Opinion
No. 139157.
December 9, 2009.
Appeal from the Court of Appeals No. 283133.
Leave to Appeal Denied.
I respectfully disagree with the Court of Appeals that the trial court did not rely upon defendant's status as an illegal alien as a "substantial and compelling" factor to support its sentencing departure in this case. Rather, the trial court stated to the defendant, "You're not only here illegally, but you're committing crimes." The trial court also repeatedly referenced that defendant was the citizen of a different country, and stated as the first reason on the departure evaluation form that "[d]efendant was an illegal alien at the time he committed this offense." I do not know how much more clear the trial court could have been that defendant's illegal status constituted a factor, indeed apparently a significant factor, in the court's decision to depart upwardly from the guidelines range and impose a minimum sentence of 36 months, rather than one of 12-24 months.
Because, in my judgment, the trial court made itself quite clear, I would affirm its decision. It is hard to imagine a more compelling basis for an upward departure than that a defendant at the very time of his criminal conduct is in violation of other substantial criminal laws of this country. Defendant violated the laws of this country by entering it illegally, and he has violated the laws of this country by remaining here illegally. He was in violation of our laws before, during and after his home invasions in Lenawee County, and he was in violation of our laws before, during, and after his home invasions in Hillsdale County. Either by itself or in conjunction with other grounds for upward departure, defendant's status as an illegal alien constitutes a substantial and compelling basis for a sentence above the guidelines range, and it is inconceivable that it could be otherwise.
CORRIGAN and YOUNG, JJ., join the statement of MARKMAN, J.
KELLY, C.J., and CAVANAGH, J., would grant leave to appeal.