              If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                   revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    March 28, 2019
                Plaintiff-Appellee,

v                                                                   No. 342161
                                                                    Wayne Circuit Court
FELIX VASQUEZ,                                                      LC No. 14-007273-01-FC

                Defendant-Appellant.


Before: MURRAY, C.J., and GADOLA and TUKEL, JJ.

PER CURIAM.

        After a jury trial, defendant was convicted of six counts of first-degree criminal sexual
conduct (CSC-I), MCL 750.520b(1)(a) (sexual penetration with a person under 13 years of age),
and one count of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a) (sexual
contact with a person under 13 years of age). The trial court sentenced defendant to 40 to 60
years’ imprisonment for each CSC-I conviction and 10 to 15 years’ imprisonment for the CSC-II
conviction. Defendant appealed, and this Court affirmed his convictions but remanded for a
Crosby1 hearing. People v Vasquez, unpublished per curiam opinion of the Court of Appeals,
issued May 10, 2016 (Docket No. 325778) (Vasquez I). On remand, after the trial court denied
defendant’s motion for resentencing, defendant’s sentences remained unchanged. We now
remand for resentencing.

       As this Court has previously noted, “This case arose from defendant’s sexual assaults of
AM and AF when they were both under 13 years of age. The sexual assaults took place from
approximately 2008 to 2011.” Id. at 4. The Vasquez I Court affirmed defendant’s convictions
but remanded for a Crosby hearing, pursuant to this Court’s opinion in People v Steanhouse, 313
Mich App 1; 880 NW2d 297 (2015) (Steanhouse I), aff’d in part and rev’d in part 500 Mich 453
(2017). Vasquez I, unpub op at 4.



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



                                                -1-
                                        I. SENTENCING

       On appeal, defendant first argues that he is entitled to resentencing because the trial court
erred by failing to consult the sentencing guidelines when it sentenced defendant. We disagree.

        Although the sentencing guidelines are now advisory, instead of being mandatory, see
People v Lockridge, 498 Mich 358, 365, 399; 870 NW2d 502 (2015), a sentencing court
nevertheless must consult the guidelines when imposing a sentence, id. at 391. See also People v
Steanhouse, 500 Mich 453, 474-475; 902 NW2d 327 (2017) (Steanhouse II) (stating that
although the guidelines are now advisory, they remain a highly relevant consideration in a trial
court’s exercise of sentencing discretion and must be consulted and taken into account when
imposing a sentence).

        Defendant’s contention is without merit. From the record, it is clear that the trial court
did consult the guidelines range. At sentencing, the court acknowledged that, despite the
sentencing guidelines range for defendant’s minimum sentence being 126 to 210 months and
despite the statutory minimum sentence being 25 years,2 it was sentencing defendant to a
minimum term of 40 years in prison. Therefore, we find untenable defendant’s positon that the
court failed to consult the sentencing guidelines range.

       Defendant also argues that the trial court failed to adequately justify the out-of-guidelines
sentence. This time, we agree.

       “[T]his Court is required to review for reasonableness only those sentences that depart
from the range recommended by the statutory guidelines.” People v Anderson, 322 Mich App
622, 636; 912 NW2d 607 (2018). “[T]he proper inquiry when reviewing a sentence for
reasonableness is whether the trial court abused its discretion by violating the ‘principle of
proportionality’ set forth in People v Milbourn[, 435 Mich 630; 461 NW2d 1 (1990)].”
Steanhouse II, 500 Mich at 459-460 (citation omitted). “ ‘[T]he key test is whether the sentence
is proportionate to the seriousness of the matter, not whether it departs from or adheres to the
guidelines’ recommended range.’ ” Id. at 475, quoting Milbourn, 435 Mich at 661.

        Michigan courts have held that a judge who decides to impose a sentence in excess of the
guidelines range “must ‘ “justify the sentence imposed in order to facilitate appellate review.” ’ ”
People v Dixon-Bey, 321 Mich App 490, 525; 909 NW2d 458 (2017), lv pending, quoting
Steanhouse II, 500 Mich at 470, quoting Lockridge, 498 Mich at 392. In doing so, a court is to
“include[] an explanation of why the sentence imposed is more proportionate to the offense and
the offender than a different sentence would have been.” Dixon-Bey, 321 Mich App at 525
(quotation marks and citation omitted).




2
  MCL 750.520b(2)(b) provides that the punishment “[f]or a [CSC-I] violation that is committed
by an individual 17 years of age or older against an individual less than 13 years of age” is to be
“imprisonment for life or any term of years, but not less than 25 years.” (Emphasis added.)


                                                -2-
       [R]elevant factors for determining whether a departure sentence is more
       proportionate than a sentence within the guidelines range continue to include (1)
       whether the guidelines accurately reflect the seriousness of the crime; (2) factors
       not considered by the guidelines; and (3) factors considered by the guidelines but
       given inadequate weight. [Id. (quotaton marks and citations omitted.]

       Here, the trial court provided very little justification for the sentence it imposed. At
sentencing, the only justification the court provided was the following:

              There’s no question, based upon the extent of the defendant’s criminal
       behavior with three small children,[3] that he’s a pedophile. I don’t know as to
       whether or not he’s even capable of being rehabilitated.

        We hold that the trial court failed to adequately justify the sentence imposed. The above
“rationale” is too sparse to be of any use in facilitating appellate review. We note that the trial
court had to impose an out-of-guidelines sentence because the top of defendant’s guidelines
range was 210 months, or 17.5 years, while MCL 750.520b(2)(b) required a minimum sentence
of 25 years. This Court in People v Payne, 304 Mich App 667; 850 NW2d 601 (2014), held that
the statutory 25-year term was a “mandatory minimum” sentence and that in order to impose a
sentence that exceeded this mandatory minimum, a court had to support its decision with
“substantial and compelling reasons.” Id. at 672, citing People v Wilcox, 486 Mich 60, 69-70;
781 NW2d 784 (2010). Thus, the Payne Court treated the 25-year “mandatory minimum” as
akin to a sentencing guidelines range, where the “range” was a single length of imprisonment.
See Payne, 304 Mich App at 672, citing MCL 769.34(3) and Wilcox, 486 Mich at 69-70.
However, Wilcox, the case that Payne relied on, in turn relied in part on MCL 769.34(3), which
required courts to articulate “substantial and compelling” reasons to impose a sentence that
departed from the (then-mandatory) sentencing guidelines. Wilcox, 486 Mich at 70.
Consequently, the Wilcox Court held that a sentence that exceeded the guidelines range and
exceeded the statutory minimum constituted a “departure” sentence, which requires substantial
and compelling reasons to support it. Id.

       But our Supreme Court in Lockridge held that, because the sentencing guidelines were
now advisory, a court did not need to provide a substantial and compelling reason to impose a
sentence that departed from the guidelines and struck that requirement from MCL 769.34(3).
Lockridge, 498 Mich at 391. Therefore, the basis for the Payne Court requiring a sentencing
court to provide a substantial and compelling reason when exceeding the statutory minimum
sentence no longer exists. Accordingly, while the trial court needed to justify its reason for the
sentence it imposed, see Dixon-Bey, 321 Mich App at 525, it did not need to offer substantial and
compelling reasons, see Lockridge, 498 Mich at 391.




3
 The record shows that, over a two-or three-year period, defendant sexually assaulted one of the
victims more than 20 times and sexually assaulted her sister “about four” times. Additionally,
another victim testified, as “other acts evidence,” that defendant had sexually assaulted her.


                                                -3-
        Again, here, the trial court did not provide any meaningful rationale as to why it chose to
impose a 40-year minimum sentence, when the default minimum sentence was 25 years.
Therefore, we remand for resentencing. See Steanhouse II, 500 Mich at 476 (stating that a trial
court abuses its discretion when it fails “to provide adequate reasons for the extent of the
departure sentence imposed”). We note that our opinion does not preclude the trial court from
imposing the same sentence (or a different sentence exceeding the 25-year minimum) if it
chooses to exercise its discretion in that manner. Instead, our holding merely is that if the court
is to impose a sentence that exceeds the statutory minimum sentence of 25 years, the court needs
to adequately articulate its reasons why it chose that sentence, such that it facilitates appellate
review. See id.; Dixon-Bey, 321 Mich at 525.

                      II. APPLICABILITY OF THE LAW OF THE CASE

       Defendant also argues that the law-of-the-case doctrine requires further sentencing
proceedings. Specifically, defendant avers that the trial court erred when it failed to follow, on
remand, this Court’s explicit instructions in Vasquez I to hold a Crosby hearing. We disagree.

        Application of the law of the case doctrine is an issue of law that is reviewed de novo.
Ashker v Ford Motor Co, 245 Mich App 9, 13; 627 NW2d 1 (2001). The law of the case
doctrine “bars reconsideration of an issue by an equal or subordinate court during subsequent
proceedings in the same case.” People v Mitchell, 231 Mich App 335, 340; 586 NW2d 119
(1998). The law of the case doctrine, however, “is not inflexible and need not be applied if it
will create an injustice.” People v Phillips (On Remand), 227 Mich App 28, 33-34; 575 NW2d
784 (1997). Additionally, if there has been a change of law after the initial decision by the
appellate court, “the doctrine does not preclude reconsideration of a question.” Ashker, 245
Mich App at 13.

         Although defendant was sentenced to an out-of-guidelines sentence, this Court in
Vasquez I, unpub op at 4, remanded for a Crosby hearing pursuant to Steanhouse I,4 which was
binding at the time. However, before October 6, 2017, when the trial court denied resentencing
notwithstanding this Court’s opinion in the prior appeal, the Supreme Court issued its opinion in
Steanhouse II, reversing in part Steanhouse I. In Steanhouse II, the Supreme Court explained
that Crosby remands are used to determine “whether trial courts that had sentenced defendants
under the mandatory sentencing guidelines had their discretion impermissibly constrained by
those guidelines.” Steanhouse II, 500 Mich at 475. Because Crosby remands should only be
used for this limited task, “the purpose for the Crosby remand is not present in cases involving
departure sentences.” Id. at 476. Therefore, cases involving out-of-guidelines sentences should
not be remanded for Crosby hearings but instead should only be remanded if this Court
determines that the trial court abused its discretion in applying the principle of proportionality by
failing to provide adequate reasons for the extent of the departure sentence imposed. Id.



4
  In Steanhouse I, this Court held that a Crosby remand was the proper remedy, despite the fact
that the defendant had been sentenced to an out-of-guidelines sentence. Steanhouse I, 313 Mich
App at 42, 48-49.


                                                -4-
        Because Steanhouse II caused a change of law between the date this Court issued its
opinion in Vasquez I and the date the trial court held its hearing after our remand, we hold that
the law of the case doctrine does not require this Court to follow the part of Vasquez I ordering a
Crosby remand. See Ashker, 245 Mich App at 13. Defendant’s sentences were sentences that
exceeded the guidelines range; therefore, under Steanhouse II, the purpose of a Crosby remand is
not present in this case. Steanhouse II, 500 Mich at 476. Accordingly, the trial court did not err
by failing to hold a Crosby hearing as ordered by this Court in Vasquez I.

       Remanded for resentencing. We do not retain jurisdiction.


                                                            /s/ Christopher M. Murray
                                                            /s/ Michael F. Gadola
                                                            /s/ Jonathan Tukel




                                                -5-
