FILED May 11, 2010 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

v No. 136956 

LARRY EUGENE WILCOX, 

 Defendant-Appellant. 

BEFORE THE ENTIRE BENCH 

KELLY, C.J. 

At issue in this case is whether the legislative sentencing guidelines1

 apply 

to defendant’s 10-year minimum sentence imposed under MCL 750.520f, the 

repeat criminal sexual conduct (CSC) offender statute. In deciding the issue, we 

must also determine what constitutes the “mandatory minimum” sentence referred 

to in MCL 750.520f(1), which requires a minimum sentence of “at least 5 years.” 

Defendant contends that the statute’s mandate is simply 5 years, whereas 

the prosecution contends that the statute mandates any minimum sentence of 5 

years or more. If we accept defendant’s argument, his 10-year minimum sentence 

 1

 MCL 777.1 et seq.

Michigan Supreme Court

Lansing, Michigan

Opinion Chief Justice: 

Marilyn Kelly 

Justices: 

Michael F. Cavanagh 

Elizabeth A. Weaver 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

Diane M. Hathaway
2

was a departure from the guidelines recommendation and he is entitled to 

resentencing. The trial court did not provide substantial and compelling reasons 

justifying a departure.2

 If we agree with the prosecution, defendant’s 10-year 

minimum sentence was not a departure because the Legislature has explicitly 

stated that a mandatory minimum sentence is not a departure.3

 The Court of 

Appeals agreed with the prosecution, concluding that “[b]ecause defendant’s 10-

year minimum sentence is ‘at least’ five years, it satisfies the requirements of 

[MCL 750.520f].”4

We conclude that the guidelines apply to defendant’s sentence and that the 

“mandatory minimum” sentence in MCL 750.520f(1) is a flat 5-year term. 

Because the trial court imposed a 10-year minimum sentence that exceeded both 

the applicable guidelines range and the 5-year mandatory minimum, defendant’s 

sentence was a departure from the guidelines. However, the trial court did not 

state substantial and compelling reasons justifying a departure, let alone any 

reasons justifying the particular departure made. Therefore, we reverse the 

judgment of the Court of Appeals and remand the case for resentencing. 

 2 People v Smith, 482 Mich 292; 754 NW2d 284 (2008). Because the trial 

court in this case believed that the guidelines were inapplicable, it did not 

articulate reasons warranting a departure. Thus, it failed to offer substantial and 

compelling reasons justifying the extent of the particular departure made, as 

required by Smith, 482 Mich at 295. 

3

 MCL 769.34(2)(a) states in part that “[i]mposing a mandatory minimum 

sentence is not a departure under this section.” 

4 People v Wilcox, 280 Mich App 53, 57; 761 NW2d 466 (2008). 
3

FACTS AND PROCEDURAL HISTORY 

 Larry Wilcox was charged with first-degree CSC. The felony information 

notified him that he faced an enhanced sentence under MCL 750.520f as a repeat 

CSC offender and under MCL 769.10 as a second-offense habitual offender. At 

trial, the prosecutor introduced two documents into evidence in support of the 

repeat offender enhancements. They established that defendant had been 

convicted of second-degree CSC5

 in 1987. 

The jury convicted defendant as charged. His sentencing information 

report calculated the applicable guidelines minimum sentence range as 27 to 56 

months. After acknowledging that MCL 750.520f applied, the trial judge imposed 

a sentence of 10 to 40 years. The judge did not indicate that the 120-month 

minimum sentence was a departure from the guidelines range and did not provide 

a substantial and compelling reason for departing. 

 Defendant appealed as of right. The Court of Appeals affirmed his 

conviction and sentence in a published opinion. The panel summarily dismissed 

his argument that the sentence improperly exceeded both the sentencing guidelines 

range and the 5-year mandatory minimum sentence established by MCL 

750.520f(1).6

 The panel further opined that defendant’s sentence was not a 

 5

 MCL 750.520c. 

6 Wilcox, 280 Mich App at 57. 
4

departure from the guidelines, implicitly concluding that the guidelines were 

inapplicable because defendant had been sentenced under MCL 750.520f.7

 

We granted defendant’s application for leave to appeal, limited to the issue 

whether the sentencing guidelines applied to the sentence and, if so, whether 

defendant is entitled to resentencing.8

STANDARD OF REVIEW 

We review issues of statutory interpretation de novo.9

 Our primary goal is 

to give effect to the intent of the Legislature.10 The first step in ascertaining intent 

is to focus on the language of the statute. If the language is unambiguous, we 

presume that the Legislature intended the meaning expressed.11

 7 Id. Oddly, just two days earlier, the same panel of the Court of Appeals 

came to the opposite conclusion in another case and determined that the guidelines 

did apply to sentences imposed under MCL 750.520f. People v Walton, 

unpublished opinion per curiam of the Court of Appeals, issued June 3, 2008 

(Docket No. 276161). In Walton, the trial court concluded that the guidelines did 

not apply to sentences imposed under MCL 750.520f. The panel vacated 

defendant’s sentence and remanded for resentencing based on its conclusion that 

“the actual offense defendant committed” was first-degree CSC, an enumerated 

felony to which the guidelines apply. Walton, unpub op at 3. 

8 People v Wilcox, 483 Mich 1094 (2009). 

9 Hunter v Hunter, 484 Mich 247, 257; 771 NW2d 694 (2009). 

10 Brown v Detroit Mayor, 478 Mich 589, 593; 734 NW2d 514 (2007). 

11 Id. 
5

ANALYSIS 

 Resolution of the issue in this case depends on how the statutes discussing 

the application of the sentencing guidelines interact with MCL 750.520f. MCL 

769.34(2) describes the offenses to which the sentencing guidelines apply: 

Except as otherwise provided in this subsection or for a 

departure from the appropriate minimum sentence range provided 

for under subsection (3), the minimum sentence imposed by a court 

of this state for a felony enumerated in part 2 of chapter XVII 

committed on or after January 1, 1999 shall be within the 

appropriate sentence range under the version of those sentencing 

guidelines in effect on the date the crime was committed. 

Thus, the sentencing guidelines apply to felonies enumerated in part 2 of 

chapter XVII of the Code of Criminal Procedure, MCL 777.11 through 777.19, 

committed on or after January 1, 1999, except as otherwise provided in MCL 

769.34(2). Defendant was convicted of first-degree CSC,12 which is a felony 

enumerated in MCL 777.16y. It is undisputed that he committed the offense after 

January 1, 1999. Therefore, the sentencing guidelines apply to his sentence absent 

an exception elsewhere in the statute. 

MCL 769.34(2) does provide exceptions to the applicability of the 

sentencing guidelines. MCL 769.34(2)(a) contains the exception at issue here. It 

states: 

If a statute mandates a minimum sentence for an individual 

sentenced to the jurisdiction of the department of corrections, the 

court shall impose sentence in accordance with that statute. 

 12 MCL 750.520b. 
6

Imposing a mandatory minimum sentence is not a departure under 

this section. If a statute mandates a minimum sentence for an 

individual sentenced to the jurisdiction of the department of 

corrections and the statute authorizes the sentencing judge to depart 

from that minimum sentence, imposing a sentence that exceeds the 

recommended sentence range but is less than the mandatory 

minimum sentence is not a departure under this section. If the 

Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923, 

mandates a minimum sentence for an individual sentenced to the 

jurisdiction of the department of corrections and the Michigan 

vehicle code, 1949 PA 300, MCL 257.1 to 257.923, authorizes the 

sentencing judge to impose a sentence that is less than that minimum 

sentence, imposing a sentence that exceeds the recommended 

sentence range but is less than the mandatory minimum sentence is 

not a departure under this section. [Emphasis added.] 

The parties do not dispute that MCL 750.520f provides for a mandatory 

minimum sentence, putting it within the purview of MCL 769.34(2)(a). MCL 

750.520f(1) provides: 

If a person is convicted of a second or subsequent offense 

under [MCL 750.520b, 750.520c, or 750.520d], the sentence 

imposed under those sections for the second or subsequent offense 

shall provide for a mandatory minimum sentence of at least 5 years.

[Emphasis added.] 

The dispositive question is whether the mandatory minimum sentence 

established by MCL 750.520f(1) is “at least 5 years” or simply a flat 5-year 

minimum sentence. Defendant contends that the 5-year minimum is the only 

sentence that is mandatory and that any sentence above 5 years is permissive. 

Therefore, defendant argues, any minimum sentence exceeding 5 years is 

permissible rather than mandated; as a consequence, it is governed by the 

guidelines. Defendant states that, if the minimum sentence exceeds the range set 

by the guidelines, it must be justified by substantial and compelling reasons. 
7

Because his 10-year minimum sentence exceeded both the 5-year mandatory 

minimum and the applicable guidelines range, defendant argues that his sentence 

constituted a departure. 

The prosecution counters that the words “at least” indicate a legislative 

intent that any minimum sentence imposed under MCL 750.520f may exceed 5 

years, regardless of the guidelines range. Therefore, the prosecution argues, any 

minimum sentence imposed on a repeat CSC offender under MCL 750.520f is 

limited only by the “two-thirds rule” contained in MCL 769.34(2)(b).13 Because 

defendant’s 10-year minimum is “at least 5 years” and does not exceed two-thirds 

of the maximum sentence imposed (40 years), the prosecution concludes that the 

sentence complied with MCL 769.34(2)(a) and (b). 

We reject the prosecution’s argument. The use of the words “at least” in 

MCL 750.520f(1) does not grant trial courts the discretion to impose minimum 

sentences that are subject only to the limitation of the two-thirds rule. Such an 

interpretation is inconsistent with MCL 769.34(2)(a). Also, it is contrary to a 

central purpose of the sentencing guidelines—greater uniformity in sentencing.14

 13 MCL 769.34(2)(b) provides that “[t]he court shall not impose a minimum 

sentence, including a departure, that exceeds 2/3 of the statutory maximum 

sentence.” 

14 Smith, 482 Mich at 312 & n 46. The dissent seizes on this sentence and 

argues as though our decision hinges solely on it. Post at 6-7. The dissent 

apparently believes that referring to the purpose underlying the enactment of the 

sentencing guidelines somehow evidences that we are deviating from the language 

of the statute. We do not view this reference as a remarkable one, as it is one we 
8

The first sentence of MCL 769.34(2)(a) provides that, if a statute mandates 

a minimum sentence, “the court shall impose sentence in accordance with that 

statute.” The next sentence states that imposing a mandatory minimum sentence is 

not a departure from the sentencing guidelines. The difference in the language of 

the two sentences is of critical importance. The first states that, when a statute like 

MCL 750.520f provides for a mandatory minimum sentence, the court must 

impose a sentence “in accordance with” the statute. This wording provides for a 

sentence that merely conforms with, but is not necessarily compelled by, the 

statute at issue.15 Because it is “at least 5 years,” defendant’s 10-year minimum 

sentence is unquestionably in accordance with MCL 750.520f. 

By contrast, the second sentence of MCL 769.34(2)(a) lacks the broad 

wording “in accordance with” that is present in the first sentence. It provides only 

that “[i]mposing a mandatory minimum sentence is not a departure” from the 

sentencing guidelines. This linguistic distinction is critical because, given the 

statute’s language, only the mandatory minimum sentence is not a departure from 

the guidelines. Notably, the statute does not specify that a sentence imposed “in 

 

have made before, including in Smith, an opinion that the author of the dissent 

signed. Moreover, the dissent entirely ignores our discussion of the statutory 

language on pp 8-10 of this opinion. 

15 A lay dictionary’s definitions of “accordance” include “agreement; 

conformity: in accordance with the rules.” Random House Webster’s College 

Dictionary (2001). 
9

accordance with” a statute providing a mandatory minimum sentence is “not a 

departure.” 

Therefore, the proper interpretation of these statutes hinges on the extent to 

which MCL 750.520f(1) is “mandatory,” so that a sentence compelled by it is not 

a departure under MCL 769.34(2)(a). One definition of “mandatory” is 

“authoritatively ordered; obligatory.”16 “Mandatory” and, in particular, 

“mandatory minimum” are also legal terms of art. As such, reference to a legal 

dictionary is appropriate.17 Black’s Law Dictionary defines “mandatory” as “[o]f, 

relating to, or constituting a command; required; preemptory.”18 Although Black’s 

contains no definition for “mandatory minimum,” it defines “mandatory sentence” 

as “[a] sentence set by law with no discretion for the judge to individualize 

punishment.”19 

Applying these definitions to MCL 750.520f(1), we must conclude that the 

only minimum that is “mandatory” in the statute is 5 years. Five years is the only 

minimum sentence in MCL 750.520f(1) that is “set by law with no discretion for 

the judge to individualize punishment.”20 By contrast, the words “at least” are 

 16 Id.

17 MCL 8.3a; People v Jones, 467 Mich 301, 304; 651 NW2d 906 (2002). 

18 Black’s Law Dictionary (8th ed), p 981. 

19 Id. at 1394. 

20 The dissent is correct that “5 years is the starting point of the minimum 

sentence, not its upper terminus.” Post at 4. But the dissent fails to acknowledge 
10

permissive. They authorize a higher minimum sentence, such as the 10-year 

minimum imposed here, but nothing in the statute mandates that the minimum 

sentence exceed 5 years. Although MCL 750.520f(1) authorizes a minimum 

sentence in excess of 5 years, it does not mandate it.21

The prosecution argues that this interpretation of the statute renders 

nugatory the words “at least.”22 We disagree. The use of “at least” in MCL 

750.520f(1) authorizes courts to impose minimum sentences of 5 years or more. 

However, because only 5 years is mandatory, MCL 769.34(2)(a) exempts only a 

5-year minimum sentence from the departure provision in MCL 769.34(3). 

Hence, if a minimum sentence under MCL 750.520f(1) exceeds 5 years and is 

higher than the top of the applicable guidelines range, it constitutes a departure. 

The judge must articulate substantial and compelling reasons for it. 

 

that this 5-year “starting point” is the only truly mandatory aspect of MCL 

750.520(f)(1). The “upper terminus” of a defendant’s minimum sentence is 

controlled by the top of the applicable guidelines range, unless the trial court 

articulates substantial and compelling reasons for an upward departure. 

21 For example, in the case at bar, the guidelines range topped out at 56 

months, but MCL 750.520f(1) required the court to impose a minimum sentence 

of 5 years. If a 5-year minimum sentence had been imposed, it would not have 

been considered a departure sentence pursuant to MCL 769.34(2)(a), even though 

it exceeded the guidelines range by 4 months. 

22 “Every word of a statute should be given meaning and no word should be 

treated as surplusage or rendered nugatory if at all possible.” Baker v Gen Motors 

Corp, 409 Mich 639, 665; 297 NW2d 387 (1980), citing Stowers v Wolodzko, 386 

Mich 119, 133; 191 NW2d 355 (1971), and Scott v Budd Co, 380 Mich 29, 37; 

155 NW2d 161 (1968). 
11

The language “at least” in MCL 750.520f(1) is not in the least rendered 

nugatory under this analysis. In fact, it comes into play often. Any offender 

convicted of a repeat CSC offense whose guidelines range exceeds 5 years may 

properly receive a minimum sentence of “at least 5 years.” For example, a repeat 

CSC offender whose guidelines range is 180 to 240 months may properly receive 

a 200-month minimum sentence. Such a sentence would be permissible because it 

meets the mandatory provision of MCL 750.520f(1) in that it is not less than 5 

years. The additional 140 months in excess of 5 years also complies with MCL 

769.34(2) because the sentence is within the applicable guidelines range.23

Moreover, to accept the prosecution’s interpretation would undermine the 

legislative intent behind the sentencing guidelines statutes and potentially lead to 

arbitrary sentencing. Allowing trial courts to ignore the guidelines when imposing 

a sentence under MCL 750.520f could lead to similarly situated defendants 

receiving wholly disparate sentences. 

For example, under the prosecution’s interpretation, a repeat CSC offender 

like defendant, whose guidelines range contemplates a relatively low minimum 

sentence, could nevertheless receive a 60- to 90-year sentence.24 Such a harsh 

minimum sentence would not require that the trial court give substantial and 

 23 Indeed, if the guidelines range were 180 to 240 months and the trial court 

imposed a minimum sentence of 120 months, that minimum sentence would 

constitute a downward departure. 

24 The dissent does not address this anomaly. 
12

compelling reasons justifying the disparity between the guidelines range and the 

actual minimum sentence imposed. 

By contrast, a recidivist offender subject to a guidelines range that far 

exceeds the 5-year mandatory minimum could receive a sentence far below the 

guidelines range. The trial court could impose the 5-year minimum without being 

required to provide a justification for the downward departure.25 However, the 

 25 The dissent’s contention that our opinion creates “a new, but 

unexplained, statutory scheme for mandatory minimum sentences” is mistaken. 

Post at 7. A 5-year minimum sentence for a defendant with a guidelines range of 

7 to 10 years would indeed constitute a downward departure under MCL 

769.34(2)(a). When the lower end of the guidelines range is 5 years or greater, a 

trial court that imposes a sentence of 5 years or more is no longer imposing a 

“mandatory” minimum. Rather, the court is merely imposing a sentence, as 

required by MCL 769.34(2)(a), that is “in accordance with” MCL 750.520f(1). 

By contrast, the 5-year minimum is “mandatory” when the guidelines range 

tops out below 5 years. In those circumstances, a 5-year sentence is truly the 

mandatory minimum sentence, so it is not a departure. It is hardly inconsistent to 

conclude that a 5-year sentence is no longer mandatory when a defendant’s 

guidelines range expressly contemplates a higher minimum sentence. 

The dissent cites several criminal statutes that provide for indeterminate 

mandatory minimum sentences, using language such as “not less than [X] years.” 

See post at 4 n 9. It then argues that “the majority reads out of our law books the 

indeterminate nature of these mandatory minimum sentences and replaces those 

sentences with absolute minimum terms that the Legislature did not enact.” Post

at 4-6. This is incorrect. Under the majority opinion, a judge remains free to 

impose any minimum sentence that is consistent with the guidelines range, subject 

to the two-thirds rule. Our opinion simply makes clear that, where a judge 

imposes a minimum sentence in excess of the lowest permissible minimum 

sentence, it must be consistent with the guidelines. Hence, if the guidelines range 

tops out below the minimum sentence the court wishes to impose, the judge needs 

to provide substantial and compelling reasons for exceeding the guidelines. Our 

opinion does not “read[] out of our law books” the indeterminate nature of 

mandatory minimum statutes by replacing them with absolute minimum terms. 
13

defendant in question could be subject to a guidelines range contemplating, for 

example, at least a 20-year minimum term. Given the Legislature’s stated goal in 

enacting the guidelines of promoting uniformity in sentencing, we believe that this 

is not a result that the Legislature contemplated. 

Defendant’s applicable guidelines minimum sentence range was 27 to 56 

months. Under MCL 750.520f(1), the trial court was required to impose a 

minimum sentence of “at least 5 years.” However, because 5 years is the only 

truly minimum sentence that is mandatory under MCL 750.520f(1), any minimum 

sentence exceeding 5 years must fall within the applicable guidelines range. 

Otherwise, the sentence would not be “a mandatory minimum sentence.” It would 

constitute a departure from the sentencing guidelines, and the court would have to 

articulate substantial and compelling reasons for the extent of its departure. 

The trial court’s 10-year minimum sentence in this case constituted an 

upward departure from the sentencing guidelines. The court did not articulate 

 

By way of illustration, if a statute provides that the minimum sentence shall be “at 

least two years,” the trial court can impose a minimum sentence higher than two 

years. But if it wants to provide a minimum sentence higher than the top of the 

guidelines range, it must articulate substantial and compelling reasons for it. If the 

guidelines range is 12 to 24 months for a crime requiring a two-year minimum 

sentence and if the court wants to impose a three-year minimum sentence, it may 

do so. But it must provide substantial and compelling reasons for the upward 

departure. Concomitantly, if the guidelines range is 36 to 48 months and the court 

wishes to impose a two-year minimum sentence, it must provide substantial and 

compelling reasons for imposing a downward departure. Contrary to the dissent, 

requiring compliance with the articulation requirements of the guidelines does not 

replace an indeterminate minimum sentence with an absolute minimum sentence. 
14

substantial and compelling reasons for the extent of its departure. Accordingly, 

defendant is entitled to resentencing. 

CONCLUSION 

We hold that the legislative sentencing guidelines apply to minimum 

sentences in excess of 5 years that are imposed under MCL 750.520f. We further 

hold that, for purposes of applying MCL 769.34(2)(a), the “mandatory minimum” 

sentence referred to in MCL 750.520f(1) is a flat 5-year term. 

Here, the trial court imposed a 10-year minimum sentence that exceeded 

both the applicable guidelines minimum sentence range and the 5-year mandatory 

minimum. Therefore, defendant’s sentence was a departure from the guidelines. 

Because the trial court did not state substantial and compelling reasons justifying 

its departure pursuant to Smith, we reverse the judgment of the Court of Appeals 

and remand the case for resentencing. 

 Marilyn Kelly 

 Michael F. Cavanagh 

 Stephen J. Markman 

 Diane M. Hathaway 
S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

v No. 136956 

LARRY EUGENE WILCOX, 

 Defendant-Appellant. 

WEAVER, J. (dissenting). 

I dissent and would affirm the judgment of the Court of Appeals for the 

reasons stated in Justice YOUNG’s dissent with the exception of his citation in 

footnote 4 of People v Smith, 482 Mich 292; 754 NW2d 284 (2008), a case in 

which I dissented. 

 Elizabeth A. Weaver 
S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

v No. 136956 

LARRY EUGENE WILCOX, 

 Defendant-Appellant. 

YOUNG, J. (dissenting). 

I dissent from the majority’s conclusion that the 10-year minimum 

sentence, imposed by the sentencing court pursuant to the repeat criminal sexual 

conduct (CSC) offender mandatory minimum sentence requirement,1

 represents a 

departure from the legislative sentencing guidelines.2

 Instead, I would affirm the 

judgment of the Court of Appeals. The sentence imposed here is excepted from 

the statutory guidelines and thus the sentencing court is not required to state 

“substantial and compelling reasons” for the minimum sentence imposed, as the 

majority now requires. 

 1

 MCL 750.520f(1). 

2

 MCL 777.1 et seq. 
2

Defendant was convicted of first-degree CSC for digitally penetrating the 

vagina of his daughter. Because he previously was convicted of second-degree 

CSC, he was sentenced as a repeat CSC offender to a minimum of 10 years in 

prison.3

 On appeal, defendant argued that his 10-year minimum sentence 

represented an upward departure from the legislative sentencing guidelines and 

that the sentencing court failed to articulate substantial and compelling reasons to 

justify the upward departure.4

 The prosecution claimed that defendant’s minimum 

sentence did not constitute a departure because it complied with the repeat CSC 

offender mandatory minimum sentence requirement, and the Court of Appeals 

agreed. 

MCL 769.34(2)(a) places mandatory minimum sentences within the 

framework of the legislative sentencing guidelines and provides, in relevant part: 

If a statute mandates a minimum sentence for an individual 

sentenced to the jurisdiction of the department of corrections, the 

court shall impose sentence in accordance with that statute. 

Imposing a mandatory minimum sentence is not a departure under 

this section.[5]

Thus, the statutory guidelines defer to another statute that specifies a mandatory 

minimum sentence. “That statute” in this case is MCL 750.520f(1). It creates just 

such a mandatory minimum sentence for recidivist sex offenders: 

 3

 Defendant’s maximum sentence of 40 years is not at issue in this case. 

4

 See People v Smith, 482 Mich 292; 754 NW2d 284 (2008). Defendant’s 

minimum sentence guidelines range was calculated at 27 to 56 months. 

5

 Emphasis added. 
3

If a person is convicted of a second or subsequent offense 

under [MCL 750.520b, 750.520c, or 750.520d], the sentence 

imposed under those sections for the second or subsequent offense 

shall provide for a mandatory minimum sentence of at least 5 

years.[6] 

Here, defendant’s 10-year minimum sentence was “in accordance with” the 

mandatory minimum sentence of “at least 5 years.” Moreover, as the sentencing 

court imposed “a mandatory minimum sentence”—a sentence of “at least 5 

years”—that sentence was not a departure from the guidelines and the court was 

not required to justify the minimum sentence imposed. Therefore, the sentence 

imposed by the sentencing court satisfies both MCL 769.34(2)(a) and MCL 

750.520f(1), as applied here in conformance with their clear and unambiguous 

meanings. Yet the majority disagrees; the question is why? 

I. THE MAJORITY FAILS TO CONSTRUE THE STATUTE IN 

ACCORDANCE WITH ITS PLAIN LANGUAGE 

The majority claims that the mandatory minimum sentence articulated in 

MCL 750.520f(1) is “5 years,” not “at least 5 years,” as the statute plainly reads. 

Such a conclusion is obviously wholly inconsistent with the plain meaning of 

MCL 750.520f(1), as evidenced by its grammatical structure, which describes the 

mandatory minimum sentence required under that provision as “at least 5 years.” 

The Legislature could have created an absolute “mandatory minimum” sentence of 

 6

 MCL 750.520f(1) (emphasis added). 
4

5 years, but it did not.7

 Instead, by using the phrase “at least” to modify “5 years,” 

the Legislature created an indeterminate “mandatory minimum” sentence for 

recidivist sex offenders. Under the mandatory minimum sentence, 5 years is the 

starting point of the minimum sentence, not its upper terminus. Accordingly, a 

sentencing court must impose a sentence within the indeterminate mandatory 

minimum sentence of MCL 750.520f(1)—namely, any minimum sentence of 5 

years or more—and that sentence “is not a departure”8

 from the legislative 

sentencing guidelines. 

The majority’s misinterpretation will not be limited to the statute now 

before us. In numerous statutes, some covering our most serious crimes, the 

Legislature has chosen to create an indeterminate, rather than an absolute, 

mandatory minimum sentence.9

 Under today’s decision, the majority reads out of 

 7

 For example, MCL 750.227b(1) sets an absolute mandatory term of 2 

years’ imprisonment for a first offense of possessing a firearm during the 

commission of a felony. Various statutes similarly provide an absolute mandatory 

term of life imprisonment: MCL 333.7413(1) (subsequent violations of certain 

serious controlled substance offenses); MCL 750.316(1) (first-degree murder); 

MCL 750.543f(2) (terrorism causing death); MCL 750.544 (treason). 

8

 MCL 769.34(2)(a). 

9

 See, e.g., MCL 333.7410(2) (providing a sentence of “not less than 2 

years or more than 3 times that authorized by [MCL 333.7401(2)(a)(iv)]” for 

delivery of a controlled substance within 1,000 feet of a school or library); MCL 

333.7410(3) (providing a sentence of “not less than 2 years or more than twice that 

authorized by [MCL 333.7401(2)(a)(iv)]” for possessing with intent to deliver a 

controlled substance within 1,000 feet of a school or library); MCL 333.7413(3) 

(providing a sentence of “not less than 5 years nor more than twice that authorized 

under [MCL 333.7410(2)] or (3)” for a subsequent offense of delivering or 
5

 

possessing with intent to deliver a controlled substance within 1,000 feet of a 

school or library); MCL 750.112 (providing a sentence of “not less than 15 years 

nor more than 30 years” for committing burglary with explosives); MCL 

750.520b(2)(b) (providing a sentence of “life or any term of years, but not less 

than 25 years” for first-degree CSC committed by an individual 17 years of age or 

older against a victim under the age of 13); MCL 750.529 (providing a sentence of 

“life or for any term of years” but “not less than 2 years” for armed robbery 

involving “an aggravated assault or serious injury”); see also MCL 257.257(2) and 

(3) (providing sentences for subsequent offenses of altering or forging documents 

from the Secretary of State of “not less than 2 years or more than 7 years” and 

“not less than 5 years or more than 15 years” respectively); MCL 257.329(2) and 

(3) (providing sentences for subsequent offenses of possessing or selling false 

certificates of insurance of “not less than 2 years or more than 7 years” and “not 

less than 5 years or more than 15 years” respectively); MCL 257.625(7)(a)(i)(A) 

and (ii)(A) (providing sentences for various driving-while-intoxicated offenses of 

“not less than 5 days or more than 1 year” and subsequent offenses of “not less 

than 1 year or more than 5 years”); MCL 257.625k(7) and (9) (providing sentences 

of “not less than 5 years or more than 10 years” for a laboratory or manufacturer 

that falsely certifies an ignition interlock device); MCL 257.625m(5)(a) (providing 

a sentence of “not less 1 year or more than 5 years” for a subsequent offense of 

driving a commercial vehicle with a bodily alcohol content of 0.04 grams or more 

but less than 0.08 grams per specified volume of blood, breath, or urine); MCL 

257.903(2) and (3) (providing sentences of “not less than 2 years or more than 7 

years” and “not less than 5 years or more than 15 years” respectively for 

subsequent offenses of making false certifications on an application for various 

licenses through the Secretary of State); MCL 333.13738(3) (providing a sentence 

of “not less than 5 years and not more than 20 years” for illegally disposing of 

toxic waste in a manner that constitutes “an extreme indifference for human life”); 

MCL 750.161(1) (providing a sentence of “not less than 1 year and not more than 

3 years” for deserting or abandoning one’s spouse or children); MCL 750.210a(b) 

(providing a sentence of “not less than 2 nor more than 5 years” for possessing or 

selling products containing “valerium” without a license or prescription); MCL 

750.361 (providing a sentence of “not less than 1 year nor more than 2 years” for 

stealing “journal bearings” from a railroad car); MCL 750.458 (providing a 

sentence of “not less than 2 years nor more than 20 years” for detaining a woman 

in a house of prostitution to effectuate repayment of a debt). 
6

our law books the indeterminate nature of these mandatory minimum sentences 

and replaces those sentences with absolute minimum terms that the Legislature did 

not enact. 

The majority apparently eschews the clear language of MCL 750.520f(1) 

because it concludes that the 10-year minimum sentence imposed here would be 

“contrary to a central purpose of the sentencing guidelines—greater uniformity in 

sentencing.”10 This rationale will not scour when one considers that the obligation 

of the judiciary is to apply legislative policies according to the unambiguous 

words used by the Legislature in the statutes enacted, not according to abstract 

policy considerations only judges can divine.11 Whatever the broader policy of the 

 10 Ante at 7. 

11 As the author of the majority opinion has stated: 

The first step in statutory interpretation is to give effect to the 

intent of the Legislature. To do so, we examine first the specific 

language of the statute. If the language is clear and unambiguous, 

we assume that the Legislature intended its plain meaning, and we 

will enforce the statute as written. This Court should reject an 

interpretation of a statute that speculates about legislative intent and 

requires us to add language into the statute. [People v Carpenter, 

464 Mich 223, 250; 627 NW2d 276 (2001) (KELLY, J., dissenting) 

(citations omitted).] 

See also Omne Fin, Inc v Shacks, Inc, 460 Mich 305, 312; 596 NW2d 591 (1999) 

(KELLY, J.) (“[W]e need not, and consequently will not, speculate regarding 

legislative intent beyond the plain words expressed in the statute.”); Dorris v 

Detroit Osteopathic Hosp Corp, 460 Mich 26, 53; 594 NW2d 455 (1999) (KELLY, 

J., concurring in part and dissenting in part) (criticizing the majority for elevating 

the “purpose of the statute” over the “plain language of the statute”); Rogers v 

Detroit, 457 Mich 125, 140; 579 NW2d 840 (1998) (KELLY, J.) (“Here, the 

statutory meaning is clear on its face. Therefore, the role of the judiciary is not to 
7

legislative sentencing guidelines, the Legislature directed that a minimum sentence 

of “at least 5 years” satisfies the particular statute at issue here, MCL 750.520f(1), 

and that is the policy we must apply.12

II. THE MAJORITY’S MISCONSTRUCTION CREATES AN 

INCONSISTENCY 

Despite the obvious and clear language of MCL 750.520f(1), the majority 

has inexplicably created its own alternative statute. The majority has similarly 

deviated from the obvious and clear language of MCL 769.34(2)(a) and created a 

new, but unexplained, statutory scheme for mandatory minimum sentences. 

The majority determines that an absolute term of 5 years is the “mandatory 

minimum” for a recidivist sex offender under MCL 750.520f(1). However, the 

majority also claims that a sentencing court departs from the guidelines when it 

sentences a defendant to a 5-year minimum term if the lower limit of the 

 

articulate its view of ‘policy,’ but to apply the statute in accord with its plain 

language.”), overruled by Robinson v Detroit, 462 Mich 439; 613 NW2d 307 

(2000). 

12 If the Legislature has a general goal of promoting “uniformity in 

sentencing” under the sentencing guidelines statute, it is still free to create 

exceptions to that goal, as I believe it has clearly done here by referring to another 

statute that provides a mandatory but indeterminate minimum sentencing range for 

particular crimes. If applying the plain language of the recidivist sex offender 

statute leads to anomalous results as contended by the majority, see ante at 11-13 

& n 24, it is solely the province of the Legislature to remedy—assuming, contrary 

to the language it used, that the Legislature believed a sentence of at least 5 years

was too high a minimum sentence for a serial sex offender. 
8

defendant’s guidelines range is calculated at more than 5 years.13 This is entirely 

contrary to MCL 769.34(2)(a), which expressly states that “[i]mposing a 

mandatory minimum sentence is not a departure under this section.”14 Now the 

majority compels the sentencing court to justify as a departure a minimum 

sentence that is excepted from the statutory sentencing guidelines in the first 

instance. 

The problem with the majority’s analysis is this: MCL 769.34(2)(a) 

specifically provides that the guidelines are not controlling here; rather, the 

guidelines defer to another statute that includes a mandatory minimum sentence. 

Yet the majority insists on reverting to the guidelines despite the Legislature’s 

clear directive to the contrary and declines to provide any statutory support for this 

decision.15

Imposing a 10-year minimum sentence for a recidivist sex offender is not a 

departure from the legislative sentencing guidelines because it is a “mandatory 

 13 Ante at 12 n 25. For example, under the majority’s misconstruction of 

MCL 769.34(2)(a), if a defendant’s guidelines range were calculated at 7 to 10 

years, a sentencing court is precluded from imposing a sentence “in accordance 

with” the mandatory minimum sentence provided in MCL 750.520f(1), without 

stating reasons for its sentencing “departure.” If, however, a defendant’s 

guidelines range were calculated at 2 to 4 years, the majority (correctly) asserts 

that a sentencing court’s imposition of a 5-year minimum sentence, pursuant to 

MCL 750.520f(1), is not a departure. 

14 Emphasis added. 

15 See ante at 12 n 25. 
9

minimum sentence”16 of “at least 5 years” as provided in MCL 750.520f(1). 

Accordingly, I dissent and would instead affirm the judgment of the Court of 

Appeals. 

 Robert P. Young, Jr. 

 Maura D. Corrigan 

 16 MCL 769.34(2)(a).