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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED August 18, 2016

v No. 327487 Wayne Circuit Court CORTEZ WARDELL WILLIS, LC No. 15-000637-FC

Defendant-Appellant.

Before: M URPHY , P.J., and S TEPHENS and B OONSTRA , JJ.

P ER C URIAM

.

Defendant was convicted followi ng a bench trial of carjacking, MCL 750.529a. On scoring of the guidelines, his minimum sentence range was 42 to 70 months, and the trial court imposed a sentence of 42 months to 25 years’ imprisonment. Def endant appeals as of right, solely challenging his sentence. We affirm.

Defendant was originally sentenced in April 2015, which was pr ior to our Supreme Court’s decision in People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015), which declared that the existing sentencing guidelines were constitutionally d eficient under the Sixth Amendment to the extent that the y required judicia l fact-findin g beyond facts admitted by the defendant or found by th e jury to score the offense variables ( OVs), so as to mandatorily increase the floor of the guidelines minimum sentence range. The Court remedied the constitutional infringement by holding that guidelines calculated in violation of the Sixth Amendment are advisory only and that sentencing departures are to be reviewed for reasonableness. Id. at 365. At the sentencing hearing conducted pre- Lockridge , defendant had implored the trial court to impose a sentence that departed downward from the guidelines, a nd the court indicated that substantial and compelling reasons did not exist in support of a departure. After Lockridge was issued, defendant filed a motion for resentencing, citing Lockridge and arguing tha t substantial and compelling reasons were no longer necessary to impose a dep arture.

At the hearing on defendant’s motion, Lockridge was thoroughly discussed, including that part of Lockridge applying plain-error analysis i n the context of whether a Crosby 1 remand

1 United States v Crosby , 397 F3d 103 (CA 2, 2005).-2- should be ordered. 2 The trial court noted that it ha d reviewed defendant’s entire file, including the presentence investigation report and the guidelines scores, and it ruled that its sentence would not have been any different under advisory guidelines and the h olding in Lockridge. Accordingly, the trial court denied the motion for resentencing . Effectively, the trial court gave defendant the full benefit of a Crosby remand. We note that defenda nt would not have even been entitled to a Crosby remand, where his total OV score was five points, placing him a t OV level I on the applicable class A grid, MCL 777.62, and where the subtr action of those five points would not have changed the minimum guidelines range. Lockridge , 498 Mich at 394-399.

Defendant’s sole and cursory co ntention on appeal is that the plain-error test and Crosby remand analysis applied in Lockridge are inapplicable here, given that defendant preserved his constitutional challenge of the sentence by filing the motion f or resentencing, wh ile the issue was unpreserved in Lockridge. Implicit in defendant’s argument is that resentencing and not a Crosby remand should be ordered when a Sixth Amendment sentencing chal lenge was preserved. See People v Biddles , __ Mich App __, __; __ NW2d __ (2016); slip op at 4-5 (distinguishing the remedies of resentencing and a Crosby remand). Defendant’s argument lacks merit in light of this Court’s ruling in People v Stokes , 312 Mich App 181; 877 NW2d 752 (2015), which addressed a preserved Sixth Amendment sentencing challenge. The Stokes panel held that the Crosby remand procedure set forth in Lockridge is equally applicable with respect to preserved errors in the context of harmless-error analysis. Id. at 198-203. This Court concluded that “our Supreme Court intended the Crosby procedure to apply to both preserved and unpreserved errors.” Id. at 200. And the panel remanded “the matter to the trial court to follow the Crosby procedure in the same manner as outlined in Lockridge for unpreserved errors.” Id. at 203.

Given the Stokes opinion, defendant is simply not entitled to the requested rese ntencing. First, as observed earlier, a Crosby remand would not even be implicated in this case, as the minimum sentence range would not be altered by reducing defenda nt’s OV score by five points; any error was harmless. Second, the trial court treated defend ant as if he was actually before the
court on a Crosby remand, essentially rendering moot any Crosby -related issue. Third,

2 In Lockridge , 498 Mich at 399, the Supreme Court explained: To make a threshold showing of plain error that could require resentencing, a defendant must de monstrate that his or her OV l evel was calculated using facts beyond th ose found by the jury or admitt ed by the defendant and that a corresponding reduction in the defendant's OV score to account for the error would change the applicable guidelines mi nimum sentence range. If a defendant makes that threshold showing and was not sentenced to an upward departure sentence, he or she is entitled to a remand [t o] the trial court for that court to determine whether plain error occurred, i.e., whe ther the court would have imposed the same sentence absent the unconstitutional cons traint on its discretion. If the trial court determines that it would not hav e imposed the same sentence but for the constraint, i t must resentence the defenda nt.-3- defendant does not substantively challenge his sentence. In su m, neither resentencing nor remand is warranted.

Affirmed.

/s/ William B. Murphy /s/ Cynthia Diane Stephens /s/ Mark T. Boonstra