Background
Raymond Vern MacLeod and another driver were involved in a road-rage incident. According to the other driver, MacLeod approached his vehicle from behind at an extreme speed, drove very close to it, and then retrieved and racked a handgun after the driver gestured toward him. The vehicles stopped, and the other driver turned around and fled in the opposite direction. While leaving, he heard two gunshots.
Police apprehended MacLeod and found a firearm in his vehicle with two rounds missing. MacLeod pleaded guilty to felon-in-possession of a firearm and possession of a firearm during the commission of a felony. At sentencing, the trial court assessed 25 points under Offense Variable 1 after finding that MacLeod discharged the firearm at or toward a person. That score produced a minimum guidelines range of 19 to 47 months, and the court imposed consecutive terms of 24 to 90 months for felon-in-possession and two years for felony-firearm.
The Court’s Holding
The Michigan Court of Appeals held that the trial court clearly erred by assessing 25 points under OV 1. Although substantial evidence established that MacLeod fired the gun, the record contained no evidence showing the direction in which he fired it. The victim did not say the gun was aimed or fired toward him, and there was no physical evidence, such as bullet holes in his vehicle, supporting that conclusion.
The court explained that the road-rage context and MacLeod’s apparent anger at the victim did not, standing alone, permit a reasonable inference that he fired toward the victim. Because the evidence showed only that MacLeod displayed and racked the handgun, the proper OV 1 score was 5 points, not 25 or 15 points. That correction changed the applicable guidelines range, requiring resentencing.
Key Takeaways
- A 25-point OV 1 score requires proof by a preponderance of the evidence that a firearm was discharged at or toward a human being.
- Evidence that a defendant fired a gun during a hostile encounter does not by itself establish the direction in which the shots were fired.
- Because the correct 5-point score changed MacLeod’s sentencing-guidelines range, he was entitled to resentencing.
Why It Matters
The decision underscores that sentencing courts may draw reasonable inferences from the record but may not rely on speculation when scoring offense variables. The prosecution must establish not merely that a firearm was discharged, but also the additional facts required by the particular scoring category.
For sentencing challenges, the opinion also confirms that an erroneous offense-variable score warrants resentencing when correcting the score changes the applicable guidelines range.