People of Michigan v. Matthew John Scotton, 332864

Defendant Matthew Scotton assaulted and sexually assaulted his long-term girlfriend on Aug 27–28, 2013; jury convicted him of one count of first‑degree criminal sexual conduct (penile‑oral penetration) and acquitted him on a second CSC‑I count (penile‑vaginal penetration).
At sentencing the trial court scored 25 points for OV 11 (multiple sexual penetrations), relying on judicial fact‑finding that the penile‑vaginal act occurred and arose out of the same offense, which increased the guidelines range.
On initial appeal the Court of Appeals upheld most scoring but remanded under People v Lockridge because OV 11 had been scored based on judge‑found facts, requiring the court to determine whether it would have imposed a different sentence with advisory guidelines.
On remand the trial court reaffirmed the original sentence, stating it would not have imposed a different sentence even with advisory guidelines; defendant raised for the first time that OV 11 relied on conduct underlying an acquitted charge.
The Court of Appeals holds the new challenge waived for failure to raise it in the first appeal and alternatively finds no reversible error because sentencing may consider acquitted conduct if supported by a preponderance of the evidence and the defendant can challenge it.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether scoring OV 11 based on a sexual penetration underlying an acquitted charge was improper	State: trial court may score penetrations that "arose out of the sentencing offense" when supported by evidence	Scotton: OV 11 counted a penetration for which jury acquitted him, so scoring was improper and increased his guidelines range	Waived by Scotton for not raising earlier; alternatively no error—court may consider acquitted conduct if proven by preponderance and defendant given chance to contest
Whether the judge’s fact‑finding that increased the guidelines required resentencing under Lockridge	State: after Lockridge guidelines are advisory; court should ask if it would have imposed a different sentence	Scotton: judicial fact‑finding increased his minimum and prejudiced him	No reversible error—the trial court stated it would not have imposed a different sentence with advisory guidelines
Whether the sentence is disproportionate	State: sentence within authorized range and based on sentencing factors including acquitted‑conduct evidence	Scotton: not the sort of defendant meriting lengthy incarceration; OV 11 inflated sentence	Held against Scotton; proportionality claim depends on challenged OV 11 which was waived and in any event lacks merit

People v Lockridge, 498 Mich 358 (2015) (mandatory guidelines with judge‑found facts violated Sixth Amendment; guidelines rendered advisory)
Crosby v. United States, 397 F.3d 103 (2d Cir. 2005) (procedural framework for remand when guidelines held invalid)
People v Ewing, 435 Mich 443 (1990) (sentencing court may consider conduct even if defendant was acquitted, because acquittal reflects only lack of proof beyond a reasonable doubt)
People v Hardy, 494 Mich 430 (2013) (sentencing scoring need only be supported by preponderance of the evidence)
People v Golba, 273 Mich App 603 (2006) (trial court may consider uncharged or acquitted conduct at sentencing if defendant may challenge and facts are proven by a preponderance)