COA 374521 PEOPLE OF MI V NICHOLAS HUNTER MUI Opinion - Per Curiam - Unpublished 5/14/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
-1-
S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
UNPUBLISHED
May 14, 2026
10:18 AM
V No. 374521
Kent Circuit Court
NICHOLAS HUNTER MUI, LC No. 24-000603-FH
Defendant-Appellant.
Before: MURRAY, P.J., and REDFORD and RICK, JJ.
PER CURIAM.
Defendant, Nicholas Hunter Mui, appeals from a judgment of sentence rendered by the
Kent Circuit Court on September 5, 2024. Defendant was charged and, on July 15, 2024, pleaded
guilty to one count of violating MCL 750.159i(1) (conducting a criminal enterprise) which carries
a maximum of 20 years’ imprisonment if convicted (MCL 750.159j). The prosecutor dismissed
all additional charges in the plea agreement, including seven counts of violating MCL 445.65
(identity theft) and one count of violating MCL 752.797(3)(F) (computers–using computers to
commit a crime). The sentencing guidelines were scored at 12 to 20 months. The sentence
imposed was 5 years to 20 years’ incarceration, an upward departure. Because the trial judge
explained his reasons for the departure sentence on the record and because such reasons were
grounded in the undisputed record, the sentence imposed falls within the category of reasonable
and principled outcomes. We affirm.
I. BACKGROUND
During a 9-month period, defendant acquired a computer program that allowed him to
obtain “thousands of hits” of usernames and passwords for mPerks log-in information. MPerks is
a rewards program applicable in Meijer stores. No credit card information, addresses, or Social
Security numbers were obtained. He retrieved these log-ins in blocks and sold them through a
website in exchange for cryptocurrency or a deposit to a CashApp. He ran the program “numerous
times,” affecting approximately 29,291 customers. The total restitution exceeded $1 million.
Defendant forfeited more than $600,000 in cryptocurrency to the Michigan State Police prior to
sentencing toward this restitution, and Meijer reimbursed all affected customers for their lost

-- 1 of 5 --

-2-
rewards. An Affidavit of Probable Cause included in the court file states that “Mui admitted to
having been committing these crimes with numerous corporations (not just Meijer) and sites since
2019 for profit.” However, the mPerks account was the only one discussed on the record at the
sentencing hearing or in the presentence investigation report.
Defendant pleaded guilty on July 15, 2024, to one count of conducting a criminal
enterprise, which carries a maximum penalty of 20 years. As part of the plea agreement, the
remaining counts were dismissed by the prosecutor and defendant agreed to forfeit more than
$600,000 in cryptocurrency and his computer tower. He was sentenced on Thursday, September 5,
2024. Defendant had no prior criminal record, and three offense variables were applied and
assessed as follows: OV-161 and OV-122 were each assessed at 10 points, and OV-133 was
assessed at 0. The resulting guidelines sentence was 12 to 20 months. At the sentencing hearing,
the prosecutor stated that “it’s clear that but for the efforts of—of Trooper Proefrock standing next
to me, this crime would have been ongoing. It would have never stopped.” However, the
prosecutor acknowledged that defendant agreed to forfeit an amount of money toward his
restitution that was “unusual” and that “his continued efforts and cooperation with [the
prosecutor’s office], and the Michigan State Police [allowed] us to gain insight into how
[defendant] committed his crime, and how we can protect our systems in the future.” Defendant’s
input was “valuable” and the prosecutor thanked him for his “cooperation and the amount of assets
that he is able to provide to help right the wrong, [which] was included in [the] plea offer, reducing
the other counts of Identity Theft, and having him only plea to the Count I of CCE, Criminal
Enterprise.”
Defense counsel spoke of mitigating factors in defendant’s life. He was 22 years old at the
time of sentencing. A high school graduate, he had no criminal record or history of substance
abuse. Fifteen character letters were submitted in his favor. A son of hardworking immigrants,
his community was “shocked and saddened” when they learned of this infraction, and his attorney
asked the court to “fashion a sentence” that involved a stay in the Kent County Jail and “a term of
probation after that.”
The court did not accept defense counsel’s request. He sentenced defendant to “a minimum
of 5 years to a maximum of 20 years” with the Michigan Department of Corrections, as well as
restitution of $1,087,168 in addition to court costs, fines, and fees.
On the record, the trial judge stated that he was “very familiar with the facts and
circumstances here” and that he read and reviewed “numerous letters from family and friends.”
1 Offense Variable 16 applies to crimes in which “property [is] obtained, damaged, lost, or
destroyed.” Ten points are assessed when the “[t]he property had a value of more than $20,000 or
had significant historical, social, or sentimental value.” MCL 777.46(1)(d).
2 Offense Variable 12 applies when the criminal act includes “contemporaneous felonious criminal
acts.” Ten points are assessed when “[t]hree or more contemporaneous felonious criminal acts
involving other crimes were committed.” MCL 777.42(1)(c).
3 Offense Variable 13 applies when the criminal act reflects a pattern of criminal behavior. Zero
points were assessed for this variable. MCL 777.43(1)(g).

-- 2 of 5 --

-3-
He also acknowledged defendant’s age, lack of criminal record “as an adult or as a juvenile” and
that he has “yet to be in prison, jail, or on probation.” The court was also aware that scoring of the
guidelines resulted in a sentence between 12 and 20 months.
However, the trial court felt the significance of the offense was not reflected in the
guidelines. Defendant “pled guilty to [his] involvement in a Criminal Enterprise, which carries a
maximum penalty of 20 years.” In the trial judge’s words, “this was not a good situation.” The
log-in information was sold “on the internet to people who were buying those for criminal
reasons . . . and [defendant] knew that.” Moreover, the trial judge claimed that defendant admitted
to “having been committing these crimes with numerous corporations, not just Meijers [sic] . . .
since 2019 for a profit.” In the trial judge’s words:
“[T]hat’s just not acceptable. That behavior is outrageous. This affects
thousands of people. You basically stole this information and sold it to people that
were going to use it for illegal reasons, and you knew you were doing it, and this
went on for a long time.
You put these individuals at risk for potentially down the road, losing
hundreds or thousands of dollars. And there’s no excuse or justification for this.
You sold this on the dark web. You knew that these people were involved
in—in criminal activity. There’s just no excuse for that whatsoever.
The trial judge noted that the sentencing guidelines as calculated “call for a minimum
sentence between 12 and 20 months,” and that he was aware of the relevant caselaw and his duty
to “impose a reasonable and proportioned sentence.” But, in the trial judge’s words, “there are
many reasons here that these guidelines do not include a number of things.” The guidelines
assessed OV 16 at 10 points, which is for $20,000, whereas the criminal offense involved “more
than a million. That’s 50 times the 20,000.00.” Moreover, “there are thousands of people that this
affects.” Neither the dollar amount nor the number of customers affected were “taken into effect
appropriately in the guidelines.” Accordingly, the trial court sentenced defendant to a departure
sentence up to the maximum authorized for the offense to which he pleaded.
II. ANALYSIS
A. STANDARD OF REVIEW
No action was required for defendant to preserve his objection to sentencing guidelines on
appeal. “There is no preservation requirement for review” of a sentence that is more severe than
the guidelines recommendation. People v Smith, 482 Mich 292, 300; 754 NW2d 284 (2008).
The standard of review is abuse of discretion. People v Steanhouse, 500 Mich 453, 471;
902 NW2d 327 (2017). Trial courts have discretion to depart from the sentencing guidelines range,
as long as the ultimate sentence imposed is reasonable. People v Lockridge, 498 Mich 358, 391-
392; 870 NW2d 502 (2015). Reasonableness is measured by proportionality, i.e., whether the
sentence imposed is “proportionate to the seriousness of the matter for which punishment is
imposed.” People v Milbourn, 435 Mich 630, 635-636; 461 NW2d 1 (1990). In evaluating

-- 3 of 5 --

-4-
reasonableness on appeal, the abuse-of-discretion standard “acknowledges that there will be
circumstances in which there will be . . . more than one reasonable and principled outcome” and
the trial court does not abuse its discretion by selecting one of these principled outcomes. People
v Butka, 514 Mich 366, 376; 22 NW3d 429 (2024) (quotation marks and citations omitted). In this
case, the sentence imposed by the trial court satisfies this standard.
B. APPROPRIATENESS OF THE SENTENCE
The trial court’s sentence does not fall outside of the range of reasonable and principled
outcomes. Legislative guidelines are not mandatory but, rather, “remain a useful tool that must be
taken into account when sentencing a defendant, and a trial court must justify the [departure]
sentence.” People v Lampe, 327 Mich App 104, 126-127; 933 NW2d 314 (2019) (quotation marks
and citation omitted). The question is “whether the sentence is proportionate to the seriousness of
the matter, not whether it departs from or adheres to the guidelines’ recommended range.” People
v Dixon-Bey, 321 Mich App 490, 521; 909 NW2d 458 (2017), quoting Steanhouse, 500 Mich
at 472. Factors that may be considered by the trial court include, but are not limited to:
(1) the seriousness of the offense; (2) factors that were inadequately considered by
the guidelines; and (3) factors not considered by the guidelines, such as . . . the
defendant’s expressions of remorse, and the defendant’s potential for rehabilitation.
[People v Walden, 319 Mich App 344, 352-353; 901 NW2d 142 (2017) (quotation
marks and citation omitted).]
The trial court’s determination that the upward departure was proportionate to the
seriousness of the offense and that the severity was not adequately reflected in the guidelines as
scored is not outside of potential reasonable and principled outcomes. The record demonstrates
thoughtful analysis of the criminal charge to which defendant pleaded, the seriousness of the
offense including its impact on the public, and the fact that the guidelines as scored did not account
for this.
Contrary to defendant’s argument on appeal, the trial judge did not overlook mitigating
factors such as defendant’s young age, community support, and lack of criminal record. The trial
judge read and reviewed the file, including the numerous letters of support written on defendant’s
behalf. The trial judge expressed no opinion regarding defendant’s character not reflected in the
uncontested facts in the court file. He, ultimately, departed from the guidelines because of the
severity of the offense, i.e., the dollar amount involved, the thousands of customers affected, and
defendant’s culpability in knowingly selling these persons’ information on the dark web to persons
or entities that were likely to do malevolent things with it, and the fact that the offense variables
as scored did not reflect this.
This sentencing is unlike Dixon-Bey, 321 Mich App at 525, in which the Court of Appeals
found a trial court abused its discretion by significantly departing from the guidelines because the
trial judge “did not adequately explain why a minimum sentence of 35 years was more
proportionate than a different sentence within the guidelines would have been.” The Court of
Appeals found the record did not support the trial judge’s description of the defendant as having a
“depraved heart” or a “recidivist . . . criminal” deserving of a greater punishment than the
guidelines allowed, when, in fact, her prior record variable score was zero and nothing in the court

-- 4 of 5 --

-5-
file supported a finding that her background supported this. Id. at 524-526. Moreover, the trial
judge’s reasons for the departure based on the severity of the offense reflected reasons included in
the offense variables as assessed, or in an offense variables that was expressly found inapplicable.
And the trial judge’s description of the offense indicated he found it premeditated when, in fact,
the jury verdict did not reflect this. Id. at 526-529.
The record presented at defendant’s sentencing is different. The trial court did not malign
defendant’s character. Rather, he identified factors related to the seriousness of the crime that
were not adequately reflected in the guidelines as scored. He explained that the dollar amount
involved, the number of people affected, and an affidavit in the record indicating that defendant
admitted to carrying out this crime with more than just Meijer were factors not accounted for in
the guidelines as scored. The only statement by the trial court that was not in the presentencing
report is a reference to defendant conducting a similar activity with other corporations which came
from the court file and not from the court’s opinion. Michigan jurisprudence authorizes trial courts
to consider facts neither admitted nor found by a jury when imposing a sentence. Lockridge, 498
Mich at 391-394. And this was one of several stated factors that led the court to find the guidelines
insufficient. Defendant’s claim that there was only one victim ignores the uncontested fact that
this crime involved thousands of customers whose log-in information was breached and sold on
the dark web.
In sum, the trial court found the seriousness of the crime to which defendant pleaded was
not adequately recognized by the guidelines and, therefore, ordered a sentence that departed from
it. This Court does not find the sentence so disproportionate as to constitute an abuse of discretion,
nor was the upward departure from the guidelines outside the range of reasonable and principled
outcomes given the record present here.4
Affirmed.
/s/ Christopher M. Murray
/s/ James Robert Redford
/s/ Michelle M. Rick
4 We acknowledge that there were over $1,000,000 in losses; fifty times the amount considered in
the sentencing guidelines. Of this, defendant made restitution in the amount of approximately
$600,000 and the defense asserts this supports the argument that there should have been no upward
departure. This argument, however, does not account for the remaining $400,000 in restitution
still being the equivalent of twenty times the amount taken into consideration by the sentencing
guidelines.

-- 5 of 5 --