United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT
OF HABEAS CORPUS, (2) DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND (3) GRANTING LEAVE TO APPEAL IN FORMA
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE.
Magnum Reign, (“Petitioner”), filed a petition
for writ of habeas corpus. Petitioner pled guilty in the Kent
Circuit Court to armed robbery. Petitioner was sentenced to a
term of 9 to 30 years. Petitioner challenges his sentence on
two grounds: (1) the trial court relied on inaccurate
information in scoring the sentencing guidelines, and (2) the
sentencing judge relied on facts not admitted by Petitioner
or determined beyond a reasonable doubt in determining
Petitioner's sentence. The petition will be denied
because Petitioner's claims are without merit. The Court
will deny a certificate of appealability, but it will grant
leave to appeal in forma pauperis.
was charged with armed robbery after he demanded money from a
person while pretending to possess a gun. Rather than stand
trial, Petitioner pled guilt to one count of armed robbery,
and in exchange, the prosecutor dismissed a habitual felony
offender charge. Dkt. 6-3. Petitioner was initially sentenced
to 12 to 30 years. Dkt. 6-4.
was appointed appellate counsel who filed a motion for
resentencing. The motion alleged that there were inaccuracies
in the presentencing information report, causing an incorrect
scoring of the sentencing guidelines. See Dkt. 6-5; Dkt. 6-6,
trial court granted the motion in part, making the following
OV 13 is scored based on a continuing pattern of criminal
behavior. Twenty-five points are scored if “the offense
was part of a pattern of felonious criminal activity
involving 3 or more crimes against a person. MCL
777.43(1)(c). Ten points are scored if [t]he offense was part
of a pattern of felonious criminal activity involving a
combination of 3 or more crimes against a person or property
or a violation of section 740l(2)(a)(i) to (iii) or section
7403(2)(a)(i) to (iii) of the public health code.. . . MCL
777.43(1)(d). For determining the appropriate points under
this variable, all crimes within a 5-year period, including
the sentencing offense, shall be counted regardless of
whether the offense resulted in a conviction. MCL
This variable was scored at 25 points. This was because of
the present offense and statements made by the prosecution
regarding two other robberies recently committed by
defendant. According to the prosecution, in one of the
robberies defendant left an item of clothing behind that
contained his DNA, and in the other robbery defendant can be
seen on video stealing a purse. In the present motion,
defendant claims there was not evidence of the crimes
presented to the Court other than the prosecution's
statements. Thus, defendant believes this should be scored at
The prosecution acknowledges that there was an error in
scoring this variable. The robbery of the purse appears to
have been larceny from a building, which is a crime against
property. The prosecution has also provided police reports
describing this and the other robbery. Thus, there is
documentation of a pattern of felonious activity involving a
combination of two crimes against a person and one crime
against property, which would support a score of 10 points
for OV 13.
Based on the foregoing, the current record only supports
scoring of OV 13 at 10 points, rather than 25.
OV 19 was scored at 10 points because it was determined that
defendant interfered with or attempted to interfere with the
administration of justice. MCL 777.49(c). This was based on
statements in the PSI regarding defendant giving
investigators a false name of Marcus Magnumreign, repeatedly
stating he does not have a middle name, claiming this was his
true name, and denying using the name Marcus Magnum Reign.
Defendant claims he legally changed his name from Marcus
Draper to Marcus Magnum Reign when he was in California and
he gave his correct name to law enforcement when he was
arrested. However, the statements in the PSI discuss
defendants use of the false name Marcus Magnumreign, without
a middle name, during the investigation prior to his arrest.
Case law is clear that “[p]roviding a false name to the
police constitutes interference with the administration of
justice, and OV 19 may be scored, when applicable, for this
conduct. People v. Barbee, 470 Mich. 283, 288
(2004). OV 19 is properly scored.
Dkt. 6-7, Opinion and Order Dated May 18, 2015, at 3-4
(emphasis in original).
resentencing hearing, Petitioner's counsel indicated that
she had an opportunity to review the revised presentencing
information report. Dkt. 6-6, at 8. She indicated that she
filed written objections to the scoring of the sentencing
guidelines. Id. Based on the written objections, the
trial court noted that it lowered the scoring of Offense
Variable 9 from ten points to zero points. Id., at
9. The court also indicated that Offense Variable 13 was
lowered from twenty-five points to ten points. Id.
The Court indicated that the prosecutor had failed to provide
any information to justify scoring points for Offense
Variable 9. Id. Petitioner's challenge to
Offense Variable 19, regarding Petitioner's alleged use
of a false name, was rejected in the court's order. The
court noted that the new scoring of the guidelines called for
a minimum sentence between 81 and 135 months. Id.
counsel then asserted that she was still challenging the
scoring of points for Offense Variable 13, regarding prior
criminal conduct, because the prior armed robbery offense was
never charged. Id., at 10. Defense counsel noted
that the description of the perpetrator in that case did not
match Petitioner. Id. Petitioner was given an
opportunity to personally address the court. Id., at
12-13. The court then sentenced Petitioner to 10 to 30 years.
Id., at 14.
appellate counsel was subsequently appointed to represent
Petitioner, and counsel filed another motion for
resentencing, asserting that former appellate counsel had
misstated the recalculated guideline range. The motion was
granted in part, and the trial court resentenced Petitioner
to a term of 9 to 30 years. Dkt. 6-7, Delayed Application for
Leave to Appeal, Appendix A. The trial court noted in its
order with respect to Petitioner's claim that the court
should not have considered a California charge against
Petitioner: “the Court already amended the section of
the PSI referencing the alleged assault in California, and
the PSI now includes defendants claim that he did not assault
anyone and the case was dismissed. Defendant has not provided
any additional documentation or argument that would justify
removing this charge that appears on his record.” Dkt.
6-7, Opinion and Order Granting in Part Defendant's
Motion for Resentencing, at 2-3.
appellate counsel then filed an application for leave to
appeal in the Michigan Court of ...