Sentencing; Scoring of OVs 1, 3, 8, 10, & 13; MCL 777.31(1)(a); MCL 777.33(1)(a); MCL 777.38(1)(a); People v Barrera; MCL 777.40(1)(a); “Predatory conduct” (MCL 777.40(3)(a)); People v Baskerville; MCL 777.43(1)(c); Alleged reliance on acquitted conduct; People v Beck; People v Ventour; Whether an error entitled defendant to resentencing

The court held that the trial court did not err in scoring OVs 1, 3, 8, and 10 in sentencing defendant. While it did err in scoring OV 13, he was not entitled to resentencing because correcting that score did not change his guidelines range. He was convicted of conspiracy to commit armed robbery and assault with intent to rob while armed. He was resentenced to 25 to 50 years, a within-guidelines sentence. As to the scoring of 25 points for OV 1 and 100 points for OV 3, while a “trial court may not rely on acquitted conduct when imposing a sentence, ‘Beck does not prohibit the trial court from adhering to the clear statutory instructions for assessing points under OV 1 . . . .’” The court noted that his “acquittal of first-degree felony murder has no bearing on the trial court’s finding that a co-offender discharged a firearm toward a human being.” Trial evidence indicated that a co-offender (G) shot victim-H “three times with a firearm. By its plain terms, OV 1 applies regardless of whether defendant or [G] discharged the firearm, and it does not require that the defendant actually discharge a firearm or be convicted of discharging a firearm toward a human being.” Likewise, his “acquittal of first-degree felony murder had no bearing on the trial court’s finding that a victim was killed by another offender. [H] died after suffering from the gunshot wounds. Like OV 1, OV 3 applies regardless of whether defendant or [G] killed the victim, and it did not require that defendant commit murder or be convicted of murder.” The court also upheld the 15-point scores for both OVs 8 and 10. As to OV 13, because “defendant’s conspiracy convictions were crimes against public safety, the trial court was not permitted to consider them for purposes of OV 13.” Further, none of his “history qualified as conduct that could establish ‘a pattern of felonious criminal activity involving 3 or more crimes against a person.’” And his assault with intent to rob while armed “offense alone did not establish a pattern of criminal activity. Thus, the trial court erred when it assessed 25 points for OV 13.” But he was not entitled to relief because the “error did not affect the outcome of the lower court proceedings.” Affirmed.