2.33OV 20—Terrorism

A.Scoring

OV 20 is scored for all felony offenses to which the sentencing guidelines apply. MCL 777.22.

Step 1: Determine which statements addressed by the variable apply to the sentencing offense. MCL 777.49a(1).

Step 2: Assign the point value indicated by the applicable statement having the highest number of points. MCL 777.49a(1).

B.Issues

1.Application of McGraw Rule

“Offense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable.” People v McGraw, 484 Mich 120, 133 (2009). MCL 777.49a does not specifically authorize the court to consider facts outside the sentencing offense.

See Section 2.13(A) for a general discussion of the McGraw rule.

2.Circumstances Justifying 100 Point Score

Assessing 100 points for OV 20 is appropriate only when a defendant’s use or threatened use of one of the substances or devices enumerated in MCL 777.49a also constitutes an act of terrorism as defined by MCL 750.543b(a); a score of 100 is inappropriate when a defendant’s threats to cause harm using certain substances or devices do not themselves constitute acts of terrorism. People v Osantowski, 481 Mich 103, 105 (2008). To merit 100 points, the plain language of MCL 777.49a(1)(a) “requires the offender to have ‘committed an act of terrorism by using or threatening to use’ one of the enumerated substances or devices.” Osantowski, 481 Mich at 105. In other words, “the use or threatened use must constitute the means by which the offender committed an act of terrorism.” Id. at 109. “To constitute an act of terrorism, a threat must be a violent felony and also must itself be ‘a willful and deliberate act’ that the offender ‘knows or has reason to know is dangerous to human life’ and ‘that is intended to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion.’” Id., quoting MCL 750.543b(a). Here, the trial court properly concluded that the defendant would not have known his “e-mail messages to another teenager were themselves ‘dangerous to human life,’” nor did the defendant actually intend “‘to intimidate or coerce a civilian population or influence or affect’” government conduct when he e-mailed to another teenager his threats to engage in violent conduct. Osantowski, 481 Mich at 112, quoting MCL 750.543b(a)(ii)-(iii).