                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     May 9, 2017
                Plaintiff-Appellee,

v                                                                    No. 331311
                                                                     Wayne Circuit Court
JOSE ALFREDO CORTES-AZCATL,                                          LC No. 13-004761-01-FH

                Defendant-Appellant.


Before: M. J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.

PER CURIAM.

        A jury convicted defendant, Jose Cortes-Azcatl, of operating a motor vehicle while
intoxicated causing death, MCL 257.625(4). The trial court originally sentenced him to 5 to 15
years’ imprisonment, and Cortes-Azcatl appealed. In April 2015, we affirmed his conviction,
but vacated his sentence because of a scoring error and remanded for resentencing. People v
Cortes-Azcatl, unpublished opinion per curiam of the Court of Appeals, issued April 21, 2015
(Docket No. 319725). On July 24, 2015, the trial court resentenced Cortes-Azcatl to a prison
term of 49 months to 15 years. Cortes-Azcatl appeals as of right. We remand for further inquiry
of defendant’s sentence consistent with People v Lockridge, 498 Mich 358; 870 NW2d 502
(2015).

        Cortes-Azcatl argues that he is entitled to a Crosby1 remand because the trial court’s use
of judicial fact-finding to mandatorily increase his sentencing guidelines range violated his rights
under the Sixth Amendment. Whether a defendant’s sentence violates the Sixth Amendment is a
question of law that we review de novo. Lockridge, 498 Mich at 373. Because Cortes-Azcatl
objected to the use of judicial fact-finding, the issue is preserved for appeal. A preserved
Lockridge error must be reviewed to determine if it qualifies as harmless beyond a reasonable
doubt. People v Stokes, 312 Mich App 181, 198; 877 NW2d 752 (2015).

        In Lockridge our Supreme Court held that Michigan’s sentencing guidelines are
constitutionally deficient 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


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


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increase the floor of the guidelines minimum sentence range . . . .” Id. at 364. To remedy this
deficiency, the Court held that the guidelines are advisory only. Id. at 365. The Court explained
that in cases where the guidelines were mandatory at the time of sentencing, if the facts
“admitted by a defendant or found by the jury verdict were insufficient to assess the minimum
number of OV points necessary for the defendant’s score to fall in the cell of the sentencing grid
under which he or she was sentenced,” then “an unconstitutional constraint [will have] actually
impaired the defendant’s Sixth Amendment right.” Id. at 395. The Court further held that “in
cases in which a defendant’s minimum sentence was established by application of the sentencing
guidelines in a manner that violated the Sixth Amendment, the case should be remanded to the
trial court to determine whether that court would have imposed a materially different sentence
but for the constitutional error.” Id. at 397.

         Here, the trial court necessarily engaged in judicial fact-finding when scoring OV 5
(psychological injury to member of a victim’s family), OV 9 (number of victims), OV 16
(property obtained, damaged, lost, or destroyed), and OV 17 (degree of negligence exhibited)
because the facts necessary to score them are not encompassed by the jury’s verdict or any
admissions by Cortes-Azcatl. Further, the scores for these OVs affect Cortes-Azcatl’s minimum
guidelines range. As scored, his guidelines range was 29 to 57 months; however, without
judicial fact-finding, his guidelines range would have been 19 to 38 months.2 Accordingly,
because Cortes-Azcatl’s minimum sentence range was actually constrained by a Sixth
Amendment violation, and he was not subject to an upward departure, he is entitled to a Crosby
remand. Lockridge, 498 Mich at 395.

        On remand, the trial court must determine whether it would have imposed a materially
different sentence but for the unconstitutional constraint on its discretion because of the
mandatory application of the guidelines at the time of Cortes-Azcatl’s resentencing. Lockridge,
498 Mich at 397. The trial court shall follow the procedure described in Lockridge. Cortes-
Azcatl must be given the option of promptly notifying the trial judge that resentencing will not
be sought. If notification is not received in a timely manner, the trial court shall continue with
the proceeding. If the trial court determines that it would have imposed the same sentences
absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If,
however, the court determines that it would not have imposed the same sentence absent the
unconstitutional constraint on its discretion, it shall resentence defendant. Id. at 399.

        Remanded for further proceedings consistent with this opinion.          We do not retain
jurisdiction.

                                                             /s/ Michael J. Kelly
                                                             /s/ Jane M. Beckering
                                                             /s/ Douglas B. Shapiro




2
 The scores for OVs 5, 9, 16, and 17 increased Cortes-Azcatl’s total OV score from 65 points to
105 points, which in turn changed his placement from OV Level V to OV Level VI.


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