Sentencing; Upward departure from the guidelines; Reasonableness & proportionality; People v Lampe; Considering conduct twice; MCL 769.34(3)(b); Operating while intoxicated (OWI)

Concluding the trial court “abused its discretion by failing to provide adequate reasoning to support its departure sentence[,]” the court held that defendant’s sentence was unreasonable and disproportionate. He pled no-contest to OWI causing death. His guidelines range was 29 to 57 months. The trial court sentenced him to 120 to 180 months. It “noted several sentencing considerations that were in defendant’s favor. It acknowledged [his] limited criminal history, as well as his remorse and ‘good heart,’ and that he was not an evil person. But, it nevertheless imposed the maximum sentence permitted by law. It reasoned that a departure was justified to punish defendant for drinking and driving, taking the victim’s life, and causing the victim’s family severe emotional trauma. The record fully supports these findings.” However, the court noted “that these same considerations were already accounted for in defendant’s guidelines range. Specifically,” OV 3 was scored at 50 points “because he killed the victim while operating a motor vehicle under the influence of alcohol.” In addition, OV 5 was scored at 15 points “due to the serious psychological injury he caused to the victim’s family.” The court concluded the “trial court’s decision to consider this conduct twice—for both the scoring of the guidelines and its departure sentence—violated MCL 769.34(3)(b) . . . because the trial court did not provide any reasoning suggesting ‘that the characteristic[s] ha[d] been given inadequate or disproportionate weight.’” Thus, the court held that the trial court erred in imposing “a departure sentence solely based on facts already considered by the guidelines.” Further, it found that the trial court’s “generalized considerations about the sentencing offense are not grounded in the specific conduct of this offender. Indeed, they could presumably be used to justify a departure sentence for any offender being sentenced for this offense, rendering the guidelines meaningless.” Vacated and remanded for resentencing.