-1-

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UNPUBLISHED

March 15, 2018

v No. 335398

Wayne Circuit Court

JOHN JAMES, LC No. 16-003682-01-FC

Defendant-Appellant.

Before: M. J. KELLY, P.J., and JANSEN and METER, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of assault with intent to do great 

bodily harm (AWIGBH), MCL 750.84, carrying a dangerous weapon with unlawful intent, MCL 

750.226, and possession of a firearm during the commission of a felony (felony-firearm), MCL 

750.227b. Defendant was sentenced to 3 to 10 years’ imprisonment for the AWIGBH 

conviction, one to five years’ imprisonment for the carrying of a dangerous weapon with 

unlawful intent conviction, and two years’ imprisonment for the felony-firearm conviction. We 

vacate defendant’s sentences and remand to the trial court for resentencing. 

Defendant first argues that his sentence of 3 to 10 years’ imprisonment imposed by the 

trial court for his AWIGBH conviction, which departed from the minimum sentencing guidelines 

range of 10 to 23 months’ imprisonment, is disproportionate and lacked any justification for the 

degree or extent of the departure. We agree. 

This Court reviews departure sentences for reasonableness using the principal of 

proportionality articulated in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). See 

People v Steanhouse, 500 Mich 453, 471-472; 902 NW2d 327 (2017) (Steanhouse II). As this 

Court recently explained in People v Dixon-Bey, ___ Mich App ___, ___; ___ NW2d ___ (2017) 

(Docket No. 331499); 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 II, 500 Mich at 471.] In Steanhouse, the Michigan 

Supreme Court clarified that ‘the relevant question for appellate courts reviewing 
-2-

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 II, 500 Mich at 472,] quoting 

Milbourn, 435 Mich at 661. [Dixon-Bey, ___ Mich App at ___; slip op at 16.]

The sentencing guidelines remain 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). Our Supreme Court has been clear that 

while the sentencing guidelines are now merely advisory, they “remain a highly relevant 

consideration in a trial court’s exercise of sentencing discretion . . . .” Lockridge, 498 Mich at 

391. See also Steanhouse II, 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) 

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 People v 

Steanhouse (Steanhouse I), 313 Mich App 1, 46; 880 NW2d 297 (2015). 

In Milbourn, our Supreme Court observed:
-3-

Even where some departure appears to be appropriate, the extent of the departure 

(rather than the fact of the departure itself) may embody a violation of the 

principle of proportionality. See People v McKinley, 168 Mich App 496, 512; 

425 NW2d 460 (1988). (“We do not dispute that a prison sentence—even a 

lengthy one—is in order. We conclude, however, that a fifteen-year minimum 

sentence for the events that occurred here is disproportionate to the specific acts 

committed and the danger involved. Too frequently reasons are given for a 

sentence that apply equally to a lesser or greater sentence unless an explanation 

is offered on the record for the specific sentence given. Such was the case here.”) 

(Emphasis added.) [Milbourn, 435 Mich at 659-660 (footnote omitted).]

Therefore, “[w]hen making this determination and sentencing a defendant, a trial court must ‘ 

“justify the sentence imposed in order to facilitate appellate review,” ’ Steanhouse, [500 Mich at 

470], quoting Lockridge, 498 Mich at 392, 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,’ Smith, 482 Mich at 311.” Dixon-Bey, ___ Mich App at ___; slip op at 19.

Our first step in the reasonableness review is to determine whether there were 

“ ‘circumstances that are not adequately embodied within the [offense] variables used to score 

the guidelines.’ ” Steanhouse III, ___ Mich App at ___; slip op at 3, quoting Milbourn, 435 

Mich at 659-660. Our analysis requires comparing “the stated reasons for exceeding the 

guidelines with the scored offense variables (OVs) to determine whether those reasons were 

already encompassed within the guidelines.” Steanhouse III, ___ Mich App at ___; slip op at 3. 

The relevant inquiry becomes “whether the trial court abused its discretion by imposing a 

departure sentence without articulating whether the guidelines adequately took into account the 

conduct alleged to support the particular departure imposed.” Id. 

In sentencing defendant above the minimum sentencing guidelines range for his 

AWIGBH conviction, the trial court articulated that it believed defendant’s crime was senseless. 

The trial court did not understand why defendant thought it was a good idea to put a gun in the 

trunk of a car and use it against another human being in response to being taunted by the victim. 

The trial court noted that defendant’s decision to shoot at the victim “was not something that was 

spur of the moment, that he didn’t think about. He was upset with the victim for supposedly 

making fun of him and he wanted to show him, you know, you can’t make fun of me kind of 

thing[.]” This reasoning speaks to the nature of this particular defendant and his crime, which 

were not taken into consideration by the guidelines. 

However, the trial court also articulated reasoning that was not unique to defendant or to 

defendant’s crime. Specifically, the trial court pontificated at length regarding recidivism 

amongst offenders under the age of 22, and questioned how defendant could not have learned 

from other young black men who have “shot guns and gotten prison time[.]” Specifically, the 

trial court relied on baseball statistics, and opined that not relying on statistics is what got Kirk 

Gibson fired. A defendant’s potential for rehabilitation or propensity for recidivism and 

misconduct while in custody are factors not properly recognized by the guidelines, and can be 

considered by a trial court when imposing a departure sentence. Steanhouse I, 313 Mich App at 

46. However, they were not a proper consideration here: the record is clear that defendant has no 

prior criminal history whatsoever, expressed remorse for his crime, and had strong family 
-4-

support. The trial court’s references to rehabilitation and recidivism were generic, and not 

specifically related to the circumstances surrounding this defendant and his crime. 

Further, not only does the trial court have an obligation to articulate sufficient reasons for 

imposing a departure sentence, but it has a duty to explain why the extent of the departure is 

warranted. People v Steanhouse (On Remand), ___ Mich App ___, ___; ___ NW2d ___ (2017) 

(Docket No. 318329) (Steanhouse III); slip op at 5; Dixon-Bey, ___ Mich App at ___; slip op at 

19. See also Smith, 482 Mich at 304 (a trial court “must explain why the sentence imposed is 

more proportionate than a sentence within the guidelines recommendation would have been.”). 

On the record before us, it is difficult to ascertain the trial court’s reasoning for the extent of the 

departure sentence imposed, and its rationale regarding whether the extent of the departure 

imposed was proportionate to the seriousness of the crime. Accordingly, we conclude that the 

trial court “ ‘abused its discretion in applying the principle of proportionality by failing to 

provide adequate reasons for the extent of the departure sentence imposed,’ ” and remand for 

resentencing is required. Steanhouse III, ___ Mich App at ___; slip op at 15, quoting Steanhouse 

II, 500 Mich at 476. 

Defendant also argues that the sentence imposed by the trial court constituted cruel and 

unusual punishment. It is premature to consider whether defendant’s departure sentence is cruel 

or unusual because defendant is entitled to resentencing, and it remains to be determined 

whether, upon resentencing, the trial court will impose a proportionate sentence or a sentence 

that will be within the appropriate guidelines range. Accordingly, defendant’s claim that his 

current sentence is cruel or unusual is moot due to the possibility of an altered sentence. 

We vacate defendant’s sentences and remand for resentencing in accordance with this 

opinion. We do not retain jurisdiction. 

/s/ Michael J. Kelly

/s/ Kathleen Jansen

/s/ Patrick M. Meter