If you saw my previous post, then you know that the definition of "enhancement fact" was written so broadly that it includes commercial drug offense factors and the gun minimum.
It also includes substantial quantity factors, such as more than 100 grams of heroin, which would lift the defendant up to a crime seriousness level 10 on the sentencing grid, with no possibility of downward departure.
But just because the defendant would be a level 10 if the judge imposed it, just because the judge couldn't downward depart if he did impose it, that doesn't mean he has to impose it.
ORS 136.785(5) states:
(5) A finding relating to an enhancement fact made by a jury during the trial or sentencing phase of a criminal proceeding may not be reexamined by the court. Notwithstanding the findings made by a jury relating to an enhancement fact, the court is not required to impose an enhanced sentence. [Emphasis added.]
I'm not going to pretend that it will be easy to persuade a judge not to impose the minimum if there is more than 100 grams of heroin. But a sympathetic defendant, who only grew marijuana, maybe the judge won't see the need to impose any enhancement factors, including CDO factors. Either way, if it's an open sentencing situation, the argument should be made that the "mandatory" sentence is in fact not required by law, if the judge chooses not to impose the factor.