            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PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED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 5, 2019
              Plaintiff-Appellee,

v                                                                 No. 336563
                                                                  Ingham Circuit Court
ETHAN KEITH CALLOWAY,                                             LC No. 16-000460-FH

              Defendant-Appellant.


Before: M. J. KELLY, P.J., and SERVITTO and BOONSTRA, JJ.

PER CURIAM.

        Defendant appeals as on leave granted1 the sentence imposed for his plea-based
conviction of possession with intent to deliver less than 50 grams of a mixture containing
narcotics, MCL 333.7401(2)(a)(iv). The trial court sentenced defendant, as a habitual third
offender, MCL 769.11, to 8 to 40 years’ imprisonment, a significant upward departure from the
sentencing guidelines range of 10 to 34 months. We reverse defendant’s sentence and remand to
the trial court to either resentence defendant or properly articulate the justifications for its
sentence.

        In December 2015, defendant was arrested and charged, as a habitual fourth offender,
MCL 769.12, with two counts of possession with intent to deliver less than 50 grams of a
mixture containing narcotics, MCL 333.7401(2)(a)(iv); one count of possession with intent to
deliver a schedule 4 substance, MCL 333.7401(2)(c); and one count of receiving and concealing
stolen property with a value of less than $200, MCL 750.535(5). In June 2016, defendant
pleaded guilty to one count of intent to deliver narcotics as a habitual third offender and the
remaining charges were dismissed.




1
 We consider this matter pursuant to an order of remand from our Supreme Court in People v
Calloway, 501 Mich 923; 903 NW2d 574 (2017).
        The trial court departed from the sentencing guidelines range of 10 to 34 months’
imprisonment and imposed a sentence of 96 to 480 months’ imprisonment. The trial court’s full
explanation of defendant’s sentence is as follows: “It’s absolutely incredible to me that a man
with eleven felonies and eleven misdemeanors would have these kind [sic] of scorings. This
gentleman has no regard for much of anything . . . . You know, I mean, seriously. Eleven
felonies prior to this, plus all these . . . . And if I could give you more, I probably would.”

         On appeal, defendant argues that the trial court imposed an unreasonable sentence
departure in violation of the principle of proportionality articulated in People v Milbourn, 435
Mich 630; 461 NW2d 1 (1990), and adopted in People v Steanhouse, 500 Mich 453; 902 NW2d
327 (2017). Defendant further argues that the trial court did not adequately express its
justification for the departure in order to facilitate appellate review. We agree.

        Appellate review of a departure sentence imposed under the now-advisory guidelines
scheme is confined to determining whether the sentence was reasonable. Steanhouse, 500 Mich
at 459; People v Lockridge, 498 Mich 358, 365; 870 NW2d 502 (2015). The reasonableness of
the sentence imposed is reviewed for an abuse of discretion. Steanhouse, 500 Mich at 459-460.
The trial court abuses its discretion when it imposes a sentence that is unreasonable because it
violates the principle of proportionality. People v Dixon-Bey, 321 Mich App 490, 523-524; 909
NW2d 458 (2017).

        The central question in the reasonableness inquiry is “whether the trial court abused its
discretion by violating the principle of proportionality set forth in [Milbourn, 435 Mich 630],
which requires sentences imposed by the trial court to be proportionate to the seriousness of the
circumstances surrounding the offense and the offender.” Steanhouse, 500 Mich at 459-460
(quotation marks and citation omitted). While the applicable sentencing guidelines range is
advisory only, “a sentencing court must determine the applicable guidelines range and take it
into account when imposing a sentence.” Lockridge, 498 Mich at 365. The sentencing
guidelines are “a highly relevant consideration in a trial court’s exercise of sentencing
discretion”, and the trial court “must consult those [g]uidelines” when making a sentencing
determination. Id. at 391 (quotation marks and citation omitted). Importantly, the guidelines
“provide[] objective factual guideposts that can assist sentencing courts in ensuring that the
offenders with similar offense and offender characteristics receive substantially similar
sentences.” People v Smith, 482 Mich 292, 309; 754 NW2d 284 (2008) (quotation marks and
citations omitted).

       At the same time, “the 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.”
Steanhouse, 500 Mich at 475 (quotation marks and citation omitted). Departures are proper
where the guidelines accord inadequate weight to “important factors legitimately considered at
sentencing.” Milbourn, 435 Mich at 657. A trial judge may impose a sentence that departs from
the guidelines when the recommended range “is disproportionate, in either direction, to the
seriousness of the crime.” Id. However, there are no reasonable grounds for departure where
“most, if not all, of the factors discussed by the trial court to support its departure sentence [are]
contemplated by at least one offense variable (OV),” and where the trial court fails to offer any
explanation as to why that scoring was insufficient. Dixon-Bey, 321 Mich App at 525-526.
Therefore, in addition to adhering to the principle of proportionality, “sentencing courts must

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justify the sentence imposed in order to facilitate appellate review.” Lockridge, 498 Mich at 392.
This justification must 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).

       In this case, the trial court’s sole reference to the guidelines was to note the defendant’s
extensive criminal history and to express dissatisfaction with the guidelines scores. Such a
passing reference is insufficient for this Court to determine whether the trial court took the
guidelines recommendation into account. And, the trial court’s stated reasons for its sentence
were not adequate to facilitate appellate review.

        The prosecution argues that the trial court’s departure sentence was proportionate, and
therefore reasonable, because defendant’s likelihood of rehabilitation and his criminal history
were not adequately addressed by the guidelines. Factors that were given inadequate weight by
the guidelines are appropriately considered when imposing a departure sentence. People v
Houston, 448 Mich 312, 322-324; 532 NW2d 508 (1995). While the trial court indicated that
defendant’s lengthy criminal record was not adequately reflected in the guidelines
recommendation, “[a] sentence cannot be upheld when the connection between the reasons given
for departure and the extent of the departure is unclear.” Smith, 482 Mich at 304. Lacking an
explanation of the connection here, the trial court abused its discretion in imposing the sentence
it did.

       Reversed and remanded for resentencing or a proper articulation of the justifications for a
sentence. We do not retain jurisdiction.



                                                            /s/ Michael J. Kelly
                                                            /s/ Deborah A. Servitto
                                                            /s/ Mark T. Boonstra




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