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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UNPUBLISHED

February 22, 2018

v No. 334740

Wayne Circuit Court

DARIUS RUSH, LC No. 12-001081-01-FC

Defendant-Appellant.

Before: RIORDAN, P.J., and BOONSTRA and GADOLA, JJ.

PER CURIAM.

This case is before this Court for the third time. Defendant appeals by right the trial 

court’s order, entered after a Crosby1 hearing, denying his motion for resentencing and 

reaffirming his sentences of 145 months to 20 years’ imprisonment for his conviction of firstdegree home invasion, MCL 750.110a(2)(b), 87 months to 20 years’ imprisonment for his 

conviction of conspiracy to commit home invasion, MCL 750.157a and MCL 750.110a(2), and 

time served for his conviction of receiving or concealing stolen property less than $200, 

MCL 750.535(5). We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This Court summarized the facts underlying defendant’s 2012 convictions in a prior 

opinion:

Darnell is Darius’s uncle. The various charges stem from a January 9, 

2012, robbery that they committed with two other men, Desmond Robinson and 

Deandre Cannady. As part of a plea agreement, Cannady[2] testified that the four 

men went to the 80-year-old victim’s house in order to rob him. They approached 

 1 United States v Crosby, 397 F3d 103 (CA 2, 2005).

2 Cannady pleaded guilty to unarmed robbery, MCL 750.530, first-degree home invasion, 

conspiracy to commit first-degree home invasion, receiving and concealing stolen property, and 

unlawful driving away of an automobile, MCL 750.413, for which he was sentenced to 5 to 20 

years’ imprisonment.
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the victim under the guise that they were interested in buying his car. Darnell 

pushed the victim into the house through the open doorway and held a small metal 

blade to the victim’s neck while the other three men entered the victim’s house 

and stole items from the victim’s person and his house. In their respective 

statements to the police, both Darnell and Darius admitted to their involvement in 

the robbery. They were convicted and sentenced . . . .3

Following his convictions, defendant was originally sentenced as a third-offense habitual 

offender, MCL 769.11, to 217 months to 40 years’ imprisonment for the home invasion 

conviction, to be served consecutively to 87 months to 40 years’ imprisonment for the

conspiracy conviction, and to time served for the receiving or concealing stolen property

conviction. Defendant’s sentences were within the calculated guidelines range of 87 to 217 

months for a third-offense habitual offender. MCL 777.63; MCL 777.21(3)(b). Defendant 

appealed, and this Court affirmed his convictions, but remanded for resentencing after 

concluding that the trial court had erroneously sentenced defendant as a third-offense habitual 

offender.4

On remand, the trial court removed defendant’s habitual offender enhancement, and 

resentenced defendant, within the corrected guidelines range of 87 to 145 months, to 145 months 

to 20 years’ imprisonment for the first-degree home invasion conviction, to be served 

consecutively to 87 months to 20 years’ imprisonment for the conspiracy conviction; defendant 

was again sentenced to time served for his receiving or concealing stolen property conviction. 

Defendant again appealed, arguing, inter alia, that he was entitled to resentencing pursuant to 

People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), because the trial court had engaged 

in judicial fact-finding at his resentencing to mandatorily increase his sentencing guidelines 

range, thereby violating his rights under the Sixth Amendment.5 This Court agreed that a Crosby

remand was required “so that the trial court may determine whether it would have imposed 

materially different sentences in light of the now-advisory nature of the sentencing guidelines.”6 

On the resulting second remand, defendant moved for resentencing. Following a Crosby

hearing, the trial court concluded that it would not have imposed a materially different sentence 

and denied defendant’s motion for resentencing. This appeal followed.

II. RESENTENCING

Defendant argues that he is entitled to resentencing because the trial court did not provide 

adequate justification for his sentences, which defendant characterizes as unreasonable and 

 3 People v Rush, unpublished per curiam opinion of the Court of Appeals, issued April 17, 2014 

(Docket No. 316564) (“Rush I”).

4 Rush I, p 4. This Court rejected defendant’s argument that the trial court had abused its 

discretion by imposing consecutive sentences. Id. at 5.

5 People v Rush, unpublished per curiam opinion of the Court of Appeals, issued April 26, 2016 

(Docket No. 325194) (“Rush II), p 4.

6 Rush II, p 4.
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disproportionate departure sentences. We disagree. We review a trial court’s denial of a motion 

for resentencing for an abuse of discretion. People v Puckett, 178 Mich App 224, 227; 443 

NW2d 470 (1989).

Contrary to defendant’s characterization, defendant’s sentences are not an upward 

departure from the minimum sentence range of the sentencing guidelines. His minimum prison 

sentences of 145 months for the first-degree home invasion conviction, and 87 months for the 

conspiracy conviction, were within the applicable guidelines range of 87 to 145 months. 

Defendant’s characterization of his sentences as an upward departure is based on the premise that 

the guidelines range should only be 51 to 85 months because the higher range is based on 

judicial fact-finding, which, according to defendant, cannot be used to score the offense 

variables. Defendant’s premise is incorrect.

In Lockridge, our Supreme Court held that Michigan’s sentencing guidelines violated the 

Sixth Amendment 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 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. Under Lockridge, however, trial 

courts are still required to “continue to consult the applicable guidelines range and take it into 

account when imposing a sentence,” and are permitted to score the OVs using judicially-found 

facts. Id. at 392 n 28. As this Court explained in People v Biddles, 316 Mich App 148, 158; 896 

NW2d 461 (2016),

[t]he constitutional evil addressed by the Lockridge Court was not judicial factfinding in and of itself, it was judicial fact-finding in conjunction with required

application of those found facts for purposes of increasing a mandatory minimum 

sentence range, which constitutional violation was remedied in Lockridge by 

making the guidelines advisory, not by eliminating judicial fact-finding. [See also 

People v Jackson, 313 Mich App 409, 434; 884 NW2d 297 (2015) (emphasizing 

that “judicial fact-finding remains an important component of Michigan’s 

sentencing scheme post-Lockridge.”).]

More recently, in People v Steanhouse, 500 Mich 453; 902 NW2d 327 (2017), our Supreme

Court reaffirmed its holding in Lockridge that “the sentencing guidelines are advisory only.” Id. 

at 466. The Court articulated that, “[w]hat made the guidelines unconstitutional, in other words, 

was the combination of the two mandates of judicial fact-finding and adherence to the 

guidelines.” Id. at 467. In this case, the trial court, fully aware of the advisory nature of the 

sentencing guidelines, did not err by evaluating defendant’s sentences using a guidelines range 

that was based on judicially-found facts.

Because defendant’s sentences were not a departure from the appropriate guidelines

range, a reasonableness review under Lockridge is not warranted. Lockridge, 498 Mich at 365, 

392. Instead, a sentence that falls within the guidelines range is presumed proportionate and 

must be affirmed on appeal absent a scoring error or reliance on inaccurate information. 

MCL 769.34(10); People v Jackson, 320 Mich App 514, 527; ___ NW2d ___ (2017) (Docket 

No. 332307), lv pending; People v Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d 173 

(2016).
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Defendant’s only remaining argument is that the trial court erred by failing to articulate 

specific reasons for its decision to deny resentencing. In a Crosby remand, if a trial court decides 

not to resentence the defendant, it must place “an appropriate explanation” for its decision on the 

record. Lockridge, 498 Mich at 398. In this case, the trial court held a hearing that complied 

with the Crosby remand procedure outlined in Lockridge. The court acknowledged that the 

guidelines were “now advisory,” and it allowed defendant and his attorney to place their views 

about resentencing on the record. The court indicated that it had reviewed the presentence 

investigation report, and it recited the facts of the case. It observed that defendant’s sentences 

were within the advisory guidelines range, and it commented that the nature of the offenses could 

have actually supported an upward departure. Accordingly, the trial court explained that, having 

considered defendant’s sentences in light of Lockridge, it would not have imposed a materially 

different sentence had it been aware of the advisory nature of the sentencing guidelines. The 

trial court followed the procedure required by Lockridge and it provided an appropriate 

explanation for its decision not to resentence defendant. Therefore, it did not abuse its discretion 

by denying defendant’s motion for resentencing. Puckett, 178 Mich App at 227.

III. DEFENDANT’S STANDARD 4 BRIEF

In defendant’s Standard 4 brief,

7 defendant raises additional issues challenging the 

sufficiency of the evidence in support of his convictions and the effectiveness of defense 

counsel’s assistance at trial. In Rush II, this Court affirmed defendant’s convictions and 

remanded the case to the trial court for the limited purpose of implementing the Crosby remand 

procedure to determine whether defendant should be resentenced.

8

 The issues defendant now 

raises in his Standard 4 brief are outside the scope of this Court’s remand order, and accordingly 

are not reviewable in this appeal. See People v Jones, 394 Mich 434, 435-436; 231 NW2d 649 

(1975) (the scope of an appeal after a case has been remanded is limited by the scope of the 

remand); People v Kincade (On Remand), 206 Mich App 477, 481; 522 NW2d 880 (1994) 

(“where 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”). Accordingly, we decline to consider the issues raised in defendant’s 

Standard 4 brief.

Affirmed.

/s/ Michael J. Riordan

/s/ Mark T. Boonstra

/s/ Michael F. Gadola

 7 A supplemental appellate brief filed in propria persona under Supreme Court Administrative 

Order No. 2004-6, Standard 4.

8 Rush II, p 1, 5.