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Can you score OV 15 when the defendant—convicted of conspiracy to deliver/manufacture—never possessed the drugs?

Generally, OV 15 is properly scored for conspiracy to deliver/manufacture, see MCL 777.13m; MCL 777.21(4)(a); MCL 777.22(3). OV 15 must be scored based solely on the amount of the controlled substance applicable to the sentencing offense. People v Gray, 297 Mich App 22, 24, 28 (2012).

Whether and what amount of points are appropriate to score under OV 15 for the sentencing offense you are asking about is hard to specify without more information about the underlying facts of the defendant’s crime. However, defendant’s specific possession of the drugs is not required to score points for every circumstance under OV 15. For example, 100 points may be scored under MCL 777.45(1)(a) if “the offense involved the manufacture, creation, delivery, possession, or possession with intent to manufacture, create, or deliver” 1,000 or more grams of specified controlled substances. Use of the word “or” suggests any of the listed actions would justify a score. Presumably, the crime of conspiracy to deliver/manufacture 1,000 grams or more could have “involved” the manufacture or delivery of the substance even if the defendant did not personally possess the drugs.

Sentencing decisions are questions of law that are ultimately for the trial court to decide; however, we think it would be possible to score OV 15 without the defendant ever physically possessing the drugs under factual circumstances supporting a finding by the preponderance of the evidence that the defendant was involved in the manufacture, creation, or delivery of the drugs. See, e.g., People v Arnold, unpublished per curiam opinion of the Court of Appeals, issued October 11, 2018 (Docket No. 336817) (holding 75 points are properly scored where the defendant “admitted that she had been running an operation with others to traffic in illegal drugs. Her assistants delivered the drugs from Detroit to other towns, including Traverse City, where still others distributed them”; these facts suggest defendant herself did not actually possess the drugs). Note that unpublished opinions are not binding. MCR 7.215(C)(1).

Tags: OV 15

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