                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    December 19, 2017
               Plaintiff-Appellant,

v                                                                   No. 323073
                                                                    Wayne Circuit Court
SAMER NACHAAT SALAMI,                                               LC No. 13-003689-FH;
                                                                           13-003690-FH
               Defendant-Appellee.


                                         ON REMAND

Before: MURRAY, P.J., and METER and RIORDAN, JJ.

PER CURIAM.

        On July 26, 2016, the Michigan Supreme Court entered an order holding the application
in this matter in abeyance pending the Court’s decisions in “the cases of People v Steanhouse
(Docket No. 152849) and People v Masroor (Docket Nos. 152946-8) . . . .” People v Salami,
___ Mich ___; 882 NW2d 525 (2016).

        Subsequently, on October 31, 2017, the Michigan Supreme Court reversed “the judgment
of the Court of Appeals remanding this case to the trial court” and remanded it to this Court for
“a plenary review of the prosecutor’s claim that the defendant’s sentence was disproportionate
when applying the standard set forth in People v Milbourn, 435 Mich 630, 636 (1990). See
People v Steanhouse, 500 Mich at 460-461.” People v Salami, ___ Mich ___; 902 NW2d 603
(2017). We now vacate defendant’s sentence and remand this matter to the trial court for
resentencing.

       The issue here is whether defendant’s departure sentence is reasonable, as we considered
in our previous opinion in People v Salami, unpublished per curiam opinion of the Court of
Appeals, issued December 10, 2015 (Docket No. 323073), p 4. People v Lockridge, 498 Mich
358, 392; 870 NW2d 502 (2015). The controlling standard of reasonableness is the principle of
proportionality pursuant to People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). See
People v Steanhouse, 500 Mich 453, 471-472; 902 NW2d 327 (2017). Unfortunately, at the time
of sentencing, the trial court fixated on the highly speculative, apparently looming, yet also
apparently still unfulfilled, prospect of potential federal charges against defendant. We
previously cautioned the trial court to refrain from speculation and only consider the facts in the
record when sentencing the defendant and we do so once again. The trial court’s apparent

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displeasure with the United States Attorney’s office, and the trial court’s speculation that
defendant would be charged with federal crimes, were not proper considerations when
sentencing. Such considerations have absolutely nothing to do with the seriousness of the matter
before the trial court and we have found no authority holding that such considerations are proper
under the “principal of proportionality” method of review. Cf. People v Dixon-Bey, ___ Mich
App ___, ___; ___ NW2d ___ (2017) (Docket No. 331499); slip op at 18-19 & n 9 (explaining
proper considerations when departing from the sentencing guidelines).

       As this Court recently explained in Dixon-Bey, ___ Mich App at ___; slip op at 16:

               “A sentence that departs from the applicable guidelines range will be
       reviewed by an appellate court for reasonableness.” People v Lockridge, 498
       Mich 358, 392; 870 NW2d 502 (2015). “[T]he standard of review to be applied
       by appellate courts reviewing a sentence for reasonableness on appeal is an abuse
       of discretion. [Steanhouse, 500 Mich at 471.] In Steanhouse, the Michigan
       Supreme Court clarified that ‘the relevant question for appellate courts reviewing
       a sentence for reasonableness’ is ‘whether the trial court abused its discretion by
       violating the principle of proportionality[.]’ [Id.] The principle of proportionality
       is one in which

               “a judge helps to fulfill the overall legislative scheme of criminal
               punishment by taking care to assure that the sentences imposed
               across the discretionary range are proportionate to the seriousness
               of the matters that come before the court for sentencing. In
               making this assessment, the judge, of course, must take into
               account the nature of the offense and the background of the
               offender.” [[Id. at 472], quoting Milbourn, 435 Mich [at 651].]

       Under this principle, “ ‘[T]he 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 472,] quoting
       Milbourn, 435 Mich at 661. [Dixon-Bey, ___ Mich App at ___; slip op at 16.]

        The sentencing guidelines are an “aid to accomplish the purposes of proportionality . . . .”
Id. at ___; slip op at 18. The sentencing 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.’ ” Id., quoting People v Smith, 482 Mich
292, 309; 754 NW2d 284 (2008) (brackets omitted). The Michigan Supreme Court has been
clear that while the sentencing guidelines are now only advisory, they “remain a highly relevant
consideration in a trial court’s exercise of sentencing discretion . . . .” Lockridge, 498 Mich at
391. See also Steanhouse, 500 Mich at 474-475. As this Court recently explained:

       Because the guidelines embody the principle of proportionality and trial courts
       must consult them when sentencing, it follows that they continue to serve as a
       ‘useful tool’ or ‘guideposts’ for effectively combating disparity in sentencing.
       Therefore, relevant factors for determining whether a departure sentence is more
       proportionate than a sentence within the guidelines range continue to include (1)

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       whether the guidelines accurately reflect the seriousness of the crime, People v
       Houston, 448 Mich 312, 321-322; 532 NW2d 508 (1995), see also Milbourn, 435
       Mich at 657, (2) factors not considered by the guidelines, Houston, 448 Mich at
       322-324, see also Milbourn, 435 Mich at 660, and (3) factors considered by the
       guidelines but given inadequate weight, Houston, 448 Mich at 324-325, see also
       Milbourn, 435 Mich at 660 n 27. [Dixon-Bey, ___ Mich App at ___; slip op at
       18-19.]

Other factors to consider “include ‘the defendant’s misconduct while in custody, Houston, 448
Mich at 323, the defendant’s expressions of remorse, id., and the defendant’s potential for
rehabilitation, id.’ ” Dixon-Bey, ___ Mich App at ___; slip op at 19 n 9, quoting Steanhouse,
313 Mich App at 46. On remand, these are the factors that the trial court should employ when
re-sentencing the defendant.

        The “key test” applicable to sentencing is “whether the sentence is proportionate to the
seriousness of the matter . . . .” Milbourn, 435 Mich at 661 (emphasis supplied). In this case,
the trial court’s sentencing decision had little, if anything, to do with the seriousness of
defendant’s crimes. At the defendant’s original sentencing, the trial court acknowledged that its
sentencing decision was not a reflection of the seriousness of the offense and defendant’s
background, but rather, an application of the trial court’s subjective philosophy with regard to the
interplay between state and federal prosecutions. In fact, at the time, the trial court recognized
that the circumstances of the case warranted a more severe sentence and it went so far as to
explain that defendant “ ‘committed some very serious crimes,’ ” which were “ ‘repeated’ ” and
“ ‘calculated[.]’ ”

       Therefore, we vacate defendant’s sentence and remand for resentencing pursuant to this
opinion.

       We do not retain jurisdiction.

                                                             /s/ Christopher M. Murray
                                                             /s/ Patrick M. Meter
                                                             /s/ Michael J. Riordan




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