CDO factors do not attach to conspiracy counts
by: Ryan • January 20, 2014 • no comments
I will confess upfront I haven't done any research on this. That includes OARs and case law. But it should be self-evident that Commercial Drug Offense (CDO) factors in drug cases should not be attached to conspiracy counts.
According to case law (wrongheaded case law in my opinion but nevertheless the current law), CDO factors are not elements of a crime. They are merely sentence enhancements. Their only purpose is to elevate certain drug crimes on the crime seriousness scale. So a delivery of cocaine is a 4. Delivery for consideration is a 6. Delivery of Cocaine, with a sufficient number of CDO factors, is an 8.
But conspiracy to delivery is an unranked offense. Adding CDO factors does not change that fact. There is no logical reason to add CDO factors to a conspiracy count, because they can have no legal impact at all, and I'm pretty certain (again, acknowledging I haven't looked this up) there is no legal authority for doing so.
That said, a judge could -- per OAR -- rank a naked conspiracy to commit delivery of cocaine as a level-8 if the judge found the CDO factors. At present, there is no case law saying this would be a plain violation of Blakely. And if you think that doing so would be a Blakely violation, then you might believe that it's constitutionally required -- if the judge wants to rank the offense above level-4 -- that the CDO factors be submitted to a jury. But that's not the scheme that is in place presently. And certainly you shouldn't expect the AG's office to make that argument. That would make CDO factors elements under the federal constitution and there's no reason to think the AG would ever want to go there.
You may also think, who cares? Conspiracy to Deliver, under state law, is usually paired with Delivery itself, and the state can just attach the CDO factors to the Delivery charge. They merge anyway, so what difference does it make if you get the CDO factors struck from the Conspiracy charge.
It matters because you have a legal and rhetorical argument for beating the Delivery charge and giving up your client on the Conspiracy charge. Delivery, as you know, can be proven if the state proves attempted delivery. Attempted delivery requires not just a "step" but a substantial step towards an actual delivery. Odds are, the state alleged the Conspiracy charge because under the facts they have, there may not be enough evidence to prove a substantial step was taken. If there was, why charge conspiracy, which would merge anyway? Odds are if the state has charged both, they have a phone conversation and not much -- if any --more than that. You tell the jury your client is guilty of the conspiracy but innocent of the (attempted) delivery, because your client is pretty much just talk. And if the jury follows your recommendation, then the fact that the CDO factors were struck from the conspiracy charge is a pretty big deal.
If I'm wrong about CDO factors and conspiracy counts, please educate me and I will amend or delete this post.
