WEST virginia Legislature

2016 regular session

Introduced

Senate Bill 405

By Senators Trump, Leonhardt, Miller, Carmichael, Woelfel, Boso, Gaunch, Ashley, Plymale and Blair

[Introduced January 27, 2016;
Referred to the Committee on the Judiciary.]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §60A-4-414, relating to conspiracy to commit violations of Uniform Controlled Substances Act; creating felony offense of conspiracy; providing penalties; establishing sentencing guideline based upon quantity for certain controlled substances; authorizing court to make determination of applicable quantity; and authorizing aggregation of quantities from all participants and members of the conspiracy.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §60A-4-414, to read as follows:

ARTICLE 4. offenses and penalties.

§60A-4-414. Conspiracy.

(a) Any person who conspires with one or more other persons to commit an offense enumerated in this chapter shall, if one or more of such persons does any act to effect the object of the conspiracy, be deemed guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than two nor more than ten years: Provided, That if the offense involves one of the substances and quantities specified in the guideline in subsection (b) of this section, then the person shall be sentenced to the applicable penalty specified in the guideline in subsection (b).  

(b) For those persons convicted under subsection (a) of this section for a controlled substance specified in the guideline below, the person shall be imprisoned pursuant to the specified penalty in the guideline based upon the applicable quantity:

Substance             Quantity                                                  Imprisonment

                                                                                    (not less than/nor more than)

Heroin

                        1 kilogram or more                                         20 years/60 years      

                        100 to 999 grams                                            10 years /30 years                             

            Less than 100 grams                                      5 years/15 years

Cocaine/Cocaine base

                        5 kilograms or more                                        20 years/60 years

                        500 to 4999 grams                                          10 years/30 years

                        Less than 500 grams                                      5 years/15 years

PCP (phencyclidine)

                        100 grams or more                                         20 years/60 years

                        10 to 99 grams                                                10 years/30 years

                        Less than 10 grams                                        5 years/15 years

LSD (lysergic acid diethylamide)

                        10 grams or more                                           20 years/60 years

                        1 to 9 grams                                                    10 years/30 years

                        Less than 1 gram                                            5 years/15 years

Methamphetamine

                        50 grams or more (or 500 grams                   20 years/60 years

 or more of a mixture)                                    

5 to 49 grams (or 50 to 499                            10 years/30 years

grams or more of a mixture)

Less than 5 grams (or less than                      5 years/15 years

50 grams of mixture)

Marijuana

                        1000 kilograms or more                                  20 years/60 years

                        100 to 999 kilograms                                      10 years/30 years

                        50 to 99 kilograms                                          5 years/15 years

                        Less than 50 kilograms                                   2 years/10 years

For purposes of this guideline, 1 kilogram is equal to 35.27 ounces; 1 gram is equal to 0.04 ounces.

(c) As part of sentencing, the court shall make the determination as to the applicable quantity based upon information before the court or that may be made known to the court through plea agreement, proffer, stipulation, presentence investigation, or evidence adduced at trial. If necessary, the court may require presentation of evidence by the state to determine the applicable quantity as part of sentencing under the guideline. The court’s determination as to the applicable quantity may be based upon reasonable estimates derived and calculable from information or evidence before the court.

(d) For purposes of sentencing under this section, the determination as to the applicable quantity of controlled substances may include any quantity or type of controlled substance involved in the conspiracy including, but not be limited to, controlled substances manufactured, distributed, delivered, possessed, or obtained by other participants or members of the conspiracy. 

NOTE: The purpose of this bill is to create a criminal offense to hold all participants involved in a conspiracy to violate the drug laws responsible.  The bill establishes sentences based upon quantities for certain controlled substances, and allows all substances possessed or delivered among the members of the conspiracy to be attributed to a defendant.  This bill was recommended for introduction by the Joint Committee on the Judiciary that met during the 2015-2016 Interim session. 

Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.