5.7Out-of-Guidelines Sentences — Caselaw Examples

A.Disproportionate Sentence in Second-Degree Murder Case

An upward departure of 15 years for the defendant’s conviction of second-degree murder was not “more reasonable and proportionate than a sentence within the recommended guidelines range would have been.” People v Dixon-Bey, 321 Mich App 490, 523, 529 (2017). In concluding that the 35-year minimum sentence violated the principle of proportionality, the Court noted the following:

•Consideration of offender’s background. “Defendant’s prior record variable score was zero,” and “without a criminal history, the trial court had no basis to conclude that defendant was a recidivist criminal who deserved a greater punishment than that contemplated by the guidelines.” Dixon-Bey, 321 Mich App at 525-526 (noting “the trial court offered no other explanation as to why defendant’s background may warrant a departure sentence”) (cleaned up).

•Factors already contemplated by offense variables. None of the factors referenced by the trial court regarding the nature of the offense “provided reasonable grounds for the departure” where “most, if not all, of the factors discussed by the trial court to support its departure sentence were contemplated by at least one offense variable (OV).” Dixon-Bey, 321 Mich App at 526. “The trial court emphasized that defendant had stabbed the victim twice in the chest. However, defendant’s aggravated use of a lethal weapon [was] contemplated in the scoring of OV 1 (aggravated use of weapon), and OV 2 (lethal potential of weapon possessed or used),” and “[t]he trial court offered no rationale as to why that scoring was insufficient to reflect the nature of the stabbing.” Id. at 526-527 (citations omitted). Similarly, “[t]he trial court also pointed to the impact of the victim’s death on his family, but OV 5 (psychological injury to member of victim’s family), was scored to reflect that impact,” and “the trial court’s reliance on the fact that defendant apparently failed to disclose the location of the murder weapon would ordinarily trigger the application of OV 19 (interfering with the administration of justice), not an upward departure.” Id. at 527 (citations omitted). “The trial court also referred to the ‘cold-blooded’ nature of the crime,” but “the trial court and parties apparently agreed that OV 7 (aggravated physical abuse), under which points may be assessed for excessive brutality, should not be scored given the facts and circumstances of this case.” Id. (citation omitted). Dixon-Bey does not prevent a court from considering factors already considered in scoring the sentencing guidelines when the court is determining whether to impose consecutive sentences. People v Johnson, ___ Mich App ___, ___ (2024). According to Johnson, “[e]ven if we agreed with defendant that Dixon-Bey applies to factors cited in imposing consecutive sentences, the trial court could still rely on ‘factors considered by the guidelines but given inadequate weight’ in order to justify imposing a consecutive sentence.” Johnson, ___ Mich App at ___.

•Improper consideration of acquitted conduct.¹ Where defendant was acquitted of first-degree murder but convicted of second-degree murder, and the jury specifically “found that the element of premeditation was not established,” it was “obvious what conduct should be considered ‘acquitted.’” People v Dixon-Bey, 340 Mich App 292, 297 (2022). Accordingly, the trial court abused its discretion by imposing a departure sentence on the basis of its finding—contrary to the jury verdict—that the murder was premeditated and deliberate. Id. 

•Irrelevant factors. Neither “the victim’s standing in the community” nor the “defendant’s attempts to minimize her role in the stabbing” was “unique to defendant’s crime,” and “[t]here [was] nothing on the record to indicate that defendant’s marriage to a different man affected her relationship with the victim”; therefore, these factors were not “relevant to a proportionality determination.” Dixon-Bey, 321 Mich App at 529.

B.Sentence Justified By Mix of Improper and Proper Reasons

Resentencing or further articulation of its reasons for the guidelines departure was required where the trial court failed to articulate adequate reasons for the extent of its upward departure of more than six years for the defendant’s conviction of assault with intent to commit murder. People v Steanhouse (On Remand) (Steanhouse III), 322 Mich App 233, 236 (2017), vacated in part 504 Mich 969 (2019).² Specifically, “two of the stated reasons for imposing a departure sentence were improper,” “[t]he trial court only articulated a single valid reason for departing from the sentencing guidelines, and . . . it [was] unclear whether the court would have departed solely on the basis of” the single valid factor. Id. at 242.

1.Improper Consideration of Factors Already Contemplated by Offense Variables

“[T]wo of the stated reasons [(the brutality of the assault and the fact that the victim was weak or incapacitated by drug use)] for imposing a departure sentence were improper” because these factors could have been addressed under OV 7 and OV 10, for which zero points were assessed, “and the trial court offered no explanation for why they were given inadequate weight by the guidelines.” People v Steanhouse (On Remand) (Steanhouse III), 322 Mich App 233, 240, 242 (2017), vacated in part 504 Mich 969 (2019).³ “[H]aving determined [when scoring zero points for OV 7] that the facts . . . only encompassed the usual brutality of an assault with intent to murder, the trial court’s later decision to use the brutality of the crime to support an upward departure was not a valid consideration.” Id. at 241. Similarly, “[g]iven that the trial court determined that the [victim’s] incapacitation was not significant enough to warrant a score under OV 10, . . . this was not a valid reason for departing upward.” Id.

2.Consideration of Prior Relationship Between Defendant and Victim is Appropriate

The fact that the victim considered the defendant a friend was a valid reason for departing from the sentencing guidelines; a prior relationship between a defendant and a victim is a factor that “is not adequately reflected in the guidelines” and is therefore properly considered in imposing a departure sentence. People v Steanhouse (On Remand) (Steanhouse III), 322 Mich App 233, 242 (2017), vacated in part 504 Mich 969 (2019).⁴ “[A] prior relationship between the offender and the victim can be either a ‘very mitigating circumstance or a very aggravating circumstance, depending upon the history of interaction between the parties.’” Id., quoting People v Milbourn, 435 Mich 630, 660-661 (1990). The trial court’s finding that the prior relationship between the defendant and the victim constituted an aggravating circumstance was “supported by the record, which show[ed] that [the defendant] and the victim were frequently together at the victim’s home, [which demonstrated] that there was a degree of familiarity and trust between them[; the defendant] breached that trust by stealing items from the victim’s home, soliciting a ‘reward’ for their return, and then ultimately striking the victim with a wrench and slitting his throat.” Steanhouse III, 322 Mich App at 242.

C.Proportionate Sentence in Voluntary Manslaughter Case

“[A] departure of 13 months over the maximum minimum sentence of 107 months” for the defendant’s conviction of voluntary manslaughter “was proportional under [People v Milbourn, 435 Mich 630 (1990)], and accordingly . . . was reasonable under [People v Lockridge, 498 Mich 358 (2015)].” People v Walden, 319 Mich App 344, 353-355 (2017) (noting that “defendant was sentenced . . . after Lockridge was decided,” and that “although the trial court did not explicitly refer to the principle of proportionality,” it “made specific reference to Lockridge, and it therefore was fully aware that any sentencing departure was subject to a reasonableness requirement”). “The trial court noted the seriousness of the offense as well as several factors not accounted for in the guidelines, relating in part to defendant’s low potential for rehabilitation and lack of remorse[; t]he court noted, for example, that defendant was on bond for aggravated assault at the time he committed the [sentencing] offense[, which was] . . . a homicide carried out by way of yet another assault, this one carried out with a knife . . . with such a level of vicious brutality as to physically disembowel (and cruelly end the life of) his victim.” Walden, 319 Mich App at 353-354. Additionally, “defendant immediately fled the scene, switched cars, and claimed to have been driven to [another city] by an individual he could not identify[, and t]he trial court expressed its belief that defendant had not given truthful testimony regarding the events that had occurred.” Id. at 354. Furthermore, “defendant, by the age of 21, had a criminal history composed of three prior adult convictions (not including the aggravated assault charge for which he was on bond at the time of the [sentencing] offense . . .), and three juvenile convictions[.]” Id. (noting that the defendant “was also subject to an active personal protection order”). Finally, “[i]n relation to the prosecution’s recommendation”—an upward departure of 180 to 270 months—“the upward departure imposed was modest indeed.” Id. at 354-355.

D.Proportionate Sentence in Child Abuse Case

The defendant’s sentence of one year in jail, which was an upward departure of one month from the guidelines range of 0 to 11 months, for her conviction of third-degree child abuse was reasonable and proportionate where “although the guidelines accounted for some degree of the harm the victim suffered, it was reasonable for the trial court to conclude that the factors it considered, especially the effects of defendant’s behavior on the victim that culminated in [the victim’s] stabbing another child and saying that he hated his life and that nobody loved him, were not adequately considered in the guidelines calculation.” People v Lawhorn, 320 Mich App 194, 196, 205, 210-211 (2017). Further, “the extent of [the] departure—one month—was minor in light of all of the factors the trial court found demonstrating the seriousness of the offense and surrounding circumstances,” including “that the victim murdered another child,” illustrating “the likely detrimental effect that defendant’s treatment of the victim and the accompanying home environment had on the victim”; the defendant’s almost certain knowledge that her stepfather beat the victim; that “it was highly likely” the defendant was aware that there was cocaine in the home and that her stepfather was using it; the “deplorable conditions inside the home”; and that the defendant had likely been involved in prior child abuse or neglect incidents. Id. at 207-211.

E.Proportionate Sentence in Criminal Sexual Conduct Case

Where the defendant, a registered sex offender who befriended the victim and his family, sexually assaulted the victim in the victim’s home while he was sleeping, the sentence of “13 months above the high end of the guidelines range,” “did not violate the principle of proportionality, and [was] reasonable” “considering the seriousness of the circumstances surrounding the offense and the offender[.]” People v Lampe, 327 Mich App 104, 130, 132 (2019). “The trial court identified two basic reasons for the departure: (1) defendant’s grooming behavior, particularly defendant’s grooming behavior in the context of his failure to disclose past sexual misconduct, and (2) the location and timing of the offense, which resulted in [the victim] feeling unsafe in his own home.” Id. at 128. “[A]lthough OV 10 accounts to some degree for defendant’s predatory conduct and grooming behavior, the trial court identified circumstances—namely, defendant’s [undisclosed] past sexual misconduct and status as a registered sex offender—that made his grooming of [the victim] particularly egregious,” and “the trial court did not err by considering these facts when sentencing defendant.” Id. at 128-129 (“By withholding information about his past sexual misconduct and status as a registered sex offender until he had already befriended [the victim] and his family, defendant was in a position of trust that enabled him to be in [the victim’s] home at night and to commit the sexual assault[.]”). Further, “the trial court did not err by concluding that the guidelines did not adequately account for the extent to which the timing and location of the assault resulted in [the victim’s] loss of security”; “[the victim’s] response—to not only the violation of his person but also the violation of his home—[was] not adequately accounted for by the scoring of OV 4,” and “the trial court did not err by finding that OV 4 did not adequately account for the circumstances [of] the offense.” Id. at 129.

“The trial court’s reasons for the departure were proper, and they provided an adequate basis for its seven-year upward departure sentence” where it concluded that OV 4 (psychological injury to victim) did not adequately account for the victim’s extreme psychological injury observed by the trial court when the victim testified at both the original sentencing hearing and the resentencing hearing three years later, and OV 13 (continuing pattern of criminal behavior) did not adequately account for the difference between “heinous felonies like CSC-I and other felonious acts like home invasion.” People v Barnes, 332 Mich App 494, 506-507 (2020). Further, the trial court’s “cursory analysis of the mitigating circumstances offered by defendant” did not constitute error because “trial courts are not required to expressly or explicitly consider mitigating factors at sentencing.” Id. at 507 (quotation marks and citation omitted).

The trial court’s sentence of 60 months to 15 years in prison—exceeding the guidelines range by 20 months—was reasonable where the “defendant’s minimum sentence is not exceptionally long, and defendant, a member of the bar, penetrated an extremely intoxicated woman and later referred to her as evil.” People v Carlson, 332 Mich App 663, 676 (2020). Defendant argued “that his educational background and career as a lawyer made him less likely to reoffend,” and was accordingly an improper reason for imposing an out-of-guidelines sentence; however, the Court rejected this argument and explained that the sentencing court was apparently referring to the fact “that defendant, as a lawyer, had knowledge of the law and was knowledgeable of, and subject to, professional standards of conduct and care.” Id. at 674 (additionally rejecting defendant’s argument that his background was not “objective and verifiable” because that standard was relevant to the substantial and compelling reasons analysis no longer required to impose a sentence outside of the guidelines range). Further, the trial court did not improperly rely on defendant’s lack of remorse despite the fact that defense counsel expressed remorse on defendant’s behalf where the trial court “emphasized defendant’s ‘arrogance’ in calling [the victim] evil even when he knew he was being recorded during a telephone call from jail,” and “the trial court focused on the fact that defendant seemed to have no empathy toward [the victim].” Id. at 674-676.

F.Proportionate Sentence in Robbery Case

Where the trial court “identified several factors that it felt were not adequately reflected in defendant’s guidelines scores,” defendant was not scored as a fourth-offense habitual offender despite his criminal history because of a notice issue, and “each of defendant’s current convictions carried a maximum penalty of life in prison,” the imposition of minimum sentences of 360 to 720 months instead of the recommended guidelines minimum sentences of 126 to 210 months “was proportionate to the seriousness of defendant’s crimes and background.” People v Odom, 327 Mich App 297, 315-316 (2019). Specifically, the trial court imposed the out-of-guidelines sentences because the defendant “ha[d] committed six serious criminal offenses since he was 17 years old,” and would have been subject to “a minimum sentence of up to 420 months in prison” as a fourth-habitual offender; the defendant was on probation when the sentencing offenses were committed, indicating that he “was not a strong candidate for reform”; and “the guidelines range did not accurately reflect [the defendant’s] serious recidivism [or] the brazenness of his crimes[.]” Id.

G.Proportionate Sentence in Domestic Violence Case

An upward departure of 19 months from the guidelines maximum-minimum sentence of 281 months for assault with intent to commit murder was reasonable where the defendant attempted to suffocate his ex-wife with a pillow and strangle her with a belt while she lay in bed with her young child. People v Rosa, 322 Mich App 726, 744, 748 (2018). “Considering the record and the trial court’s statements in support of the sentence, the trial court did not abuse its discretion in departing from the guidelines when sentencing defendant”; the “[d]efendant’s long history of abusing [the victim], the presence of a child during the assault, and the damage done to a family of four children were not fully accounted for by the guidelines.” Id. at 748 (noting that the extent of the departure, which “was an increase of approximately 7%” from the guidelines maximum-minimum, was “a proportional increase given the nonguidelines considerations”).

The trial court’s downward departure sentence for an assault by strangulation was not an abuse of discretion where “the trial judge carefully explained his findings and reasons for imposing an out-of-guidelines sentence”—“that the sentencing guidelines inaccurately reflected the seriousness of the crime” and failed to account for the victim’s conduct—and the record supported the trial court’s findings and reasons. People v Lydic, 335 Mich App 486, 501-502 (2021). Specifically, the trial court viewed the 50 points assigned under OV 7 “as too harsh given the circumstances of [the] case,” noting that OV 7 is an “all or nothing” variable that, when scored, places a “defendant’s guidelines range in a whole new ballpark.” Id. at 502 (quotation marks omitted). Additionally, the trial court explained that the victim provoked the defendant, and while that “provocation did not justify defendant’s conduct,” it played a part in the trial court’s decision to impose a downward departure. Id.

H.Acquitted Conduct Cannot be Considered⁵

The defendant’s right to due process was violated where the trial court “relied at least in part on acquitted conduct when imposing [a departure] sentence for the defendant’s conviction of being a felon in possession of a firearm[.]” People v Beck, 504 Mich 605, 609-610 (2019) (defendant was acquitted of open murder but found guilty of felon-in-possession and felony-firearm; his guidelines range was 22 to 76 months, but the trial court imposed a sentence of 240 to 400 months based in part on its finding that a preponderance of the evidence supported the conclusion that defendant committed the homicide). See also People v Roberts, 506 Mich 938 (2020) (where the defendant was acquitted of an assault with intent to murder charge that was based on him passing a gun to another person who fired the gun into a crowd, the trial court improperly considered acquitted conduct where it departed from the recommended range in order to “deter gun violence on the city’s streets”); People v Johnson, ___ Mich App ___, ___ (2024) (declining to extend Beck to prohibit a court from sentencing considerations involving charged conduct about which the jury could not reach a verdict). People v Boukhatmi, ___ Mich App ___, ___ (2024) (prohibiting trial court from using acquitted conduct to increase score under OV 13); People v Skippergosh, ___ Mich App ___, ___ (2024) (“refrain[ing] from requiring more than an express reference to acquitted conduct in advance of sentencing as evidence that acquitted conduct was relied upon in issuing a sentence,” but noting that “a person’s due process rights are violated when the sentencing court relies on acquitted conduct, even if just in minor part”).

However, “a sentencing court may review a PSIR containing information on acquitted conduct without violating Beck so long as the court does not rely on the acquitted conduct when sentencing the defendant.” People v Stokes, 333 Mich App 304, 311 (2020). The inclusion of information about acquitted conduct in a PSIR does not create a presumption that the sentencing court relied on acquitted conduct; rather, “[t]here must be some evidence in the record that the sentencing court relied on such information to warrant finding a Beck violation.” Id. at 311-312 (noting that the acquitted conduct referenced in the PSIR was about a different and separate case and “the trial court did not refer to any acquitted conduct” nor did it “intimate that such conduct influenced its sentencing decisions”).

“[C]onsidering acquitted conduct at sentencing is fundamentally inconsistent with the presumption of innocence and violates the defendant’s right to due process.” People v Sherrill, ___ Mich App ___, ___ (2024). In Sherrill, “[defendant] argue[d] that the departure from the guidelines resulted in an unreasonable sentence because the trial court relied upon acquitted conduct.” Id. at ___. Even though a trial court may not consider acquitted conduct when deciding on a defendant’s sentence, “trial courts may still sentence for uncharged conduct under the preponderance-of-the-evidence standard.” Id. at ___, citing People v Beck, 504 Mich 605, 626-627 (2019). “Here, the trial court was aware that it could not consider that [defendant] had intentionally caused [the victim’s] death because the jury found that he did not act with malice.” Sherrill, ___ Mich App at ___. “However, because he was convicted of involuntary manslaughter, involving gross negligence, the court could consider the impact his actions had on his child when the child was present when her mother was shot dead.” Id. at ___. “Additionally, the trial court also appeared to base the departure on [defendant’s] conduct leading up to this incident.” Id. at ___. Defendant “exploited [the victim’s] vulnerability as a victim because of their child to get close to [the victim], allowing this offense to occur, even if it was not intentional.” Id. at ___. The court limited its remarks about exploitation “to [defendant’s] possible harassment of [the victim], despite being told that their relationship was over.” Id. at ___. The prosecution pointed out that “any stalking behavior by [defendant] could be considered by the court because it involve[d] uncharged conduct, not conduct for which defendant was acquitted.” Id. at ___. “Finally, when resentencing [defendant], the court cited an additional basis for its sentencing decision, which was [defendant’s] poor adjustment to incarceration, which involved 55 misconducts.” Id. at ___. Accordingly, “because the court’s reasons for departure justif[ied] the departure and the amount of the departure, resentencing [was] not required.” Id. at ___.

“‘[W]hen a jury has specifically determined that the prosecution has not proven beyond a reasonable doubt that a defendant engaged in certain conduct, the defendant continues to be presumed innocent.’” People v Kilgore, ___ Mich App ___, ___ (2024). Where “defendant was acquitted on charges of first- and second-degree murder based on theories of self-defense and defense-of-others,” it was improper for the court to consider the victim’s death when imposing sentence on defendant for carrying a concealed weapon (CCW). Kilgore, ___ Mich App at ___. In this case, “[d]efendant’s minimum-sentencing guidelines for his CCW conviction were calculated at zero-to-three months in jail.” Id. at ___. However, the trial court “sentenced defendant to serve two years in prison for his felony-firearm conviction, and three to five years for his CCW conviction, the sentences to be served consecutively.” Id. at ___. “The trial court explained its upward departure from the sentencing guidelines for CCW because, in its view, the guidelines did not adequately account for [the victim’s] death.” Id. at ___. Consequently, “under Beck . . . , the trial court was precluded from considering any facts associated with [the victim’s] death when sentencing defendant on the CCW conviction, and the departure sentence must . . . be vacated.” Id. at ___.

I.Additional Examples of Adequately-Supported Departure Sentences

•People v Jackson, 505 Mich 873 (2019): The “modest departure” did not violate the principle of proportionality where “the trial court’s justifications were addressed not only to the seriousness of the offense, but also to the danger posed by this particular offender, who intentionally and needlessly created an exceptionally dangerous situation and whose criminal behavior was escalating,” and the trial court expressly stated “that the departure was a fair and proportionate sentence for the protection of society in these circumstances.”

•People v Ellen, 505 Mich 873 (2019): Imposition of “the most severe sentence permitted” did not violate the principle of proportionality where “[t]he trial court adequately described the circumstances surrounding the offense as being at the most serious end of the spectrum of manslaughter cases and the defendant’s efforts to silence witnesses[.]”

•People v Naccarato, 505 Mich 877 (2019): Imposition of a sentence of probation instead of incarceration did not violate the principle of proportionality where “[t]he trial court adequately explained why [the sentence of probation was more proportionate], in light of mitigating circumstances surrounding the offense and the offender[.]”

•People v Abcumby-Blair, 335 Mich App 210, 243-244 (2020): A 32-month departure sentence that was “less than midway between the maximum of the guidelines minimum range and what [the trial court] could have imposed through consecutive sentencing was not unwarranted” where discretionary consecutive sentences were not imposed, the “guidelines did not adequately account for the extensiveness of defendant’s criminal record,^[6] the frequency and rate of defendant’s recidivism, and defendant’s apparent resistance to rehabilitation.”⁷ The Court affirmed the departure sentence despite the trial court’s failure to “expressly explain why a 32-month departure sentence was more fitting than a departure of some greater or lesser amount” in light of the trial court’s stated reasons for departing and its discretionary sentencing authority, which if exercised would have resulted in a minimum sentence within the guidelines range of 152 months’ imprisonment rather than the 108 months minimum sentence imposed. Id. at 243.