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- Appellee, UNPUBLISHED May 14, 2020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 No s

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- FJ;

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- FJ; 18

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- FJ

Defendant

- Appell ant

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AFTER REMAND

Before: O’B RIEN

, P .J., and R ONAYNE K RAUSE and G ADOLA

, JJ.

P ER C URIAM

.

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. O ver the course of two nights, d efendant and his companions broke into four stores, stealing 28 firearms and causing over $30,000 in loss and damage to the s tores. 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 ar med 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, t wo counts of larceny of a firearm , and carrying a

1 Defendant was charged as an adult in this matter ; h is previous convictions were as a juvenile.- 2

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concealed weapon. In exchange, the prosecutor dismissed other charges pending against defendant

and recommended a minimum sentence within the s entencing guidelines range , which w as 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 t he trial court

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

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

sentenc ing 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 c arrying 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 th e weapons presented a continuing danger.

Defendant appeal ed to this Court

, challenging his sentence as unreasonable. W hile 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 h ave 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 ] Dixon

Bey , 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 i s 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 pr oportionate 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 crim es . 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 co nvictions , and 7 to 23 months for the larceny and carrying con victions . The trial court then sentenced defendant to 5 to 10 years in prison for the breaking and entering con victions , and 18 months to 5 years on the larceny and carrying con victions , 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 N W2d 327 (2017). T he 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).

Alth ough 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 t he 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 mont hs. 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 conn ection 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 th e trial court’s concern, as reflected in the upward departure, is supported by the record

. See People v Dixon

Bey , 321 Mich App 490, 526, 529; 909 NW2d 458 (2017).

Affirmed.

/s/ Colleen A. O’Brien /s/ Amy Ronayne Krause

/s/ Michael F. Gadola