If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

May 14, 2020

v No. 346446

Kent Circuit Court

HERBIE BREWER III, LC Nos. 18-000824-FJ; 

18-000825-FJ; 18-000826-FJ

Defendant-Appellant.

AFTER REMAND

Before: O’BRIEN, P.J., and RONAYNE KRAUSE and GADOLA, JJ.

PER CURIAM.

This case returns to us after we remanded it to the trial court for resentencing of defendant 

on his plea-based convictions of two counts of breaking and entering with intent to commit a 

felony, MCL 750.110, two counts of larceny by stealing a firearm, MCL 750.357b, and one count 

of carrying a concealed weapon, MCL 750.227. On remand, the trial court imposed a sentence of 

5 to 10 years’ imprisonment for the breaking and entering convictions, and 18 months to 5 years 

for each conviction of larceny and carrying a concealed weapon, with 885 days credit for time 

served. We affirm. 

In September 2017, defendant engaged in a spree of gun thefts from Grand Rapids area 

gun dealers. Over the course of two nights, defendant and his companions broke into four stores, 

stealing 28 firearms and causing over $30,000 in loss and damage to the stores. At the time 

defendant committed this series of crimes, he was 16 years old and was on probation for armed 

robbery and for receiving and concealing a stolen motor vehicle.1 When he was arrested during 

an investigatory traffic stop, defendant was armed with a handgun. 

As part of a plea agreement, defendant pleaded guilty to two counts of breaking and 

entering with intent to commit a felony, two counts of larceny of a firearm, and carrying a 

 

1 Defendant was charged as an adult in this matter; his previous convictions were as a juvenile.
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concealed weapon. In exchange, the prosecutor dismissed other charges pending against defendant

and recommended a minimum sentence within the sentencing guidelines range, which was 5 

months to 23 months in prison for each count of breaking and entering, and 7 to 23 months in 

prison for each count of larceny and carrying a concealed weapon. Although the trial court 

informed defendant that it would not adhere to the plea agreement, defendant declined to withdraw 

his plea. The trial court thereafter imposed a sentence greatly exceeding the sentencing guidelines, 

sentencing defendant to 6 to 10 years’ imprisonment for each conviction of breaking and entering, 

and 3 to 5 years’ imprisonment for each conviction of larceny of a firearm and carrying a concealed 

weapon, with all sentences to be served concurrently. The trial court’s main basis for exceeding 

the guidelines in sentencing defendant was that defendant had illegally sold the guns into the 

community where the weapons presented a continuing danger. 

Defendant appealed to this Court, challenging his sentence as unreasonable. While 

retaining jurisdiction, we vacated defendant’s sentences and remanded to the trial court. We 

explained that:

The trial court’s main basis for the departure was that defendant’s sale of the stolen 

firearms into the community would have a negative impact on society not 

adequately considered in the guidelines. Because the record seemingly indicates 

that only one of the stolen guns was ever recovered, it is reasonable to infer that the 

other guns ended up in the community, with clearly dire consequences. However, 

there is no record evidence that defendant sold the guns or that defendant 

specifically had any involvement in disposing of the guns. The trial court’s concern 

is appropriate and could support an upward departure sentence in principle, but we 

are unable to find it sufficiently supported by the record. See [People v] DixonBey, 321 Mich App [490,] 526, 529; [909 NW2d 458 (2017)]. This Court is not 

permitted to supplement the trial court’s reasoning regarding why a departure is 

justified. People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008); Dixon-Bey, 

321 Mich App at 531 n 11. We further observe that the trial court did not otherwise 

adequately justify the departure nor the extent of the departure. The more than 

tripling of the high end of the guidelines for this young offender suggests that the 

departure was excessive, but we are hindered in our review by the trial court’s lack 

of justification on the record for the departure explaining why the sentence imposed 

is more proportionate or less proportionate to the offense and the offender than a 

different sentence would have been. [People v Brewer, unpublished per curiam 

opinion of the Court of Appeals, issued February 4, 2020 (Docket No. 346446), p 

3.] 

On remand, the trial court held an evidentiary hearing in which testimony was offered 

establishing that defendant sold many of the guns and that police later recovered certain of the 

guns while investigating other crimes. Each party submitted a sentencing memorandum, and the

trial court thereafter held a sentencing hearing at which defendant’s sentencing guidelines were 

recalculated as 19 to 38 months for the breaking and entering convictions, and 7 to 23 months for 

the larceny and carrying convictions. The trial court then sentenced defendant to 5 to 10 years in 

prison for the breaking and entering convictions, and 18 months to 5 years on the larceny and 

carrying convictions, with credit for time served. 
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This Court reviews a departure from the sentencing guidelines range for reasonableness,

People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015), determining “whether the trial 

court abused its discretion by violating the principle of proportionality. . . .” People v Steanhouse, 

500 Mich 453, 477; 902 NW2d 327 (2017). The principle of proportionality requires sentences 

“to be proportionate to the seriousness of the circumstances surrounding the offense and the 

offender.” Id. at 460, quoting People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). 

Although the sentencing guidelines are now advisory only, trial courts must continue to consider 

the guidelines when imposing a sentence. Lockridge, 498 Mich at 392. A trial court that chooses 

to depart from the sentencing guidelines is required to justify the departure on the record 

“explaining why the sentence imposed is more proportionate to the offense and the offender than 

a different sentence would have been.” People v Odom, 327 Mich App 297, 315; 933 NW2d 719 

(2019) (quotation marks and citation omitted). 

On remand, the trial court in this case again departed from the guidelines, sentencing 

defendant to 5 to 10 years in prison for the breaking and entering convictions, exceeding the 

recalculated guidelines of 19 to 38 months by 22 months. The trial court, however, explained that 

this sentence was more proportionate to the offense and the offender in this case given the 

increased risk to the community presented by defendant’s sale of the guns to purchasers who then 

used the guns in connection with further criminal activity. Because the record after remand 

contains support for the finding that defendant in fact sold the guns, and because the trial court 

adequately justified the departure on the record, we are now able to conclude that the trial court’s 

concern, as reflected in the upward departure, is supported by the record. See People v DixonBey, 321 Mich App 490, 526, 529; 909 NW2d 458 (2017). 

Affirmed. 

/s/ Colleen A. O’Brien

/s/ Amy Ronayne Krause

/s/ Michael F. Gadola