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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

May 9, 2017 

v No. 331311 

Wayne Circuit Court 

JOSE ALFREDO CORTES-AZCATL, LC No. 13-004761-01-FH 

 Defendant-Appellant. 

Before: M. J. KELLY, P.J., and BECKERING and SHAPIRO, JJ. 

PER CURIAM. 

 A jury convicted defendant, Jose Cortes-Azcatl, of operating a motor vehicle while 

intoxicated causing death, MCL 257.625(4). The trial court originally sentenced him to 5 to 15 

years’ imprisonment, and Cortes-Azcatl appealed. In April 2015, we affirmed his conviction, 

but vacated his sentence because of a scoring error and remanded for resentencing. People v 

Cortes-Azcatl, unpublished opinion per curiam of the Court of Appeals, issued April 21, 2015 

(Docket No. 319725). On July 24, 2015, the trial court resentenced Cortes-Azcatl to a prison 

term of 49 months to 15 years. Cortes-Azcatl appeals as of right. We remand for further inquiry 

of defendant’s sentence consistent with People v Lockridge, 498 Mich 358; 870 NW2d 502 

(2015). 

 Cortes-Azcatl argues that he is entitled to a Crosby1

 remand because the trial court’s use 

of judicial fact-finding to mandatorily increase his sentencing guidelines range violated his rights 

under the Sixth Amendment. Whether a defendant’s sentence violates the Sixth Amendment is a 

question of law that we review de novo. Lockridge, 498 Mich at 373. Because Cortes-Azcatl 

objected to the use of judicial fact-finding, the issue is preserved for appeal. A preserved 

Lockridge error must be reviewed to determine if it qualifies as harmless beyond a reasonable 

doubt. People v Stokes, 312 Mich App 181, 198; 877 NW2d 752 (2015). 

 In Lockridge our Supreme Court held that Michigan’s sentencing guidelines are 

constitutionally deficient to the extent that they “require judicial fact-finding beyond facts 

admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily

 

1 United States v Crosby, 397 F3d 103 (CA 2, 2005). 
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increase the floor of the guidelines minimum sentence range . . . .” Id. at 364. To remedy this 

deficiency, the Court held that the guidelines are advisory only. Id. at 365. The Court explained 

that in cases where the guidelines were mandatory at the time of sentencing, if the facts 

“admitted by a defendant or found by the jury verdict were insufficient to assess the minimum 

number of OV points necessary for the defendant’s score to fall in the cell of the sentencing grid 

under which he or she was sentenced,” then “an unconstitutional constraint [will have] actually 

impaired the defendant’s Sixth Amendment right.” Id. at 395. The Court further held that “in 

cases in which a defendant’s minimum sentence was established by application of the sentencing 

guidelines in a manner that violated the Sixth Amendment, the case should be remanded to the 

trial court to determine whether that court would have imposed a materially different sentence 

but for the constitutional error.” Id. at 397. 

 Here, the trial court necessarily engaged in judicial fact-finding when scoring OV 5 

(psychological injury to member of a victim’s family), OV 9 (number of victims), OV 16 

(property obtained, damaged, lost, or destroyed), and OV 17 (degree of negligence exhibited) 

because the facts necessary to score them are not encompassed by the jury’s verdict or any 

admissions by Cortes-Azcatl. Further, the scores for these OVs affect Cortes-Azcatl’s minimum 

guidelines range. As scored, his guidelines range was 29 to 57 months; however, without 

judicial fact-finding, his guidelines range would have been 19 to 38 months.2

 Accordingly, 

because Cortes-Azcatl’s minimum sentence range was actually constrained by a Sixth 

Amendment violation, and he was not subject to an upward departure, he is entitled to a Crosby

remand. Lockridge, 498 Mich at 395. 

 On remand, the trial court must determine whether it would have imposed a materially 

different sentence but for the unconstitutional constraint on its discretion because of the 

mandatory application of the guidelines at the time of Cortes-Azcatl’s resentencing. Lockridge,

498 Mich at 397. The trial court shall follow the procedure described in Lockridge. CortesAzcatl must be given the option of promptly notifying the trial judge that resentencing will not 

be sought. If notification is not received in a timely manner, the trial court shall continue with 

the proceeding. If the trial court determines that it would have imposed the same sentences 

absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, 

however, the court determines that it would not have imposed the same sentence absent the 

unconstitutional constraint on its discretion, it shall resentence defendant. Id. at 399. 

 Remanded for further proceedings consistent with this opinion. We do not retain 

jurisdiction. 

/s/ Michael J. Kelly 

/s/ Jane M. Beckering 

/s/ Douglas B. Shapiro 

 

2

 The scores for OVs 5, 9, 16, and 17 increased Cortes-Azcatl’s total OV score from 65 points to 

105 points, which in turn changed his placement from OV Level V to OV Level VI.