Criminal enterprise; MCL 750.159i(1); Sentencing departure; Proportionality; People v Milbourn; Reasonableness; People v Steanhouse; Guidelines; Inadequately considered offense variables; People v Walden; Distinguishing People v Dixon-Bey; Abuse of discretion; People v Butka

The court held that defendant’s upward departure sentence for conducting a criminal enterprise was reasonable and proportionate to the seriousness of the offense. Defendant pled guilty after using a computer program to obtain mPerks login information, running the program “numerous times,” affecting approximately 29,291 customers, and causing restitution exceeding $1 million. On appeal, the court held that the trial court did not abuse its discretion by imposing a 5-to-20-year sentence despite the 12-to-20-month guidelines range because the trial court explained why the guidelines did not adequately account for the offense. The court noted that the trial judge considered mitigating facts, including defendant’s age, lack of criminal record, cooperation, forfeiture of more than $600,000 in cryptocurrency, and “numerous letters from family and friends,” but reasonably concluded that the severity of the offense justified departure. The court emphasized that the sentencing judge grounded the departure in the fact that defendant sold login information “on the internet to people who were buying those for criminal reasons” (which defendant knew), that the offense affected “thousands of people,” and that the loss exceeded $1 million, which was “50 times the 20,000.00” threshold reflected in OV 16. Unlike Dixon-Bey, the trial court did not rely on unsupported characterizations of defendant, but instead identified offense-specific facts “not adequately reflected in the guidelines as scored.” The court also rejected defendant’s argument that there was only one victim because the crime involved thousands of customers whose information was “breached and sold on the dark web.” Affirmed.