Order Michigan Supreme Court
Lansing, Michigan
December 9, 2009 Marilyn Kelly,
Chief Justice
139157 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman
v SC: 139157 Diane M. Hathaway,
COA: 283133 Justices
Jackson CC: 07-004100-FH
TODOCIO ESQUEDA GUERRA,
Defendant-Appellant.
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On order of the Court, the application for leave to appeal the May 19, 2009
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
MARKMAN, J. (concurring).
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,
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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.
KELLY, C.J., and CAVANAGH, J., would grant leave to appeal.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 9, 2009 _________________________________________
p1202 Clerk