What constitutes a “firearm” under offense variables 1 and 2

From the July 2025 Criminal Defense Newsletter

Although this column was written before the end of the Michigan Supreme Court’s 2024-2025 term (i.e., before July 31, 2025), there is no expectation the Supreme Court will address this particular issue, at least not from any of the orders it has issued granting leave to appeal or mini oral argument in the past year. The issue to be decided is what constitutes a “firearm” under Offense Variables 1 and 2. There is no published case law on this point, and there is no definition of “firearm” within the sentencing guidelines. Nevertheless, there is a general definition of “firearm” found in MCL 8.3t. That statute provides that, barring another statute that specifies another definition, “[t]he word firearm . . . includes any weapon which will, is designed to, or may readily be converted to expel a projectile by action of an explosive.”

This definition of “firearm” found in MCL 8.3t has been used to resolve sentencing guidelines challenges to Offense Variables 1 and 2 in a number of unpublished cases. These decisions break down into three camps: 1) if the defendant is unable to establish that the weapon was something other than a real gun as described by the victim or witness, the challenge is lost,1 2) if the record is unclear or the trial judge made no determination as to the nature of the disputed weapon, the defendant may win the challenge, and 3) if the defendant is able to establish that the gun was in fact a BB gun, toy gun, fake gun, pneumatic gun, or pellet gun, the defendant wins pursuant to MCL 8.3t. 

Here are the cases falling into camps 2 and 3:

BB gun is not a firearm under OV 1, People v Grady-Wilkins, unpublished per curiam opinion of the Court of Appeals, issued April 28, 2025 (Docket No. 369399) (unclear whether gun was real or BB gun); People v Jackson, unpublished per curiam opinion of the Court of Appeals, issued December 18, 2014 (Docket No. 316433) (no showing BB gun fit within definition2 of “firearm” using an older and more expansive definition of “firearm” under MCL 8.3t); People v Smallwood, unpublished per curiam opinion of the Court of Appeals, issued April 16, 2020 (Docket No. 343789) (no factual determination that defendant was using a 9-millimeter handgun as opposed to a BB gun).

Pellet gun is not a firearm under OV 2. People v Hood, unpublished per curiam opinion of the Court of Appeals, issued November 7, 2013 (Docket Nos. 307575, 315294, 308316, 311136) (Airsoft pellet gun). But see People v Bailey, unpublished per curiam opinion of the Court of Appeals, issued August 23, 2005 (Docket No. 254131) (victim claimed the weapon was a “pistol;” moreover, the “pellet gun” claimed by defendant fit within the more expansive definition of “firearm” that existed at the time under MCL 8.3t).

Starter pistol is not a firearm under OV 1, People v Stocks, unpublished per curiam opinion of the Court of Appeals, issued March 22, 2007 (Docket No. 266786).

Toy or fake gun is not a firearm under OV 1 and OV 2, People v Robinson, unpublished per curiam opinion of the Court of Appeals, issued September 29, 2025 (Docket No. 254385) (trial court’s scoring of OV 1 and OV 2 was inconsistent and unclear as to whether the gun was real or not); People v Novak, unpublished per curiam opinion of the Court of Appeals, issued March 1, 2007 (Docket No. 265783) (toy gun).

Pneumatic gun is not a firearm under OV 1, People v Weatherspoon, unpublished per curiam opinion of the Court of Appeals, issued May 16, 2025 (Docket No. 366732). 

For the time being, the consistent nature of the unpublished decisions and reliance on MCL 8.3t will have to suffice when challenging whether an item is a “firearm” for purposes of Offense Variables 1 and 2.

Endnotes

1 People v Brown, unpublished per curiam opinion of the Court of Appeals, issued June 15, 2010 (Docket No. 291185); People v Bailey, unpublished per curiam opinion of the Court of Appeals, issued August 23, 2005 (Docket No. 254131); People v Johnson, unpublished per curiam opinion of the Court of Appeals, issued January 12, 2012 (Docket No. 299163); People v Nicholson, unpublished per curiam opinion of the Court of Appeals, issued August 10, 2017 (Docket No. 333546).
2 Before July 1, 2015, the statute provided: “The word ‘firearm’, except as otherwise specifically defined in the statutes, shall be construed to include any weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means of propulsion, except any smooth bore rifle or handgun designed and manufactured exclusively for propelling BB’s not exceeding .177 calibre by means of spring, gas or air.” MCL 8.3t (until June 30, 2015).

Anne Yantus

Michigan Sentencing PLLC

Anne Yantus is a sentencing consultant working with attorneys to promote more favorable sentencing outcomes. Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office. Following her time with SADO, Anne taught a criminal sentencing course at the University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC. Anne welcomes your Michigan felony sentencing questions and is happy to arrange a consultation where appropriate. Due to the volume of inquiries, Anne is not able to respond to pro bono requests for assistance or analysis of individual fact situations.