STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 31, 2006
Plaintiff-Appellee,
v
No. 262940
Wayne Circuit Court
LC No. 04-012730-01
YUSUF ABDUR-RAHEEM MUSAFIR,
Defendant-Appellant.
Before: Whitbeck, C.J., and Saad and Schuette, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of attempted larceny from a person,
MCL 750.92 and 750.357, possession of a firearm by a felon, MCL 750.224f, and possession of
a firearm during the commission of a felony, MCL 750.227b. The trial court sentenced
defendant to concurrent terms of 23 to 60 months’ imprisonment for the attempted larceny and
felon in possession convictions, plus two years’ consecutive imprisonment for the felony-firearm
conviction. Defendant moved for resentencing on the grounds that Offense Variables 1 and 13
were misscored and that he should have received sentence credit, but the trial court denied his
motion. We remand for resentencing. This appeal is being decided without oral argument
pursuant to MCR 7.214(E).
At trial, the victim testified that defendant approached him outside a restaurant in
Hamtramck and asked him if he wanted to buy some glasses. The victim declined and entered
the restaurant. Defendant again approached the victim about buying glasses and then grabbed
the victim around the neck from behind and said “come off with the coat.” As the victim was
trying to get out of the chokehold, the two fell to the floor and wrestled. At that point, defendant
pulled a gun on the victim and pointed it at his chest. Defendant did not speak to the victim as he
was pointing the gun at him. The victim testified that as he was attempting to remove his coat,
the police arrived and both he and defendant were arrested. At trial, the victim identified [ ] the
gun that defendant pointed at him.
An officer of the Hamtramck Police Department testified that he was dispatched to a fight
in the restaurant. When he arrived, two officers were present and both defendant and the victim
were on the floor. He saw a gun in the front left pocket of defendant’s pants. The hammer was
cocked and there were six live rounds in the gun.
-1-
At the original sentencing hearing, the defense made no objections to the scoring of the
sentencing guidelines or to the information in the presentence investigation report. The court
sentenced defendant to the terms noted above, and also made them consecutive to another
sentence for which defendant was on parole when he committed these offenses.
Defendant’s appellate counsel moved for resentencing. The trial court resubmitted the
case to the Department of Corrections for a review of the guidelines and a determination whether
defendant was entitled to sentence credit for the time he spent in jail awaiting the original
sentencing. At a hearing on March 24, 2006, the court denied defendant’s motion for
resentencing.
On appeal, defendant argues the same issues that were raised in his motion for
resentencing.
OV 1 addresses the aggravated use of a weapon during the commission of the charged
offense. Defendant argues that the trial court erred in scoring 5 points for this variable. Five
points should be scored if a “weapon was displayed or implied.” MCL 777.31(1)(e). Fifteen
points is scored if a “firearm was pointed at or toward a victim.” MCL 777.31(1)( C). Here, the
victim testified that defendant pointed a gun at him during the incident. Furthermore, the officer
who responded to the scene found a loaded gun in defendant’s pants pocket. Clearly, the trial
court properly scored five points for OV 1.
Defendant further argues that OV 13 was improperly scored at 25 points. OV 13
addresses a continuing pattern of criminal behavior. Twenty-five points are appropriate if the
offense was part of a pattern of felonious criminal activity involving three or more crimes against
a person. MCL 777.43(1)(b).
Attempted larceny from a person is a crime against a person as defined by statute. MCL
777.16r. However, the other two crimes of which defendant was convicted—felon in possession
of a firearm and felony-firearm—do not fall within that category. Rather, the crime of felon in
possession of a firearm is a public safety crime. MCL 777.16m. Possession of a firearm during
a commission of a felony is not a crime that is covered by the guidelines, and more akin to the
other firearm charge than the larceny charge. The proper score is zero under MCL 777.43(1)(g)
because no pattern of criminal activity existed. As the prosecutor concedes, the trial court erred
in scoring OV 13 and resentencing is therefore required. See People v Francisco, 474 Mich 82,
86-88; 711 NW2d 44 (2006).
Defendant further asserts that the trial court erred when it failed to grant credit against his
sentence for time spent in jail awaiting sentencing. We disagree. Defendant raised this issue for
the first time in his motion for resentencing, but he states a de novo standard of review applies.
However, this Court has held that a defendant must object to the failure to give sentence credit at
the sentencing, and the failure to do so fails to preserve the issue for appeal. Unpreserved
sentencing errors are reviewed for plain error affecting substantial rights.
When a parolee is arrested for a new criminal offense, he is held on a parole detainer until
he is convicted of that offense, and he is not entitled to credit for time served in jail on the
sentence for the new offense. A parole detainee who is convicted of a new criminal offense is
entitled to credit for time served in jail as a parole detainee, but that credit may only be applied to
-2-
the sentence for which the parole was granted. MCL 768.7a(2), MCL 791.238(2); People v
Stead, 270 Mich App 550, 551-552; 716 NW2d 324 (2006); People v Meshell, 265 Mich App
616, 638; 696 NW2d 754 (2005). In light of these authorities, defendant is not entitled to credit
against the instant sentences for jail time served prior to sentencing.
Defendant relies upon dicta from an unpublished opinion, People v Vasser, unpublished
opinion per curiam of the Court of Appeals, decided April 1, 2003 (Docket No. 231246), to
support his argument. However, an unpublished opinion is not binding under the doctrine of
stare decisis. MCR 7.215(C)(1); People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480
(1998).
Remanded for resentencing. We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Henry William Saad
/s/ Bill Schuette
-3-
