Order                                                                                         Michigan Supreme Court
                                                                                                    Lansing, Michigan

  December 7, 2018                                                                                      Stephen J. Markman,
                                                                                                                  Chief Justice

  157245                                                                                                     Brian K. Zahra
                                                                                                     Bridget M. McCormack
                                                                                                           David F. Viviano
  PEOPLE OF THE STATE OF MICHIGAN,                                                                     Richard H. Bernstein
            Plaintiff-Appellee,                                                                             Kurtis T. Wilder
                                                                                                      Elizabeth T. Clement,
  v                                                                  SC: 157245                                        Justices
                                                                     COA: 341047
                                                                     Berrien CC: 2017-001259-FH
  JUAN DELAVONTE DAVIS,
             Defendant-Appellant.
  _____________________________________/

         By order of October 19, 2018, the prosecuting attorney was directed to answer the
  application for leave to appeal the December 26, 2017 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 VACATE the sentence of the Berrien Circuit Court, and REMAND this case to that
  court for resentencing. The circuit court clearly erred by assigning 50 points under
  Offense Variable 15 (OV 15), MCL 777.45. The guidelines variables are scored by
  reference to the record. People v Osantowski, 481 Mich 103, 111 (2008). The trial
  court’s factual determinations are reviewed for clear error and must be supported by a
  preponderance of the evidence. People v Hardy, 494 Mich 430, 438 (2013). Given the
  small quantity of the controlled substance at issue, the absence of other indicia of
  possession with the intent to deliver, the uncontested evidence that the substance was
  found crushed in the defendant’s pocket, his history of substance abuse as evidenced by
  the presentence investigation report, and the fact that he was not charged with delivery of
  a controlled substance, the record evidence preponderates in favor of the conclusion that
  the defendant possessed the controlled substance at issue for personal use, and not with
  “the intent to deliver . . . in this state,” as is required by MCL 777.45(1)(d). Specifically,
  on this record, the evidence that the one pill at issue was crushed into fragments does not
  prove by a preponderance of the evidence that the defendant intended to transfer the
  controlled substance to another individual regardless of remuneration. See MCL
  777.45(2)(a). Because the deduction of points erroneously assigned under OV 15 affects
  the defendant’s guidelines range, he is entitled to resentencing. People v Francisco, 474
  Mich 82 (2006).

         We do not retain jurisdiction.



                            I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                      foregoing is a true and complete copy of the order entered at the direction of the Court.
                            December 7, 2018
           a1204
                                                                                Clerk
