            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                         STATE OF MICHIGAN

                          COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                  FOR PUBLICATION
                                                                  March 24, 2020
              Plaintiff-Appellee,                                 9:05 a.m.

v                                                                 No. 339424
                                                                  Ingham Circuit Court
TERRELL MARCUS ROBERTS,                                           LC No. 16-000384-FC

              Defendant-Appellant.


                                        ON REMAND


Before: RIORDAN, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

RONAYNE KRAUSE, J.

        Defendant was convicted by a jury of being a felon in possession of a firearm (felon-in-
possession), MCL 750.224f, and of possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. The jury found defendant not guilty of assault with intent to
commit murder (AWIM), MCL 750.83, on an aiding and abetting theory, MCL 767.39. The trial
court sentenced defendant as a second-offense habitual offender, MCL 769.10, to 48 to 90 months’
imprisonment, an upward departure from his minimum sentencing guidelines range of 14 to 36
months, consecutive to a mandatory 2 years’ imprisonment for felony-firearm. Defendant
previously appealed his convictions and sentences, and we affirmed.1 Our Supreme Court vacated
in part our opinion regarding defendant’s departure sentence and remanded for reconsideration in
light of People v Beck, 504 Mich ___; ___ NW2d ___ (2019) (Docket No. 152934). We again
affirm.

                                     I. BACKGROUND




1
 People v Roberts, unpublished per curiam opinion of the Court of Appeals, issued December 4,
2018 (Docket No. 339424).


                                              -1-
In our previous opinion, we provided the following summary of the facts:

       This case arises out of a shooting that occurred at Secrets Nightclub
(Secrets) in downtown Lansing in the early morning hours of May 24, 2015. At
approximately 12:30 a.m., a Secrets patron was shot while inside of the nightclub.
Defendant was inside Secrets when the shooting occurred, and he, along with other
patrons, fled the club. Sergeant Brian Curtis of the Lansing Police Department and
several other officers were parked in their patrol vehicles monitoring the club.
Sergeant Curtis observed several patrons leave the club “in a panic.” Shortly after,
dispatch informed Sergeant Curtis of the shooting, and he activated the mobile
vehicle recording device (“MVR”) on the front of his patrol car.

        Sergeant Curtis heard gunshots and simultaneously observed two
individuals, later identified as defendant and LaDon Jackson, advancing towards a
group of people outside the club. Sergeant Curtis later reviewed the MVR video
and observed that it was Jackson who fired these shots. The MVR video, which
was admitted into evidence and played for the jury at trial, also showed defendant
and Jackson make contact with each other. Sergeant Curtis testified at trial that he
believed that, during this contact, defendant passed a gun to Jackson, who then fired
the shots and returned the gun to defendant.

        After Jackson fired the shots, Sergeant Curtis observed both defendant and
Jackson run south, and another officer informed Sergeant Curtis that these
individuals might be in possession of a firearm. Sergeant Curtis pursued defendant
and Jackson in his patrol vehicle and commanded them to stop, but they refused to
comply. Jackson executed a “button hook” maneuver to evade police, but
defendant continued running south alone. Sergeant Curtis pursued defendant and
observed him pass by a red Impala and make certain movements that, in Sergeant
Curtis’s training and experience, led him to believe that defendant had discarded a
firearm in that area. After passing the red Impala, defendant continued along the
sidewalk, and he was arrested shortly thereafter. Police found no firearm in either
Jackson’s or defendant’s possession. However, a canine unit trained to detect
firearms located a firearm next to the red Impala that defendant had passed.

                                       * * *

       As the jury was shown the MVR video, Sergeant Curtis testified:

       [Y]ou’re going to see a transaction what I believed [sic] where
       LaDon Jackson receives the firearm from the Defendant. LaDon
       Jackson advances at the crowd, does the shooting, comes back and
       exchanges the firearm back to the Defendant.

                                       * * *

       It is my belief that they’re exchanging a firearm right there.

                                       * * *


                                        -2-
              And here is LaDon Jackson advancing, firing his gun.

                                              * * *

              Here [defendant’s] reaching into his upper torso.

                                              * * *

              And now here he goes right here to the passenger side. I believe he
              discretely tossed the gun right there.

               Sergeant Curtis explained that, in his experience and training, weapons
       often “change hands” on the streets. He further explained “that people do not hold
       onto firearms. They trade them off with one another, especially during an event
       like this.” Sergeant Curtis testified that after he heard the gunshots, he observed
       defendant and Jackson both “run back in a south direction after they advanced on a
       group to the north.” Sergeant Curtis stated that he observed defendant reach “into
       his upper torso.” . . . Additionally, Sergeant Curtis commanded defendant to stop,
       but he refused to comply, “continued to evade,” and passed “directly near the
       passenger side of this red Impala,” which is where the gun was eventually found.
       In contrast, Sergeant Curtis testified that Jackson was never in the vicinity of the
       red Impala. [People v Roberts, unpublished per curiam opinion of the Court of
       Appeals, issued December 4, 2018 (Docket No. 339424), unpub op at pp 1-4
       (footnotes omitted).]

       Additionally, we now set forth in full the trial court’s stated reasoning for imposing its
departure sentence:

                Well, Mr. Roberts, your attorney said something about your [sic] very
       capable of being a highly functioning member of the community and I 100% agree
       with that. I think you are very capable of that. Your actions have definitely not
       demonstrated that. Not only for this offense that you’ve been convicted of, these
       offenses, but you were on probation out of Eaton County for 2nd Degree Home
       Invasion, another very serious offense, at the time that you committed this offense.
       So, you are taking whatever potential that you have to be a highly functioning and
       contributing member of society and you’re making decisions consciously and
       intentionally that are destroying that. And when it comes to gun violence, I agree
       that this is the scourge of this community. It is something that tears families apart,
       no matter what side of this they are on. It tears families apart. It destroys lives.
       And that’s speaking again from both sides, it destroys lives. It has to be stopped
       and I don’t know how to stop it other than to send a strong message that running
       around the streets of Lansing with a gun is not tolerated, not acceptable and will be
       significantly punished. And I do consider this to be different than the person who
       possesses a firearm while convicted of a felony under different circumstances. I
       see people convicted of that when they’ve possessed a gun in their own home but,
       they’ve been convicted of a felony and they may not have a possession of a gun.




                                                -3-
              That’s one thing. This is much higher up on the scale as far as I’m
       concerned than that. And I hold you not one bit accountable for what happened in
       the night club, not part of the charge, not part of the conviction. But what I hold
       you accountable for is possessing a firearm on the streets of Lansing under these
       circumstances where a shooting had just taken place by someone else. And I
       consider that to be at the highest end of the scale as far as seriousness of the offense
       goes for possession of a firearm by a felon.

              So, I have considered the guidelines of 14 to 36 months and they are
       presumptively reasonable in my mind but, I also consider then [sic] somewhat
       inadequate for the circumstances of this particular case.

                                 II. STANDARDS OF REVIEW

        Sentencing courts are required to properly score the statutory sentencing guidelines and
take the resulting minimum sentence range into account when crafting a particular sentence.
People v Lockridge, 498 Mich 358, 391-392; 870 NW2d 502 (2015); People v Steanhouse, 500
Mich 453, 474-475; 902 NW2d 327 (2017). However, sentencing courts are not otherwise bound
by the sentencing guidelines. Lockridge, 498 Mich at 392; Steanhouse, 500 Mich at 468-470. The
sentencing court may, in its discretion, depart from that range if it explains how that departure is
reasonable and proportionate. Lockridge, 498 Mich at 392; Steanhouse, 500 Mich at 473-475. We
review the trial court’s ultimate sentence for reasonableness under an abuse of discretion standard,
to determine whether it is proportionate to the offender and the circumstances of the offense.
Steanhouse, 500 Mich 459-460, 473-474. A minimum sentence that falls within the properly-
calculated guidelines range is presumptively reasonable and proportionate. See People v
Carpenter, 322 Mich App 523, 532; 912 NW2d 579 (2018).

        “Under the sentencing guidelines, the circuit 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; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the
scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court reviews de novo.” Id. The sentencing court
may consider “facts not admitted by the defendant or found beyond a reasonable doubt by the
jury.” Lockridge, 498 Mich at 392. “Offense variables are properly scored by reference only to
the sentencing offense except when the language of a particular offense variable statute specifically
provides otherwise.” People v McGraw, 484 Mich 120, 135; 771 NW2d 655 (2009).

                                             III. BECK

        It has long been understood that failure to persuade a jury beyond a reasonable doubt is not
conclusive as to proofs under the less stringent preponderance of the evidence standard. Stone v
United States, 167 US 178, 188-189; 167 S Ct 778; 42 L Ed 127 (1897); Martucci v Detroit
Comm’r of Police, 322 Mich 270, 273-274; 33 NW2d 789 (1948). Nevertheless, our Supreme
Court has recently taught us that sentencing courts may not consider any “acquitted conduct” in
crafting their sentences, although they remain free to consider “uncharged conduct.” Beck, 504
Mich at ___ (slip op at pp 18-19). “Acquitted conduct” means any “conduct . . . underlying
charges of which [the defendant] had been acquitted.” United States v Watts, 519 US 148, 149;


                                                 -4-
117 S Ct 633; 136 L Ed 2d 554 (1997), cited by Beck, 504 Mich at ___ n 1 (slip op at p 2 n 1). We
infer from this broad definition that under Beck, a sentencing court must consider a defendant as
having undertaken no act or omission that a jury could have relied upon in finding the essential
elements of any acquitted offense proved beyond a reasonable doubt. Nevertheless, as we will
discuss in more detail below, Beck expressly permits trial courts to consider uncharged conduct
and any other circumstances or context surrounding the defendant or the sentencing offense.

                                  IV. OFFENSE VARIABLE 9

        As we explained previously, “[o]ffense variable 9 is number of victims.” MCL 777.39(1).
The trial court assessed 25 points for OV 9, which is required if “[t]here were 10 or more victims
who were placed in danger of physical injury or death, or 20 or more victims who were placed in
danger of property loss . . . ” MCL 777.39(1)(b). “[E]ach person who was placed in danger of
physical injury or loss of life or property” is to be counted as a victim. MCL 777.39(2)(a).
However, “only people placed in danger of injury or loss of life when the sentencing offense was
committed (or, at the most, during the same criminal transaction) should be considered.” People
v Sargent, 481 Mich 346, 350; 750 NW2d 161 (2008). Defendant’s sentencing offense was felon-
in-possession, which “in and of itself, simply did not place anyone in danger of physical injury or
death.” People v Biddles, 316 Mich App 148, 167; 896 NW2d 461 (2016).

        The trial court explicitly declined to hold defendant responsible for “what happened in the
night club,” implicitly meaning the trial court did not consider any victims placed in danger by the
shooting of which defendant was acquitted. Nevertheless, we agree with the trial court that a
substantial and qualitative difference exists between possessing contraband in one’s own home,
and unlawfully possessing and passing around a concealed firearm in a crowded bar during a
shooting. Nothing in Beck precludes a sentencing court from generally considering the time, place,
and manner in which an offense is committed. We conclude that Beck does not exclude from
consideration the contextual fact that the acquitted conduct was committed by someone, so long
as that conduct is not actually attributed to the defendant. Irrespective of whether defendant
participated in the shooting, the context within which he committed the offense of felon-in-
possession intrinsically placed people in grave danger. We therefore reiterate our previous
conclusion that the trial court was justified in finding that defendant’s actions placed at least 10
victims in danger of physical injury or death. The trial court therefore did not err in assigning 25
points under OV 9.

                                 V. DEPARTURE SENTENCE

       In our previous opinion, we set forth the following reasoning:

               In this case, the trial court stated that it had considered the guidelines and
       found them to be “somewhat inadequate for the circumstances of this particular
       case.” The factors the trial court identified in support of the departure were the
       danger of gun violence to the local community, the seriousness of the particular
       offense, and defendant’s poor potential for rehabilitation. Although some of the
       factors the court stated as reasons for departure were somewhat considered by the
       guidelines, those guidelines were not adequately tailored for this specific type of
       offense, and therefore departure was appropriate. As the trial court noted, felon in


                                                -5-
       possession of a firearm can take many forms, some more dangerous than others.
       The trial court properly noted that the conduct in the present case, where defendant
       supplied a weapon for use in an indiscriminate shooting on a busy street, was vastly
       different than the case of a felon being found in possession of a firearm in their
       home.

                The trial court noted the danger that gun violence presented to the local
       community and the seriousness of this particular offense. The trial court stated that
       it held defendant “accountable for . . . possessing a firearm on the streets of Lansing
       under these circumstances where a shooting had just taken place by someone else”
       (emphasis added). It reasoned that defendant’s possession of the firearm under
       these circumstances was more serious than was ordinarily the case with a felon-in-
       possession offense. Further, defendant’s potential for rehabilitation has been held
       to be a valid consideration for departure, see [People v Dixon-Bey, 321 Mich App
       490, 525 n 9; 909 NW2d 458 (2017)]. The fact that defendant was on probation,
       while accounted for in the guidelines, is further proof of the seriousness of the
       specific offense and lack of potential for rehabilitation. Defendant was not merely
       a felon, but was currently being punished for a serious felony offense in a
       neighboring county. The fact that he proceeded to bring a concealed handgun to a
       crowded night club and then allow that weapon to be fired into a crowd in an
       indiscriminate manner is not something that can be adequately captured by the
       guidelines system. This is precisely the type of situation where the ability to
       consider all of the evidence and the factors involved in the commission of a crime
       is more valuable than the rote, mathematical system conceived in a purely
       determinant sentencing system.

               In summary, the trial court, presented with a crime and defendant that do
       not neatly fit within the sentencing guidelines, properly applied its discretion and
       articulated valid reasons for doing so and exceeding guidelines by 12 months.
       Defendant did not fit in to the more benign categories of a felon in possession and,
       based on the risk of his actions and his apparent lack of rehabilitation, the trial court
       found departure to be necessary. Therefore, we affirm defendant’s sentence.

Beck requires us to clarify our reasoning in small part, but we find no basis for revisiting our prior
conclusion.

        As discussed, the definition of “acquitted conduct” covers a broad range of conduct.
Nevertheless, we do not understand Beck to preclude all consideration of the entire res gestae of
an acquitted offense.2 As noted, defendant was acquitted of AWIM under an aiding and abetting
theory. “Aiding and abetting” requires intentionally assisting another person in the commission
of a particular crime. See People v Moore, 470 Mich 56, 70-71; 679 NW2d 41 (2004); People v


2
   We wholeheartedly agree with our concurring colleague’s discussion regarding the
implementation concerns left by Beck, as well as our concurring colleague’s thoughts on how best
to address those concerns, and we adopt them as our own. We further note that “I know it when I
see it” is literally no standard at all.


                                                 -6-
Robinson, 475 Mich 1, 15; 715 NW2d 44 (2006). We conclude that even under Beck, a sentencing
court may consider, for example, the fact that a felon on probation bringing a concealed gun into
a crowded nightclub demonstrates—at a minimum—an appallingly reckless disregard for the
predictable outcome. Defendant may not be deemed to have provided a weapon for the purpose
of shooting it into a crowd, nor can defendant be deemed to have “allowed” the shooting.
Nevertheless, defendant can certainly be deemed to have knowingly acted in a manner that
drastically increased the likelihood that such a tragedy, whether or not this particular tragedy,
would occur. As discussed above, the trial court appropriately observed that it is “one thing” to
illegally possess a gun in one’s own home, but quite another to introduce an illegally possessed
and concealed gun into an environment that was already chaotic and unstable.

       Consequently, even though defendant may not be considered to have engaged in any
conduct that aided and abetted the shooting, the trial court nevertheless reasonably concluded that
the manner in which defendant committed the offense of felon-in-possession, particularly in light
of defendant’s apparent intelligence and own history, warranted a significant departure from the
guidelines range. We reiterate our previous conclusion.

       Affirmed.

                                                            /s/ Amy Ronayne Krause
                                                            /s/ Michael J. Riordan




                                                -7-
