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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UNPUBLISHED

March 22, 2018

v No. 336639

Macomb Circuit Court

DAMIEN BANKS, LC No. 2013-000805-FC

Defendant-Appellant.

Before: GLEICHER, P.J., and BOONSTRA and TUKEL, JJ

PER CURIAM.

Defendant appeals by right the trial court’s opinion and order denying his request for 

resentencing following this Court’s Crosby1 remand. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This Court set forth the facts underlying defendant’s convictions in his previous appeal:

Brad Bohen lived down the street from Tiffany Greathouse. After meeting in the 

neighborhood, Bohen became friends with Greathouse’s brother, Maliki 

Greathouse, and her boyfriend, defendant []. On the day in question, Bohen 

testified that [defendant] and Maliki were visiting his home when he took a phone 

call from his attorney. Bohen told his attorney that he had gathered sufficient 

money to pay a $650 retainer plus additional fees and that he wished to procure 

his services. When [defendant] and Maliki heard this conversation, they allegedly 

looked at each other and left.

Later that day, Bohen left his home with approximately $2,500 in cash in 

his pocket. He travelled with his friend Renee Nomer and her two children to 

Costco and then to T.G.I. Friday’s for dinner. While inside the restaurant, Bohen 

 1 United States v Crosby, 397 F3d 103 (CA 2, 2005), abrogated in part on other grounds by 

United States v Fagans, 406 F3d 138 (CA 2, 2005).
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fielded two phone calls from [defendant]. Bohen alleged that [defendant] wanted 

him to purchase some Xanax and Adderall from him. Bohen told Banks that he 

could meet him at the restaurant. [Defendant] called once and claimed to be 

outside the restaurant. Bohen could not find him in the parking lot and returned to 

his table. Bohen testified that [defendant] called again and claimed to be waiting 

outside. When Bohen exited the restaurant, he saw Greathouse sitting inside a 

vehicle in the parking lot. Bohen asserted that Greathouse pointed toward the 

back of the restaurant.

Bohen walked toward the back parking lot and saw [defendant] and Lyons 

standing near the dumpster. Lyons is the boyfriend of Greathouse’s mother and 

Bohen had not met him before the attack. As Bohen approached the men, 

someone struck him from behind in the head and he fell to the ground. 

[Defendant] and Lyons ran toward him, and Bohen initially believed they were 

coming to assist him. However, [defendant] and Lyons joined the fray, keeping 

him on the ground, and hitting and kicking him. A young female employee of the 

restaurant came out at the end of her shift and saw two tall, thin black men 

wearing hooded jackets beating a white man who was curled on the ground in 

fetal position. One man was using a “small, blunt object” that “looked like a 

hammer” to beat the victim in the head. She saw a third man standing watch. She 

yelled and the men ran away, with one man dropping something out of his pocket 

along the way. At the end of this encounter, Bohen had only $661 remaining in 

his pockets.

Bohen was hospitalized for five days and required surgery to remove a 

shard of his skull from his brain. Investigating officers brought photographic 

lineups to the hospital for Bohen’s review. The first included black and white 

photographs and Bohen was unable to identify his attackers. In the second lineup, 

Bohen identified [defendant]. In a third, Bohen selected Lyons from the array.

Following a joint trial before a single jury and several days of jury 

deliberations, the jury . . . convicted [defendant and Lyons] of assault with intent 

to commit great bodily harm, armed robbery, and conspiracy to commit those 

offenses.[2]

Defendant was convicted by a jury of assault with intent to do great bodily harm less than 

murder, MCL 750.84, conspiracy to commit assault with intent to do great bodily harm less than 

murder, MCL 750.157a; MCL 750.84, armed robbery, MCL 750.529, and conspiracy to commit 

armed robbery, MCL 750.157a; MCL 750.84, and subsequently sentenced to 6 to 20 years’ 

 2 People v Lyons, unpublished per curiam opinion of the Court of Appeals, issued October 22, 

2015 (Docket Nos. 319252 and 319889). Defendant’s previous appeal was consolidated with 

that of his codefendant, David Lyons.
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imprisonment for the two assault related charges, and 15 to 40 years’ imprisonment for the two 

armed robbery related charges.

This Court affirmed defendant’s convictions, but vacated his sentences, holding that 

defendant was entitled to a remand in order for the trial court to determine whether it would have 

imposed a materially different sentence in light of our Supreme Court’s determination in People 

v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), that the sentencing guidelines were advisory 

only.

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 On remand, the trial court declined to resentence defendant, holding that the sentence 

imposed remained appropriate. Defendant now appeals a second time.

II. SCOPE OF REMAND

Defendant argues that he is entitled to resentencing because the trial court improperly 

assessed defendant points for Offense Variables (OVs) 3 and 10, which he contends both should 

have been scored at zero. We conclude that defendant’s argument is outside the scope of this 

Court’s remand order.

“[W]here an appellate court remands for some limited purpose following an appeal as of 

right in a criminal case, a second appeal as of right, limited to the scope of the remand, lies from 

the decision on remand.” People v Kincade, 206 Mich App 477, 481; 522 NW2d 880 (1994), 

citing People v Jones, 394 Mich 434; 231 NW2d 649 (1975). In this case, defendant’s sentences

were vacated and the case remanded by this Court for proceedings “consistent with Lockridge, 

498 Mich at 434-438,” and United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005). A 

Crosby remand under Lockridge is “[a] remand for a determination of whether to resentence” a 

defendant. Crosby, 397 F3d at 117 (emphasis in original); see also Lockridge, 498 Mich at 398, 

quoting Crosby, 397 F3d at 120 (“[T]he trial court shall ‘either place on the record a decision not 

to resentence, with an appropriate explanation, or vacate the sentence and, with the Defendant 

present, resentence in conformity with’ this opinion.).

Defendant did not raise in his initial appeal the issue of his entitlement to resentencing 

based on allegedly improperly scored OVs, but only argued that the trial court had engaged in 

judicial fact-finding with regard to those variables and that remand was required under 

Lockridge. This Court held that the trial court had engaged in judicial fact-finding in relation to 

the scoring of OV 3 and OV 10, and that defendant was therefore entitled to a Crosby remand in 

order for the trial court to determine whether it would have imposed a materially different 

sentence, under the circumstances existing at the time of the original sentence, if the court had 

known that the guidelines were advisory rather than mandatory. See Lockridge, 498 Mich at 

398. This Court did not “leave open any [other] issue [] for further resolution on remand,”

Kincade, 206 Mich App at 481-482, and in keeping with the instructions of the remand order, the 

trial court determined that it would not have imposed a different sentence in light of Lockridge. 

Accordingly, defendant’s new arguments regarding the scoring of OV 3 and OV 10 are outside 

the scope of the initial remand and we decline to address them. Id.

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Lyons, unpub op at 15.
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III. JUDICIAL FACT-FINDING

Defendant also argues in the alternative that, regardless of any scoring errors, defendant 

is entitled to a remand for resentencing because the trial court unconstitutionally engaged in 

judicial fact-finding. We disagree. As this Court stated in the prior appeal, a trial court’s use of 

judge-found facts is permissible in assessing a defendant points for offense variables. The 

Lockridge Court specifically stated that its holding did not “undercut the requirement that the 

highest number of points possible must be assessed for all OVs, whether using judge-found facts 

or not.” Lockridge, 498 Mich at 392 n 28 (emphasis added). See also People v Steanhouse, 500 

Mich 453, 465-470; 902 NW2d 327 (2017); Biddles, 316 Mich App at 158. Defendant’s 

argument is without merit.

Affirmed.

/s/ Elizabeth L. Gleicher

/s/ Mark T. Boonstra

/s/ Jonathan Tukel