People v. Arcos

Holbrook, Jr., P.J. Defendant pleaded guilty of possession with intent to deliver 225 grams or more but less than 650 grams of heroin, MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii), in exchange for the prosecutor dismissing the charge of conspiracy to deliver more than 225 grams or more but less than 650 grams of heroin and agreeing to a minimum sentence of no more than ten years. Defendant was sentenced to the statutory mandatory minimum prison term of ten years, with a thirty-year maximum term. Defendant appeals as of right. We affirm. On appeal, defendant argues that the trial court erred in failing to depart from the mandatory minimum term of imprisonment. Defense counsel [376] had argued at defendant’s sentencing for a downward departure from the mandatory minimum term, because defendant was subject to deportation. The trial court determined that defendant’s impending deportation did not constitute a substantial and compelling reason to depart from the mandatory minimum prison term. Defendant now argues that the fact that he, most assuredly, will be deported constitutes an objective and verifiable factor that provides a substantial and compelling reason for the trial court to depart from the mandatory minimum prison term. Under MCL 333.7401(4); MSA 14.15(7401)(4), a sentencing court retains discretion to depart from the minimum term if the court finds on the record that there are substantial and compelling reasons to do so. People v Poppa, 193 Mich App 184, 188; 483 NW2d 667 (1992). The trial court may depart from the mandatory minimum sentences for factors that are objective and verifiable. People v Hill, 192 Mich App 102, 105; 480 NW2d 913 (1991). Objective and verifiable factors include "actions and occurrences which are external to the minds of the judge, defendant and others involved in making the decision and must be capable of being confirmed.” People v Krause, 185 Mich App 353, 358; 460 NW2d 900 (1990). Although the imminent deportation of a defendant is certainly an action that is external to the mind of a judge and is capable of being confirmed, we believe that it is not an objective and verifiable factor to consider in determining whether substantial and compelling reasons exist to depart from the mandatory minimum sentence. The Legislature intended to give trial courts discretion to depart from the presumptively mandatory sentences only in exceptional cases. People v Downey, 183 Mich App 405, 416; 454 NW2d 235 (1990). The [377] trial court’s discretion thus is narrowed to considering only the mitigating reasons involved in the actual criminal act and the defendant’s individual characteristics. We believe that the fact that defendant is subject to deportation as a result of his involvement in this criminal act fits neither of these factors. See United States v Alvarez-Cardenas, 902 F2d 734, 737 (CA 9, 1990). In addition, we find that defendant’s sentence does not violate the principle of proportionality as set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). Because defendant’s sentence was within the statutory minimum term in effect at the time of his sentencing, his sentence is presumptively valid and proportionate. People v Williams, 189 Mich App 400, 403-404; 473 NW2d 727 (1991); Poppa, supra, p 189. Defendant has failed to rebut this presumption. We conclude, therefore, that the trial court did not abuse its sentencing discretion. Poppa, supra, p 187. Affirmed. Sawyer, J. concurred.