            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 23, 2019
              Plaintiff-Appellee,

v                                                                  No. 344161
                                                                   Ionia Circuit Court
KYLE BRANDON RICHARDS,                                             LC No. 2014-015993-FH

              Defendant-Appellant.


Before: SAWYER, P.J., and BORRELLO and SHAPIRO, JJ.

PER CURIAM.

       A jury convicted defendant of assault of a prison employee, MCL 750.197c, after he spit
on a correction officer’s arm. Defendant was sentenced as a fourth-offense habitual offender,
MCL 769.12, and this Court eventually vacated his departure sentence and remanded for
resentencing.1 On remand, defendant was resentenced to 46 months to 40 years’ imprisonment.
Defendant now appeals by leave granted. For the reasons set forth below, we affirm.

       Defendant first argues that he received a sentence disproportionate to the offense and his
circumstances. Defendant’s minimum sentence was within his guidelines range of 12 to 48
months. We are required by MCL 769.34(10) to affirm a sentence within the guidelines range
absent a scoring error or the trial court’s reliance on inaccurate information. Defendant argues
that MCL 769.34(10) is incompatible with the Supreme Court’s decision in People v Lockridge,
498 Mich 358; 870 NW2d 502 (2015), but this Court has concluded that “Lockridge did not alter
or diminish MCL 769.34(10) . . . .” People v Schrauben, 314 Mich App 181, 182 n 1; 886
NW2d 173 (2016). Until the Supreme Court decides Lockridge’s effect, if any, on MCL




1
  People v Richards (On Remand), unpublished per curiam opinion of the Court of Appeals,
issued February 1, 2018 (Docket No. 325192).



                                               -1-
769.34(10),2 we are bound by our published decision in Schrauben, 314 Mich App 181. See
MCR 7.215(C)(2).

       Next, defendant argues that his sentence constitutes cruel and unusual punishment. We
disagree.3

        The Michigan Constitution provides that “cruel or unusual punishment shall not be
inflicted[.]” Const 1963, art 1 § 16.4 This prohibition precludes “grossly disproportionate
sentences.” People v Benton, 294 Mich App 191, 204; 817 NW2d 599 (2011). A sentence
within the guidelines range is presumptively proportionate. See People v Powell, 278 Mich App
318, 323; 750 NW2d 607 (2008). To overcome the presumption of proportionality, “a defendant
must present unusual circumstances that would render the presumptively proportionate sentence
disproportionate.” People v Lee, 243 Mich App 163, 187; 622 NW2d 71 (2000).

        Defendant fails to articulate unusual circumstances that render the sentence
disproportionate. Defendant focuses on his mental health, including his diagnoses of Asperger’s
Syndrome and Attention Deficit Disorder. But he has not provided any authority suggesting that
these conditions make his incarceration unconstitutionally burdensome. Nor were these concerns
raised before the trial court at resentencing. Instead, the defense recounted defendant’s
improvement since the first sentencing including his completion of numerous educational classes
while incarcerated. The court considered those factors and complemented defendant on his
improved demeanor. At the same time, however, the court was cognizant that defendant had
several assault-related offenses both in and out of prison and a history of multiple major
misconducts while in prison. The trial court’s selection of a 46-month minimum reflected a
reasonable balancing of the positive factors defendant identified with the sentencing offense and
his significant history of assaultive behavior. For those reasons, defendant fails to show that his
sentence constituted cruel or unusual punishment.

       Affirmed.

                                                            /s/ David H. Sawyer
                                                            /s/ Stephen L. Borrello
                                                            /s/ Douglas B. Shapiro



2
  We note that the Supreme Court recently denied an application for leave to appeal addressing
that issue. See People v Ames, 501 Mich 1026 (2018); People v Ames, ___ Mich ___ (2019)
(Docket No. 156077).
3
  Because defendant did not raise this issue before the trial court, our review is for plain error
affecting substantial rights. People v Jackson, 313 Mich App 409, 421; 884 NW2d 297 (2015).
4
 The Eighth Amendment to the federal constitution prohibits cruel and unusual punishment. US
Const, Am VIII. “If a punishment passes muster under the state constitution, then it necessarily
passes muster under the federal constitution.” People v Benton, 294 Mich App 191, 204; 817
NW2d 599 (2011).



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