Order Michigan Supreme Court Lansing, Michigan July 31, 2020 Bridget M. McCormack, Chief Justice David F. Viviano, Chief Justice Pro Tem 159617 Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement PEOPLE OF THE STATE OF MICHIGAN, Megan K. Cavanagh, Plaintiff-Appellee, Justices v SC: 159617 COA: 347331 Van Buren CC: 2017-020932-FC JOSE DANIEL ALONSO, Defendant-Appellant. _________________________________________/ By order of September 10, 2019, the prosecuting attorney was directed to answer the application for leave to appeal the March 26, 2019 order of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration as on leave granted. MCCORMACK, C.J. (concurring). I concur in the order remanding this case to the Court of Appeals as on leave granted. I respectfully disagree with Justice MARKMAN that leave to appeal can be denied because the applicable immigration law was conclusively “neither succinct nor straightforward” in 2017. I agree with Justice MARKMAN that the legal question is whether it is “truly clear” that assault with intent to commit great bodily harm less than murder (AWIGBH) constitutes a “crime of violence” under 18 USC 16(a), and is therefore an “aggravated felony.” 8 USC 1101(a)(43)(F). “Crime of violence” is defined in 18 USC 16(a) as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” and 8 USC 1101(a)(43)(F) requires that the offense be one for which the term of imprisonment is “at least one year.” As for the term of imprisonment, Shaya v Holder, 586 F3d 401, 403 (CA 6, 2009), provides: 2 [F]or the purposes of Section 1101(a)(43)(F), indeterminate prison sentences in Michigan must be measured by the term actually served by the petitioner rather than by the maximum statutory sentence. . . . Thus, when using Michigan indeterminate sentences as the predicate for classifying someone as an “aggravated felon”, the term must be measured by the sentence actually served or the minimum sentence given, whichever is greater . . . . Here, the trial court imposed a minimum sentence of five years, which is clearly “at least one year.” So 8 USC 1101(a)(43)(F) is satisfied. As for 18 USC 16(a), the elements of AWIGBH, MCL 750.84(1)(a), are “(1) an assault, i.e., ‘an attempt or offer with force and violence to do corporal hurt to another’ coupled with (2) a specific intent to do great bodily harm less than murder.” People v Bailey, 451 Mich 657, 668-669 (1996), quoting People v Smith, 217 Mich 669, 673 (1922). Thus, the remaining question is whether “an assault, i.e., ‘an attempt or offer with force and violence to do corporal hurt to another,’ ” is clearly “the use, attempted use, or threatened use of physical force against the property or person of another.” If so, defense ...
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