Colorado Drug Laws: Mandatory Sentences to Prison Based on the Weight of Controlled Substances – “Sentence Enhancers”

Denver, Colorado Drug Crimes Criminal Defense Lawyer – H. Michael Steinberg

Colorado Law contains a statute that makes mandatory prison sentences, even for first time offenders. This law is being abused by prosecutors all over the state to “coerce” pleas to significant felonies – often destroying the accused’s future potential to live a successful life.

The law is found at Colorado Revised Statutes (CRS) 18-18-405: The key provisions reads as follows: (the balance of the statute and other Colorado mandatory drug laws appear at the end of this article below)

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(3) (a) Unless a greater sentence is required pursuant to the provisions of another statute, any person convicted pursuant to subparagraph (I) of paragraph (a) of subsection (2) of this section for knowingly manufacturing, dispensing, selling, distributing, or possessing with intent to manufacture, dispense, sell, or distribute, or inducing, attempting to induce, or conspiring with one or more other persons, to manufacture, dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute an amount that is or has been represented to be:

(I) At least twenty-five grams or one ounce but less than four hundred fifty grams of any material, compound, mixture, or preparation that contains a schedule I or schedule II controlled substance as listed in section 18-18-203 or 18-18-204 shall be sentenced to the department of corrections for at least the minimum term of incarceration in the presumptive range provided for such offense in section 18-1.3-401(1) (a) with regard to offenses other than manufacturing, dispensing, selling, distributing, or possessing with intent to manufacture, dispense, sell, or distribute, and for at least the minimum term of incarceration in the presumptive range provided for such offense in section 18-1.3-401(1) (a) as modified pursuant to section 18-1.3-401(10) with regard to manufacturing, dispensing, selling, distributing, or possessing with intent to manufacture, dispense, sell, or distribute;

(II) At least four hundred fifty grams or one pound but less than one thousand grams of any material, compound, mixture, or preparation that contains a schedule I or schedule II controlled substance as listed in section 18-18-203 or 18-18-204 shall be sentenced to the department of corrections for a term of at least the midpoint of the presumptive range but not more than twice the maximum presumptive range provided for such offense in section 18-1.3-401(1) (a) with regard to offenses other than manufacturing, dispensing, selling, distributing, or possessing with intent to manufacture, dispense, sell, or distribute, and for a term of at least the midpoint of the presumptive range but not more than twice the maximum presumptive range provided for such offense in section 18-1.3-401(1) (a) as modified pursuant to section 18-1.3-401(10) with regard to manufacturing, dispensing, selling, distributing, or possessing with intent to manufacture, dispense, sell, or distribute;

(III) One thousand grams or one kilogram or more of any material, compound, mixture, or preparation that contains a schedule I or schedule II controlled substance as listed in section 18-18-203 or 18-18-204 shall be sentenced to the department of corrections for a term greater than the maximum presumptive range but not more than twice the maximum presumptive range provided for such offense in section 18-1.3-401(1) (a) with regard to offenses other than manufacturing, dispensing, selling, distributing, or possessing with intent to manufacture, dispense, sell, or distribute, and for a term greater than the maximum presumptive range but not more than twice the maximum presumptive range provided for such offense in section 18-1.3-401(1) (a) as modified pursuant to section 18-1.3-401(10) with regard to manufacturing, dispensing, selling, distributing, or possessing with intent to manufacture, dispense, sell, or distribute.

(b) In addition to any other penalty imposed under this subsection (3), upon conviction, a person who violates this subsection (3) shall be fined not less than one thousand dollars but not more than five hundred thousand dollars. For offenses committed on or after July 1, 1985, the fine shall be in an amount within the presumptive range set out in section 18-1.3-401(1) (a) (III).

(3.5) The felony offense of unlawfully manufacturing, dispensing, selling, distributing, or possessing with intent to unlawfully manufacture, dispense, sell, or distribute a controlled substance is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401(10).

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(5) When a person commits unlawful distribution, manufacture, dispensing, sale, or possession with intent to manufacture, dispense, sell, or distribute any schedule I or schedule II controlled substance, as listed in section 18-18-203 or 18-18-204, flunitrazepam, or ketamine, pursuant to subsection (1) of this section, twice or more within a period of six months, without having been placed in jeopardy for the prior offense or offenses, and the aggregate amount of the schedule I or schedule II controlled substance, flunitrazepam, or ketamine involved equals or exceeds twenty-five grams, the defendant shall be sentenced pursuant to the mandatory sentencing requirements specified in subsection (3) of this section.

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(7) Notwithstanding the provisions of subsection (2) of this section, and except as otherwise provided in sub-subparagraph (B) of subparagraph (I) of paragraph (a) of subsection (2) or paragraph (a) of subsection (2.5) of this section, a person who violates subsection (1) of this section by selling, dispensing, or distributing a controlled substance other than marijuana or marijuana concentrate to a minor under eighteen years of age and who is at least eighteen years of age and at least two years older than the minor commits a class 3 felony and, unless a greater sentence is provided under any other statute, shall be sentenced to the department of corrections for a term of at least the minimum, but not more than twice the maximum, of the presumptive range provided for such offense in section 18-1.3-401 (1) (a) as modified pursuant to section 18-1.3-401 (10)

What are Mandatory Drug Crime Sentences?

A judge traditionally has the right to weigh all the facts of a case when determining an offender’s sentence. In the 1970s and 1980s, the U.S. Congress and many state legislatures passed laws that force judges to give fixed prison terms to those convicted of specific crimes, most often drug offenses.

The belief was that harsh, inflexible sentences would catch those at the highest levels of the drug trade and deter others from entering it. It has the opposite effect and the country’s prisons are overpopulated by low level drug users.

Mandatory sentencing laws fail to deter people from using or selling drugs: drugs are cheaper, purer and more easily obtainable than ever before.

What’s Wrong With Mandatory Drug Crime Sentences?

1. Judges can’t consider the facts of each case. 2. The type and weight of a drug primarily determines sentence length. 3. They remove checks and balances. 4. They encourage and reward those who inform on others. 5. Conspiracy laws make those at the top of the drug trade and low-level offenders equally culpable. 6. Low-level offenders often get longer sentences than high-level dealers.

Some Relevant Laws in Colorado

§ 18-18-409. Reduction or Suspension of Sentence for Providing Substantial Assistance (Assisting the DA)

Notwithstanding any other provision of this article, the district attorney may request the sentencing court to reduce or suspend the sentence of any individual who is convicted of a violation of section 18-18-405 or 18-18-407(1) (e) and who provides substantial assistance in the identification, arrest, or conviction of any person for a violation of this article. Upon good cause shown, the request may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if the judge finds that the assistance rendered was substantial.

§ 18-18-407. Special Offender

(1) Upon a felony conviction under this part 4, the presence of any one or more of the following extraordinary aggravating circumstances designating the defendant a special offender shall require the court to sentence the defendant to the department of corrections for a term of at least the minimum term of years within the presumptive range for a class 2 felony but not more than twice the maximum term of years within the presumptive range for a class 2 felony:

(a) The defendant was previously convicted in courts of the United States or a state or any political subdivision thereof for two or more offenses involving the manufacture, sale, dispensing, or distribution of controlled substances, which offenses did not arise from the same criminal episode or course of events and differ from the pending felony and which were punishable by imprisonment in excess of one year;

(b) The defendant committed an offense as part of a pattern of manufacturing, sale, dispensing, or distributing controlled substances, which offense is a felony under applicable laws of Colorado, which constituted a substantial source of that person’s income, and in which that person manifested special skill or expertise;

(c) The defendant committed a felony which was, or was in furtherance of, a conspiracy with one or more persons to engage in a pattern of manufacturing, sale, dispensing, or distributing a controlled substance, which offense is a felony under applicable laws of Colorado, and the defendant did, or agreed that he would, initiate, organize, plan, finance, direct, manage, or supervise all or part of such conspiracy or manufacture, sale, dispensing, or distributing, or give or receive a bribe, or use force in connection with such manufacture, sale, dispensing, or distribution;

(d) The defendant unlawfully introduced, distributed, or imported into the state of Colorado more than four grams of any schedule I or II controlled substance listed in part 2 of this article or more than two grams of methamphetamine;

(e) The defendant unlawfully sold, dispensed, distributed, possessed, or imported into the state of Colorado a quantity in excess of one hundred pounds of marijuana or marijuana concentrate;

(f) (I) The defendant used, displayed, or possessed on his or her person or within his or her immediate reach, a deadly weapon as defined in section 18-1-901 (3) (e) at the time of the commission of a violation of this part 4; or

(II) The defendant or a confederate of the defendant possessed a firearm, as defined in section 18-1-901 (3) (h), to which the defendant or confederate had access in a manner that posed a risk to others or in a vehicle the defendant was occupying during the commission of a violation of this part 4;

(g) The defendant solicited, induced, encouraged, intimidated, employed, hired, or procured a child, as defined in section 19-1-103(18), C.R.S., to act as his agent to assist in the unlawful distribution, manufacturing, dispensing, sale, or possession for the purposes of sale of any controlled substance in violation of section 18-18-405. It shall not be a defense under this paragraph (g) that the defendant did not know the age of any such individual.

(h) (I) The defendant engaged in a continuing criminal enterprise by violating any provision of this part 4 which is a felony; and

(II) The violation is a part of a continuing series of two or more violations of this part 4 on separate occasions:

(A) Which are undertaken by that person in concert with five or more other persons with respect to whom that person occupies a position of organizer, supervisor, or any other position of management; and

(B) From which that person obtained substantial income or resources.

(2) (a) A defendant shall be a special offender if the defendant is convicted of selling, distributing, possessing with intent to distribute, manufacturing, or attempting to manufacture any controlled substance in violation of section 18-18-405 either within or upon the grounds of any public or private elementary, middle, junior high, or high school, vocational school, or public housing development, or within one thousand feet of the perimeter of any such school or public housing development grounds on any street, alley, parkway, sidewalk, public park, playground, or other area or premises that is accessible to the public, or within any private dwelling that is accessible to the public for the purpose of the sale, distribution, use, exchange, manufacture, or attempted manufacture of controlled substances in violation of this article, or in any school vehicle, as defined in section 42-1-102 (88.5), C.R.S., while such school vehicle is engaged in the transportation of persons who are students. The court is required in addition to imposing the sentence to imprisonment in the department of corrections required by subsection (1) of this section, to fine the defendant without suspension at least twice the minimum fine provided for in section 18-1.3-401 (1) (a) (III) if the defendant’s offense is a felony or in section 18-1.3-501 (1) if the defendant’s offense is a misdemeanor.

(b) The department of education may cooperate with local boards of education and the officials of public housing developments, and make recommendations regarding the uniform implementation and furnishing of notice of the provisions of this subsection (2). Such recommendations may include, but shall not be limited to, the uniform use of signs and other methods of notification which may be used to implement this subsection (2).

(c) For the purposes of this section, the term “public housing development” means any low-income housing project of any state, county, municipal, or other governmental entity or public body owned and operated by a public housing authority that has an on-site manager. “Public housing development” shall not include single-family dispersed housing or small or large clusters of dispersed housing having no on-site manager.

(3) (a) In support of the findings under paragraph (b) of subsection (1) of this section, it may be shown that the defendant has had in his own name or under his control income or property not explained as derived from a source other than such manufacture, sale, dispensing, or distribution of controlled substances.

(b) For the purposes of paragraph (b) of subsection (1) of this section only, a “substantial source of that person’s income” means a source of income which, for any period of one year or more, exceeds the minimum wage, determined on the basis of a forty-hour week and fifty-week year, or which, for the same period, exceeds fifty percent of the defendant’s declared adjusted gross income under Colorado or any other state law or under federal law, whichever adjusted gross income is less.

(c) For the purposes of paragraph (b) of subsection (1) of this section, “special skill or expertise” in such manufacture, sale, dispensing, or distribution includes any unusual knowledge, judgment, or ability, including manual dexterity, facilitating the initiation, organizing, planning, financing, directing, managing, supervising, executing, or concealing of such manufacture, sale, dispensing, or distributing, the enlistment of accomplices in such manufacture, sale, dispensing, or distribution, the escape from detection or apprehension for such manufacture, sale, dispensing, or distribution, or the disposition of the fruits or proceeds of such manufacture, sale, dispensing, or distribution.

(d) For the purposes of paragraphs (b) and (c) of subsection (1) of this section, such manufacture, sale, dispensing, or distribution forms a pattern if it embraces criminal acts which have the same or similar purposes, results, participants, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated events.

(4) Nothing in this section shall preclude the court from considering aggravating circumstances other than those stated in subsection (1) of this section as a basis for sentencing the defendant to a term greater than the presumptive range for the felony.

(5) If a defendant who is subject to the provisions of this section is subject to a greater sentence pursuant to the provisions of another statute, the court shall impose sentence pursuant to that statute. The prosecution shall not be forced to elect under which statute to proceed.

§ 18-18-405. Unlawful Distribution, Manufacturing, Dispensing, or Sale

(1) (a) Except as authorized by part 3 of article 22 of title 12, C.R.S., or by part 2 or 3 of this article, it is unlawful for any person knowingly to manufacture, dispense, sell, or distribute, or to possess with intent to manufacture, dispense, sell, or distribute, a controlled substance; or induce, attempt to induce, or conspire with one or more other persons, to manufacture, dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute, a controlled substance; or possess one or more chemicals or supplies or equipment with intent to manufacture a controlled substance.

(b) As used in this subsection (1), “dispense” does not include labeling, as defined in section 12-22-102(16), C.R.S.

(2) (a) Except as is otherwise provided for offenses concerning marijuana and marijuana concentrate in section 18-18-406 and for offenses involving minors in section 18-18-407 (1) (g), any person who violates any of the provisions of subsection (1) of this section:

(I) In the case of a controlled substance listed in schedule I or II of part 2 of this article, commits:

(A) A class 3 felony; or

(B) A class 2 felony, if the violation is committed subsequent to a prior conviction in this or any other state, the United States, or any territory subject to the jurisdiction of the United States of a violation to which this subparagraph (I) applies or would apply if convicted in this state;

(II) In the case of a controlled substance listed in schedule III of part 2 of this article, commits:

(A) A class 4 felony; or

(B) A class 3 felony, if the violation is committed subsequent to any prior conviction in this or any other state, the United States, or any territory subject to the jurisdiction of the United States of a violation to which subparagraph (I) of this paragraph (a) or this subparagraph (II) applies or would apply if convicted in this state;

(III) In the case of a controlled substance listed in schedule IV of part 2 of this article, commits:

(A) A class 5 felony; or

(B) A class 4 felony, if the violation is committed subsequent to a prior conviction in this or any other state, the United States, or any territory subject to the jurisdiction of the United States of a violation to which subparagraph (I) or (II) of this paragraph (a) or this subparagraph (III) applies or would apply if convicted in this state;

(IV) In the case of a controlled substance listed in schedule V of part 2 of this article, commits:

(A) A class 1 misdemeanor; or

(B) A class 5 felony, if the violation is committed subsequent to any prior conviction in this or any other state, the United States, or any territory subject to the jurisdiction of the United States of a violation to which subparagraph (I), (II), or (III) of this paragraph (a) or this subparagraph (IV) applies or would apply if convicted in this state.

(b) Repealed.

(2.1) Repealed.

(2.3) (a) [Deleted by 2010 amendment.]

(b) Repealed.

(2.5) (a) Notwithstanding the provisions of subparagraph (III) of paragraph (a) of subsection (2) of this section, a person who violates the provisions of subsection (1) of this section with regard to flunitrazepam or ketamine commits a class 3 felony; except that the person commits a class 2 felony if the violation is committed subsequent to a prior conviction in this or any other state, the United States, or any territory subject to the jurisdiction of the United States of a violation involving flunitrazepam or ketamine or to which subparagraph (I) of paragraph (a) of subsection (2) of this section applies or would apply if convicted in this state.

(b) Any person convicted of violating the provisions of subsection (1) of this section with regard to flunitrazepam or ketamine shall be subject to the mandatory sentencing provisions of subsection (3) of this section.

(2.6) Repealed.

(4) Repealed.

(6) Repealed.

The Most Serious Special Offender Laws:

Under sections 18-18-405(1)(a), (2)(a)(I)(A), and (3)(a)(III), C.R.S.2007, a special offender is defined as one who ” unlawfully introduced, distributed, or imported into the state of Colorado any schedule I or II controlled substance.” § 18-18-407(1)(d). The sentencing range for a special offender is ” at least the minimum term of years within the presumptive range for a class 2 felony but not more than twice the maximum term of years within the presumptive range for a class 2 felony.” § 18-18-407(1). The presumptive sentencing range for a class 2 felony is eight to twenty-four years. § 18-1.3-401(1)(a)(V)(A), C.R.S.2007. Therefore, defendant’s sentencing range under this regimen was eight to forty-eight years