold showing of the potential for plain error
sufficient to warrant a remand to the trial court for further inquiry.” Id. at 395. That is, such
defendants were entitled to a Crosby remand, as set forth in United States v Crosby, 397 F3d
103, 117-118 (CA 2, 2005). A Crosby remand requires the trial court to determine whether it
would have imposed a “materially different” sentence under a correct understanding of the
advisory nature of the guidelines. Lockridge, 498 Mich at 397. If the trial court determines that
the sentence imposed would not have been materially different, it may reaffirm the original
sentence. Id.

        Here, defendant does not dispute that a proper Crosby remand took place and the trial
court concluded that it would not have imposed a materially different sentence but for the
unconstitutional restraint on its discretion. Nevertheless, defendant argues that the trial court
should have concluded that his 337-month minimum sentence was unreasonably and
disproportionately long. However, as defendant admits, his 337-month minimum sentence falls
within the appropriate sentencing guidelines range and, thus, is not reviewable. More
specifically, MCL 769.34(10) mandates that this Court affirm a minimum sentence that is within
the appropriate guidelines sentence range unless there was an error in scoring or inaccurate
information was relied upon in determining the sentence. And this directive was affirmed post-
Lockridge in People v Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d 173 (2016).


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        In Schrauben, the defendant argued that because his sentence was calculated using facts
not found beyond a reasonable doubt by the jury, his sentence should be reviewed even though it
fell within his sentencing guidelines range. Id. at 195. This Court rejected the argument and
reaffirmed his sentence because it did not depart from the recommended minimum sentencing
range and was therefore unreviewable pursuant to MCL 769.34(10). Id. at 196. Further, this
Court stated, “Lockridge did not alter or diminish MCL 769.34(10)[.]” Id. at 196 n 1.

        Defendant argues that Schrauben was wrongly decided, suggesting that this Court should
invoke the conflict procedure set forth in MCR 7.215(J). However, we find no basis for
disagreement with Schrauben on this point. Defendant’s argument as to why Schrauben was
wrong in upholding the constitutionality of MCL 769.34(10) is unpersuasive and rests on the
assumption that treating sentencing ranges based on judicial fact-finding as presumptively
unreviewable is a constitutional violation post-Lockridge. Defendant argues that we should
interpret MCL 769.34(10) to permit appellate review of any sentence arrived at through
consideration of judicially-found facts and submits that any sentence based on such facts should
be treated as a departure sentence subject to review for proportionality. However, judicial fact-
finding in calculating sentences has been explicitly confirmed post-Lockridge and post-
Schrauben by this Court in People v Biddles, 316 Mich App 148; 896 NW2d 461 (2016), which
explained:
       The constitutional evil addressed by the Lockridge Court was not judicial fact-
       finding in and of itself; it was judicial fact-finding in conjunction with required
       application of those found facts for purposes of increasing a mandatory minimum
       sentence range. Lockridge remedied this constitutional violation by making the
       guidelines advisory, not by eliminating judicial fact-finding. [Id. at 158.]

The Biddles Court further noted:

       That judicial fact-finding remains a part of the process of calculating the
       guidelines is evidenced by the Lockridge Court’s observation that its “holding
       today does nothing to undercut the requirement that the highest number of points
       possible must be assessed for all OVs, whether using judge-found facts or not.”
       Id. at 392 n 28 (second emphasis added). This quote from Lockridge is consistent
       and reconcilable with the full Lockridge opinion; judicial fact-finding is proper as
       long as the guidelines are advisory only. [Id. at 159 (footnote omitted).]

Therefore, calculating the sentencing guidelines based on judicial fact-finding is not the same as
rendering a departure sentence and does not implicate the constitutional mistakes sought to be
corrected by Lockridge.       Accordingly, we need not review defendant’s sentence for
reasonableness.

        However, even if defendant’s sentence could be reviewed for reasonableness, he would
not be entitled to resentencing. When reviewing a departure sentence for reasonableness, the
proper inquiry is whether the trial court abused its discretion by imposing a sentence that violates
the principle of proportionality, i.e., by rendering a sentence that is not “ ‘proportionate to the
seriousness of the circumstances surrounding the offense and the offender.’ ” People v

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Steanhouse, 500 Mich 453, 459-460, 471; 902 NW2d 327 (2017), quoting People v Milbourn,
435 Mich 630, 636; 461 NW2d 1 (1990).

        In this case, first, defendant’s sentence was presumptively proportionate as a matter of
law because it was within the sentencing guidelines range. See People v Powell, 278 Mich App
318, 323; 750 NW2d 607 (2008). Second, the trial court explained on remand that it took
proportionality into account in reaffirming defendant’s sentence. The trial court also reiterated
its original rationale for defendant’s harsh minimum sentence, including defendant’s “repeated
abuse of his own daughters over an extended period of time, his use of computer photos to
exploit his own perverse sexual interests, and the long-term emotional harm to the children
involved (his three daughters).” Therefore, it is apparent that the trial court incorporated the
directive of the principle of proportionality and considered both the seriousness of the
circumstances surrounding the offense and the offender in rendering the 337-month minimum
sentence. See Steanhouse, 500 Mich at 459-460.

       Affirmed.



                                                           /s/ Colleen A. O’Brien
                                                           /s/ Mark J. Cavanagh
                                                           /s/ Cynthia Diane Stephens




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