Sentence enhancement factors – such as commercial drug offense factors -- can be divided into two types: offense-specific and offender-specific. Here are a few examples: the burglary enhancement factor “the dwelling was occupied” is offense-specific. State v. Lark, 316 Or 317 (1993). That is, it does not apply to a specific defendant but to the offense itself. Another example of offense-specific, presumably, is “the delivery was for consideration.”
If an enhancement factor is “offense-specific,” it applies to all co-defendants whether they are principals or accomplices.
On the other hand, offender-specific factors – which can be identified by the allegation that “the offender possessed X” or “the defendant threatened Y” are offender-specific, in that they can only be applied to the defendant for whom they are true. There is no accomplice liability. Lark at 326 (“Some factors clearly require that "the offender" engage in the described conduct.” Emphasis in original.)
- When a factor describes conduct of the offender -- such as, 'the offender caused or threatened to cause serious physical injury to the victim' -- then the subcategory based on that factor applies to a defendant only if the defendant personally engaged in the described conduct.
Id. at 325.
See also State v. Flanigan, 316 Or 329 (1993)
Last year, I prepared a special jury instruction on the issue. I summed up my argument in support of the instruction this way:
- In this case, all of the commercial drug offense factors – and the substantial quantities factor – are offender-specific. Therefore, there is only liability if the defendant herself, for example, possessed “$300.” Since she personally possessed less than $300, and there is no evidence she knew of, much less possessed, the money on the co-defendant’s person, it is likely that this factor will never reach the jury. But if it does, the jury instruction would apply, just as it would apply to each of the other sentence enhancement factors.
Note that the possession of "substantial quantities" of a particular controlled substance can be one of the essential three factors to support a commercial drug offense. ORS 475.900(1)(b) states in part:
- b) The violation constitutes possession, delivery or manufacture of a controlled substance and the possession, delivery or manufacture is a commercial drug offense. A possession, delivery or manufacture is a commercial drug offense for purposes of this subsection if it is accompanied by at least three of the following factors:
. . . .
- (K) The offender was in possession of controlled substances in an amount greater than:
(i) Three grams or more of a mixture or substance containing a detectable amount of heroin;
(ii) Eight grams or more of a mixture or substance containing a detectable amount of cocaine;
(iii) Eight grams or more of a mixture or substance containing a detectable amount of methamphetamine;
(iv) Eight grams or more of a mixture or substance containing a detectable amount of hashish;
(v) One hundred ten grams or more of a mixture or substance containing a detectable amount of marijuana;
Notice that the factor is clearly "offender-specific." Therefore, it couldn't be used against an accomplice who did not in fact possess the controlled substance. But what about super substantial quantities? The statute says in part:
475.925 Sentences for certain controlled substance offenses. When a person is convicted of the unlawful delivery or manufacture of a controlled substance, the court shall sentence the person to a term of incarceration ranging from:
(1) 58 months to 130 months, depending on the person’s criminal history, if the delivery or manufacture involves:
(a) 500 grams or more of a mixture or substance containing a detectable amount of cocaine;
Note that it doesn't have the "the defendant" or "the offender"-specific language that we rely on to identify offender-specific charges. Does that matter? There's nothing in the case law that says there must be that language to make it offender-specific. It's an issue of legislative intent, and the language provides a clue, not necessarily an answer. And why logically would it be offender-specific when the amount is over eight grams of cocaine but offense-specific when over 500? Moreover, did the legislature intend to punish severely an accomplice who provides minimal help but who had no idea about the super substantial amount of controlled substance in play?
I don't know for certain what the answer is, but I think the place to find out is in the legislative history. If you've got a co-defendant case, and your client wasn't in possession of 500 grams of cocaine (or the equivalent), whether that factor is offense-specific or offender-specific makes all the difference in the world.