                           STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 12, 2018
                Plaintiff-Appellee,

v                                                                   No. 335607
                                                                    Wayne Circuit Court
VALENTE GEONELLI FAULKS,                                            LC No. 14-009007-01-FC

                Defendant-Appellant.


Before: SAWYER, P.J., and HOEKSTRA and MURRAY, JJ.

PER CURIAM.

       Defendant appeals as of right the trial court’s order, entered after a Crosby1 remand
hearing, declining to resentence defendant and thereby reaffirming defendant’s original sentence
of 30 to 50 years’ imprisonment for his conviction of second-degree murder, MCL 750.317, to
be served consecutive to a two-year term of imprisonment for his conviction of possession of a
firearm during the commission of a felony, MCL 750.227b. We affirm.

        Defendant was convicted of murdering the victim, Kevin March, during a block party in
Detroit. Evidence at trial indicated that the victim became involved in an argument with
defendant’s sister, during which the victim called defendant’s sister a “bitch.” Defendant’s sister
cautioned the victim not to refer to her as a bitch again, or his “life [is] over.” The victim
repeated the word and defendant’s sister told the victim, “You dead tonight.” Defendant’s sister
then made a phone call in which she reported that the victim had “disrespected” her.
Approximately five minutes later, defendant arrived, carrying a gun, and confronted the victim.
The victim apologized, but defendant told him it was too late and shot him several times. The
victim died from his wounds.

        Although defendant was charged with first-degree premeditated murder, MCL
750.316(1)(a), the jury convicted him of the lesser offense of second-degree murder, as well as
felony-firearm. The trial court sentenced defendant within the sentencing guidelines range of
225 to 375 months to a prison term of 30 to 50 years, to be served consecutive to a two-year
prison term for the felony-firearm conviction. In a prior appeal, this Court affirmed defendant’s


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


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convictions, “but remand[ed] for a Crosby[2] hearing in accordance with People v Lockridge, 498
Mich 358; 870 NW2d 502 (2015).” People v Faulks, unpublished per curiam opinion of the
Court of Appeals, issued July 14, 2016 (Docket No. 326759). On remand, the trial court and the
parties discussed the parameters of a Crosby remand, including that the sentencing guidelines
were now only advisory. The trial court declined to resentence defendant, stating, in relevant
part:

               [I]n looking at this, and I specifically reviewed the comments that I made
       at the time of Mr. Faulks’s sentencing, I said at that time that the sentence was
       proportionate to the utterly gratuitous and cold-blooded killing of an unarmed
       man as a result of some perceived slight to the Defendant’s sister. I went on to
       say that Mr. March’s last words were an apology for any such slight but the
       Defendant shot him anyway.

              I have—I’m going to stick by that decision. I would—had Lockridge been
       decided at that time I would not have imposed a materially different sentence.

        We review the trial court’s decision to decline to resentence defendant for an abuse of
discretion. People v Puckett, 178 Mich App 224, 227; 443 NW2d 470 (1989). Defendant argues
on appeal that he is entitled to resentencing because his sentence for second-degree murder,
although within the guidelines range as scored by the trial court, is actually an upward departure
from the appropriate guidelines range and is unreasonable. We disagree. Defendant’s minimum
sentence of 360 months is within the guidelines sentence range of 225 to 375 months.
Defendant’s contention that his sentence is an upward departure is based on the premise that the
guidelines range should only be 162 to 270 months or, at most, 180 to 300 months, because the
higher range is based on judicial fact-finding, which defendant maintains should not be used to
score the offense variables. However, this premise is flawed.

        In Lockridge, 498 Mich at 364, our Supreme Court held that Michigan’s sentencing
guidelines are constitutionally deficient, in violation of the Sixth Amendment, 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 . . . .” To remedy this deficiency, the Court held that the guidelines are advisory
only. Id. at 365. Under Lockridge, however, trial courts are still required to “continue to consult
the applicable guidelines range and take it into account when imposing a sentence,” and are
permitted to score the OVs using judicially found facts. Id. at 392 n 28. As this Court explained
in People v Biddles, 316 Mich App 148, 158; 896 NW2d 461 (2016),

       [t]he 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



2
 United States v Crosby, 397 F3d 103 (CA 2, 2005), cert den 549 US 915; 127 S Ct 260; 166 L
Ed 2d 202 (2006).


                                                -2-
       sentence range. Lockridge remedied this constitutional violation by making the
       guidelines advisory, not by eliminating judicial fact-finding.

More recently, in People v Steanhouse, 500 Mich 453; 902 NW2d 327 (2017), our Supreme
Court reaffirmed its holding in Lockridge that the sentencing guidelines are advisory only. Id. at
466. The Court articulated that, “[w]hat made the guidelines unconstitutional, in other words,
was the combination of the two mandates of judicial fact-finding and adherence to the
guidelines.” Id. at 467. This combination was no longer extant at defendant’s Crosby remand
hearing. Although defendant’s guidelines range was still based in part on judicial fact-finding,
the trial court recognized that, under Lockridge, the range was only advisory. Therefore, the trial
court did not err when it evaluated defendant’s sentence using a guidelines range that was based
on judicially found facts, given that the court was aware that the guidelines were only advisory.

       Because defendant’s sentence was not a departure from the appropriate guidelines range,
a reasonableness review under Lockridge is not warranted. Lockridge, 498 Mich at 365, 392.
Instead, as defendant acknowledges, a sentence that falls within the guidelines range is presumed
proportionate and must be affirmed on appeal absent a scoring error or reliance on inaccurate
information. MCL 769.34(10); People v Jackson, 320 Mich App 514, 527; ___ NW2d ___
(2017); People v Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d 173 (2016).

       Defendant observes that, on remand, the trial court relied on the previously scored
guidelines in declining to resentence him. However, the trial court was not required to re-score
the guidelines at a Crosby remand hearing. The trial court complied with the procedure required
by Lockridge, 498 Mich at 398-399, by consulting the parties, allowing defendant and his
attorney to place their views about resentencing on the record, and determining whether it would
have imposed a materially different sentence knowing that the guidelines were only advisory.
The court commented about the “cold-blooded” nature of the killing and expressed its belief that
defendant’s original sentence, which was within the advisory guidelines range, was reasonable.
Accordingly, the court explained, having considered defendant’s sentence in light of Lockridge,
it would not have imposed a materially different sentence. The trial court followed the procedure
required by Lockridge.

       Affirmed.



                                                            /s/ David H. Sawyer
                                                            /s/ Joel P. Hoekstra
                                                            /s/ Christopher M. Murray




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