State v. Miller

422 P.3d 327, 291 Or. App. 599
Court of Appeals of Oregon·Decided May 9, 2018·No. A158433·Published·Cited by 7 cases

Opinion

EGAN, C. J.

After pleading guilty, defendant was convicted of six counts of unlawful delivery of methamphetamine, ORS 475.890 (Counts 1, 3, 5, 7, 9, and 12); six counts of unlawful possession of methamphetamine, ORS 475.894 (Counts 2, 4, 6, 8, 10, and 13); one count of unlawful manufacture of methamphetamine, ORS 475.886 (Count 11); and one count of frequenting a place where controlled substances are used, ORS 167.222 (Count 14).1 The trial court imposed concurrent sentences totaling 81 months in prison, which included the statutorily required mandatory minimum sentences applicable to many of defendant's convictions, and 36 months of post-prison supervision. Based on a theory of "sentence entrapment," defendant contends on appeal that the mandatory minimum sentences that the court imposed on Counts 3 through 13 are unconstitutionally disproportionate as applied to her under Article I, section 16, of the Oregon Constitution because they would not have applied had she not been "pushed into" committing those offenses by a government confidential informant. The state responds that defendant's claims are unreviewable under former ORS 138.222 (2015)2 and the appeal must be dismissed. And, in any event, the state contends, there is no basis for us to conclude that the sentences violate Article I, section 16. We conclude that we have authority to review defendant's claims of error-at least with respect to the sentences imposed on Counts 11 and 12-however, we agree with the state that defendant's claims fail on the merits.3 Accordingly, we affirm.

The following undisputed facts were adduced at defendant's sentencing hearing. In 2008, defendant, a bartender and bar owner in Coos Bay, began regularly using small amounts of methamphetamine; she testified that she would put the drug into her coffee to help her cope with personal and financial stress. Toward the end of that year, defendant began selling methamphetamine to three of her friends, who used the drug in a similar fashion. Defendant would buy "eightballs" or "teeners"4 from a supplier she met *329at the bar and break them down into smaller quantities to sell to her friends. Between the end of 2008 and July 2013, defendant made approximately $100 to $150 a week selling methamphetamine.

In 2013, the South Coast Interagency Narcotics Team (SCINT) arranged for a confidential government informant to purchase methamphetamine from defendant in a series of six body-wire-recorded controlled buys. Those buys formed the bases for defendant's convictions in this case.

In the first transaction, on March 14, 2013, the informant purchased one-quarter ounce (approximately 6.99 grams) of methamphetamine from defendant for $350. In the second buy, on April 8, the informant purchased 13.85 grams of methamphetamine from defendant for $700. Because her usual supplier did not deal in those quantities, defendant bought the drugs from a different supplier. Defendant also provided "baggies" for the informant to resell the methamphetamine, and they discussed the possibility of a price break for larger quantities. During the third transaction, on April 19, the informant purchased 18.89 grams of methamphetamine from defendant, and defendant provided him with new packaging material. She also told him that she would be making future trips in order to get methamphetamine for him. On May 16, the fourth buy, the informant purchased 27.4 grams (approximately one ounce) of methamphetamine, which defendant purchased from yet another supplier, this time in Portland. She bought the methamphetamine for $800 and sold it to the informant for $1,200. Defendant told him that she "could probably get whatever he wanted at the price he was willing to pay."5 In the fifth transaction, on June 18, the informant arranged for a purchase of four ounces from defendant; defendant bought approximately that amount (111.49 grams) from her Portland supplier for $2,600 and sold it to the informant for $4,000. Finally, on or about July 1, the informant requested one pound, two ounces (approximately 510 grams), from defendant. Defendant drove to Portland to buy the drugs; when she returned home, she put the methamphetamine in a trash bag, took it outside, and left it. She was expecting the informant to come pick it up, but, instead, several police officers arrived with a search warrant and found the methamphetamine, which was confirmed to be over 500 grams. They also searched her home and seized computers, cell phones, and financial documents.

Based on those six transactions, defendant was arrested and charged with the offenses listed above. She waived a jury, pleaded guilty to all charges, and was convicted. At sentencing, defendant urged the court to impose a downward departure based on "sentencing entrapment," citing federal case law applying the federal sentencing scheme. See, e.g. , United States v. Castaneda , 94 F.3d 592, 595 (9th Cir. 1996) (recognizing court's authority to "subtract the amount of drugs tainted by sentencing entrapment from the total quantity of drugs attributable to the defendant for purpose of establishing a mandatory minimum sentence"). She argued that defendant "would not have been engaged in what she was engaged with unless SCINT upped it, and upped it, and upped it two more times after that."

The trial court stated that, given a choice, it would impose a downward durational departure, but that it lacked authority to do that. The court observed that "the only reason [defendant is] a big-time drug dealer is because [she] was pushed to be a big-time drug dealer" and, "in the big picture of drug dealers, the outcome of this case is disproportionate to what I think would be a fair sentence." But, the court explained, Oregon's statutory scheme establishing the sentences for the pertinent offenses expressly precluded the court from departing downward from the statutory minimums:

"I reject that the theory presented-sentencing entrapment-authorized me to ignore the statutory scheme which Oregon has created, which again I reference prohibits *330this Court from downward durational or dispositional departing."

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State v. Miller, 422 P.3d 327, 291 Or. App. 599 (Or. Ct. App. 2018).

422 P.3d 327 (State v. Miller) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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