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Oregon Enhanced Drug Penalty ‘For Consideration’ Element Requires Proof of Drug Sale or Agreement to Sell

by Mark Wilson

The Supreme Court of Oregon held that the “for consideration” element of a “commercial drug offense” requires proof of a completed drug sale or an existing agreement to sell drugs. The Court rejected the State’s argument that “for consideration” may be proved by evidence of drug possession with intent to sell.

Oregon law provides enhanced penalties for a “commercial drug offense” (“CDO”). Under that law, possession, delivery, or manufacture of certain controlled substances is a CDO if it is accompanied by three of eleven factors enumerated in ORS 475.900(l)(b).

During a traffic stop of Jose Roberto Fierro Villagomez, police discovered 141.98 grams of methamphetamine divided into separate bags, more than $4,000 in cash, three cellphones, and a ledger of presumed drug records. Villagomez was charged with possession and delivery of methamphetamine.

Seeking an enhanced sentence, the State also alleged on the basis of four CDO factors that Villagomez’s possession and delivery constituted a CDO under ORS 475.900(l)(b). Those factors were: (1) delivery of methamphetamine “for consideration,” (2) possession of $300 or more in cash, (3) possession of drug records, and (4) possession of eight grams or more of methamphetamine.

At trial, the State sought to prove the delivery charge by showing that Villagomez possessed a large quantity of methamphetamine with intent to transfer it. This theory is authorized by State v. Boyd, 756 P.2d 1276 (Or. Ct. App. 1988), and is commonly referred to as a “Boyd delivery” or “constructive delivery.”

When the State rested, Villagomez moved for a judgment of acquittal on the “for consideration” CDO factor, arguing that actual consideration is required. The State disagreed, arguing that “for consideration” is appropriate in a “Boyd delivery” case. The trial court denied the motion, agreeing with the State.

The jury then convicted Villagomez of the possession and delivery charges. It also found that the State proved three of the four alleged CDO factors, including the “for consideration” factor. As a result, Villagomez was sentenced to an enhanced CDO 36-month prison term on the delivery conviction and a 16-month prison term on the possession conviction. If the CDO factors had not been found, Villagomez would have been sentenced to probation on both offenses.

Following an extensive statutory construction analysis, the Oregon Supreme Court reversed. “The legislative history is replete with indications that the legislature intended the ‘for consideration’ CDO factor to require a sale, as opposed to an intent to sell,” the Court concluded in rejecting the State’s argument that a “Boyd delivery” satisfies the “for consideration” CDO element. The Court noted that “the legislature frequently distinguished between a Boyd delivery and delivery” when discussing “for consideration.”

The Court determined that “the legislative history as a whole” reveals an intent “to describe objective circumstances that warrant sentencing a crime involving controlled substances as a more serious crime — a commercial drug offense.” It then concluded that “interpreting the ‘for consideration’ CDO factor as requiring proof of a completed sale or an existing agreement to sell drugs is consistent with that intent.”

Given the State’s concession that it did not adduce sufficient evidence to establish a completed sale or existing agreement to sell drugs, the trial court erred in denying Villagomez’s motion for judgment of acquittal on the “for consideration” CDO factor. In the absence of that factor, the State proved only two CDO factors, the Court observed. Therefore, the trial court erroneously imposed an enhanced CDO sentence.

Accordingly, the Court reversed Villagomez’s sentence and remanded to the circuit court for resentencing. See: State v. Villagomez, 412 P.3d 183 (Or. 2018). 

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