Habitual Drug Trafficking

As most of you probably know, G.S. 90-95(h) sets out special sentencing rules for drug trafficking offenses, including mandatory fines and minimum and maximum sentences that apply regardless of the defendant’s prior record. This chart summarizes the law. During the Felony Sentencing installment of my colleague Alyson Grine’s “Lunchinar” series (available on demand for free viewing or for CLE purchase here), a participant asked whether drug trafficking sentences could be enhanced under the habitual felon law. At the time of the lunchinar, that was a question that had never been answered by our appellate courts. Since then, however, the court of appeals decided State v. Eaton, __ N.C. App. __ (Mar. 1, 2011). In Eaton, the defendant was convicted of trafficking by possession of 4–14 grams of an opiate (specifically, dihydrocodeinone). That’s a Class F felony under G.S. 90-95(h)(4), which prescribes a 70–84 month sentence and a fine of not less than $50,000. The defendant, who had a lengthy criminal record, was also found to be a habitual felon. He was sentenced as a Class C felon to 133–169 months, the high end of the presumptive range for his record level (IV) under the pre-December 1, 2009 sentencing grid. The defendant appealed, arguing that drug trafficking sentences—“mandatory” under G.S. 90-95(h), “[n]otwithstanding any other provision of law”—can’t be habitualized. The court of appeals disagreed, reasoning that the drug trafficking law isn’t really any more “mandatory” than any other statutory provision setting out the punishment for a particular crime. Statutes “almost universally employ [...]