Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
PEOPLE v DIXON
Docket No. 162221. Argued on application for leave to appeal December 9, 2021. Decided
April 28, 2022.
Hamin L. Dixon pleaded guilty in the Chippewa Circuit Court to attempted possession of
a cell phone, MCL 800.283a. Defendant was serving a sentence at a state correctional facility
when prison staff found him in a bathroom stall near a cell phone. A cell phone charger was later
found during a search of defendant’s shared prison cell. Defendant was charged with possession
of a cell phone in a prison and pleaded guilty to attempted possession in exchange for dismissal of
the possession charge and withdrawal of the prosecution’s request for habitual-offender
sentencing. The trial court assessed 25 points under Offense Variable (OV) 19, MCL 777.49(a),
for conduct that threatened the security of a penal institution. The court sentenced defendant to 11
to 30 months in prison. Defendant later moved to correct an invalid sentence, arguing that the
court should have assessed zero points under OV 19 because there was no evidence that his conduct
had threatened the security of the prison. The court denied the motion, concluding that there was
no set of circumstances under which possession of a cell phone would not threaten the security of
a prison. The Court of Appeals, REDFORD, P.J., and BECKERING and M. J. KELLY, JJ., affirmed,
reasoning that, like possession of drugs in a prison, possession of a cell phone in a prison is
inherently dangerous. 333 Mich App 566 (2020). Defendant sought leave to appeal in the
Supreme Court, and in lieu of granting leave to appeal, the Court ordered oral argument on the
application. 507 Mich 924 (2021).
In an opinion by Chief Justice MCCORMACK, joined by Justices CLEMENT, CAVANAGH,
and WELCH, the Supreme Court held:
Possession of a cell phone by a prisoner justifies a 25-point score for OV 19 only if facts
establish that the defendant’s conduct actually threatened the security of the prison.
1. A 25-point score for OV 19 requires the trial court to find by a preponderance of the
evidence that the defendant, by their conduct, threatened the security of a penal institution. Two
factual findings are necessary to satisfy this standard: (1) that the defendant engaged in some
conduct that (2) threatened the security of the prison. The Court of Appeals did not address the
lack of any evidence of “conduct” by defendant, other than being near the cell phone when it was
found, that threatened the security of the prison. Relying on People v Dickinson, 321 Mich App 1
(2017), the Court of Appeals apparently found that possession alone was sufficient conduct to
warrant a score of 25 points for OV 19. However, Dickinson was distinguishable and unhelpful
because the defendant in that case brought heroin into a prison while visiting an inmate. Therefore,
the defendant’s conduct was smuggling, in addition to possession. Smuggling a controlled
substance into a penal institution is a crime, which justified the assessment of 25 points for OV
19; i.e., because the defendant’s conduct was illegal, it threatened the security of the penal
institution. People v Carpenter, 322 Mich App 523 (2018), was also distinguishable. The
Carpenter panel upheld the defendant’s 25-point score for OV 19 because the defendant had
threatened the security of the jail where he was an inmate by attempting to smuggle controlled
substances into the jail and by attacking an inmate he believed had informed jail authorities of his
plan. In addition to the threat posed by smuggling, the Carpenter panel reasoned that the
retaliatory assault was an additional threat to security, in part because it had the potential to
discourage other inmates from reporting security breaches they might witness. Both Dickinson
and Carpenter focused on the defendants’ conduct beyond the drug possession, including
smuggling and assault, to justify the assessment of 25 points for OV 19. There was no similar
evidence of conduct beyond the cell phone possession in this case. Possession alone, even
constructive possession, might be conduct that threatens the security of a penal institution,
depending on the item possessed. For example, someone who was not authorized to possess a gun
in a prison, but was found in possession of one, would threaten the security of the prison through
possession alone. But determining whether possession of a cell phone threatens the security of a
prison requires an assessment of the accused’s conduct beyond the possession itself because,
unlike a gun, a cell phone has many nonthreatening uses. Because the only evidence in this case
was that defendant was near a cell phone, there was no support for the trial court’s finding that
defendant engaged in conduct that threatened the security of the prison.
2. The Court of Appeals panel relied on the holding in Dickinson that controlled substances
posed a threat because controlled substances were inherently dangerous. The Court of Appeals in
this case saw cell phones the same way and was persuaded that because the Legislature made
possessing a cell phone in prison a crime, that act is necessarily a threat to the security of a penal
institution. According to this view, the specific facts of the possession are not relevant. But the
statute does not support the Court of Appeal’s textual shortcut. MCL 800.285(1) provides only a
maximum sentence for someone who violates it and does not address minimum or appropriate
sentencing. Offense variables are intended to generate a sentencing range that reflects the
particular facts of each case. If OV 19 instructed the court to assess 25 points for possession of a
cell phone in prison, then the position of the Court of Appeals would be persuasive. But OV 19
requires the court to find that the defendant’s conduct threatened the security of the prison.
Although some cell phone possession by prisoners meets that standard, not all of it does. Because
the sentencing court found no facts beyond constructive possession, there was no evidence that
defendant’s conduct threatened the security of the prison, so OV 19 was improperly scored.
Reversed and remanded.
Justice VIVIANO, joined by Justice ZAHRA, dissenting, opined that common sense and the
overwhelming consensus of legal authorities indicated that prisoners in possession of cell phones
pose an obvious danger to prison staff and other inmates, regardless of whether the phone has been
used or is being used to commit a new crime at the moment of discovery. Justice VIVIANO noted
that the Legislature clearly indicated that cell phones threaten the security of penal institutions by
enacting MCL 800.283a, and numerous decisions from other jurisdictions have explained the
dangers of cell phones in prison. Additionally, media reports and data indicate that cell phones
pose significant risks in prisons and have been used by prisoners to conduct criminal activity and
foment discord within prisons. The majority tried to avoid this conclusion, that cell phones pose
a severe risk to prison security by enabling harmful conduct, by artificially dividing the statute into
two parts. First, the majority determined that mere possession of a cell phone is insufficient to
constitute conduct, without defining “conduct.” In a criminal setting, “conduct” refers to particular
acts that have been proscribed, and the conduct proscribed by the statute at issue is possession.
Therefore, according to Justice VIVIANO, there was no serious debate that defendant was engaged
in “conduct” in this case, even if he only possessed or attempted to possess the cell phone. Second,
the majority suggested that there must be particular facts that establish a threat in order to satisfy
the requirements of the statute. To “threaten” means to be a source of danger or menace to
something. The risk of danger need not materialize in order for conduct to be threatening.
Therefore, whether defendant had or had not used the cell phone in a dangerous manner was
irrelevant because the risk itself constituted the threat. Similarly, whether cell phones were
inherently dangerous was irrelevant. OV 19 is not limited to items that are dangerous in every
context, but rather requires consideration of whether the item is dangerous when possessed by an
inmate in a prison. Because possession of a cell phone by a prisoner endangered the safety of the
prison, Justice VIVIANO would have affirmed the judgment of the Court of Appeals.
Justice BERNSTEIN, dissenting, agreed that simple possession of a cell phone may not be
enough to assess 25 points for OV 19, but disagreed with the majority’s analysis of the statute as
imposing two independent requirements: (1) an offender must engage in some conduct that
threatens the security of the prison, and (2) that conduct threatens the security of the prison.
According to Justice BERNSTEIN, it was not clear that these were independent requirements,
especially given that the majority acknowledged that mere possession is conduct. Moreover, the
majority’s analysis collapsed into the second requirement when it concluded simply that mere
possession cannot be sufficient conduct to score 25 points under MCL 777.49(a) because a cell
phone can be used in a nonthreatening manner. Justice BERNSTEIN noted that although the majority
distinguished Dickinson and Carpenter under the conduct requirement, the majority did not
explain why the Court of Appeals panel erred by relying on these two cases under the threat
requirement. Justice BERNSTEIN suggested that scoring points for OV 19 might require a finding
that a defendant intended to threaten the security of a penal institution and that interpreting
“threatened” to include an element of intent would have the benefit of being grounded in the text
of the statute and would require a showing of more than mere possession. Further, Justice
BERNSTEIN opined that assessing intent for a prisoner’s possession of any sort of contraband would
be a simpler test to employ than determining an item’s inherent dangerousness.
Michigan Supreme Court
Lansing, Michigan
OPINION
Chief Justice: Justices:
Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
FILED April 28, 2022
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 162221
HAMIN LORENZO DIXON,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
MCCORMACK, C.J.
Hamin Lorenzo Dixon pled guilty to attempted possession of a cell phone in prison
in violation of MCL 800.283a. At sentencing, the trial court assigned Dixon 25 points
under Offense Variable (OV) 19 for “conduct threaten[ing] the security of a penal
institution . . . .” MCL 777.49(a). The court cited the inherent dangerousness of
possessing a cell phone in prison to support this score, and the Court of Appeals agreed.
That is, the court assessed 25 points for the very conduct that made Dixon guilty of the
offense—possessing the phone—and only that conduct. It did not find any additional facts
to support the point assessment.
We find possession alone was not enough in this case. Some prison cell phone
possession will be conduct that threatens the security of the prison and some won’t; the
facts of the possession matter. Because the trial court did not rely on any facts beyond
Dixon’s possession and nothing about that was inherently threatening, we reverse the Court
of Appeals and remand for resentencing.
I. FACTS AND PROCEDURAL HISTORY
Dixon was serving a sentence at Kinross Correctional Facility when prison staff
found him in a bathroom stall with a cell phone nearby. A later search of his shared prison
cell revealed a cell phone charger. Dixon was charged with possession of the phone in a
prison in violation of MCL 800.283a. He pled guilty to attempted possession in exchange
for the prosecution’s dismissing the possession charge and withdrawing a request for
habitual-offender sentencing.
The probation department’s Presentence Investigation Report proposed an
assessment of 25 points under OV 19, making the recommended guidelines range for the
defendant’s minimum sentence 5 to 17 months. A 25-point score is assessed under OV 19
when the court finds that “[t]he offender by his or her conduct threatened the security of a
penal institution . . . .” MCL 777.49(a). Had Dixon received zero points under OV 19, his
recommended minimum sentence guidelines range would have been 0 to 17 months.
The court sentenced Dixon to a minimum term of 11 months in prison and a
maximum term of 30 months in prison. After sentencing, Dixon moved to correct an
2
invalid sentence, arguing that he should have received zero points under OV 19. He argued
that there was no evidence that he had used the cell phone to threaten the security of the
prison—in fact, no evidence showed that he had used the cell phone or even that it worked.
The court denied the motion, reasoning that cell phones are inherently dangerous. That is,
the court believed that there is no set of circumstances in which possessing a cell phone
wouldn’t threaten the safety of the prison, as would possession of a weapon. Under the
court’s reasoning, every possession of a cell phone in prison—even one that’s
inoperative—requires a 25-point score under OV 19.
Dixon appealed, and the Court of Appeals affirmed. People v Dixon, 333 Mich App
566; 963 NW2d 378 (2020). In upholding the 25-point score, the Court analogized
possession of a cell phone in prison to possession of drugs in prison, citing its decision in
People v Dickinson, 321 Mich App 1; 909 NW2d 24 (2017). In Dickinson, a prison visitor
tried to smuggle heroin into the facility and was convicted of furnishing a controlled
substance to a prisoner, MCL 800.281(1), among other offenses. Id. at 4-6. The Court of
Appeals held in Dickinson that smuggling a controlled substance into prison justified a 25-
point score for OV 19 because it inherently threatens the security of the institution. Dixon,
333 Mich App at 573, citing Dickinson, 321 Mich App at 23-24. Just like heroin, the Dixon
panel reasoned, cell phones are inherently dangerous because of the “numerous ways in
which a prisoner may use such a device for illicit purposes . . . .” Dixon, 333 Mich App at
573. And, just as the Legislature criminalized the possession of drugs in prison, it
criminalized cell phone possession too, “indicat[ing] that prisoners shall not have cell
phones within a penal institution because of the inherent dangers posed by [their]
presence . . . .” Id. Like the trial court, the Court of Appeals concluded that every
3
possession—and attempted possession—of a cell phone warrants a 25-point score under
OV 19.
Dixon sought leave to appeal in our Court. We ordered oral argument on the
application to address whether an attempted violation of MCL 800.283a necessarily
requires a score of 25 points for OV 19 and, if not, whether there is sufficient evidence to
score OV 19 at 25 points in this case. People v Dixon, 507 Mich 924 (2021).
II. ANALYSIS
We review a trial court’s factual determinations at sentencing for clear error. People
v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are
adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the
facts to the law, is a question of statutory interpretation” that we review de novo. Id. When
the guidelines range is incorrectly calculated and that error alters the range, a defendant is
entitled to resentencing. People v Francisco, 474 Mich 82, 92; 711 NW2d 44 (2006).
The purpose of OVs is to tailor a recommended sentence to a particular case. See
People v Lockridge, 498 Mich 358, 391; 870 NW2d 502 (2015) (crediting our sentencing
scheme with “ ‘helping to avoid excessive sentencing disparities while maintaining
flexibility sufficient to individualize sentences where necessary’ ”), quoting United States
v Booker, 543 US 220, 264-265; 125 S Ct 738; 160 L Ed 2d 621 (2005). The OVs are a
procedural mechanism for courts to individualize sentencing to the offense and the
offender. A 25-point score under OV 19 requires the trial court to find by a preponderance
of the evidence that the defendant “by his or her conduct threatened the security of a penal
institution or court.” MCL 777.49; Hardy, 494 Mich at 438 (“Under the sentencing
4
guidelines, the circuit court’s factual determinations . . . must be supported by a
preponderance of the evidence.”).
To satisfy this standard, a court must find (1) that the defendant engaged in some
conduct and (2) that conduct threatened the security of the prison. The facts showed Dixon
was in a bathroom stall near a cell phone and that there was a charger in his shared cell.
No evidence showed that he used the phone, was planning to use it, or even held it. In fact,
no facts showed that the phone was operable.
A. POSSESSION AS CONDUCT
The Court of Appeals did not specifically address OV 19’s “conduct” requirement
or whether Dixon’s constructive possession satisfied it. Instead, relying on People v
Dickinson, which upheld a 25-point OV 19 score for drug smuggling in penal institutions,
the panel reasoned that the possession of a cell phone is inherently threatening to the
security of the prison. It seems the panel believed that the constructive possession alone
was sufficient conduct.
But we find Dickinson distinguishable and unhelpful. In Dickinson, the defendant
was visiting an inmate at Lakeside Correctional Facility when a sergeant observed her hand
the inmate a concealed object: a small balloon filled with heroin. Dickinson, 321 Mich
App at 5-6. The Court of Appeals held that 25 points were properly assessed for OV 19
because “[b]ringing a controlled substance like heroin into a prison and delivering it to a
prisoner . . . inherently puts the security of the penal institution at risk.” Id. at 23. The
defendant’s conduct was not the possession alone, but the smuggling of the illegal
substance into the prison. The panel was also convinced that the assessment was justified
5
since smuggling controlled substances into penal institutions is a crime. That fact too was
evidence of “the seriousness of the problem” of delivering “an unquestionably dangerous
drug” into our prisons. Id. at 23-24. Put differently, since the conduct—drug smuggling
and possession—was illegal, it threatened the security of the institution.
People v Carpenter, 322 Mich App 523; 912 NW2d 579 (2018), which Justice
BERNSTEIN also finds persuasive, is also distinguishable and unhelpful. In that case, the
defendant, who was in pretrial detention for several charges, tried to smuggle controlled
substances into the jail and struck and injured another inmate whom he believed had
informed jail authorities of his smuggling plan. Id. at 526-527. At the defendant’s
sentencing on the initial charges for which he had been detained, the trial court assessed 25
points for OV 19 on the basis of the smuggling and the assault. Id. at 527. The Court of
Appeals upheld the defendant’s OV 19 score because “by attempting to bring controlled
substances into [the jail] and by attacking another inmate” the defendant threatened the
security of the penal institution. Id. at 530. The panel reasoned that “[t]he smuggling of
controlled substances into a jail” poses a threat “because of the dangers of controlled
substances to the users and those around them.” Id. at 531. The retaliatory assault was an
additional threat to security because it had the potential to discourage other inmates “from
coming forward about security breaches they might witness.” Id.
Neither Dickinson nor Carpenter provide us any help in evaluating Dixon’s conduct
for OV 19. Both decisions focused on the defendants’ conduct beyond the drug
possession—drug smuggling and assault—to justify a 25-point score. The Court of
Appeals did not address this important difference or explain why constructive possession
alone was sufficient; nor does Justice BERNSTEIN.
6
To be sure, we agree with Justice VIVIANO that possession alone, even constructive
possession, could be “conduct” for purposes of scoring OV 19. And possession might be
“conduct [that] threaten[s] the security of a penal institution” depending on the item
possessed. Someone not authorized to possess a weapon in a prison who possesses a gun
would threaten the security of the prison by that possession alone. But a cell phone is not
a gun, and determining whether cell phone possession threatens the security of a prison
requires assessment of the accused’s conduct beyond the possession itself. That is, unlike
possession of a weapon, the nature of the cell phone possession is important to determining
whether it “threatened the security of a penal institution” because cell phones have many
nonthreatening uses. Here, where the only evidence was that Dixon was near a cell phone,
there is no support for the trial court’s finding that Dixon engaged in conduct that
threatened the security of the prison.
B. CELL PHONES AS A THREAT
The Court of Appeals also relied on the Dickinson panel’s reasoning in analyzing
whether the defendant’s conduct threatened the penal institution. The Dickinson panel held
that smuggling controlled substances is inherently dangerous in penal institutions. The
Dickinson panel was specifically persuaded by the fact that smuggling drugs into prison is
a crime—criminal activity in a prison is threatening to the prison.
The Court of Appeals saw cell phones the same way. The panel was persuaded that
because possessing a cell phone in a prison is a crime, that act necessarily threatens the
security of the prison. The specific facts about the possession aren’t relevant—proof of
the crime is also proof sufficient to support a score of 25 points for OV 19.
7
But we don’t see a textual basis for the panel’s shortcut. Dixon’s crime is the reason
he was being sentenced. But the statute creating the criminal offense Dixon pled guilty to
provides only a maximum sentence for someone who violates it. See MCL 800.285(1). It
doesn’t direct a minimum sentence or an appropriate sentence. That’s where OVs come
in; OVs generate a sentencing range meant to reflect the particular facts of the case. Each
OV represents a factor that the Legislature believes is relevant to determining an
appropriate sentence in a specific case.
If OV 19 instructed a court to assess 25 points for possessing a cell phone in a prison,
or for committing a crime in a prison, then we would agree with the Court of Appeals. But
OV 19 requires that the court find that the defendant’s “conduct threatened the security of
[the prison].” Some prisoner cell phone possession surely meets that standard. Not all
does.
Justice VIVIANO lists numerous ways a cell phone can be used for illicit, threatening
purposes. We agree with his list; cell phones can be used in threatening ways, particularly
in prisons. But if a 25-point score is warranted under OV 19 for mere possession of any
object that hypothetically could pose a threat with some creativity, the OV becomes
boundless. We agree with Justice VIVIANO that “[c]ontext is thus critical.”
Here, that context is that no facts showed that Dixon used the phone or that it was
operational. Because the court found no facts beyond the constructive possession, there
was no evidence that Dixon’s conduct threatened the security of the prison. As a result,
OV 19 was improperly scored.
8
III. CONCLUSION
Possessing a cell phone in prison might justify a 25-point score for OV 19 because
it threatens the security of the prison, but only if facts establish that the defendant’s
conduct, in fact, threatened the security of the institution. A hypothetical threat isn’t
enough. Because no such facts were presented to establish that Dixon’s possession
threatened the prison, the court should not have assessed 25 points under OV 19. We
reverse the opinion of the Court of Appeals and remand to the trial court for resentencing
consistent with this opinion.
Bridget M. McCormack
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
9
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 162221
HAMIN LORENZO DIXON,
Defendant-Appellant.
VIVIANO, J. (dissenting).
The majority today holds that prisoners who secretly possess cell phones inside of
a prison do not “threaten[] the security of a penal institution.” MCL 777.49(a). That
conclusion is puzzling. The plain language of Offense Variable (OV) 19 encompasses
conduct that poses a risk to the safety of a penal institution without requiring more.
Common sense and the overwhelming consensus of legal authorities tell us that prisoners
who possess cell phones within the prison walls pose an obvious danger to prison staff and
other prisoners, whether or not the phone has been used or is being used at the precise
moment of discovery to commit a new crime. For these reasons, I respectfully dissent.
Defendant has a lengthy criminal history which includes a number of crimes
committed while he was incarcerated, such as attempted murder, witness intimidation, and
felonious assault. While serving time for these crimes, defendant committed the instant
offense. In 2016, prison staff discovered defendant in a bathroom with a cell phone in his
possession. The cell phone was confiscated, and a subsequent search of defendant’s prison
cell revealed a cell phone charger. Defendant was charged as a fourth-offense habitual
offender with being a prisoner in possession of a cell phone under MCL 800.283a(2), a
public-safety offense.
Defendant pleaded guilty to attempted possession of a cell phone in exchange for
the dismissal of the possession charge and the habitual-offender enhancement. At
sentencing, defendant did not object to the court’s assessment of 25 points for OV 19 for
conduct threatening the security of a penal institution. Indeed, his counsel stated, “I believe
the scoring to be accurate.” 1 However, defendant later moved to correct an invalid
sentence, arguing that OV 19 was incorrectly scored. The trial court denied defendant’s
motion, and the Court of Appeals affirmed in a published opinion, holding that it is
“axiomatic that a prisoner’s possession of contraband like a cell phone threatens the safety
and security of the prison staff and prisoners . . . .” People v Dixon, 333 Mich App 566,
573; 963 NW 2d 378 (2020). Defendant has appealed here, objecting to the scoring of
OV 19.
MCL 777.49(a) provides that OV 19 is properly scored at 25 points when “[t]he
offender by his or her conduct threatened the security of a penal institution.” The question
in this case is whether defendant’s possession of a cell phone is conduct that threatened the
security of a penal institution. That question is easily answered by referring to the record
in this case, our state’s laws, numerous precedents, and common sense. The presentence
investigation report—prepared by the Michigan Department of Corrections, the very
1
Arguably, this concession waives any challenge defendant could bring to the scoring.
Nevertheless, the prosecutor has not argued waiver, and the majority has reached the
merits. I will therefore address the alleged error.
2
agency responsible for administering the state’s prisons—lists the numerous ways a cell
phone may be used by a prisoner for illicit purposes:
The possession and use of a device that has cellular telephone capabilities
within the secure perimeter of a correctional facility puts both staff and
inmates’ lives in jeopardy. An inmate’s ability to engage freely in
unmonitored conversations with outside entities puts correctional
administrators at a serious disadvantage with regard to institutional safety
and security. Matters such as escape, assault (both staff and prisoner) and
introduction of contraband may be freely discussed by a prisoner possessing
and utilizing an unauthorized cellular telephone.
The Legislature certainly thought that cell phones in prisons were dangerous. That
is why it criminalized prisoner possession of cell phones in 2012, imposing a penalty of up
to five years’ imprisonment and a $1,000 fine. 2012 PA 255, amending MCL 800.283a;
see also MCL 800.285. 2 Another Michigan statute demonstrates the link between prison
telephone communications and prison security. MCL 791.270(1)(b) permits monitoring of
prisoner telephone calls on the Prisoner Telephone System if, among other things, “[t]he
monitoring is routinely conducted for the purpose of preserving the security and orderly
management of the correctional facility . . . .” Cell phone communications are even more
dangerous because they cannot be monitored in this fashion.
In addition, numerous decisions from other courts, addressing a variety of issues,
have explained the dangers of cell phones in prisons. Congress has deemed prisoner
possession of cell phones to be a crime punishable by imprisonment. 18 USC 1791. In a
case predating that provision, the United States Court of Appeals for the Third Circuit
2
This conclusion finds support from People v Dickinson, 321 Mich App 1, 24; 909 NW2d
24 (2017), which similarly noted that the criminalization of controlled substances in prison
was evidence of the substances’ dangerousness to the penal institution.
3
examined whether a predecessor statute applied to such possession. United States v Blake,
288 F Appx 791 (CA 3, 2008). The prisoner-defendant in that case was found with a cell
phone and charger and was convicted under 18 USC 1791(d)(1)(F), which, when Blake
was decided, banned “any other object that threatens the order, discipline, or security of a
prison, or the life, health, or safety of an individual.” PL 99-646, § 52; 100 Stat 3592. The
defendant argued that this catchall provision was void for vagueness. Blake, 288 F Appx
at 793.
The court had no problem rejecting this argument: “Given the unique prison context
in which the statute is applied, the ordinary person would know that possessing a cell phone
and a charger in prison ‘threatens the order, discipline, or security’ of that institution.” Id.
at 793-794. “To begin with,” the court noted, “the risks presented when inmates possess
cell phones and cell phone chargers are patent.” Id. at 794. Testimony at trial from a prison
official noted that cell phones could be used to intimidate witnesses or arrange for
harassment of prison employees on the outside; charger cords could be used for
strangulation or suicide. Id. But the court did not rely only on the trial testimony, noting
in addition that “during the last several years, media outlets have documented the growing
problem of, and dangers associated with, prisoners possessing cell phones.” Id. (collecting
sources). The court concluded, “That cell phones can, and have been, used for various
dangerous and unlawful purposes in the prison context is, thus, quite clear.” Id. at 795.
Accordingly, the court rejected the void-for-vagueness argument. 3
3
See also Robinson v Warden, 250 F Appx 462, 464 (CA 3, 2007) (reaching the same
conclusions as Blake); cf. People v Green, 32 Misc 3d 447, 454-455; 927 NYS2d 296 (NY
Co Ct, 2011) (holding “that as a matter of law a cell phone, no matter how a defendant may
4
For similar reasons, other courts have upheld the application to cell phones of the
Federal Bureau of Prisons’ regulation prohibiting hazardous tools. Through 2010, that
regulation did not expressly prohibit possession of cell phones in prison; instead, it
prohibited “[p]ossession, manufacture, or introduction of a hazardous tool . . . .” 28 CFR
541.13 (2010). 4 The United States Court of Appeals for the Fifth Circuit upheld a
disciplinary action under the regulation that was imposed for a prisoner’s possession of a
cell phone. Evans v Martin, 496 F Appx 442, 444 (CA 5, 2012). The court noted that other
courts had rejected the argument, raised by the defendant in Evans, that the regulation did
not give fair notice that a cell phone is a hazardous tool. Id. at 445 (collecting cases).
Agreeing with this conclusion, the court in Evans stated that “[g]iven the context in which
inmates are provided telephone access and the important goal of maintaining institutional
order, it is clear that an unauthorized cell phone falls within the definition of a hazardous
tool because a cell phone can be used to plan an escape or to undermine safety and
security.” Id.; see also id. at 445-446 (noting that access to cell phones would “allow
use it, is inherently dangerous because a cell phone or other telecommunication device has
a substantial probability that the item itself may be used in a manner that is likely to bring
out major threats to a detention facility’s institutional safety or security by the defendant,
or other inmates, in the facility”); but see United States v Beason, 523 F Appx 932, 935
(CA 4, 2013) (reaching a conclusion contrary to Blake, but largely on the basis that cell
phones were unlike the other items enumerated in the statute, including weapons,
intoxicating substances, and cash).
4
Hazardous tools were defined as “[t]ools most likely to be used in an escape or escape
attempt or to serve as weapons capable of doing serious bodily harm to others; or those
hazardous to institutional security or personal safety; e.g., hack-saw blade.” 28 CFR
541.13 (2010). The rule was subsequently amended to include “portable telephone[s].”
See 28 CFR 541.3 (2021).
5
inmates to prepare escape plans, procure contraband, and conspire to harm others—
including both security personnel and fellow inmates”). It would therefore be clear to an
inmate that a cell phone was a hazardous tool. Id. at 446.
The dangers discussed in these cases have been demonstrated numerous times. A
Senate Fiscal Agency legislative analysis noted the serious problems cell phones had
caused in Michigan prisons. See Senate Legislative Analysis, SBs 551 and 552 (June 27,
2012). 5 Other states and countries have seen prisoners use cell phones to conduct criminal
activity and foment discord within prisons. 6 The media sources cited in Blake similarly
demonstrate that cell phones pose significant risks in prison. Blake, 288 F Appx at 794-
795. And the problem is widespread, as cell phones pervade the prison system. Skarbek,
The Social Order of the Underworld: How Prison Gangs Govern the American Penal
System (New York: Oxford University Press, 2014), p 22 (noting the high number of
seizures of phones in California and calculating the likely high number of cell phones in
prisons).
5
I am not, of course, using this document to help interpret the text of the statute; rather, I
am consulting it for the factual information it contains about the dangers of cell phones in
prisons.
6
See Christie, Disconnected: The Safe Prisons Communications Act Fails to Address
Prison Communications, 51 Jurimetrics J 17, 32 (2010) (noting examples); Burke & Owen,
Cell Phones as Prison Contraband, 79 FBI Law 10 Enforcement Bulletin (July 1, 2010)
(same)
[https://perma.cc/W392-H77A]. Just a few years ago, a drone successfully dropped
marijuana and cell phones to prisoners in a Michigan prison. Gerstein, Drone Sneaks
Package into Michigan Prison, The Detroit News (October 1, 2017)
[https://perma.cc/9Z55-7ENR] (noting the successful
delivery by drone of marijuana and cell phones to inmates).
6
These sources confirm what common sense tells us. Cell phones in a prison pose a
severe risk to prison security because they enable so much harmful conduct. Escapes can
be planned and attacks on guards arranged. Cell phones can also facilitate deadly prison
riots. Kinnard, Governor Takes ‘Emergency’ Action After Deadly Prison Riots, Associated
Press (April 23, 2018) (discussing a deadly riot in South Carolina that was attributed to cell
phones and also noting comments of the Director of Corrections that “cellphones . . . represent
his No. 1 security threat behind bars”).7 Moreover, even as purely physical items, phones
could pose risks. Just as a charger cord could be used to strangle someone, see Blake, 288
F Appx at 794, a cell phone might be shattered in such a way as to produce sharp shards
that could be used as weapons.
The majority tries to avoid the obvious common-sense conclusion that prisoners
with cell phones are a source of danger by artificially dividing the statute into two parts.
First, the majority appears to conclude that mere possession of a cell phone is insufficient
to constitute conduct. The analysis is hard to follow. The majority nowhere defines the
term “conduct” but instead begins its analysis by distinguishing the cases the Court of
Appeals relied on because those cases involved conduct in addition to possession. Perhaps
7
Available at
(accessed April 4, 2022).
7
those cases are distinguishable with regard to the conduct at issue. 8 But this does not tell
us much about whether possession of a phone constitutes “conduct.” 9
In the criminal setting, “conduct” refers to particular acts that have been proscribed.
“ ‘[T]he substantive criminal law is that law which . . . declares what conduct is criminal
and prescribes the punishment to be imposed for such conduct.’ ” People v Arnold, 508
Mich 1, 19; ___NW2d___ (2021) (emphasis added), quoting 1 LaFave, Substantive
Criminal Law (3d ed), § 1.2, p 11. 10 In the present case, as in many others, the proscribed
conduct is possession. MCL 800.283a(2); see also People v Gray, 297 Mich App 22, 32;
824 NW2d 313 (2012) (“The ‘conduct’ relating to defendant’s sentence for possession of
cocaine with intent to deliver concerned defendant’s possession of less than 50 grams of
8
In Dickinson, 321 Mich App at 5-6, 23-24, the defendant was not a prisoner in possession
of drugs; rather, she brought heroin to a prisoner she was visiting. Thus, the pertinent
“conduct” was the smuggling of drugs. In the other case, People v Carpenter, 322 Mich
App 523; 912 NW2d 579 (2018), although the defendant was a prisoner, the relevant
conduct was his attempted smuggling of drugs into a jail and his assault on a fellow inmate.
9
The majority also seems to discount the conduct of possessing the cell phone because that
conduct was involved in the underlying criminal offense. But “absent an express
prohibition, courts may consider conduct inherent in a crime when scoring offense
variables.” People v Hardy, 494 Mich 430, 442; 835 NW2d 340 (2013). There is no
express prohibition here. Therefore, while the majority might be concerned that OV 19
will always be scored at 25 points when the defendant is convicted under MCL 800.283a—
because the underlying criminal conduct also satisfies the variable’s requirements—that
result is a function of the text of OV 19.
10
This generally aligns with the dictionary definition of “conduct.” At the time MCL
777.49 was passed, the relevant lay definition of “conduct” was “personal behavior; way
of acting; deportment.” Webster’s American Dictionary: College Edition (2000). See also
The American Heritage College Dictionary (2004) (“The way a person acts, esp. morally
or ethically.”); Webster’s New World College Dictionary (1996) (“[T]he way that one acts;
behavior; deportment”). These definitions refer to an individual’s behavior.
8
cocaine . . . .”). Therefore, there can be no serious debate that defendant was engaged in
conduct here, even if he only possessed or attempted to possess the cell phone. 11
The majority does not take on this conclusion directly. Instead, it says that
possession of a cell phone is insufficient under the conduct requirement “because cell
phones have many nonthreatening uses.” Ante at 7. This is confusing. How does the
threatening or nonthreatening nature of cell phone possession relate to whether that
possession is conduct in the first place? I cannot see how it does. This seems to be, instead,
an analysis of the threat requirement.
On that point—the second piece of the analysis—the majority also misreads the
statute. The majority suggests that there must be particular facts showing a threat. Not all
cases in which a prisoner possesses a cell phone will be threatening, according to the
majority. Here, for example, there is no evidence that defendant used the phone or that the
phone even worked. He was simply found near it. But nowhere does the majority attempt
to define the key term. To “threaten” is “to be a source of danger” or “menace” to
something; here, a penal institution. The American Heritage College Dictionary (2004).
The risk of danger need not materialize for conduct to be threatening. Rather, it is the risk
11
It is true that defendant pleaded guilty to attempted possession. The majority does not
address any distinction between possession and attempted possession of a cell phone. But
that distinction might be important under the majority’s strained reasoning. An attempt to
possess a cell phone would necessarily involve some conduct aimed at bringing the cell
phone into one’s possession. Arranging to possess contraband in the prison sounds a lot
like smuggling. In any case, my analysis would be the same for attempted possession under
the present facts, where defendant was discovered near the cell phone and the charger was
found in his cell.
9
itself that constitutes the threat. Whether defendant had or had not yet used the cell phone
in a dangerous manner is irrelevant. 12
Moreover, the suggestion that a cell phone is not inherently dangerous is a red
herring. We are not tasked with determining the Platonic ideal of cell phones, such that we
must say whether they are dangerous in every context. 13 Rather, OV 19 requires
consideration of whether the item is dangerous when possessed by an inmate in a prison.
Context is thus critical. For example, when an audience member at a local theater
production falsely yells “Fire!” and begins to run, that is conduct that threatens the security
of the theater. When a cast member does it on stage, that is entertainment. Here, we are
dealing only with threats to penal institutions. In that context, a cell phone obviously poses
such a threat.
Of course, not all cell phone use by prisoners will necessarily result in harm to the
institution. But that is not what OV 19 requires. Rather, to score 25 points for OV 19, the
conduct must simply threaten the security of the penal institution. I would hold, in
12
It would seem that the only use of the phone that would meet the majority’s standard is
one that actually brings about the dangers that the rule seeks to prohibit from even being
risked, let alone actualized. For example, an escape must be arranged or a plan to harm a
prison official made before a cell phone is considered dangerous. This view would
essentially require the defendant to commit an additional crime before the court could find
that the cell phone represents a danger. This ignores that OV 19 covers the mere risk of
such events happening. Further, it is unclear why the operability of the cell phone matters.
A nonfunctioning phone could nonetheless provoke fights among prisoners seeking to seize
the phone, or it might be used as a weapon itself, or it might be repaired and made
functional again.
13
As the Court of Appeals has recognized, OV 19 is not limited to “weapons or other
mechanical destructive devices” or other items that might appear to be dangerous in every
context. Dickinson, 321 Mich App at 24.
10
accordance with common sense and the courts above, that the possession of a cell phone
by a prisoner endangers the safety of a prison. 14 For these reasons, I dissent and would
affirm the judgment of the Court of Appeals.
David F. Viviano
Brian K. Zahra
14
By reaching the opposite conclusion, the majority’s decision lowers the minimum
sentence guidelines range for this activity and lessens the deterrent effect of the crime at
issue. This, unfortunately, has the potential to make cell phone use in prisons even more
pervasive and to make prisons less safe.
11
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 162221
HAMIN LORENZO DIXON,
Defendant-Appellant.
BERNSTEIN, J. (dissenting).
I agree with the majority that simple possession of a cell phone may not be enough
to assess 25 points under Offense Variable (OV) 19. However, I disagree with the
majority’s analysis and write separately to explain why.
A 25-point score under OV 19 is appropriate when “[t]he offender by his or her
conduct threatened the security of a penal institution . . . .” MCL 777.49(a). The majority
reads the statute as imposing two requirements: first, the offender must engage in some
conduct that threatens the security of the prison, and second, that conduct threatens the
security of the prison. It is unclear how we are meant to parse these as independent
requirements, especially given that the majority acknowledges that mere possession is
conduct. 1 The majority simply concludes that mere possession cannot be sufficient
“conduct” to score 25 points under MCL 777.49(a) because a cell phone can be used in a
1
In other words, if the conduct required by MCL 777.49(a) must be conduct that threatens
the security of the prison, why isn’t this requirement fully subsumed by the threat
requirement?
nonthreatening manner; essentially, the majority’s analysis collapses down into the second
requirement.
As to the threat requirement, the majority states that the Court of Appeals panel
engaged in a shortcut that ignores the text of the statute by relying on the fact that
possessing a cell phone in prison is itself a crime. See MCL 800.283a(2). However, to the
extent that the Court of Appeals panel engaged in such a shortcut, that is also true of the
panels in People v Dickinson, 321 Mich App 1; 909 NW2d 24 (2017), and People v
Carpenter, 322 Mich App 523; 912 NW2d 579 (2018). In both Dickinson and Carpenter,
the Court of Appeals simply found that controlled substances are inherently dangerous.
There was no analysis as to how mere possession “threatened the security of a penal
institution.” MCL 777.49(a) (emphasis added). Despite distinguishing these two cases
under the conduct requirement, the majority does not explain why the Court of Appeals
panel in this case erred in relying on these two cases under the threat requirement.
I see no meaningful difference between this case and Dickinson or Carpenter. The
controlled substance at issue in Dickinson was heroin, and possession of heroin admittedly
may seem more dangerous than possession of a cell phone. However, MCL 800.281(4)
also prohibits a prisoner’s possession of “any alcoholic liquor, prescription drug, poison,
or controlled substance.” But individuals who are of age in Michigan can legally possess
alcohol, prescription drugs, and even certain controlled substances, like marijuana. As with
a cell phone, mere possession of alcohol by a prisoner does not necessarily lead to the
conclusion that there will be threatening conduct.
Instead of focusing somewhat vaguely on conduct as the distinguishing factor, I
wonder whether focusing on the statute’s use of the word “threatened” might shine more
2
light on the proper application of OV 19. Although defendant specifically declined to make
such an argument in his briefs to this Court, I am intrigued by an argument raised by Justice
MARILYN KELLY: “I believe that scoring points for OV 19 may require that a defendant
intend to threaten the security of a penal institution.” People v Ward, 483 Mich 1071, 1073
(2009) (KELLY, C.J., dissenting). Specifically, Justice KELLY noted that “OV 19 arguably
does include an intent requirement because of the Legislature’s use of the word
‘threatened.’ Black’s Law Dictionary’s definition of ‘threat’ includes the element of the
intention to cause loss or harm to something.” Id. at 1075.
Reading “threatened” to include an element of intent would certainly have the
benefit of being grounded in the text of the statute, and it would require a showing of more
than mere possession. Assessing intent for a prisoner’s possession of any sort of
contraband would be a simpler test to employ than determining an item’s inherent
dangerousness: the majority opinion would seemingly classify a cell phone as less
dangerous than heroin, but where would one put marijuana along the scale of dangerous
items, or pain medication? What about a simple toothbrush, which could be fashioned into
a weapon?
Unfortunately, because defendant declined to make such an argument, I dissent from
the majority’s conclusion, as I do not understand the mere nature of a cell phone to
sufficiently distinguish this case from Dickinson or Carpenter.
Richard H. Bernstein
3