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Attempted DCS Sentencing

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by: Ryan Scott • October 24, 2021 • no comments

Sample argument for your Attempted DCS/PCS-CDO sentencing memorandum.


I. The CSL for Attempted DCS is a Level-2

Mr. Smith was convicted of attempted delivery of a controlled substance. The jury also found three factors necessary for a finding of a commercial drug offense (CDO). This court reserved until sentencing the question whether CDO factors could apply to a charge of attempted delivery of a controlled substance. CDO factors are “sentencing enhancement factors” which elevate a completed delivery (DCS) from a level-4 crime seriousness level (CSL) to a level-8. CDO factors are not elements of the crime. See State v. Scott, 283 Or App 566, 388 P3d 1148 (2017) (reaffirming that principal and summarizing the long-standing case law on the topic). Because the attempt statute only applies to crimes and not sentencing enhancement factors, it does not apply to CDO factors. ORS 161.405 “Attempt” described. (1) A person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime. [Emphasis added.]

Nevertheless, the state is expected to rely on the argument that a completed DCS in this case would be a level-8, an attempted DCS should be a level-6, not a level-2. (“213-004-0005

Attempts And Solicitations (1) A conviction for an attempted crime shall be ranked on the Crime Seriousness Scale at two crime categories below the appropriate category for the completed crime.” This puts the cart before the horse. First, the CDO factors only apply to crimes listed at ORS 475.752, 475.806 to 475.894, 475.904 or 475.906.” ORS 475.900. “Attempted DCS” is not among those crimes listed. A person convicted of an attempt is not convicted under the statute defining the completed offense. Rather, he is convicted under the attempt statute, ORS 161.405. See State v. Becker, 171 Or App 721, 15 P3d 1264 (2000)(“Under Oregon law, a person who is convicted of attempted assault in the first degree is not guilty under the assault statute.”) Consequently, the CDO factors simply cannot apply to a crime that it is not among the listed statutes in ORS 475.900. Under Oregon law, attempted DCS is not among those statutes. Alternatively, OAR 213-004-0005 ranks the CSL for an attempt at 2 below the completed crime. Because CDO factors do not constitute elements of a crime, a “completed crime” of DCS is a level-4. An attempt would therefore be a level-2.

II. Ranking the PCS Higher than a Level-2 Would Violate Article I, section 16, of the Oregon Constitution

Mr. Smith is also charged with Possession of Controlled Substance (PCS), charged as a level-8 offense because of the CDO factors. However, sentencing Mr. Smith as a level-8 on a possession charge would violate the rule against proportionality. Article I, section 16 of the Oregon Constitution commands that even if convicted of that charge, Mr. Smith be sentenced on that count as a level-2. In State v. Bartol, 368 Or 598 (2021), the Supreme Court conducted a lengthy review of the history and application of proportionality clause of Article I, section 16. It is worth reading in full and provides complete support for Mr. Smith’s arguments. It concluded its review as follows:

To summarize, Article I, section 16, expressly prohibits disproportionate punishments. It embodies “the basic proportionality concept” that “more serious crimes should receive more severe sentences than less serious crimes and vice versa.” Rodriguez/Buck, 347 Or at 61. Or, to echo Blackstone, “penalties of the first degree” should not be assigned to “offenses of an inferior rank.” 4 Blackstone, Commentaries at 18, quoted in Wheeler, 343 Or at 662. Like the Eighth Amendment’s proportionality requirement, Article I, section 16’s proportionality requirement must be interpreted based on current societal standards. It is not static; it evolves as societal standards change. When determining whether a punishment is disproportionate, courts apply the standards that currently prevail. And finally, while it is the role of the legislature to establish penalties for criminal statutory violations, it is the role of the courts to give effect to the constitutional proportionality requirement—by setting aside punishments that, under prevailing societal standards, are disproportionate to the offenses for which they are imposed.

Id. at 621.

PCS is, self-evidently, a less serious crime than attempted delivery. Under the Bartol analysis, it is probably not a requirement of a proportionality violation that the less-serious offense is a lesser-included offense of the more-serious offense. Nevertheless, under current law, PCS is a lesser-included offense of attempted DCS. Under an analysis that has since been rejected by the Oregon Supreme Court, the Court of Appeals held that an individual could commit the crime of Delivery of a Controlled Substance without committing the crime of Possession of a controlled substance. State v. Sargent, 110 Or App 194 (1991)(affirmed on other grounds, 323 Or 455). However, Sargent hinged on the claim that one could commit a delivery based on a theory of solicitation, even if the defendant did not have or possess the drugs themselves. The Oregon Supreme Court rejected the argument that an attempt encompassed a solicitation in State v. Kimbrough, 364 Or 66 (2018), implicitly overruling Sargent. Furthermore, the evidence that constitutes an attempted delivery under Fischer or Hubbell necessarily requires possession of the substance. See State v. Blake, 348 Or 95, 101, 228 P3d 560 (2010)(concluding that because one cannot utter a forged instrument without first possessing it, proof of uttering necessarily includes proof of possession.) Combining the decisions in Hubbell, Fischer, Kimbrough and Blake, it is not reasonably in dispute that a person cannot commit the crime of attempted DCS if they do not, actually or constructively, possess the controlled substance to be delivered. Inevitably, imposing a level 8 sentence on a crime that constitutes a less-serious offense than a level 2 offense violates proportionality. See State v. Koch, 169 Or App 223 (2000)(imposing a greater sentencing for a forgery of more than $1000 violated the proportionality clause when he received a greater sentence than he could get for a forgery involving more than $5000). Similarly, in State v. Simonson, 243 Or App 535, 259 P 3d 962 (2011), rev den, 353 Or 788 (2013), imposing a greater sentence (CSL 7) for sexual abuse in the second degree than could be imposed on the greater offense of rape in the third degree (CSL 6) violated the Oregon Constitution, specifically Article I, section 16.


An attempted DCS must be ranked at a level 2. The conduct for an attempted DCS, taking a substantial step towards delivering drugs to another person, is a worse offense than a person merely possessing drugs. Therefore, as in Simonson, it violates the tenets of vertical proportionality to assign Mr. Smith a grid score of 8 for his possession charge when an attempted DCS is only a level-2. It also violates fundamental common sense to send a person to prison for possession when an attempted DCS is, presumptively, an 18 month probation.