This is useful for defendants, of course, and a natural extension of People v Sargent, 481 Mich 346 (2008), which held that variables are scored for conduct relating to the sentencing offnse only, not other offenses that the defendant may be being sentenced for.

I think the most interesting part of McGraw comes in a footnote in the majority opinion and the dissent: an argument about waiver. The dissent argues that the defendant waived any scoring error by stating at sentencing that the guidelines range "appears to be correct." The majority disagrees that the issue should be decided on waiver grounds because the prosecution never advanced a waiver argument, either in the lower courts or the Supreme Court. The majority's footnote in response to the dissent reads:

The dissent contends that the defendant waived any sentencing error. However, this theory was never raised by the prosecution. Failure to brief an issue on appeal constitutes abandonment. Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). "[A] party is bound to the theory on which the cause was prosecuted or defended in the court below." Gross v Gen Motors Corp, 448 Mich 147, 162 n 8; 528 NW2d 707 (1995); see also Dwelley v Tom McDonnell, Inc, 334 Mich 229, 233; 54 NW2d 217 (1952). Because the prosecution failed to raise the issue of defendant's waiver, we need not consider it. Because we simply do not consider the prosecution's waiver argument, contrary to the dissent's contention, post at 4, we do not "creat[e] a new ‘revival of waived errors' rule . . . ." That is, we do not conclude that defendant's filing of a motion for resentencing would "revive" an issue that the defendant had, indeed, already expressly waived. We are also not suggesting that the prosecution's failure to raise an issue constitutes a "confession of substantive error," post at 6-7. Thus, we are not by any stretch of the imagination overruling People v Smith, 439 Mich 954 (1992), and we are not creating any "automatic rule of reversal," post at 7. In addition, contrary to the dissent's assertion, post at 4-5, we do not contend that an appellee is required to file a cross-appeal to raise a waiver argument. We simply conclude that an appellee should at some point actually raise the waiver argument. And if he or she does not do so, this Court may, although it is not required to, choose not to raise and address the argument on its own. This is hardly a "novel view." See, e.g., People v Hamacher, 432 Mich 157, 168; 438 NW2d 43 (1989), which refused to address the prosecution's waiver argument because the "prosecutor did not raise the waiver issue . . . until he filed his brief in this Court," and People v Oliver, 417 Mich 366, 386 n 17; 338 NW2d 167 (1983), which refused to address the prosecution's harmless error argument because the prosecution failed to raise this issue below. Indeed, the dissent's view that whether a defendant has waived an issue "must be" considered by an appellate court, even if the prosecution has not raised waiver, is subject to question. Notably, the dissent cites only a short order of this Court in support of this proposition. Smith, 439 Mich at 954. But in Smith, this Court took issue with the Court of Appeals holding that failure to file a responsive brief "constitutes a confession of error." See People v Smith, 190 Mich App 352, 356; 475 NW2d 875 (1991), vacated in part 439 Mich 954 (1992). In the present case, the waiver issue was not only never raised below, it was never raised before us. Finally, to answer the dissent's question, see post at 5, defendant had no reason to make the argument that the prosecution failed to raise the waiver issue. The prosecution never raised the waiver issue in the first place; it is only this Court in a dissent that has raised it. Because the prosecution failed to raise the waiver issue, there is no need for us to address whether defendant's counsel was ineffective.

I think this footnote, while not breaking any new waiver ground, has a lot of good nuggets that could be useful to litigants. I will file it mentally and refer to it again in the future, I am sure.