Dеfendant, Earl Reddish, was originally charged with four counts of possession with intent to deliver less than fifty grams of cocaine. MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). On May 29, 1987, following a jury trial, he was conviсted of one count (Docket No. 104580). He then entered a plea of nolo contendere to a count of attempted delivery of less than fifty grams of cocaine (Docket No. 104801). MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). By agreement, the remaining charges were dismissed. Defendant was sentenced to imprisonment for 160 to 240 months on the pоssession conviction and forty to sixty months on the attempted delivery conviction, to be served concurrently. The sentencing court exceeded the recommended minimum *627 guidelines and imposed the maximum penalty in both sentences. Defendant appeals the convictions and the sentences as of right. We affirm the convictions but remand for resentencing.
Initially defendant claims he was denied due process by the delay between the offenses and the arrest. The delay was 214 days from the first possession offense to the date of arrest.
The threshold test for determining whether a delay constitutes a denial of due procеss is whether the defendant suffered prejudice.
People v Bisard,
Defendant claims the prejudice to him lay in the delay which made it impossible for him to remember spеcific events which occurred on the dates in question. Also, he claims, alibi witnesses left the state and disappeared.
However, the facts show that defendant denied ever seeing the undercover officer to whom he made the drug sales. He also denied knowledge of any sale of cocaine on аny date. Therefore, it is unlikely that his recollection of the events of a specific date would be helpful. Further, defendant’s claim of loss of alibi witnesses is withоut merit. He did not know the names of most of his alleged witnesses and was not even sure if they had seen him on the dates in question. In addition, defendant’s girlfriend, brother and former roommate *628 were available as alibi witnesses. We conclude that he was not prejudiced by delay in his arrest.
Next defendant claims that the trial court improperly scored three offense variables (ovs) on his Sentencing Information Report.
Appellate review of guidelines calculations is very limited.
People v Richardson,
1. OV 8, PROFESSIONAL/ORGANIZED CRIME OR RING
Defendant was assessed four points for offense variable 8, indicating he is a member of a professional or organized crime ring. When he objected to the scoring, the trial court stated its belief that anyone who deals in drugs is a member of organized crime. This ruling is clearly erroneous.
There is no evidence on the record indicating defendant was a member of organized crime. A determination that all drug dеalers are part of organized crime is indefensible. This theory would make the use of ov 8, as written, unnecessary in any drug offense other than those involving use alоne. The fact this variable must be scored for this crime indicates an intent that more than dealing drugs is required to make one a member of organized crime. Without аdditional evidence, defendant’s score should be zero.
*629 2. OV 9, OFFENDER’S ROLE
Defendant was assessed two points under offense variable 9, indicating he was an active pаrticipant in a multiple-offender situation. Again, the trial court upheld the scoring on this variable in the belief that all drug dealers are part of organized crime, being that they must be supplied with drugs.
No evidence was presented to support the implication that defendant acted in concert with others to commit the crimes of which he was convicted. As the trial court noted, defendant must have obtained his drugs from a supplier. However, he was not convicted of buying cocaine or of conspiracy as a part of a drug network. He was convicted of delivery or possession with intent to deliver less than fifty grams of cocaine, and the attempted delivery of less than fifty grams of cocaine. The evidence shows that he acted alone while perpetrating these crimеs. Again we note that if one were to accept the trial court’s theory, it would be unnecessary to score this variable. The maximum score would be autоmatic. It is not. On remand defendant should be assessed one point indicating he acted alone.
3. OV 25, CONTEMPORANEOUS CRIMINAL ACTS
The instructions for offense variable 25 provide:
O.V. 25 CONTEMPORANEOUS CRIMINAL ACTS
2= three or more contemporaneous criminal acts
1 = two contemporaneous criminal acts
0= none or one contemporaneous criminal act
Instructions:
A. Criminal acts mean other offenses, excluding cognate аnd lesser included offenses, not denied by *630 the defendant, and which have not and will not result in separate convictions.
B. Contemporaneous criminal acts mеan: (1) any criminal acts, as defined above, occurring within 24 hours of the offense upon which the defendant is being sentenced, or (2) criminal acts, as defined above, which are identical to or similar in nature to the offense upon which the offender is being sentenced, and which occur within six months of the instant offense.
Defendant was assessed two points, because the court concluded that he committed three or more contemporaneous criminal acts. He challenges this scoring, because the judge used preliminary-examination testimony to establish two of the three acts. These two acts were the charges whiсh were dismissed as part of the plea agreement. The preliminary-examination testimony was the only evidence of them.
The court was justified in using preliminary-examination testimony to conclude the two dismissed charges were contemporaneous criminal acts. See
People v Green,
Finally defendant claims that his sentences of 13 \6 to 20 years and 316 to 5 years, reflecting the maximum penalty allowed, should shock our judicial conscience. They do.
*631 The trial court far exceeded the minimum guidelines of twеlve to twenty-four months (or six to twelve months when the ovs are recalculated). In departing from the guidelines the judge focused on the great harm drugs cause in our society. He stressed that defendant was a drug dealer, not merely a user. He made clear his intent to send a message to other drug dealers through the sentencing of defendant.
We are aware of the tragedy that drugs cause daily in our society. We acknowledge, also, that it was proper for the trial court to consider the protection of society and the deterrence of others in formulating defendant’s sentences.
People v Fleming,
While the trial court had valid reasons for exceeding the guidelines, it abused its discretion when ordering the maximum permissible under the law. Defendant, a first-time offender, should not be made аn example or the bearer of a message to all individuals involved in drugs. In so doing, the trial court abused its discretion. The sentences given defendant shock our judiсial conscience. Coles, supra, p 550. We vacate them and remand for resentencing before a different judge.
Remanded for resentencing consistent with this opinion. This Court does not retain jurisdiction.