Within-Guidelines Sentences Are Not Inherently Reasonable: Welch, J., Urges Limits on Speculative Conduct and a Meaningful Proportionality Review in People v. McSorley

Within-Guidelines Sentences Are Not Inherently Reasonable: Welch, J., Urges Limits on Speculative Conduct and a Meaningful Proportionality Review in People v. McSorley

Introduction

In People of Michigan v. Troy Cameron McSorley, the Michigan Supreme Court denied leave to appeal a within-guidelines prison sentence imposed for breaking and entering with intent to commit larceny. The order itself sets no new binding precedent. However, Justice Elizabeth M. Welch issued a detailed dissent that squarely confronts two recurring and consequential sentencing problems in Michigan practice:

  • Whether within-guidelines sentences are subject to substantive reasonableness review in any real, enforceable sense, consistent with People v. Posey, 512 Mich 317 (2023), and
  • Whether a trial court may lengthen a sentence based on speculative, uncharged, and even unaccused conduct—that is, conduct for which no charge has been brought and no evidence exists.

Justice Welch would have granted leave and concluded that McSorley’s top-of-the-guidelines minimum term (28 months) was substantively unreasonable in light of the offense, the offender, the Michigan Department of Corrections’ (MDOC) six-month recommendation, and the trial court’s articulated reasons—which, in the dissent’s view, rested on speculation and an unduly skeptical view of McSorley’s remorse and rehabilitation prospects. Although nonbinding, the dissent is a significant signal to trial and appellate courts: Posey’s “presumptively reasonable” does not mean “inherently reasonable,” and due process limits the use of speculation about unaccused conduct at sentencing.

Summary of the Opinion

The Court denied the application for leave to appeal and denied a motion to remand. No majority reasoning was provided, as is typical for leave denials.

Justice Welch dissented, emphasizing:

  • Posey’s holding that within-guidelines sentences “must be reasonable” and are only presumptively so.
  • A concern that, since Posey, the Court has not reversed any within-guidelines sentence as substantively unreasonable, risking an effectively irrebuttable presumption.
  • On the facts here—an unarmed breaking and entering causing limited property damage and no theft, with a 14-year gap in convictions, stable employment, and a demonstrated commitment to sobriety—the court’s high-end guidelines sentence was “too long” and grounded in improper considerations.
  • The sentencing court’s remarks suggested reliance on a belief that the defendant had likely committed other uncharged and unaccused offenses (“maybe you just didn’t get caught”), contrary to due process principles and the presumption of innocence reflected in People v. Beck, 504 Mich 605 (2019).
  • Under the proportionality principles of People v. Steanhouse, 500 Mich 453 (2017), People v. Milbourn, 435 Mich 630 (1990), and the four purposes of sentencing outlined in People v. Snow, 386 Mich 586 (1972), a 28–180 month sentence was disproportionate, particularly given MDOC’s recommendation of six months in custody and two years of probation.

Justice Hood did not participate.

Analysis

Precedents Cited and Their Role

  • People v. Posey, 512 Mich 317 (2023) — Posey clarifies that within-guidelines sentences are subject to reasonableness review and are only presumptively reasonable, not inherently so. The dissent relies on Posey to insist that appellate courts must be willing, in appropriate cases, to find a within-range sentence substantively unreasonable where proportionality is lacking. Welch’s core concern is that without actual reversals, Posey’s presumption risks becoming an irrebuttable rule in practice.
  • People v. Steanhouse, 500 Mich 453 (2017) — Steanhouse reinstates Milbourn’s proportionality principle as the test for reasonableness review and frames the standard as abuse of discretion: a sentence is unreasonable if it is disproportionate to the seriousness of the offense and offender. Welch applies Steanhouse to argue that the trial court’s high-end sentence did not fit the offense or the offender’s circumstances.
  • People v. Milbourn, 435 Mich 630 (1990) — Milbourn’s proportionality principle requires that punishment “fit the crime and the criminal.” The dissent uses Milbourn’s core teaching to assess both the “seriousness of the circumstances surrounding the offense” and those “surrounding the offender.”
  • People v. Snow, 386 Mich 586 (1972) and People v. Boykin, 510 Mich 171 (2022) — Snow identifies four purposes of sentencing: reformation, protection of society, disciplining the wrongdoer, and deterring others. Boykin reiterates these factors. Welch structures her proportionality analysis around these four goals, concluding that none justified a top-of-range minimum term on this record.
  • People v. Beck, 504 Mich 605 (2019) — Beck holds that acquitted conduct cannot increase a sentence, grounding that rule in due process and the presumption of innocence. Welch analogizes: if even acquitted conduct cannot enhance a sentence, reliance on mere speculation about conduct no one has accused the defendant of committing is constitutionally untenable. She underscores that McSorley’s sentence was aggravated by the court’s “maybe you just didn’t get caught” supposition, which is more tenuous than “uncharged but evidenced” conduct and squarely at odds with due process principles.
  • Gall v. United States, 552 US 38 (2007) (federal) and United States v. Lee, 974 F3d 670 (6th Cir. 2020) — Cited to distinguish procedural from substantive reasonableness and to encapsulate substantive unreasonableness as “the sentence is too long.” Welch borrows this framework to argue that, even if no procedural error occurred, the sentence fails proportionality review on substance.
  • McMillan v. Pennsylvania, 477 US 79 (1986), overruled on other grounds by Apprendi v. New Jersey, 530 US 466 (2000) — Cited to acknowledge that, in general, sentencing courts may consider uncharged conduct proved by a preponderance. Welch distinguishes the present case: the trial court relied not on uncharged conduct supported by evidence but on speculation about unaccused conduct for which no evidence existed.
  • People v. Carr, ___ Mich ___; 15 NW3d 602 (2025) (Welch, J., dissenting) — The dissent references Justice Welch’s prior concern that the Court has not reversed above-guidelines sentences on substantive proportionality grounds, extending that concern to within-guidelines cases and warning that Posey risks becoming “toothless.”

Legal Reasoning

Justice Welch’s analysis proceeds in two steps: first, identifying the trial court’s reliance on impermissible considerations; second, demonstrating that the resulting sentence is disproportionate under Michigan’s proportionality doctrine.

1) Improper considerations:

  • Speculation about unaccused conduct. The sentencing judge discounted a 14-year conviction-free period by suggesting that perhaps the defendant had simply not been caught and positing that he may have continued to commit breaking and entering offenses. Welch argues this reasoning violates due process and the presumption of innocence recognized in Beck and In re Winship, because it punishes a defendant for crimes that no one has accused him of committing and for which there is no evidence. The dissent stresses that, whatever room there is to consider uncharged conduct supported by reliable evidence, there is no room to aggravate a sentence based on pure speculation about unaccused conduct.
  • Discounting acceptance of responsibility and rehabilitation without record support. The trial court disparaged the defendant’s allocution as self-focused, even though the allocution included acceptance of responsibility, apology, and a commitment to sobriety. Welch finds it unreasonable to reject those mitigating points absent evidence that the remorse or rehabilitation plan was insincere or pretextual.

2) Disproportionate sentence under Steanhouse/Milbourn and the Snow factors:

  • Seriousness of the offense. The offense was a nonviolent breaking and entering of an office building with limited property damage and no theft. No victims were physically present; no physical or psychological harm to others is described. On this record, Welch sees no basis tied to the offense’s gravity for selecting a top-of-range minimum.
  • Seriousness of the offender’s circumstances. The defendant had not been convicted for 14 years, maintained “excellent employment” with GM, and presented a credible plan to address alcohol abuse—a key driver of the incident. These facts weigh in favor of a lower sentence aimed at reform rather than a maximum within-range term.
  • Snow factors.
    • Reformation of the offender. A shorter term coupled with treatment aligns with rehabilitation goals, especially where substance use appears central and the defendant pledges sobriety.
    • Protection of society. With a 14-year crime-free period, stable employment, and a treatment plan, public protection does not require a top-of-range minimum.
    • Disciplining the wrongdoer and deterrence of others. Both goals can be met by a shorter custodial term, consistent with MDOC’s six-month recommendation, without resorting to the high end of the range.

In total, Welch concludes the sentence is “too long” despite being technically within the guidelines, thereby meeting the definition of substantive unreasonableness (Lee) and amounting to an abuse of discretion (Steanhouse).

Impact and Prospective Significance

Although the order itself sets no new binding rule, the dissent has several important practical and doctrinal implications:

  • Reinvigorating Posey’s review of within-guidelines sentences. The dissent invites the Court of Appeals—and, in an appropriate future case, the Supreme Court—to recognize that the presumption of reasonableness is rebuttable in fact, not just in theory. Defense counsel can and should mount substantive reasonableness challenges within the range when the record demonstrates disproportionality under Steanhouse/Milbourn and Snow.
  • Policing the line between “uncharged” and “unaccused/speculative” conduct. Beck bars reliance on acquitted conduct; the dissent persuasively argues that purely speculative, unaccused conduct is even less permissible. Future litigants will likely develop this argument, pressing courts to require reliable, record-based evidence before any non-conviction conduct can affect a sentence.
  • Record development at sentencing. The dissent highlights the importance of building a concrete mitigation record: length of conviction-free periods, stable employment, treatment plans, acceptance of responsibility, letters of support, and expert assessments regarding substance abuse. The stronger the record, the more difficult it is for a court to justify a top-of-range sentence on generalized skepticism or conjecture.
  • Role of MDOC recommendations. While not binding, MDOC’s recommendation can serve as an objective benchmark. Deviations should be grounded in the record and explained in terms of Snow and proportionality—not assumptions about undetected criminality.
  • Appellate posture and preservation. The dissent signals that reasonableness challenges should specifically identify improper factors and contrast the sentence with Snow’s goals. Objections should be made when a court relies on speculation or dismisses mitigation without explanation to preserve the issue for appeal.
  • Systemic legitimacy and resource implications. By cautioning against sentences inflated by speculation, the dissent underscores fairness, due process, and efficient use of carceral resources. Unnecessarily lengthy terms absent proportionality undermine confidence in the system and impose avoidable social and fiscal costs.

Complex Concepts Simplified

  • Within-guidelines sentence. Michigan’s sentencing guidelines provide a recommended range for the minimum portion of a prison term. A sentence with a minimum that falls inside this range is “within-guidelines.”
  • Presumption of reasonableness. If a sentence is within the guidelines, appellate courts start by presuming it is reasonable. But this presumption can be rebutted where the sentence is disproportionate under Milbourn/Steanhouse.
  • Procedural vs. substantive reasonableness. Procedural errors involve mistakes in how the sentence was decided (e.g., miscalculating the guidelines). Substantive unreasonableness means that, even if procedures were followed, the length of the sentence is “too long” in light of the offense, offender, and purposes of sentencing.
  • Proportionality principle (Milbourn/Steanhouse). The punishment must fit both the offense and the offender, considering all relevant circumstances and the goals of sentencing.
  • Snow factors. Michigan courts traditionally consider four goals of sentencing: rehabilitating the offender, protecting the public, punishing the offender, and deterring others.
  • Acquitted vs. uncharged vs. unaccused conduct.
    • Acquitted conduct: conduct of which a defendant was tried and found not guilty; Beck forbids using this to increase a sentence.
    • Uncharged conduct: conduct not charged but sometimes considered at sentencing if supported by reliable evidence.
    • Unaccused/speculative conduct: conduct that no one has alleged and for which there is no evidence. The dissent argues it cannot be used to aggravate a sentence without violating due process.
  • MDOC recommendation. A nonbinding sentencing recommendation prepared by the Department of Corrections that can aid courts in calibrating punishment consistent with proportionality and correctional goals.
  • Minimum vs. maximum term (indeterminate sentencing). Michigan uses indeterminate sentencing: the court sets a minimum term (governed by the guidelines) and a maximum term (set by statute and any habitual enhancements). Parole eligibility generally attaches at the minimum.

Conclusion

The Supreme Court’s denial of leave in People v. McSorley does not change Michigan law. Yet Justice Welch’s dissent is an important and pointed reminder of two core principles: (1) Posey’s presumption of reasonableness for within-guidelines sentences is rebuttable and must be enforced through meaningful proportionality review, and (2) due process and the presumption of innocence prohibit judges from enhancing sentences based on speculation about crimes no one has accused a defendant of committing.

On this record—a nonviolent property offense with limited harm, a 14-year conviction-free span, stable employment, and a credible commitment to sobriety—Welch would have found the top-of-guidelines minimum term substantively unreasonable, especially in light of MDOC’s six-month recommendation. The dissent thus charts a path for future litigants and courts: anchor sentencing in the Snow factors and reliable record evidence, resist conjecture about unaccused conduct, and give real effect to the proportionality principle. Whether and when the Michigan appellate courts will convert these themes into binding holdings remains the open question McSorley now spotlights.

Case Details

Year: 2025
Court: Supreme Court of Michigan

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