390 February 8, 2018 No. 5
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
JOSE ROBERTO FIERRO VILLAGOMEZ,
Respondent on Review.
(CC 13CR08907; CA A156397; SC S064507)
On review from the Court of Appeals.*
Argued and submitted September 18, 2017.
Andrew M. Lavin, Assistant Attorney General, Salem,
argued the cause and filed the briefs for petitioner on review.
Also on the briefs were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Morgen E. Daniels, Deputy Public Defender, Salem,
argued the cause and filed the brief for respondent on review.
Also on the brief was Ernest G. Lannet, Chief Defender,
Office of Public Defense Services.
Before Balmer, Chief Justice, and Kistler, Walters,
Nakamoto, Flynn, and Nelson, Justices, and Lagesen, Judge
of the Court of Appeals, Justice pro tempore.**
WALTERS, J.
The decision of the Court of Appeals is affirmed. The judg-
ment of the circuit court is affirmed in part and reversed
in part, and the case is remanded to the circuit court for
resentencing.
______________
** On appeal from Yamhill County Circuit Court, Cynthia L. Easterday,
Judge. 281 Or App 29, 380 P3d 1150 (2016).
** Landau, J., retired December 31, 2017, and did not participate in the deci-
sion of this case. Duncan, J., did not participate in the consideration or decision of
this case.
Cite as 362 Or 390 (2018) 391
Case Summary: Defendant’s sentences for possession and delivery of meth-
amphetamine were enhanced based on the jury’s finding of three factors, one
of which required the state to prove that the delivery “was for consideration.”
Defendant moved for a judgment of acquittal on that factor, arguing that the
factor required the state to prove he had received or had entered into an agree-
ment to receive consideration. The trial court denied defendant’s motion, but,
on appeal, the Court of Appeals determined that that was an error. Held: To
establish that defendant’s delivery of methamphetamine “was for consideration”
under ORS 475.900(1)(b)(A), the state was required prove a completed sale or the
existence of an agreement to sell the methamphetamine.
The decision of the Court of Appeals is affirmed. The judgment of the circuit
court is affirmed in part and reversed in part, and the case is remanded to the
circuit court for resentencing.
392 State v. Villagomez
WALTERS, J.
A jury found defendant guilty of unlawful posses-
sion and unlawful delivery of methamphetamine. The pre-
sumptive sentence for those crimes is probation. However,
under ORS 475.900(1)(b), when the state establishes that
those crimes constituted commercial drug offenses, the pre-
sumptive sentence is imprisonment. To prove a commer-
cial drug offense, the state must establish any three out of
eleven statutorily enumerated factors, one of which is that
the “delivery” of the drug was “for consideration.” This case
requires us to determine whether that factor may be proved
by evidence that the defendant possessed the drugs with an
intent to sell them, or, instead, requires the state to prove
a completed sale of drugs or an existing agreement to sell
them. For the reasons that follow, we conclude that the leg-
islature intended the latter, and we affirm the decision of
the Court of Appeals. State v. Villagomez, 281 Or App 29, 41,
380 P3d 1150 (2016).
The relevant facts are not in dispute. Defendant
was stopped for a traffic violation. During that stop,
officers discovered 141.98 grams of methamphetamine
divided into separate bags, more than $4,000 cash, three
cellphones, and a ledger that the police believed contained
drug records. The state charged defendant with unlaw-
ful possession of methamphetamine under ORS 475.894
and unlawful delivery of methamphetamine under ORS
475.890. At trial, the state sought to prove delivery by
showing that defendant possessed a large amount of meth-
amphetamine with the intent to transfer it. The Court of
Appeals has held that such evidence, commonly referred to
as a Boyd delivery, is sufficient to prove a delivery under
ORS 475.005(8). State v. Boyd, 92 Or App 51, 54, 756 P2d
1276, rev den, 307 Or 77, 763 P2d 731 (1988).1 The state
also alleged, for the purpose of seeking an enhanced sen-
tence, that defendant’s possession and delivery of meth-
amphetamine were “commercial drug offense[s]” under
ORS 475.900(1)(b). That statute provides that unlawful
possession, delivery, or manufacture of certain controlled
1
In this case, defendant does not challenge the sufficiency of the evidence
that the state adduced to support his conviction for delivery under ORS 475.890.
Cite as 362 Or 390 (2018) 393
substances is a commercial drug offense if accompanied
by any three of eleven factors (CDO factors). In this case,
the state alleged the existence of four CDO factors: (1) the
delivery was of methamphetamine “and was for consider-
ation”; (2) defendant was in possession of $300 or more
in cash; (3) defendant was in possession of drug records;
and (4) defendant was in possession of eight grams or
more of methamphetamine. The state also alleged another
fact, independent of the CDO factors, that, if proved,
would result in an enhanced sentence under ORS 475.900
(1)(a)(C). The state alleged that defendant had delivered a
“substantial quantity” of methamphetamine.
At the close of evidence, defendant moved for a judg-
ment of acquittal on the “for consideration” CDO factor, ORS
475.900(1)(b)(A). He argued that, to satisfy that factor, the
state needed to show that there was “actual” or “real” consid-
eration, which “must have already been given to the defen-
dant or [,] in the very least, a bargain must have been struck
leaving only the consideration to be exchanged between par-
ties.” The state disagreed and argued that, because “con-
structive delivery is included in delivery,” the “for consider-
ation” factor is appropriate in a “constructive delivery case.”
The trial court agreed with the state and denied defendant’s
motion. The jury found defendant guilty of unlawful pos-
session and unlawful delivery of methamphetamine. It also
found that the state had proved three of the four alleged
CDO factors, including the “for consideration” factor, and
the “substantial quantity” enhancement. Based on those
findings, the trial court imposed a commercial drug offense
sentence under ORS 475.900. For defendant’s delivery con-
viction, the court placed defendant in crime category 9-I2
on the sentencing guidelines grid and sentenced him to 36
months’ prison. For defendant’s possession conviction, the
court placed defendant in crime category 8-I and sentenced
him to 16 months’ prison.
2
The Court of Appeals did not understand why defendant was placed at
a 9-I on the sentencing guidelines, given that ORS 475.900(1) provides that
a conviction for delivery of methamphetamine should result in a crime cate-
gory 8 placement if the enhancements defendant was subject to apply. State
v. Villagomez, 281 Or App 29, 35 n 4, 380 P3d 1150 (2016). Defendant did not
question that determination before the Court of Appeals. Id. He also does not
question it here.
394 State v. Villagomez
Defendant appealed to the Court of Appeals, where
he renewed his argument about the sufficiency of the evi-
dence to establish the “for consideration” CDO factor. The
Court of Appeals agreed with defendant that the evidence
was insufficient to prove that factor. Villagomez, 281 Or
App at 40. The court interpreted ORS 475.900(1)(b)(A) to
require evidence of a completed sale or an existing agree-
ment to sell the drugs that defendant possessed. Id. at 39.
Because the state had not offered such evidence, the court
held that the trial court had erred in denying defendant’s
motion for a judgment of acquittal. Id. at 40. Accordingly,
the court held that the state had proved only two of three
factors necessary to establish a commercial drug offense
and that the trial court had erred in sentencing defendant
to prison on that basis. Id. However, the court explained, the
state had proved that defendant had delivered a “substan-
tial quantity” of methamphetamine, which independently
permitted an enhanced sentence for the delivery conviction
under ORS 475.900(1)(a)(C). Id. Thus, the court reasoned,
the trial court’s error in construing the “for consideration”
factor was harmless. Id. 40-41. The same was not true for
defendant’s enhanced sentence for possession, however.
Id. at 41. Because the “substantial quantity” finding did not
permit an enhanced sentence for the possession conviction,
the court reversed that conviction and remanded for entry
of judgment and resentencing, without the commercial drug
offense enhancement.3 Id.
The state filed a petition for review, which we
allowed. In this court, the parties reprise their arguments
concerning the evidence that is necessary to establish the
“for consideration” CDO factor, ORS 475.900(1)(b)(A). We
approach that issue using the methodology established in
State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). Our goal
3
The Court of Appeals noted in a footnote that it appears that the “for con-
sideration” CDO factor apparently may apply only when the underlying crime of
conviction is delivery. Villagomez, 281 Or App at 35 n 5. However, neither defen-
dant nor the state raised an argument regarding that point, and the court thus
assumed, without deciding, that the “for consideration” CDO factor applies when
the underlying crime is possession as well as when it is delivery. Id. Similarly,
in this court, neither party raises an issue about the “for consideration” factor’s
applicability to sentences for possession convictions. Therefore, we also assume,
without deciding, that that factor applies.
Cite as 362 Or 390 (2018) 395
is to determine the meaning that the legislature intended,
by considering the text and context of that statutory provi-
sion, as well as any pertinent legislative history. See id. at
171-72 (setting out methodology for determining the legisla-
ture’s intent).
ORS 475.900 was enacted in 1991 and provides for
increased sentences for certain drug crimes. Relevant here,
a sentence “shall be classified as crime category 8 on the
sentencing guidelines gird” if:
“(b) The violation constitutes possession, delivery or
manufacture of a controlled substance and the possession,
delivery or manufacture is a commercial drug offense. A
possession, delivery or manufacture is a commercial drug
offense for purposes of this subsection if it is accompanied
by at least three of the following factors:
“(A) The delivery was of * * * methamphetamine * * *
and was for consideration[.]”
ORS 475.900(1)(b)(A). This case requires that we construe
the meaning of subparagraph (A) and, particularly, the
terms “delivery” and “for consideration.”
“Delivery” is statutorily defined. It means “the
actual, constructive or attempted transfer, other than by
administering or dispensing, from one person to another of
a controlled substance, whether or not there is an agency
relationship.” ORS 475.005(8). As noted, because “delivery”
includes “constructive” and “attempted” as well as “actual”
transfers of a controlled substance, the Court of Appeals
has construed that term to permit conviction based on evi-
dence that a defendant possessed a large amount of a con-
trolled substance with an admitted intent to sell it. Boyd,
92 Or App at 54. That is evidence, the court explained, that
“amounts to evidence that [the defendant] had taken a sub-
stantial step toward the commission of the crime of delivery
of a controlled substance.” Id.
“Consideration” is not defined by statute, but it has
a well-defined legal meaning that we presume that the leg-
islature intended. See Zimmerman v. Allstate Property and
Casualty Ins., 354 Or 271, 280, 311 P3d 497 (2013) (“When
the term has acquired specialized meaning in a particular
396 State v. Villagomez
industry or profession, however, we assume that the legisla-
ture used the term consistently with that specialized mean-
ing.”). This court has defined “consideration” as “the accrual
to one party of some right, interest, profit or benefit or some
forebearance, detriment, loss or responsibility given, suf-
fered or undertaken by the other.” Shelley v. Portland Tug
& Barge Co., 158 Or 377, 387, 76 P2d 477 (1938). Black’s
Law Dictionary and The Restatement (Second) of Contracts
offer similar definitions. See Black’s Law Dictionary 306
(6th ed 1990) (Consideration is “[t]he inducement to a con-
tract. The cause, motive, price, or impelling influence which
induces a contracting party to enter into a contract. Some
right, interest, profit or benefit accruing to one party, or
some forbearance, detriment, loss or responsibility, given,
suffered, or undertaken by the other.”); Restatement
(Second) of Contracts § 71 (1981) (consideration “must be
bargained for,” which is accomplished when performance or
a return promise “is sought by the promisor in exchange for
his promise and is given by the promisee in exchange for
that promise”).
In this case, the parties do not dispute the defini-
tion of “delivery” or that Boyd permits conviction for unlaw-
ful delivery on proof of possession of a large amount of drugs
with the intent to sell them. Rather, the parties dispute the
meaning of the phrase “for consideration” as that term is
used in ORS 475.900(1)(b)(A). Defendant contends that,
absent a completed sale, a “delivery” cannot be “for consid-
eration” unless there is a contract of sale: one person must
have agreed to deliver drugs in exchange for some benefit or
forbearance by another. According to defendant, delivery is
not “for consideration” when one person unilaterally hopes
or intends to make such a bargain in the future.
The state disagrees, not with the legal definition of
the term “consideration” but with how the word “for” is used
in the phrase “for consideration.” That word, the state con-
tends, means “in order to bring about or further”; “with the
purpose or object of”; “in order to obtain * * * or gain”; or “so
as to secure as a result.” Webster’s Third New Int’l Dictionary
886 (unabridged ed 2002). Thus, the state argues, a defen-
dant who possesses drugs with the intent to sell them in the
Cite as 362 Or 390 (2018) 397
future engages in “delivery” and does so “for” consideration.
The defendant intends to deliver the drugs “with the pur-
pose of” or “in order to obtain” consideration in the future.
In our view, defendant’s construction of the phrase
“for consideration” gives greater effect to the legal mean-
ing of the term “consideration” and is therefore more likely
to be the construction that the legislature intended. As
explained, that term is used to describe the basis for a bar-
gain that two parties reach; it is what is sought by the prom-
isor in exchange for a promise and given by the promisee
in exchange for the promise. See Enco, Inc. v. F.C. Russell
Co., 210 Or 324, 339, 311 P2d 737 (1957) (explaining consid-
eration as bargained-for exchange); Emmert v. No Problem
Harry, Inc., 222 Or App 151, 155, 192 P3d 844 (2008) (same).
As the basis for a bargain, consideration presumes the exis-
tence of a bargain. See Moro v. State of Oregon, 357 Or 167,
196 n 18, 351 P3d 1 (2015) (“ ‘Consideration’ is that which
one party provides to the other in exchange for entering into
the contract.”). The state’s focus on the plain meaning of
the term “for” and its argument that a delivery can be “for”
consideration when a person unilaterally hopes to make a
bargain in the future fail to fully contend with the fact that
“consideration” is a legal term of art that describes the basis
for an existing contract. Nonetheless, ORS 475.900(1)(b)(A)
plausibly may be read as the state reads it, and we turn to
context for additional clarity.
The state argues that the way that Oregon law
defines “delivery” provides important context supporting
its position. See State v. Klein, 352 Or 302, 309, 283 P3d
350 (2012) (a statute’s context includes “related statutes”).
As noted, ORS 475.005(8) defines “delivery” to include con-
structive and attempted transfers of drugs, and, in Boyd, 92
Or App 51, the Court of Appeals held that evidence of pos-
session of a controlled substance with the intent to sell it is
sufficient to demonstrate “delivery” as that provision defines
it. The state observes that Boyd had been decided when the
legislature adopted the CDO factors in ORS 475.900(1)(b).
Thus, it argues, the legislature’s use of the word “delivery,”
without restriction, evinces an intent to punish defendants
who possess large amounts of drugs with the intent to sell
398 State v. Villagomez
them, even if the state does not also establish a completed
sale or the existence of an agreement to sell those drugs.
As explained later in our discussion of legislative
history, we agree with the state that the legislature was
aware of the Court of Appeals decision in Boyd and thought
that a Boyd delivery could be punished as the crime of
“delivery.” We also agree that the legislature intended that
a Boyd delivery would be eligible for enhanced sentencing.
But we do not agree that the legislature’s use of the word
“delivery” in ORS 475.900(1)(b)(A) necessarily indicated an
intent to make a Boyd delivery sufficient to establish the
“for consideration” CDO factor. Instead, the legislature may
have intended to require proof of facts in addition to those
necessary to prove a Boyd delivery to establish a commer-
cial drug offense. The other CDO factors in ORS 475.900
(1)(b) provide helpful context for that view. See Force v. Dept.
of Rev., 350 Or 179, 188, 252 P3d 306 (2011) (stating that
“ ‘context’ includes, among other things, other parts of the
statute at issue”).
ORS 475.900(1)(b) allows a sentence for a drug
conviction to be increased from a crime category carry-
ing a presumptive sentence of probation to a crime cate-
gory carrying a presumptive sentence of imprisonment if
the underlying violation is a “commercial drug offense.” See
ORS 475.900(1)(b) (stating that a commercial drug offense
is crime category 8); ORS 475.900(3)(a),(b) (stating default
crime categories for possession and delivery of controlled
substance are 1 and 4, respectively). To establish that a
delivery is a “commercial drug offense,” as opposed to an
“ordinary” or “regular” delivery, the legislature requires the
state to prove at least three out of eleven enumerated CDO
factors. ORS 475.900(1)(b). Thus, the purpose that those
factors serve is to distinguish the two types of offenses and
to punish the more serious offense—i.e., the commercial
drug offense—more severely.
Logically, then, those eleven CDO factors would
describe facts separate from, and in addition to, those
required to prove “ordinary” or “regular” delivery that, in
the legislature’s view, would make an “ordinary” or “regu-
lar” delivery more serious. A review of those eleven factors
Cite as 362 Or 390 (2018) 399
supports that deduction.4 For example, subparagraph (B)
of ORS 475.900(1)(b) requires evidence that the “offender
was in possession of $300 or more in cash”; subparagraph
(C) requires evidence that the “offender was unlawfully in
4
The eleven factors in ORS 475.900(1)(b) are as follows:
“(A) The delivery was of heroin, cocaine, methamphetamine, lysergic
acid diethylamide, psilocybin or psilocin and was for consideration;
“(B) The offender was in possession of $300 or more in cash;
“(C) The offender was unlawfully in possession of a firearm or other
weapon as described in ORS 166.270 (2), or the offender used, attempted to
use or threatened to use a deadly or dangerous weapon as defined in ORS
161.015, or the offender was in possession of a firearm or other deadly or
dangerous weapon as defined in ORS 161.015 for the purpose of using it in
connection with a controlled substance offense;
“(D) The offender was in possession of materials being used for the pack-
aging of controlled substances such as scales, wrapping or foil, other than
the material being used to contain the substance that is the subject of the
offense;
“(E) The offender was in possession of drug transaction records or cus-
tomer lists;
“(F) The offender was in possession of stolen property;
“(G) Modification of structures by painting, wiring, plumbing or lighting
to facilitate a controlled substance offense;
“(H) The offender was in possession of manufacturing paraphernalia,
including recipes, precursor chemicals, laboratory equipment, lighting, ven-
tilating or power generating equipment;
“(I) The offender was using public lands for the manufacture of con-
trolled substances;
“(J) The offender had constructed fortifications or had taken security
measures with the potential of injuring persons; or
“(K) The offender was in possession of controlled substances in an
amount greater than:
“(i) Three grams or more of a mixture or substance containing a detect-
able amount of heroin;
“(ii) Eight grams or more of a mixture or substance containing a detect-
able amount of cocaine;
“(iii) Eight grams or more of a mixture or substance containing a detect-
able amount of methamphetamine;
“(iv) Twenty or more user units of a mixture or substance containing a
detectable amount of lysergic acid diethylamide;
“(v) Ten grams or more of a mixture or substance containing a detectable
amount of psilocybin or psilocin; or
“(vi) Four grams or more or 20 or more pills, tablets or capsules of a mix-
ture or substance containing a detectable amount of:
“(I) 3,4-methylenedioxyamphetamine;
“(II) 3,4-methylenedioxymethamphetamine; or
“(III) 3,4-methylenedioxy-N-ethylamphetamine.”
400 State v. Villagomez
possession of a firearm or other weapon”; and subparagraph
(D) requires evidence that the “offender was in possession
of materials being used for the packaging of controlled sub-
stances.” ORS 475.900(1)(b)(B)-(D). To prove those factors,
the state must produce evidence that is not required to prove
“ordinary” or “regular” delivery; the state may prove unlaw-
ful delivery without adducing evidence that the defendant
was in possession of cash, weapons, or packaging materials.5
If we interpret the “for consideration” CDO factor as
defendant suggests, it also would require proof of facts that
are not necessary to prove delivery. To prove a Boyd deliv-
ery, the state need prove only that a defendant possessed a
large amount of drugs with the intent to sell them. Boyd,
92 Or App at 54. Under the state’s proposed construction of
the “for consideration” CDO factor, however, proof of a Boyd
delivery alone would establish that factor. That is, posses-
sion of a large amount of a controlled substance with the
intent to sell it would establish both “delivery” and deliv-
ery “for consideration.” But, under defendant’s construction,
an additional fact would be necessary: the state would be
required to adduce evidence of a completed sale or an agree-
ment to sell the drugs. With that interpretation, the “for
consideration” factor would have the same function as other
enumerated factors. It would specify a fact that, in addition
to those necessary to prove a Boyd delivery, is needed to
prove a commercial drug offense.
The state sees it differently. The state agrees that
other CDO factors provide helpful context for an under-
standing of the “for consideration” factor. However, the
state contends, because those factors do not require proof
of a completed sale or an existing agreement with a partic-
ular buyer, there is no reason to think that the legislature
intended the “for consideration” factor to require such proof.
We do not find it surprising that evidence needed to estab-
lish the “for consideration” factor is different from the evi-
dence required to prove the other CDO factors. Each factor
5
There is one factor that may not require evidence in addition to that nec-
essary to establish a Boyd delivery to establish a commercial drug offense.
Subparagraph (K) applies when an offender is in possession of specified amounts
of certain drugs. ORS 475.900(1)(b)(K). Proof of a Boyd delivery potentially could
prove subparagraph (K).
Cite as 362 Or 390 (2018) 401
describes a different circumstance that, in combination with
others, may indicate that a particular drug crime is a com-
mercial drug offense. To prove a commercial drug offense,
the state may offer evidence of any three or more enumer-
ated factors. Thus, the state may obtain the enhanced pun-
ishment that a commercial drug offense provides without
proving a completed sale or an existing agreement to sell, as
long as it relies on CDO factors other than the “for consider-
ation” factor to do so.
In our view, the CDO factors that the legislature
enumerated to establish that a delivery is a commercial
drug offense are indicators that the legislature intended
the “for consideration” CDO factor to have the meaning for
which defendant advocates. Our endeavor is not complete,
however; we also consider legislative history to ascertain
legislative intent.
ORS 475.900 was enacted as a result of the con-
stitutional concerns created by one of the provisions in the
1989 sentencing guidelines classifying the manufacture,
delivery, or possession of a controlled substance as a crime
category 8 on the sentencing guidelines grid in a particular
circumstance. If the violation “occurred as part of a drug
cultivation, manufacture or delivery scheme or network,” the
violation was classified as crime category 8 and resulted in
a presumptive prison sentence. Former OAR 253-04-002(3)
(Sept 1, 1989); see also Or Laws 1989, ch 790, § 87 (approv-
ing sentencing guidelines). The phrase “delivery scheme or
network” was not defined, but the commentary to the sen-
tencing guidelines provided a relevant list of facts to consid-
er.6 Oregon Sentencing Guidelines Implementation Manual
13 (1989). However, those facts did not need to be pleaded
6
There were eight listed facts:
“A. The presence of substantial amounts of cash at the scene of arrest.
“B. The presence of weapons at the scene of arrest.
“C. The presence of manufacturing or distribution materials such as drug
recipes, precursor chemicals, laboratory equipment, lighting, irrigation sys-
tems, ventilation or power-generating, scales, or packaging material.
“D. The presence of drug transaction records or customer lists.
“E. The presence of large quantities of stolen property.
“F. Building modifications including painting, wiring, plumbing, or lighting
which facilitated the commission of the offense.
402 State v. Villagomez
in the charging instrument and were, for the most part,
vague. Tape Recording, House Committee on Judiciary,
Subcommittee on Crime and Corrections, HB 2390, Jan
30, 1991, Tape 11, Side A (statement of Rep Tom Mason).
Practitioners disagreed on the meaning of some of the facts,
who decided if the facts were proven, and what level of proof
was required to establish the facts; circuit courts even
disagreed on whether the “scheme or network” provision
was constitutional because of those concerns. Id.; see also
Exhibit B, House Committee on Judiciary, Subcommittee on
Crime and Corrections, HB 2390, Jan 30, 1991 (opinion by
Honorable Harl Haas); Tape Recording, House Committee
on Judiciary, Subcommittee on Crime and Corrections,
HB 2390, Jan 30, 1991, Tape 11, Side A (statement of Ross
Shepard) (stating that at least five counties regularly sus-
tain demurrers to indictments that pleaded the “scheme or
network” language).
In February 1991, in State v. Moeller, 105 Or App
434, 441, 806 P2d 130 (1991), the Court of Appeals held that
the provision in the sentencing guidelines—specifically, the
phrase “part of a drug cultivation, manufacture or delivery
scheme or network”—was unconstitutionally vague, and it
struck it down.7 By the time Moeller was decided, the legis-
lature already had begun deliberations on HB 2390 (1991),
a joint effort by the Oregon District Attorneys Association
(ODAA) and the Oregon Criminal Defense Lawyers
Association (OCDLA) to address the shortcomings of the
“scheme or network” provision at issue in Moeller.8 The goal
of the bill was twofold: (1) to provide for presumptive prison
“G. Possession of large amounts of illegal drugs or substantial quantities of
controlled substances.
“H. A showing that the offender has engaged in repeated similar criminal
acts associated with the manufacture, cultivation or delivery of controlled
substances.”
Oregon Sentencing Guidelines Implementation Manual 13 (1989).
7
This court allowed review of that decision, but it later dismissed review
because the legislature “superseded” the “scheme or network” provision by enact-
ing what is now ORS 475.900. State v. Moeller, 312 Or 76, 79, 815 P2d 701 (1991).
8
Representative Tom Mason explained that representatives for each
group worked together to draft HB 2390. Tape Recording, House Committee
on Judiciary, Subcommittee on Crime and Corrections, HB 2390, Jan 30, 1991,
Tape 11, Side A (statement of Rep Mason). However, according to Representative
Mason, neither group “want[ed] to admit parentage” of the bill. Id.
Cite as 362 Or 390 (2018) 403
sentences for serious drug offenses; and (2) to create clearly
defined factors that must be pleaded and proved to estab-
lish those presumptive sentences. Tape Recording, Senate
Committee on Judiciary, HB 2390, May 24, 1991, Tape 187,
Side A (statement of Rep Mason).
As it was initially proposed by Representative Tom
Mason in January 1991, HB 2390 provided two bases for
a presumptive crime category 8 on the sentencing guide-
lines. First, under subsection (1), a defendant could receive
a crime category 8 placement if the violation “[c]onsisted
of delivery for consideration of heroin, cocaine or metham-
phetamine.” Bill File, HB 2390, Dec 10, 1990 (Draft Bill).
Second, if that criterion were not met, the statute provided
a list of ten factors under subsection (2) that could lead to
a defendant receiving a crime category 8 placement. Id.
Representative Mason explained that “subsection (1), the
sale—you know ‘the distribution for consideration’—sale,”
came at the request of the district attorneys to address
their concern that, without that provision, the presumptive
sentence for drug sales would not be time in prison. Tape
Recording, House Committee on Judiciary, Subcommittee
on Crime and Corrections, HB 2390, Jan 30, 1991, Tape 12,
Side A (statement of Rep Mason); see Tape Recording, House
Committee on Judiciary, Subcommittee on Crime and
Corrections, HB 2390, Jan 30, 1991, Tape 11, Side A (state-
ment of Rep Mason) (explaining concerns of district attor-
neys). He testified that, under subsection (1), the “operative”
and “important” phrase is “delivery for consideration.” Tape
Recording, House Committee on Judiciary, Subcommittee
on Crime and Corrections, HB 2390, Jan 30, 1991, Tape 11,
Side A (statement of Rep Mason). Representative Mason
described “consideration”—which he stated was “lawyer talk
for ‘sell’ ”—as a limiting word because the term “delivery” is
very broad; he further explained that defendants who sell
are subject to an enhanced penalty. Id.
Attorney Ross Shepard, a witness appearing on
behalf of OCDLA, testified that HB 2390 went a long way
in addressing the problems of the “scheme or network”
provision that was at issue in Moeller. Tape Recording,
House Committee on Judiciary, Subcommittee on Crime
and Corrections, HB 2390, Jan. 30, 1991, Tape 11, Side A
404 State v. Villagomez
(statement of Ross Shepard). However, Shepard wanted the
committee to realize that, under the bill as written, any
monetary transaction involving drugs would result in a
prison sentence. Id. He suggested that a “first time sale of a
small amount of drugs” equals jail time under the bill, and
he expressed his concern that drug deals between friends
would be covered by subsection (1). Id. In a similar vein,
Representative Del Parks expressed his discomfort with any
sale for consideration leading to a prison sentence and dis-
cussed how “20 year-old kid[s] who trade it back and forth,
they are in there on just that factor alone.” Tape Recording,
House Committee on Judiciary, Subcommittee on Crime
and Corrections, HB 2390, Jan 30, 1991, Tape 12, Side A
(statement of Rep Del Parks). As a result of the concern
that “delivery for consideration” would lead to prison time
on its own, subsection (1) was removed and became part
of the factor analysis in subsection (2). Tape Recording,
House Committee on Judiciary, Subcommittee on Crime
and Corrections, HB 2390, Feb 5, 1991, Tape 16, Side A
(statement of legislative counsel Greg Chaimov) (explaining
that subsection (1) was moved because the committee was
uncomfortable simply having the “sale of heroin, cocaine,
or methamphetamine” to be sufficient to guarantee prison
time and that the new draft of HB 2390 makes the “sale” of
those substances one of the factors to consider).
As HB 2390 continued to make its way through the
House, other bills addressing the delivery of controlled sub-
stances were before the legislature. Notably, on February 19,
the House Subcommittee on Crime and Corrections—the
same subcommittee that considered HB 2390—held a hear-
ing on HB 2502 (1991), a bill that sought to enhance the pen-
alty for the delivery of controlled substances to minors within
1,000 feet of a school. Tape Recording, House Committee on
Judiciary, Subcommittee on Crime and Corrections, HB
2502, Feb 19, 1991, Tape 25, Side A (statement of Rep Kevin
Mannix).
During the work session on HB 2502, Representative
Ray Baum floated the idea of eliminating the geographic
limitation in the bill and instead making all deliveries of
a controlled substance a Class A felony. Tape Recording,
Cite as 362 Or 390 (2018) 405
House Committee on Judiciary, Subcommittee on Crime and
Corrections, HB 2502, Feb 19, 1991, Tape 26, Side A (state-
ment of Rep Ray Baum). Jim McIntyre of the Multnomah
County District Attorney’s Office stated that giving all drug
deliveries Class A felony treatment would make a “clear
statement to drug dealers” but that the fiscal impact “would
be incredible.” Id. (statement of Jim McIntyre). Interjecting
in that discussion, Representative Mason explained that
“ ‘delivery’ is not synonymous with ‘sale.’ ” Id. (statement
of Rep Mason). Representative Mason stated that, under
Oregon law, “you can be charged with delivery and no sale
have ever occurred.” Id. Representative Mason further
said that the amount itself can be “constructive delivery”
and that “the committee should be aware of the difference
between ‘delivery’ and ‘delivery for consideration,’ ” which
“are not the same thing.” Id.
The discussion shifted momentarily before return-
ing back to “delivery for consideration.” Representative
Parks remarked, “remember we were talking last week
about ‘delivery for consideration.’ Do not the vast majority of
what we have been talking about here, would the 18-year-
old kid fit in ‘delivery for consideration’?” Id. (statement of
Rep Parks). Representative Mason answered Representative
Park’s question in the affirmative and stated that, although
“much of the time there is indeed consideration,” “you can be
charged with delivery by circumstances other than cash” as
result of the Court of Appeals’ decision in Boyd. Id. (state-
ment of Rep Mason). Representative Mason then enlisted
the help of Jim McIntyre to briefly discuss the facts and
holding of Boyd. Id. McIntyre explained that, in Boyd, the
state relied on “all of the indicia of attempting to deliver” to
establish that the defendant was delivering a controlled sub-
stance and that the court “found it to be enough evidence to
constitute an intentional, substantial step towards actually
delivering drugs, so therefore it was found to be delivery of a
controlled substance.” Id. (statement of McIntyre).
Representative Parks, trying to understand how
the penalties worked under HB 2502, expressed his concern
that a single sale from an 18-year-old to another 18-year-old
would result in a prison sentence under HB 2390, and he did
406 State v. Villagomez
not understand how the penalty would be different under HB
2502. Id. (statement of Rep Parks). In attempting to explain
the difference between the two bills, Representative Mason
stated that one of the reasons HB 2390 was phrased in terms
of “delivery for consideration” “was to avoid the Boyd situa-
tion, which has got[ten] a little flexible.” Id. (statement of
Rep Mason). Representative Mason described the doctrines
of constructive delivery and possession as the reason HB
2390 was “fairly circumscribed.” Id. Representative Mason
further explained that he had no problem with enhancing
criminal penalties for the delivery of a controlled substance,
but he stated that he “would like them enhanced based on
‘delivery for consideration’ because [he] want[s] at the real
thing.” Id.
The next day, on February 20, the subcommittee
held a public hearing and work session on HB 2390, but the
focus of the discussion was centered on amendments pro-
posed by ODAA. See Tape Recording, House Committee on
Judiciary, Subcommittee on Crime and Corrections, HB
2390, Feb 20, 1991, Tape 30, Side A; Tape 31, Side A; and
Tape 30, Side B (discussing amendments). There does not
appear to have been a significant discussion at that hearing
regarding the “for consideration” factor or making all deliv-
eries for consideration a Class A felony.
After the House’s final work session on the bill in
March, HB 2390 provided two pathways for increasing a
defendant’s sentence for a drug violation to a crime category
8 on the sentencing guidelines grid: (1) the state could plead
and prove that a defendant possessed, delivered, or manu-
factured a substantial quantity of a controlled substance;
or (2) the state could plead and prove factors that indicated
that a defendant was engaged in a commercial drug offense.
Bill File, HB 2390, Mar 18, 1991 (A-Engrossed Bill). The
“for consideration” factor, which was one of eleven enumer-
ated factors, did not receive much attention when it reached
the Senate Committee on Judiciary.9 The most notable
9
When HB 2390 reached the Senate, the wording of that factor had been
amended. What had been “delivery for consideration of” a controlled substance
became “the delivery was of [a controlled substance] and was for consideration.”
Bill File, HB 2390, Mar 18, 1991 (A-Engrossed Bill). That change appears to
have taken place during staff revisions before the March 8 work session. There
Cite as 362 Or 390 (2018) 407
statements regarding that factor came from an exchange
between Ross Shepard, Representative Mason, and Senator
Jim Bunn.
At the time of that exchange, the discussion was
focused on paragraph (2)(d) of HB 2390, which provided,
“The offender was in possession of materials used for the
packaging of controlled substances such as scales, wrap-
ping or foil.” Bill File, HB 2390, Mar 18, 1991 (A-Engrossed
Bill). Senator Bunn asked Shepard whether he thought that
someone delivering a drug to someone else, other than when
the person holds the drug in her hand to transfer it, cov-
ered two of the CDO factors almost immediately—namely,
as Senator Bunn put it, “you’ve got a container that it is
in plus the drug.” Tape Recording, Senate Committee on
Judiciary, HB 2390, May 24, 1991, Tape 188, Side A (state-
ment of Sen Bunn). Shepard agreed with Senator Bunn that
those two factors—paragraph (2)(d) covering drug packag-
ing materials and, presumably, paragraph (2)(k) covering
possession of an amount of a controlled substance greater
than that needed for personal use—would be met under
those circumstances. Id. (statement of Shepard). Senator
Bunn then modified the hypothetical and stated that, “if
delivery takes place for consideration, which is [paragraph
(2)](a), then you’ve got one of your three, and as long as the
amount of the delivery was over the threshold you’ve got all
three.” Id. (statement of Sen Bunn). Shepard again agreed
with Senator Bunn’s conclusion and stated that that would
be a good reason to require more than three factors to estab-
lish an enhanced penalty. Id. (statement of Shepard).
At that point, Representative Mason briefly
explained to the committee that, “in drug law, the term
delivery is much, much broader” than actual hand-to-hand
transfers. Id. (statement of Rep Mason). Senator Bunn
stated that that only extended the point that he was trying
to make, and he then suggested that someone who had a bag
in their home with a large amount of a drug might meet all
is not any indication why the wording changed, but the legislative staff and leg-
islators viewed the amendments as “technical” changes. Tape Recording, House
Committee on Judiciary, HB 2390, Mar 8, 1991, Tape 25, Side A (comments of
legislative counsel Greg Chaimov and Rep Mason). Thus, we do not view the
change as significant.
408 State v. Villagomez
three factors automatically. Id. (statement of Sen Bunn). In
response to that suggestion, Representative Mason stated
that a person in that situation would “meet at least two.”
Id. (statement of Rep Mason). Senator Bunn went on to ask
“why we have the wrapping [factor] when it virtually, auto-
matically guarantees two and we are looking for separate
criteria to be met?” Id. (statement of Sen Bunn). He was con-
cerned that, although it was not the intent of the drafters of
the bill, the state would just plead the packaging factor in
the event that it needed to get over the threshold of three
factors. Id. In response to Senator Bunn’s concerns, para-
graph (2)(d) was amended so that the packaging that the
drug was in did not count for the purposes of that factor. Bill
File, HB 2390, June 24, 1991 (B-Engrossed Bill).
HB 2390 went through one more work session in
the Senate, but there does not appear to have been any
more discussion on the “for consideration” factor. HB 2390
was eventually passed by the legislature and became ORS
475.900,10 the focus of this appeal.
The legislative history strongly supports our under-
standing of the meaning of ORS 475.900(1)(b)(A). That
CDO factor, like the others the legislature enumerated, was
intended to limit and specifically describe the circumstances
that would permit a jury to find that a defendant had com-
mitted a commercial drug offense carrying a presumptive
sentence of imprisonment.
In enacting ORS 475.900(1)(b), the legislature
sought to address the problems raised by the “scheme or net-
work” provision and the Court of Appeals’ holding in Moeller,
105 Or App 434, that that provision is unconstitutionally
vague. Over the course of the legislative proceedings, the
legislature removed facts that were vague and that had, in
effect, placed the burden on the defendant to explain why the
factor did not apply. See Tape Recording, House Committee
on Judiciary, Subcommittee on Crime and Corrections, Jan
30, 1991, Tape 12, Side A (statements of Rep Mason and Hon
Haas) (Mason explaining that heavy traffic on premises fac-
tor and possession of valuable property without plausible
means of lawful income factor too “slippery” to keep in HB
10
Renumbered from ORS 475.996 in 2005.
Cite as 362 Or 390 (2018) 409
2390, and Haas suggesting that those factors might force
the defendant to testify); Tape Recording, House Committee
on Judiciary, Subcommittee on Crime and Corrections, HB
2390, Feb 20, 1991, Tape 30, Side A (statement of Rep Parks)
(stating that possession of property without plausible means
of lawful income factor too vague and better not to have in
HB 2390).
In contrast to the facts that were deleted from the
bill, the CDO factors that the legislature finally included
were factors that required an objective determination. For
example, some of the factors require that the defendant pos-
sess specific items—cash, weapons, materials used to pack-
age drugs, drug records or customer lists, stolen property,
manufacturing paraphernalia, or specific amounts of drugs.
ORS 475.900(1)(b)(B)-(F), (H), (K). Others require a show-
ing that structures were modified or constructed, or that
land was used in a certain way. ORS 475.900(1)(b)(I),(J).
Interpreting subparagraph (A) to also require an objective
determination of the existence of a completed sale or an
agreement to sell, rather than permitting the state to rely
only on evidence of a subjective intent to sell, is consistent
with that legislative effort.
Even more significantly, 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. As noted, much of the discussion of that
factor described it as requiring a “sale.” And, the legislature
frequently distinguished between a Boyd delivery and deliv-
ery “for consideration.” The only aspects of the legislative
history to which the state points as supporting its interpre-
tation of the “for consideration” factor are the legislature’s
understanding that “delivery” is a broadly defined term that
would encompass Boyd deliveries and that the legislature
intended to identify facts that it believed would evidence
participation in a drug enterprise. We agree that the legis-
lature had those thoughts in mind, but we do not see them
as inconsistent with our understanding of the meaning of
ORS 475.900(1)(b)(A).
The state is correct that the legislature adopted a
broad definition of “delivery” in ORS 475.005(8) that does
410 State v. Villagomez
not require a completed sale or an existing agreement to sell
to prove a conviction. Yet, that broad definition of “delivery”
is not inconsistent with a legislative intent to make one of
the CDO factors providing a basis for enhanced punishment
be a completed sale or an existing agreement to sell specified
drugs. The state also is correct that the legislature enumer-
ated CDO factors that it believed were circumstantial—and
not direct—evidence of a defendant’s participation in a drug
enterprise. However, that description of the legislature’s
purpose also is not inconsistent with a legislative intent to
include a completed sale or an existing agreement to sell
drugs as one of those factors. Such a sale or agreement may
be indirect evidence of participation in a drug enterprise.
Looking at the legislative history as a whole, we
understand the legislature’s intent to be an intent to describe
objective circumstances that warrant sentencing a crime
involving controlled substances as a more serious crime—a
commercial drug offense. Interpreting the “for consider-
ation” CDO factor as requiring proof of a completed sale or
an existing agreement to sell drugs is consistent with that
intent. And, contrary to the state’s primary argument, that
interpretation is not inconsistent with the statutory text. As
noted, “consideration” is a legal term. It describes one of the
circumstances that is necessary for an existing contract to
be enforceable: it must be supported by “consideration”—i.e.,
a bargained-for exchange. We do not fail to give heed to that
text when we interpret ORS 475.900(1)(b)(A) to require
proof of a completed sale or an existing agreement to sell
the drugs.
In this case, the state concededly did not adduce
evidence sufficient to establish the “for consideration” CDO
factor as we have construed it.11 Thus, the trial court erred
in denying defendant’s motion for a judgment of acquittal
on that factor. And, as the Court of Appeals held, without
the “for consideration” factor, the state proved only two CDO
factors. Therefore, it was error for the trial court to impose
11
Because of the state’s position, we need not consider what evidence would
be sufficient to establish a sale or an agreement to sell drugs. We do not address
that question. Specifically, in this case, we do not decide whether direct evi-
dence of a specific agreement with a specific buyer is required to establish ORS
475.900(1)(b)(A).
Cite as 362 Or 390 (2018) 411
an enhanced sentence as a commercial drug offense under
ORS 475.900(1)(b).12 Villagomez, 281 Or App at 40-41.
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is affirmed in part and
reversed in part, and the case is remanded to the circuit
court for resentencing.
12
As the Court of Appeals determined, defendant’s sentence for his deliv-
ery conviction is independently supported by the jury’s finding that defendant
delivered a “substantial quantity” of methamphetamine under ORS 475.900
(1)(a)(C). Villagomez, 281 Or App at 40-41.