                           STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  March 27, 2018
                Plaintiff-Appellee,

v                                                                 No. 336841
                                                                  Wayne Circuit Court
RUSH WESLEY WILSON,                                               LC No. 14-008995-01-FH

                Defendant-Appellant.


Before: K. F. KELLY, P.J., and MURPHY and RIORDAN, JJ.

PER CURIAM.

       In January 2015, a jury convicted defendant of four counts of third-degree criminal
sexual conduct (CSC-III), MCL 750.520d(1)(a), and two counts of fourth-degree criminal sexual
conduct (CSC-IV), MCL 750.520e(1)(a). The trial court sentenced defendant as a third-offense
habitual offender, MCL 769.11, to 20 to 30 years’ imprisonment for each CSC-III conviction and
two to four years’ imprisonment for each CSC-IV conviction, to be served concurrently. In a
prior appeal, this Court affirmed defendant’s convictions, but ordered a Crosby1 remand in
accordance with People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015). People v Wilson,
unpublished opinion per curiam of the Court of Appeals, issued June 14, 2016 (Docket No.
326139), pp 1 and 10. On remand, the trial court denied defendant’s request for resentencing.
Defendant again appeals, arguing that his CSC-III sentences are unreasonable and
disproportionate. We affirm.

       CSC-III is a Class B felony subject to the legislative sentencing guidelines. MCL
777.16y. As scored at sentencing, the guidelines recommended a minimum sentence range of 99
to 240 months, as enhanced for a third-offense habitual offender. MCL 777.63; MCL
777.21(3)(b). The trial court sentenced defendant to the far upper end of that range, imposing a
sentence of 20 to 30 years for the CSC-III convictions; there was no departure. In Lockridge,
498 Mich at 364, which was decided after defendant was sentenced, our Supreme Court held that
the sentencing guidelines are unconstitutional to the extent that they “require judicial fact-
finding beyond facts admitted by the defendant or found by the jury to score offense variables
(OVs) that mandatorily increase the floor of the guidelines minimum sentence range[.]” The


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


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Court remedied the constitutional violation by making the guidelines “advisory only.” Id. at 365.
The Court further held that a sentence that departs from the guidelines is to be reviewed “for
reasonableness.” Id. at 392.

        In defendant’s prior appeal, because the guidelines were mandatory at the time defendant
was sentenced and judicially-found facts altered the guidelines range, this Court remanded the
case to the trial court “to determine whether the court would have imposed a materially different
sentence but for the unconstitutional constraint on the trial court’s sentencing discretion[.]”
Wilson, unpub op at 9-10. On remand, the trial court denied defendant’s request for
resentencing, stating that it “would NOT have imposed a materially different sentence had the
guidelines been advisory.” Defendant now contends that even though his CSC-III sentences are
within the guidelines range, they are unreasonable and disproportionate.2

        As noted, in Lockridge, 498 Mich at 392, the Supreme Court held that a sentence that
departs from the guidelines range is to be reviewed “for reasonableness.” In People v
Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017), the Supreme Court clarified that the
reasonableness of a departure sentence is to be reviewed for an abuse of discretion, applying the
principle-of-proportionality from People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990), “
‘which requires the sentences imposed by the trial court to be proportionate to the seriousness of
the circumstances surrounding the offense and the offender.’ ” This Court’s review of a
guidelines sentence is restricted by MCL 769.34(10), which provides that “[i]f 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.”3 As


2
  As an initial matter, we do not believe that the issues posed by defendant are properly before
us. In the original appeal, defendant, relative to sentencing, merely requested a Crosby remand
pursuant to Lockridge. He did not contend that his CSC-III sentences were disproportionate or
unreasonable. The remand order only provided for the possibility of resentencing, directing the
trial court to determine whether it would have imposed a materially different sentence in light of
the now-advisory guidelines under Lockridge. The trial court declined to order resentencing.
This ruling did not provide defendant with the opportunity, on further appellate review, to set
forth arguments that had not been previously presented, but which could have been raised by
defendant. Defendant is essentially exceeding the scope of the remand. That said, we shall
proceed to examine defendant’s arguments.
3
   We do note that MCL 769.34(10) cannot preclude constitutional appellate challenges to a
sentence, e.g., an argument that a sentence constitutes cruel or unusual punishment. See People
v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008) (MCL 769.34[10]’s limitation on
review does not apply to claims of constitutional error, but a sentence within the guidelines range
is presumptively proportionate, and a proportionate sentence is not cruel or unusual punishment);
see also People v Conley, 270 Mich App 301, 316; 715 NW2d 377 (2006) (“It is axiomatic that a
statutory provision, such as MCL 769.34[10], cannot authorize action in violation of the federal
or state constitutions.”). There is a distinction between “proportionality” as it relates to the
constitutional protection against cruel or unusual punishment, with such proportionality being


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this Court observed in People v Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d 173 (2016),
“Lockridge did not alter or diminish MCL 769.34(10).” Therefore, “[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. Defendant does not allege a scoring error or assert that he was
sentenced on the basis of inaccurate information. Because defendant was sentenced within the
guidelines range and he does not claim that the trial court relied on inaccurate information or
erred in scoring the guidelines, his sentences are not subject to review for reasonableness.

       To the extent that defendant is arguing that his sentences are not proportionate for
purposes of cruel-and/or-unusual-punishment analysis, a sentence falling within the guidelines is,
as noted earlier, presumptively proportionate, “and a sentence that is proportionate is not cruel or
unusual punishment.” People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008). A
defendant can only overcome the presumption by presenting unusual circumstances that would
render a presumptively proportionate sentence disproportionate. People v Bowling, 299 Mich
App 552, 558; 830 NW2d 800 (2013). Defendant has failed to overcome the presumption or
persuade us that any unusual circumstances existed, such that the 20-year minimum sentence
within the guidelines range could be deemed disproportionate or cruel or unusual punishment,
especially considering the seriousness of the offenses and defendant’s habitual-offender status.

       Affirmed.


                                                             /s/ Kirsten Frank Kelly
                                                             /s/ William B. Murphy
                                                             /s/ Michael J. Riordan




presumed when a sentence is within the guidelines range, and “proportionality” as it relates to
reasonableness review of a sentence, which is not constitutional in nature. See People v Bullock,
440 Mich 15, 34 n 17; 485 NW2d 866 (1992) (“Because the similarity in terminology may create
confusion, we note that the constitutional concept of ‘proportionality’ under Const 1963, art 1,
§ 16 [cruel or unusual punishment prohibition] is distinct from the nonconstitutional ‘principle of
proportionality’ discussed in . . . Milbourn, . . . although the concepts share common roots.”).


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