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April 21, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Henry H. Kennedy, Jr., Trial Judge)

Before Rogers, Chief Judge, and Terry and Steadman, Associate Judges.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: Under the so-called "addict exception" to the District of Columbia's mandatory-minimum drug sentencing statute, D.C. Code § 33-541 (c)(2) (1988), a defendant may be eligible for a lesser sentence if, among other prerequisites, he or she "has not been previously convicted in any jurisdiction in the United States for knowingly or intentionally . . . distributing . . . a controlled substance . . . ." The appeal before us presents the issue whether a Virginia conviction of distribution "as an accommodation" is a disqualifying conviction under this provision. *fn1

On November 20, 1989, appellant pled guilty in the District of Columbia to one count of distribution of cocaine. D.C. Code § 33-541 (a)(1) (1988). At that time, he was awaiting sentencing in Virginia on two counts of distribution of a controlled substance, to which he had pled guilty. On November 22, 1989, appellant was sentenced by the Virginia court, which accepted appellant's showing that he had distributed the controlled substance "as an accommodation" rather than for profit and thus was entitled to a lesser sentence.

A defendant seeking to be sentenced under the addict exception bears the burden of proffering prima facie evidence of his eligibility, including that he has no disqualifying convictions. Grant v. United States, 509 A.2d 1147, 1154 (D.C. 1986). As did the trial court, we reject appellant's argument that the Virginia offense of distribution of a controlled substance "as an accommodation" is not a disqualifying offense. *fn2 Appellant violated the provision of the Virginia Code making it unlawful for any person "to manufacture, sell, give, distribute or possess with intent to manufacture, sell, give or distribute a controlled substance or an imitation controlled substance." Va. Code Ann. 18.2-248 (Michie 1988). Although this provision does provide for reduced penalties for the distribution of controlled substances as an accommodation of another individual with no intent to profit thereby, *fn3 the Virginia Supreme Court has squarely held that the reduced penalties operate only to mitigate the degree of punishment, rather than to create a distinct substantive offense. Stillwell v. Commonwealth, 219 Va. 214, 247 S.E.2d 360, 365 (Va. 1978). *fn4 Furthermore, District of Columbia law does not distinguish for sentencing purposes between for-profit and not-for-profit narcotics distribution. Rather, " sharing, or even a gift, of a controlled substance is enough to constitute a distribution." Chambers v. United States, 564 A.2d 26, 31 n. 10 (D.C. 1989); see also Malloy v. United States, No. 91-88, slip op. at 3 (D.C. March 24, 1992). A Conclusion that appellant's convictions for distribution of a controlled substance as an accommodation were not disqualifying offenses thus would produce the anomalous result of permitting those with a prior conviction of not-for-profit distribution of a controlled substance in Virginia to qualify for sentencing under the addict exception, while denying consideration under the addict exception to those who engaged in identical conduct in the District of Columbia.


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