If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-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UNPUBLISHED

July 27, 2023

v No. 362672

Oakland Circuit Court

MARCUS D. SMITH, LC No. 2021-277995-FH

Defendant-Appellant.

Before: CAMERON, P.J., and BORRELLO and O’BRIEN, JJ.

PER CURIAM.

Defendant appeals by leave granted1his no-contest plea-based conviction of delivery of

methylenedioxymethamphetamine (MDMA) (commonly known as “ecstasy”), MCL 

333.7401(2)(b)(i). Defendant was sentenced, as a fourth-offense habitual offender, MCL 769.12, 

to 6 to 45 years’ imprisonment for the conviction. For the reasons set forth in this opinion, we 

affirm.

I. BACKGROUND

This appeal arises out of defendant’s plea of guilty as stated above. Prior to his plea, 

defendant requested a preliminary evaluation of his sentence under People v Cobbs, 443 Mich 276, 

283; 505 NW2d 208 (1993). The trial court agreed to a Cobbs evaluation at the bottom one-half 

of the applicable sentencing guidelines range for the delivery of ecstasy conviction. Defendant 

subsequently pleaded no contest under the Cobbs agreement.2 The trial court then held a

 

1 See People v Smith, unpublished order of the Court of Appeals, entered October 3, 2022 (Docket 

No. 362672).

2

In their respective papers submitted on appeal, there is discussion by defendant and the 

prosecution regarding what was meant by the bottom of the guidelines. However, defendant does 

not challenge whether the trial court violated the Cobbs agreement and as will be stated more fully 

infra, it is clear that the trial court sentenced defendant within the parameters of the Cobbs

agreement.
-2-

sentencing hearing, during which defense counsel aired her grievances concerning the minimum 

sentencing guidelines range, which was 51 to 170 months, and noted while “they, unfortunately, 

appear to be correct[,]” “with this particular type of the offense, the guidelines [were], in [her] 

opinion, [were] quite high.” Defense counsel further asserted “51 months [wa]s more than 

sufficient to satisfy by way of punishment, as well as rehabilitation all of the aspects that the [c]ourt 

ha[d] to look at as it relates to sentencing[,]” as opposed to the 9-to-45-year sentence recommended 

by the Michigan Department of Corrections (MDOC) for the underlying offense.

The prosecution concurred, during the sentencing hearing, “the nine years [wa]s a high 

sentence in light of the facts and circumstances . . . even though [defendant] was on probation for 

a similar offense[,]” and asked the trial court to follow the Cobbs evaluation and sentence 

defendant to “the bottom of the guidelines.” The trial court further recognized defendant’s 

potential for rehabilitation, and iterated its belief that “no matter what your history is, no matter 

how old you are, you can change your life and go in a great direction.” The trial court subsequently 

determined it was “in the best interest of justice” to sentence defendant to 6 to 45 years’

imprisonment for the delivery of ecstasy conviction because of defendant’s extensive criminal 

history despite previous “very lenient sentence[s] of just probation.” Following sentencing, this 

appeal ensued.

II. ANALYSIS

On appeal, defendant argues the trial court abused its discretion when it sentenced 

defendant to 6 to 45 years’ imprisonment for the delivery of ecstasy conviction because the 

sentence was unreasonable, disproportionate, and violated defendant’s due process rights. 

“There are no special steps that a defendant must take to preserve the question whether the 

sentence was proportional; a defendant properly presents the issue for appeal by providing this 

Court a copy of the presentence investigation report.” People v Walden, 319 Mich App 344, 350; 

901 NW2d 142 (2017). Thus, the proportionality issue is properly presented for review. However, 

to preserve a challenge to a sentence within the sentencing guidelines range, the issue must be 

“raised at sentencing, in a motion for resentencing, or in a motion to remand.” People v Kimble, 

470 Mich 305, 310-311; 684 NW2d 669 (2004); MCL 769.34(10). Defendant did not raise any 

additional challenges at sentencing, in a motion for resentencing, or a motion to remand; rather, 

defendant presents some additional arguments for the first time on appeal. Thus, his remaining

arguments are unpreserved.

Here, there is no dispute that defendant’s minimum sentence was within the range 

recommended by the sentencing guidelines. “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) (emphasis added). Generally, when this Court reviews 

a trial court’s sentencing decision for an abuse of discretion; the proper inquiry is “whether the 

trial court abused its discretion by violating the ‘principle of proportionality’ . . . , which requires 

sentences imposed by the trial court to be proportionate to the seriousness of the circumstances 

surrounding the offense and offender.” People v Posey, 334 Mich App 338, 354-355; 946 NW2d 

862 (2020) (quotation marks and citations omitted). However, as is the case here, a sentence within 

the recommended minimum sentencing guidelines range, our review is limited by statute and court 

rule thusly: “the minimum sentence must be affirmed unless there was an error in scoring or the 
-3-

trial court relied on inaccurate information.” People v Schrauben, 314 Mich App 181, 196; 886 

NW2d 173 (2016); MCL 769.34(10).

“This Court generally reviews constitutional questions de novo.” People v Brown, 294 

Mich App 377, 389; 811 NW2d 531 (2011). However, we “review unpreserved constitutional 

issues for plain error affecting substantial rights.” People v Burkett, 337 Mich App 631, 635; 976 

NW2d 864 (quotation marks and citation omitted). “To avoid forfeiture under the plain error rule, 

three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or 

obvious, 3) and the plain error affected substantial rights.” People v Stokes, 333 Mich App 304, 

307; 963 NW2d 643 (2020), quoting People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). 

“The third requirement generally requires a showing of prejudice, i.e., that the error affected the 

outcome of the lower court proceedings.” Id. “Reversal is warranted only when the plain, forfeited 

error resulted in the conviction of an actually innocent defendant or when an error seriously 

affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the 

defendant’s innocence.” Id.

This Court has held: “When a trial court does not depart from the recommended minimum 

sentencing range, the minimum sentence must be affirmed unless there was an error in scoring or 

the trial court relied on inaccurate information.” Schrauben, 314 Mich App at 196, citing MCL 

769.34(10). “[T]his Court is required to review for reasonableness only those sentences that depart 

from the range recommended by the statutory guidelines.” People v Anderson, 322 Mich App 

622, 636; 912 NW2d 607 (2018). In contrast, however, “[a] sentence within the guidelines range 

is presumptively proportionate, and a proportionate sentence is not cruel or unusual punishment.” 

Posey, 334 Mich App at 358.

MCL 769.34(10) provides:

(10) If a minimum sentence is within the appropriate guidelines sentence range, the 

court of appeals shall affirm that sentence and shall not remand for resentencing 

absent an error in scoring the sentencing guidelines or inaccurate information relied 

upon in determining the defendant’s sentence. A party shall not raise on appeal an 

issue challenging the scoring of the sentencing guidelines or challenging the 

accuracy of information relied upon in determining a sentence that is within the 

appropriate guidelines sentence range unless the party has raised the issue at 

sentencing, in a proper motion for resentencing, or in a proper motion to remand 

filed in the court of appeals.

As previously stated, it is undisputed that defendant’s sentence was within the minimum 

sentencing guidelines range of 51 to 170 months. It is also undisputed that defendant, pursuant to 

a Cobbs agreement, was sentenced to the bottom one-half of the guidelines range. On appeal, 

defendant does not challenge the scoring of the sentencing guidelines nor does defendant allege 

that the court relied on inaccurate information during sentencing. Consequently, the plain 

language of MCL 769.34(10) requires this Court to affirm defendant’s sentence. However, “MCL 

769.34(10) does not and cannot preclude constitutional appellate challenges to a sentence, e.g., an 

argument that a sentence constitutes cruel and unusual punishment.” Posey, 334 Mich App at 357. 

To overcome the presumption that a within-guidelines sentences is proportionate, a defendant must 
-4-

present “unusual circumstances that would render a presumptively proportionate sentence 

disproportionate.” Id. at 358.

Hence, on appeal, defendant asserts that the imposition of the 6-to-45-year sentence for his 

delivery of ecstasy conviction was unreasonable, disproportionate, and violated his due process 

rights, and thus, rendered the sentence unconstitutional. In attempting to provide authority for his 

argument, defendant endeavors to equate what he believes to be the trial court’s failure to 

adequately consider the significant disparity between the imprisonment terms for delivery of 

ecstasy in comparison to heroin or cocaine, despite the fact, defendant argues, that ecstasy is less 

dangerous and addictive than the latter controlled substances. Defendant cites to Kimbrough v 

United States, 552 US 85, 110-111; 128 S Ct 558; 169 L Ed 2d 481 (2007), for the proposition 

that in its evaluation of sentencing disparities between crack cocaine and powder cocaine, a trial 

court must consider the disproportionately harsh sanctions imposed between two controlled 

substances to justify an imposed sentence.

However, defendant’s arguments on this issue are unpersuasive. Putting aside defendant’s 

failure to understand the core rationale behind sentencing discrepancies for crack and powder 

cocaine, in Kimbrough, the United States Supreme Court determined that the trial court’s 

imposition of a downward departure sentence did not constitute an abuse of discretion because the 

trial court presented a detailed rationale addressing how (1) the discrepancies in the minimum 

sentencing guidelines range between crack cocaine and powder cocaine led to disproportionate

and unjust sentencing decisions, and (2) imposing a sentence within the minimum sentencing 

guidelines range appeared excessive in light of the defendant’s previous service in the United 

States Marine Corps, steady employment, and minimal criminal history. Id. Contrary to 

defendant’s arguments on appeal, the United States Supreme Court did not mandate trial courts to 

impose downward departure sentences in order to address sentencing disparities between various 

controlled substances, rather, it noted that the trial court appropriately considered that “ ‘the crack 

cocaine guidelines [drove] the offense level to a point higher than is necessary to do justice in this 

case.” Id. at 111 (emphasis added; citation omitted). Furthermore, “while ‘grossly 

disproportionate sentences may constitute cruel and unusual punishment,’ this Court distinguishes 

between ‘proportionality’ as it relates to constitutional rights, and ‘proportionality’ as it relates to 

‘reasonableness review of a sentence, which is not constitutional in nature.’ ” Posey, 334 Mich 

App at 358. Lastly, the issue of the legislature’s authority to prescribe different sentences for the 

possession or delivery of different controlled substances, even if “unusual,” is not before this 

Court. Because MCL 769.34(10) precludes appellate review of defendant’s sentence, and he does 

not raise a viable constitutional challenge to the sentence, the statute dictates affirmance of his 

sentence.3

Even if we were not bound by MCL 769.34(10), defendant would still not be entitled to 

relief. In People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017), our Supreme Court 

clarified that “the relevant question for appellate courts reviewing a sentence for reasonableness”

 

3 We are aware that our Supreme Court scheduled oral argument on this Court’s decision in Posey. 

People v Posey, 508 Mich 940 (2021). However, our Supreme Court has not yet issued a decision, 

hence Posey remains binding precedent. MCR 7.215(J)(1).
-5-

is “whether the trial court abused its discretion by violating the principle of proportionality . . . .” 

Consequently, “the 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.” Id. at 472 

(quotation marks and citation omitted). 

Here, despite defendant’s protestations to the contrary, the trial court considered all of the 

arguments defendant’s advances on appeal that, in defendant’s opinion, should subject him only 

to a 51-month sentence. First, such a sentence was never under consideration by the trial court as 

part of defendant’s Cobbs agreement. Following the taking of the plea, the trial court specifically 

informed defendant how it would calculate the “bottom of the guidelines.”

I will make a representation pursuant to the illustrious Supreme Court case of

People v Cobbs, that any term of incarceration he might receive would not exceed 

the bottom one-half of the guideline range since he’s on probation for the same 

offense and there’s this other Macomb County case.

That calculation would be done differently than normal because it’s possible that 

the bottom of the guideline range here would be higher than typical. So we’ll take 

the top of the guideline range, subtract it from the bottom of the guideline range. 

Take that difference, divide that by two, and add it back to the bottom . . . . 

Hence, at the time of his plea, defendant knew that his guidelines were 51-170 months, and 

by applying the trial court’s simple math, defendant knew that he would not be receiving a 51-

month sentence.

Secondly, all of the additional factors defendant claims on appeal should have mitigated 

his sentence were taken into consideration by the trial court when it opined:

. . . I’m familiar with the facts and circumstances of the case, as well as those 

surrounding the [d]efendant. The advisory guideline range on this case is 51 to 170 

months. He’s 31 years of age. He was on probation at the time of the offense. Six 

prior felonies, five misdemeanors. Unemployed. I don’t know if we corrected the 

bond having been revoked on CJF 145, but we should make sure that’s true.

He does have a history of substance abuse. Twelfth grade education. I also noted 

that he would like to . . . attend trade school. I think that’s a great idea.

* * *

I find—first, I want to say that I appreciate everything that [defendant] had to say. 

I take it at face value. I completely agree that people can redeem themselves. And 

no matter what your history is, no matter how old you are, you can change your life 

and go in a great direction. It sounds hopefully that you can internalize that.

The trial court further detailed defendant’s previous felony and misdemeanor convictions, 

and noted:
-6-

[Defendant’s] history begins back in 2009 with suspended operations. He has a 

financial transaction device [FTD] in 2009, as well. A variety of other entries in 

the criminal history. Careless driving. FTD possession of fraudulent one. FTD 

stealing, retaining without consent by another financial transaction device. 2012, 

another one of those. Operating without a license, that and controlled substance, 

delivery, manufacture of narcotic slash cocaine less than 50 grams, as well as 

delivery, manufacture of marijuana.

From this record, we conclude that the trial court adequately considered the nature of the 

offense and defendant’s background before imposing a within-guidelines sentence, and the 

imprisonment terms for the delivery of ecstasy conviction abided by the Cobbs evaluation.

Accordingly, in the absence of any argument or evidence that his sentence constituted cruel or 

unusual punishment, and given that his sentence was presumptively proportionate, and on this 

record proportionate under Steanhouse, we affirm defendant’s sentence.

Affirmed.

/s/ Thomas C. Cameron 

/s/ Stephen L. Borrello 

/s/ Colleen A. O’Brien