              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,                                    FOR PUBLICATION
                                                                    February 21, 2019
                Plaintiff-Appellee,

v                                                                   No. 342325
                                                                    Washtenaw Circuit Court
ROGAN EDWARD LAMPE,                                                 LC No. 14-000322-FH

                Defendant-Appellant.


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

BOONSTRA, J. (concurring).

       I concur fully with the majority opinion. I write separately to elaborate on the majority
opinion’s use of the term “out-of-guidelines sentence,” rather than the more commonly-used
term, “departure.”

        The term “departure” derives from an earlier time when the sentencing guidelines were
mandatory, such that substantial and compelling reasons were required before a sentencing court
could deviate from them.1 Although the term “departure” has multiple definitions, principal
among them is that a “departure” is a “divergence or deviation, as from a standard or rule.” See
Random House Webster’s College Dictionary (2d ed), p 357. Since our Supreme Court has held
that the sentencing guidelines are now “advisory only,” People v Lockridge, 498 Mich 358, 365,
399; 870 NW2d 502 (2015), or “merely advisory,” id. at 395 n 31,2 and has struck down the


1
    MCL 769.34(3) formerly provided that
         A court may depart from the appropriate sentence range established under the
         sentencing guidelines set forth in chapter XVII if the court has a substantial and
         compelling reason for that departure and states on the record the reasons for
         departure.
2
  Our Supreme Court has subsequently reiterated those descriptions and has additionally referred
to the sentencing guidelines as “fully advisory,” “always advisory,” “purely advisory, “advisory



                                                -1-
substantial and compelling reason standard, id. at 391, I find the “departure” nomenclature to be
of questionable continuing utility, and suggest that sentences such as defendant’s are more
accurately referred to as “out-of-guidelines sentences.”

        This is not a mere semantic quibble; my reading of Lockridge and its progeny leads me to
conclude that some of the caselaw regarding “departure” sentences, which continues often to be
cited by litigants and this Court, is no longer applicable. Most notably, I believe that our
Supreme Court’s dictate that we review an out-of-guidelines sentence for “reasonableness,”
Lockridge, 498 Mich at 392, in accordance with the principle of proportionality, People v
Steanhouse, 500 Mich 453, 459; 902 NW2d 327 NW2d (2017), has eliminated not only the
requirement that a trial court articulate substantial and compelling reasons for “departing” from
the sentencing guidelines, but also the requirement that the trial court articulate its reasons for the
“extent of the departure.” See People v Smith, 482 Mich 292, 314; 754 NW2d 284 (2008).

        This does not diminish a trial court’s continuing obligation to “justify the [out-of-
guidelines] sentence imposed in order to facilitate appellate review, which includes an
explanation of why the sentence imposed is more proportionate to the offense and the offender
than a different sentence would have been.” People v Dixon-Bey, 321 Mich App 490, 525; 909
NW2d 458 (2017) (quotation marks and citation omitted). Nor does it diminish a trial court’s
obligation to consult the guidelines and to take them into account when imposing a sentence.
See Steanhouse, 500 Mich at 474-475 (“We repeat our directive from Lockridge that the
guidelines ‘remain a highly relevant consideration in a trial court’s exercise of sentencing
discretion’ that trial courts ‘ “must consult” ’ and ‘ “take into account when sentencing,” ’ ”),
quoting Lockridge, 498 Mich at 391, in turn quoting United States v Booker, 543 US 220, 264;
125 S Ct 738; 160 L Ed 2d 621 (2005). But “ ‘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, quoting People v Milbourn,
425 Mich 630, 661; 461 NW2d 1 (1990). Indeed, “[r]ather than impermissibly measuring
proportionality by reference to deviations from the guidelines, our principle of proportionality
requires ‘sentences imposed by the trial court to be proportionate to the seriousness of the
circumstances surrounding the offense and the offender.’ ” Id. 500 Mich at 474, quoting
Milbourn, 435 Mich at 636. And an out-of-guidelines sentence does not give rise to any
presumption of unreasonableness. Id.




in all applications, and “advisory in all cases,” People v Steanhouse, 500 Mich 453, 459, 466-
467, 469-470, 473; 902 NW2d 327 NW2d (2017).


                                                 -2-
         Consequently, I would propose that we simply consider whether the sentence imposed by
the trial court was reasonable, in accordance with the dictates of Lockridge and Steanhouse, and
that we jettison the now-antiquated references to “departures” or the “extent of the departure.”3

                                                           /s/ Mark T. Boonstra




3
  I note that even our Supreme Court has continued to refer to “departures.” See, e.g.,
Steanhouse, 500 Mich at 460-462; People v Skinner, 502 Mich 89, 134 n 25; 917 NW2d 292
(2018) (in dicta). Old habits are hard to break.


                                               -3-
