Sentencing; Downward departure from the sentencing guidelines; Proportionality; People v. Smith; People v. Steanhouse; People v. Milbourn; Reasonableness; People v. Lockridge; People v. Terrell; The Crosby remand procedure as explained in Lockridge; United States v. Crosby (2d Cir.)

The court held that the defendant’s sentence required remand for implementation of the Crosby remand procedure. Defendant pleaded nolo contendere in two separate cases involving illegal activity he conducted as part of his real estate practice. In the first case, he pleaded to conducting a criminal enterprise, embezzlement of more than $50,000 but less than $100,000, using a computer to commit a crime, and two counts of false pretenses involving a value of $20,000 or more. In the second case, he pleaded to conducting a criminal enterprise, embezzlement of $100,000 or more, two counts of using a computer to commit a crime, and three counts of false pretenses involving a value of $20,000 or more. The trial court sentenced him to 5 years’ probation, with the first 12 months in jail, a significant downward departure from the sentencing guidelines. On appeal, the court noted that the trial court “was neither aware of, nor expressly bound by, a reasonableness standard rooted in the Milbourn principle of proportionality when it decided defendant’s sentence.” Thus, it held that “in accordance with Steanhouse, remand is necessary so that the trial court may implement the Crosby remand procedure as articulated in Lockridge.” However, “[u]nlike in Steanhouse . . . the prosecution is the party challenging the trial court’s departure from the sentencing guidelines.” Thus, it “may elect to forgo resentencing by promptly notifying the trial court of its intent to do so.” If the trial court “does not receive such notice from the prosecution in a timely manner, the ‘court shall continue with the Crosby remand procedure as explained in Lockridge.’” Remanded.