COCODE

18-18-405. Unlawful distribution, manufacturing, dispensing, or sale.

Statute text

(1) (a) Except as authorized by part 1 of article 280 of title 12, part 2 of article 80 of title 27, part 2 or 3 of this article 18, section 18-18-434, article 170 of title 12, or article 50 of title 44, 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 12-280-103 (23).

(2) Except as otherwise provided for an offense concerning marijuana and marijuana concentrate in section 18-18-406 and for special offenders as provided in section 18-18-407, any person who violates any of the provisions of subsection (1) of this section:

(a) Commits a level 1 drug felony and is subject to the mandatory sentencing provisions in section 18-1.3-401.5 (7) if:

(I) The violation involves any material, compound, mixture, or preparation that weighs:

(A) More than two hundred twenty-five grams and contains a schedule I or schedule II controlled substance; or

(B) More than one hundred twelve grams and contains methamphetamine, heroin, ketamine, or cathinones; or

(D) More than fifty grams and contains fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g); or

(II) An adult sells, dispenses, distributes, or otherwise transfers any quantity of a schedule I or schedule II controlled substance or any material, compound, mixture, or preparation that contains any amount of a schedule I or schedule II controlled substance, other than marijuana or marijuana concentrate, to a minor and the adult is at least two years older than the minor;

(III) (A) Except as provided in section 18-1-711 (3)(i), the defendant committed a violation of subsection (2)(a)(I)(D), (2)(b)(I)(D), or (2)(c)(V) of this section, and the actions in violation of subsection (2)(a)(I)(D), (2)(b)(I)(D), or (2)(c)(V) of this section are the proximate cause of the death of another person who used or consumed the material, compound, mixture, or preparation that contained fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g).

(B) Notwithstanding subsection (2)(a)(III)(A) of this section, a defendant who committed a violation of subsection (2)(c)(V) of this section, and the actions in violation of subsection (2)(c)(V) of this section are the proximate cause of the death of another person who used or consumed the material, compound, mixture, or preparation that contained fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), is not subject to the mandatory sentencing requirement as described in section 18-1.3-401.5 (7).

(b) Commits a level 2 drug felony if:

(I) The violation involves any material, compound, mixture, or preparation that weighs:

(A) More than fourteen grams, but not more than two hundred twenty-five grams, and contains a schedule I or schedule II controlled substance;

(B) More than seven grams, but not more than one hundred twelve grams, and contains methamphetamine, heroin, ketamine, or cathinones;

(D) More than four grams, but not more than fifty grams, and contains fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g);

(II) An adult sells, dispenses, distributes, or otherwise transfers any quantity of a schedule III or schedule IV controlled substance or any material, compound, mixture, or preparation that contains any quantity of a schedule III or schedule IV controlled substance to a minor and the adult is at least two years older than the minor;

(c) Except as provided in subsection (8) of this section, commits a level 3 drug felony if the violation involves any material, compound, mixture, or preparation that weighs:

(I) Not more than fourteen grams and contains a schedule I or schedule II controlled substance;

(II) Not more than seven grams and contains methamphetamine, heroin, ketamine, or cathinones;

(III) Not more than ten milligrams and contains flunitrazepam;

(IV) More than four grams and contains a schedule III or schedule IV controlled substance; or

(V) Not more than four grams and contains fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g).

(d) Except as provided in subsection (8) of this section or section 18-1-711 (3)(j), commits a level 4 drug felony if:

(I) The violation involves any material, compound, mixture, or preparation that weighs not more than four grams and contains a schedule III or schedule IV controlled substance; or

(II) Notwithstanding the provisions of paragraph (c) of this subsection (2), the violation involves distribution or transfer of the controlled substance for the purpose of consuming all of the controlled substance with another person or persons at a time substantially contemporaneous with the transfer; except that this subparagraph (II) applies only if the distribution or transfer involves not more than four grams of a schedule I or II controlled substance or not more than two grams of methamphetamine, heroin, ketamine, or cathinones;

(e) Commits a level 1 drug misdemeanor if the violation involves:

(I) A schedule V controlled substance; or

(II) A transfer with no remuneration of not more than four grams of a schedule III or schedule IV controlled substance.

(2.1) Repealed.

(2.3) (a) (Deleted by amendment, L. 2010, (HB 10-1352), ch. 259, p. 1163, 3, effective August 11, 2010.)

(b) Repealed.

(2.5) to (4) Repealed.

(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, ketamine, or cathinones, or conspires with one or more persons to commit the offense, 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, the aggregate amount of the schedule I or schedule II controlled substance, flunitrazepam, ketamine, or cathinones involved may be used to determine the level of drug offense.

(6) and (7) Repealed.

(8) Except for a prosecution for manufacturing, a person commits a level 1 drug misdemeanor for a violation of subsection (2)(c)(I), (2)(c)(II), (2)(c)(V), or (2)(d) of this section if:

(a) The distribution, dispensing, transfer, or sale involves a material, compound, mixture, or preparation that weighs not more than four grams and contains any amount of a controlled substance identified in subsection (2)(c)(I), (2)(c)(II), (2)(c)(V), or (2)(d) of this section;

(b) The defendant reports in good faith an emergency drug overdose event to a law enforcement officer, to the 911 system, or to a medical provider, or the defendant aids or seeks aid for the person who suffered the emergency drug overdose;

(c) The defendant remains at the scene of the event until a law enforcement officer or an emergency medical responder arrives or the defendant remains at the facilities of the medical provider until a law enforcement officer arrives;

(d) The defendant identifies himself or herself and cooperates with the law enforcement officer, emergency medical responder, or medical provider; and

(e) The offense arises from the same course of events from which the emergency overdose event arose.

History

Source: L. 92: Entire article R&RE, p. 356, 1, effective July 1. L. 93: (4) amended, p. 972, 2, effective July 1. L. 94: (2)(a)(I) and (4)(a) amended, p. 1723, 24, effective July 1. L. 97: (2)(a)(I) and (3)(a) amended and (4) repealed, pp. 1542, 1543, 9,10, effective July 1. L. 98: (5) amended and (6) added, pp. 1443, 1435, 30, 5, effective July 1. L. 99: (2.5) added and (5) amended, pp. 795, 796, 6, 8, effective July 1. L. 2000: (6) amended, p. 1360, 42, effective July 1, 2001. L. 2002: (1)(a) amended, p. 1270, 1, effective July 1; (2)(a)(II), (2)(b)(II), (2)(c)(II), (2)(d)(II), (2.5)(a), and (6) amended, pp. 1579, 1583, 4, 13, effective July 1; (3)(a)(I), (3)(a)(II), (3)(a)(III), and (3)(b) amended, p. 1518, 212, effective October 1. L. 2003: IP(3)(a) amended, p. 1424, 2, effective April 29; (2), (2.5), and IP(3)(a) amended and (2.1), (2.3), and (2.6) added, p. 2682, 3, effective July 1. L. 2004: (3)(a) amended and (3.5) added, p. 636, 12, effective August 4. L. 2007: (2)(b), (2.1), (2.3)(b), (2.5)(c), and (2.6) repealed, p. 1689, 10, effective July 1. L. 2009: (6) repealed, (HB 09-1266), ch. 347, p. 1815, 5, effective August 5. L. 2010: (1)(a), IP(2)(a), (2)(a)(I)(A), (2.3)(a), (2.5)(a), (2.5)(b), IP(3)(a), and (5) amended and (7) added, (HB 10-1352), ch. 259, pp. 1163, 1166, 3, 5, effective August 11. L. 2012: (1) amended, (HB 12-1311), ch. 281, p. 1622, 55, effective July 1. L. 2013: (2) and (5) amended and (2.5), (3), (3.5), and (7) repealed, (SB 13-250), ch. 333, p. 1909, 10, effective October 1. L. 2014: (2)(a)(I)(B), (2)(b)(I)(B), (2)(c)(II), (2)(d)(II), and (5) amended, (SB 14-163), ch. 391, p. 1976, 19, effective July 1. L. 2019: (1) amended, (HB 19-1172), ch. 136, p. 1679, 106, effective October 1. L. 2022: (2)(a)(I)(D), (2)(a)(III), (2)(b)(I)(D), and (2)(c)(V) added and (2)(b)(I)(B), (2)(b)(I)(C), (2)(c)(III), and (2)(c)(IV) amended, (HB 22-1326), ch. 225, p. 1628, 3, effective July 1. Initiated 2022: (1)(a) amended, Proposition 122, L. 2022, effective upon proclamation of the Governor, December 27, 2022. L. 2023: IP(2)(c) and IP (2)(d) amended and (8) added, (HB 23-1167), ch. 144, p. 616, 2, effective May 1; (1)(a) amended, (SB 23-290), ch. 249, p. 1412, 26, effective July 1.

Annotations

Editor's note: (1) This section is similar to former 18-18-105 as it existed prior to 1992.

(2) Amendments to the introductory portion to subsection (3)(a) by House Bill 03-1236 and Senate Bill 03-318 were harmonized.

(3) This section was amended by Proposition 122, with the proclamation of the governor on December 27, 2022. The vote count for the measure at the general election held November 8, 2022, was as follows:

FOR: 1,296,992

AGAINST: 1,121,124

(4) Section 45 of chapter 249 (SB 23-290), Session Laws of Colorado 2023, provides that the act changing subsection (1)(a) applies to offenses committed on or after July 1, 2023.

Annotations

Cross references: For the legislative declaration contained in the 2002 act amending subsections (3)(a)(I), (3)(a)(II), (3)(a)(III), and (3)(b), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative intent contained in the 2003 act amending subsections (2) and (2.5) and the introductory portion to subsection (3)(a) and enacting subsections (2.1), (2.3), and (2.6), see section 1 of chapter 424, Session Laws of Colorado 2003. For the legislative declaration in HB 22-1326 stating the purpose of, and the provision directing legislative staff agencies to conduct, a post-enactment review pursuant to 2-2-1201 scheduled in 2024, 2025, and 2027, see sections 1 and 55 of chapter 225, Session Laws of Colorado 2022. To obtain a copy of the review, once completed, go to "Legislative Resources and Requirements" on the Colorado General Assembly's website.

Annotations

ANNOTATION

Annotations

Annotator's note. Since 18-18-405 is similar to 18-18-105 as it existed prior to the repeal and reenactment of this article in 1992, relevant cases construing that provision have been included in the annotations to this section.

Provision of this section classifying conspiracy to distribute a schedule II controlled substance as a class three felony does not violate equal protection even though distribution of a schedule II controlled substance is itself a class three felony and 18-2-206 generally classifies any conspiracy to commit a class three felony as a class four felony. The general assembly could reasonably determine that conspiracies to distribute drugs have greater social impact and consequences than other conspiracies and should carry harsher penalties. People v. Thurman, 948 P.2d 69 (Colo. App. 1997).

Defendant's felony conviction under this statute did not violate equal protection when compared with 12-22-314, which punishes cocaine possession as a misdemeanor, in that practitioners are engaged in an occupation which regularly requires administration, dispensation, and possession of controlled substance. People v. Unruh, 713 P.2d 370 (Colo.), cert. denied, 479 U.S. 1171, 106 S. Ct. 2894, 90 L. Ed. 2d 981 (Colo. 1986).

Equal protection is not violated when a defendant is charged for the same conduct under both this section and 18-18-404(1)(a) because unlawful use and unlawful possession are distinct offenses that each require proof of at least one fact that the other does not. People v. District Ct. of 11th Jud. Dist., 964 P.2d 498 (Colo. 1998).

Prohibiting possession of controlled substances under this section does not violate equal protection when compared with 18-18-104, which punishes use of the same controlled substances less harshly, because punishing possession more harshly than use is justified to control distribution of controlled substances. People v. Cagle, 751 P.2d 614 (Colo. 1988), appeal dismissed for want of a substantial federal question, 486 U.S. 1028, 108 S. Ct. 2009, 100 L. Ed 2d 597 (1988); People v. Warren, 55 P.3d 809 (Colo. App. 2002); People v. Campbell, 58 P.3d 1080 (Colo. App. 2002), aff'd on other grounds, 73 P.3d 11 (Colo. 2003).

This section and 18-18-404 do not contain identical elements for purposes of an equal protection analysis. The general assembly's choice to classify possession as a graver offense than use is reasonably related to the general purposes of the criminal legislation. Campbell v. People, 73 P.3d 11 (Colo. 2003).

Conduct proscribed under this statute different than conduct proscribed by more general criminal attempt and conspiracy statutes; therefore, this statute's harsher penalty does not violate equal protection. People v. Roy, 723 P.2d 1345 (Colo. 1986).

Defendant's due process rights not violated when the amount of cocaine was included in the information and jury instructions. The instructions correctly charged the jury to determine the substantive offense: Possession with intent to sell the controlled substance. People v. Martinez, 36 P.3d 201 (Colo. App. 2001) (decided under law in effect prior to 1997 amendment).

The general assembly has chosen to make drug possession a crime requiring only a general intent: if one knowingly possesses the substance, he has violated the statute. People v. Barry, 888 P.2d 327 (Colo. App. 1994).

"Knowing" element. This section requires only that a person know that he or she possesses a controlled substance, and not that he or she know the precise controlled substance possessed. People v. Perea, 126 P.3d 241 (Colo. App. 2005).

"Knowingly" requirement does not apply to the amount of controlled substance. "Knowingly" appears only in subsection (1)(a) and applies only to the elements of the crime. The amount of controlled substance in subsection (2) operates as a sentence enhancer and does not contain a mens rea. People v. Scheffer, 224 P.3d 279 (Colo. App. 2009).

To sustain a conviction for possession of a controlled substance, the prosecution must show that defendant had knowledge that he or she was in possession of a narcotic drug and that he or she knowingly intended to possess the drug. This element may be established circumstantially: If the defendant has exclusive possession of the premises in which drugs are found, the jury may infer knowledge from the fact of possession. Similarly, knowledge can be inferred from the fact that defendant was the driver and sole occupant of a vehicle, irrespective of whether he or she was also the vehicle's owner. People v. Baca, 109 P.3d 1005 (Colo. App. 2004).

A conviction for unlawful possession of a controlled substance may be predicated on circumstantial evidence. The controlled substance need not be found on the person of the defendant as long as it is found in a place under his or her dominion and control. Whenever a person is not in exclusive possession of the premises where the drugs are found, such an inference may not be drawn unless there are statements or circumstances tending to buttress the inference of possession. People v. Atencio, 140 P.3d 73 (Colo. App. 2005).

In this case, there are four pieces of circumstantial evidence that buttress the inference: (1) The defendant fled from officers; (2) the baggies were found in the place where defendant's flight was interrupted; (3) the baggies were warmer than the night air; and (4) the baggies had not been in the location of the yard prior to apprehension of the defendant. People v. Atencio, 140 P.3d 73 (Colo. App. 2005).

"Knowingly" element of this section is applied in People v. Romero, 689 P.2d 692 (Colo. App. 1984).

Subsection (1)(a) is an indivisible statute, setting forth one offense that can be committed by a variety of means. United States v. McKibbon, 878 F.3d 967 (10th Cir. 2017).

In light of all the indications suggesting a legislative intent to create a single, unitary offense, as well as the absence of evidence to the contrary, the acts enumerated in subsection (1)(a) all represent stages in the commission of one crime. People v. Abiodun, 111 P.3d 462 (Colo. 2005).

The statutory language of the Uniform Controlled Substance Act of 1992 does not convey an intention by the Colorado general assembly to limit its application solely to designer drugs. Thus, the argument that pseudoephedrine is not a designer drug and therefore outside the jurisdiction of this act is invalid. People v. Frantz, 114 P.3d 34 (Colo. App. 2004).

Legislature did not intend to limit representations regarding the amount to those made during the transaction. The statute is intended to target offenders whose level of involvement is that of an "ounce dealer", and all representations made by a defendant regarding the amount are indicative of an offender's level of involvement in a transaction. People v. Abiodun, 87 P.3d 164 (Colo. App. 2003), aff'd on other grounds, 111 P.3d 462 (Colo. 2005).

Quantity not an element. Subsection (3)(a) does not create an additional element of quantity for the underlying substantive offense; rather, it defines circumstances that, if proven beyond a reasonable doubt, may require a sentence greater than the presumptive minimum contained in 18-1.3-401 (1)(a). Whitaker v. People, 48 P.3d 555 (Colo. 2002); People v. Hinojos-Mendoza, 140 P.3d 30 (Colo. App. 2005), aff'd in part and rev'd in part on other grounds, 169 P.3d 662 (Colo. 2007).

Nevertheless, quantity still must be proved beyond a reasonable doubt. People v. Hinojos-Mendoza, 140 P.3d 30 (Colo. App. 2005), aff'd in part and rev'd in part on other grounds, 169 P.3d 662 (Colo. 2007).

The provision in subsection (2.3)(a) applies to possession of one gram or less of a compound, mixture, or preparation that contains any quantity of a controlled substance not to the weight of the controlled substance itself. People v. Reeves, 252 P.3d 1137 (Colo. App. 2010).

Where the quantity of a drug is so minute that it amounts to only a trace, there is no basis, from that fact alone, for any logical or reasonable inference that the defendant had knowledgeable possession. People v. Theel, 505 P.2d 964 (Colo. 1973).

When the amount of contraband is less than a usable quantity, other evidence may be necessary to establish knowing possession. People v. Theel, 505 P.2d 964 (Colo. 1973); People v. Ceja, 904 P.2d 1308 (Colo. 1995); Richardson v. People, 25 P.3d 54 (Colo. 2001).

The absence of a usable quantity does not constitute evidence that the defendant did not know that he possessed the drug. Rather, evidence of a usable quantity alone is sufficient evidence of knowledge to permit the case to go to a jury. Where there is not evidence of a usable quantity, the people must present other evidence regarding the defendant's knowledge to justify the jury's consideration of the element. Richardson v. People, 25 P.3d 54 (Colo. 2001).

Evidence sufficient to uphold conviction. The jury could infer that defendant was at the scene to sell drugs based on the evidence that an informant had arranged a drug deal for $300, defendant was one of two people at the location of the drug deal, and there was $300 worth of drugs under defendant's car seat. People v. Robinson, 226 P.3d 1145 (Colo. App. 2009).

Whether defendant had been previously convicted of possession of a controlled substance was not required to be proven beyond a reasonable doubt since previous conviction related to sentence enhancement statutory provision, properly deemed so by the trial court. People v. Whitley, 998 P.2d 31 (Colo. App. 1999).

Preponderance of the evidence is the correct standard for imposing an enhanced sentence under former subsection (2.3)(a). People v. Wilson, 2013 COA 75, 318 P.3d 538 (decided under law in effect prior to 2010 amendment).

When sentence enhancement provision increases punishment based on a defendant's criminal history but requires no statutory burden of proof or hearing procedure applicable to determination of the prior criminal conduct, due process is satisfied as long as the defendant receives reasonable notice of the potential for an increased sentence and the prosecution meets its burden of proving the prior criminal conduct by a preponderance of the evidence. People v. Whitley, 998 P.2d 31 (Colo. App. 1999).

A positive field test result is not a prerequisite for a warrantless arrest of a defendant for a drug-related offense if sufficient other factors are present to support probable cause for such an arrest. People v. Rayford, 725 P.2d 1142 (Colo. 1986).

Presence at defendant's laboratory of phenylacetoacetonitrile, which can be combined with other substances to produce a schedule II controlled substance, was insufficient to support conviction of attempted manufacture and possession of schedule II controlled substance against defendant. People v. Noland, 739 P.2d 906 (Colo. App. 1987).

Taking delivery of a controlled substance by purchase is inevitably incident to the criminal conduct of one who delivers it; therefore, the person who purchases the controlled substance is exempt from liability as a complicitor for the crime of distribution committed by the person delivering the controlled substance. People v. Hart, 787 P.2d 186 (Colo. App. 1989).

Adoption of the rule that "transitory" handling of a drug may not constitute "possession" would provide no defense to defendant since jurisdictions with such rule have held that the rule is inapplicable in a case in which the defendant had flushed an alleged narcotic down the toilet when police raided the residence. People v. Barry, 888 P.2d 327 (Colo. App. 1994).

The prescription exception referenced in subsection (1)(a) of this section and appearing in 18-18-302 (3)(c) is an affirmative defense, notwithstanding the fact that the general assembly did not label it as such. Thus, the trial court erred by refusing to instruct the jury that it was the prosecution's burden to disprove, beyond a reasonable doubt, evidence that defendant attempted to gain possession of the controlled substance pursuant to a lawful order of a practitioner. People v. Whaley, 159 P.3d 757 (Colo. App. 2006).

While subsection (1)(a) uses both the words "sale" and "distribute" to define methods by which the statute may be violated, those words no longer have distinct legal meaning or effect as they had prior to the enactment of the Colorado Controlled Substances Act. Both are words used to describe an exchange involving the unauthorized delivery of a controlled substance. People v. Farris, 812 P.2d 654 (Colo. 1991).

Where the information charged the defendant with "sale and distribution" of a controlled substance, and although the verdict found that he "sold or distributed" such a substance, thereby charging and sustaining only one offense, the trial court properly instructed the jury as to the elements of the crime of sale or distribution of cocaine and as to the pertinent definition of distribution, its refusal to instruct on the "procuring agent" defense was not error. People v. Farris, 812 P.2d 654 (Colo. 1991).

With the exception of simple possession, the general assembly intended the drug-related crimes proscribed in subsection (1), including possession with intent to distribute, to be punished as class 3 felonies. People v. Pierrie, 30 P.3d 816 (Colo. App. 2001).

Crime of simple possession is lesser included offense of the crime of possession with the intent to distribute. People v. Gilmore, 97 P.3d 123 (Colo. App. 2003).

While an individual may unlawfully possess a controlled substance without voluntarily using it, it is simply not feasible for an individual to voluntarily use a controlled substance without also possessing it. People v. Villapando, 984 P.2d 51 (Colo. 1999).

A type of possession is a lesser-included offense of the crime of manufacture. It is evident that one who manufactures a controlled substance also possesses the substance in the course of manufacturing it; possession requires immediate and knowing control over the substance. Patton v. People, 35 P.3d 124 (Colo. 2001).

Possession is incidental and necessary to distribution, and convictions for possession must merge with the convictions for distribution. People v. Abiodun, 87 P.3d 164 (Colo. App. 2003), aff'd on other grounds, 111 P.3d 462 (Colo. 2005).

Manufacturing a controlled substance is a lesser included offense of child abuse based on manufacturing a controlled substance. People v. Laurent, 194 P.3d 1053 (Colo. App. 2008) (decided under law in effect prior to 2006 amendment to 18-6-401 (1)(c)).

No conflict between this section and 18-1.3-401. In this section, the general assembly defined the elements of the crime of possession with intent to distribute and incorporated the presumptive range found in 18-1.3-401 (1)(a). This section does not preclude the finding that an offense is an extraordinary risk crime and does not preclude the application of 18-1.3-401 (10) to increase the presumptive range found in subsection (1)(a). People v. Hinojos-Mendoza, 140 P.3d 30 (Colo. App. 2005), aff'd in part and rev'd in part on other grounds, 169 P.3d 662 (Colo. 2007).

Conspiracy to distribute a controlled substance is not an extraordinary risk crime. A plain reading of the statute does not include inchoate crimes. People v. Valenzuela, 216 P.3d 588 (Colo. 2009).

Because subsection (1)(a) of this section criminalizes a broader range of conduct than is encompassed by the federal sentencing guideline's definition of a "controlled substance offense" in U.S.S.G. 4B1.2(b), any conviction under subsection (1)(a) will categorically not qualify as a "controlled substance offense" under 4B1.2(b). United States v. McKibbon, 878 F.3d 967 (10th Cir. 2017).

Parolee's crime of conviction for "selling or distributing" a controlled substance in violation of subsection (1)(a) of this section comprises fraudulent offers to sell a controlled substance and does not categorically match the federal Immigration and Naturalization Act's definition of an aggravated felony. United States v. Almanza-Vigil, 912 F.3d 1310 (10th Cir. 2019) (decided under law in effect in 2006).

Subsection (3)(a)(I) is a sentence enhancer that requires a court to impose a mandatory minimum sentence of at least four years and limits its discretion to impose a lesser sentence under 18-1.3-401 (6). People v. Rice, 2015 COA 168, 378 P.3d 791 (decided under law in effect prior to the 2012 amendment).

Subsection (3)(a) requires that, when a defendant is convicted pursuant to subsection (3)(a) and another drug offense with a different sentencing regimen, the court shall apply the regimen producing the greater sentence. In this case, defendant was convicted as a special offender under this section and convicted of possession with intent to distribute under 18-18-407. Under the regimen in 18-18-407, the sentencing range was eight to 48 years, under the regimen for this section, the court was required to impose a sentence of at least 16 years and one day, so the court correctly sentenced the defendant pursuant to the regimen of this section. People v. Montalvo-Lopez, 215 P.3d 1139 (Colo. App. 2008).

For the sentence enhancer in subsection (3), a finding of the defendant's knowledge of the precise amount possessed is not required whether the person is a principal or a complicitor. Once a determination of guilt has been made, then if the amount is 28 grams or more, the court is required to sentence the defendant to a minimum presumptive sentence. People v. Ramirez, 997 P.2d 1200 (Colo. App. 1999), aff'd, 43 P.3d 611 (Colo. 2001).

Under subsection (3), defendant is not entitled to credit against sentence for time served in a supervised, nonresidential community corrections program rather than in incarceration in the department of corrections. People v. Winters, 789 P.2d 1120 (Colo. App. 1990).

Trial court exceeded its jurisdiction in applying sentencing alternative available under 18-18-404 (3) to probationer who was convicted under this section. People v. Hutchings, 881 P.2d 466 (Colo. App. 1994).

A reviewing court's decision whether to address a challenge to multiple punishments by first comparing the acts for which punishment was separately imposed, or by first assessing whether the acts constitute separate offenses, is largely a matter of preference, based on the circumstances of each case and the extent to which one or the other analysis is likely to completely resolve the question. People v. Abiodun, 111 P.3d 462 (Colo. 2005).

As long as each legally distinct offense has been charged with sufficient specificity to distinguish it from other offenses and evidence at trial is sufficient to support convictions of each charge, general verdicts of guilt will be adequate to support multiple convictions. People v. Abiodun, 111 P.3d 462 (Colo. 2005).

Convictions for possession of a controlled substance and possession of manufacturing chemicals or supplies were based on factually distinct conduct and do not violate double jeopardy. People v. Crespi, 155 P.3d 570 (Colo. App. 2006).

Double jeopardy and merger require defendant's possession conviction be vacated because the evidence at trial did not support a finding, beyond a reasonable doubt, that defendant possessed a quantum of drugs in addition to the one defendant gave the undercover officer. People v. Davis, 2015 CO 36M, 352 P.3d 950.

Double jeopardy requires that conspiracy to distribute conviction be vacated where defendant was convicted of distribution for the same quantum of drugs. People v. Jacobs, 2018 COA 159, 433 P.3d 163.

This section as it existed prior to its amendment in 1987 mandated sentencing defendants convicted of cocaine offenses involving more than 28 grams to the department of corrections and did not permit sentencing of such defendants to community corrections. People v. Winters, 765 P.2d 1010 (Colo. 1988).

To obtain a conviction for possession of cocaine, subsection (1)(a) does not require the prosecution to prove that the defendant knowingly possessed a usable quantity of cocaine. Rather, the prosecution must prove that the defendant knowingly possessed some quantity of a controlled substance. People v. Ceja, 904 P.2d 1308 (Colo. 1995) (decided under former 18-18-105 (1)(a) as it existed prior to the 1992 repeal and reenactment of the Uniform Controlled Substances Act of 1992, article 18 of title 18); People v. Richardson, 8 P.3d 562 (Colo. App. 2000), aff'd, 25 P.3d 54 (Colo. 2001).

Subsection (3)(a) was not intended to create a separate offense for possessing more than 25 grams of a schedule I or schedule II controlled substance, but instead was merely intended to be a mandatory sentencing provision. Therefore, defendant's conviction and sentence for possession of 28 grams or more of cocaine must be vacated. People v. Salcedo, 985 P.2d 7 (Colo. App. 1998), rev'd on other grounds, 999 P.2d 833 (Colo. 2000); People v. Tafoya, 985 P.2d 26 (Colo. App. 1999).

The language in the introductory paragraph of subsection (3)(a) stating "[e]xcept as otherwise provided in 18-18-407 relating to special offenders" gives the court discretion in special offender cases to impose a minimum sentence less than the minimum sentence otherwise required by subsection (3)(a). People v. Coleman, 55 P.3d 817 (Colo. App. 2002).

The definition of "cocaine" in 18-18-102 (4), by its plain language, includes a mixture that includes any amount of cocaine. Therefore, the amount of cocaine involved in a transaction is determined by the total amount of the mixture containing the cocaine, not just the amount of cocaine in the mixture. People v. Esquivel-Alaniz, 985 P.2d 22 (Colo. App. 1999).

Possession of 28 grams or more of cocaine is not a separate offense, but rather triggers a mandatory sentencing provision. People v. Ramirez, 1 P.3d 233 (Colo. App. 1999) (decided under law in effect prior to 1997 amendment).

Possession of more than 25 grams of cocaine is an element that increases the length of sentence, not a separate offense. However, where defendant's sentence reflected the appropriate application of this section to the sentence imposed for his conviction of other charges under this section, his sentence did not need to be changed. Only the mittimus need be changed to reflect two convictions rather than three. People v. Esquivel-Alaniz, 985 P.2d 22 (Colo. App. 1999).

The general assembly intended to punish as a class 3 felony possession with intent to distribute a schedule II controlled substance when the amount possessed does not trigger the enhanced sentencing provisions of subsection (3). People v. Perry, 68 P.3d 472 (Colo. App. 2002).

Defendant's conviction and sentence for possession with intent to sell greater than 28 grams of a controlled substance must be vacated when defendant's conviction had already been enhanced by 18-18-407; and may not be applied as a sentence enhancer to either defendant's possession conviction or his conspiracy conviction because the charge of which defendant had notice in the charging document only allowed for the 28 grams or more of a controlled substance to be applied to the possession with intent to sell conviction. People v. Pineda-Eriza, 49 P.3d 329 (Colo. App. 2001).

Sufficient evidence to support crime of possession with intent to distribute. People v. Gilmore, 97 P.3d 123 (Colo. App. 2003).

Evidence of a buyer-seller relationship, without more, does not constitute a conspiracy to distribute a controlled substance. People v. Lucero, 2016 COA 105, 381 P.3d 436.

Repeat offender penalty enhancer does not have to be considered by the jury. The fact of a prior conviction does not have to be proved a jury. People v. Gilmore, 97 P.3d 123 (Colo. App. 2003).

Court required to apply both 18-1.3-801 and this section. A second violation of this section for unlawful distribution and sale of a schedule II controlled substance increases the offense to a class 2 felony. If defendant has been convicted of three previous felonies, 18-1.3-801 (2) requires court to sentence defendant to four times the maximum of the presumptive range for a class 2 felony. People v. Cordova, 199 P.3d 1 (Colo. App. 2007).

The drug offense of possession with intent is not a per se grave or serious offense for proportionality review purposes. Not all drug offenses are per se grave or serious. Wells-Yates v. People, 2019 CO 90M, 454 P.3d 191.

Applied in People v. Donald, 637 P.2d 392 (Colo. 1981); People v. Nunez, 658 P.2d 879 (Colo. 1983); People v. Clements, 661 P.2d 267 (Colo. 1983); Holmes v. District Court, 668 P.2d 11 (Colo. 1983); People v. Sprow, 718 P.2d 524 (Colo. 1986); People v. Holmberg, 992 P.2d 705 (Colo. App. 1999).