                IN THE SUPREME COURT OF THE STATE OF IDAHO

                                    Docket No. 40603-2012

STATE OF IDAHO,                                    )
                                                   )       Boise, November 2014 Term
       Plaintiff-Respondent,                       )
                                                   )       2014 Opinion No. 129
v.                                                 )
                                                   )       Filed: December 2, 2014
JUAN LUIS SANCHEZ-CASTRO,                          )
                                                   )       Stephen W. Kenyon, Clerk
       Defendant-Appellant.                        )
                                                   )

       Appeal from the District Court of the Fourth Judicial District of the State of
       Idaho, in and for Ada County. Hon. George D. Carey, Senior District Judge.

       The judgment of the district court is affirmed.

       Eric Fredericksen, Deputy State Appellate Public Defender, Boise, argued for appellant.

       Jessica M. Lorello, Deputy Attorney General, Boise, argued for respondent.




EISMANN, Justice.
       This is an appeal out of Ada County in which the defendant contends that his convictions
and sentences for both conspiracy to traffic in methamphetamine and trafficking in
methamphetamine violate double jeopardy. We affirm both convictions and sentences.


                                              I.
                                     Factual Background.

       Juan Luis Sanchez-Castro (Defendant) was indicted, tried, and convicted of one count of
conspiracy to traffic in 400 grams or more of methamphetamine in violation of Idaho Code
section 37-2732B(b) and one count of trafficking in 400 grams or more of methamphetamine in
violation of Idaho Code section 37-2732B(a)(4)(C). For each crime, he was sentenced to fifteen
years in the custody of the Idaho Board of Correction, with the first ten years fixed and the
remaining five years indeterminate, and a fine of $25,000. The district court ordered that the
prison sentence on the second charge run concurrently with the prison sentence on the first
charge. Defendant appealed, contending that the conspiracy charge and the trafficking charge
were, under Idaho law, the same charge.


                                                II.
                                              Analysis.

          “The double jeopardy clauses in the Idaho and federal constitutions prohibit putting one
in jeopardy twice for the same crime. This protection applies not only to multiple punishments,
but also to multiple prosecutions for the same crimes.” State v. Manley, 142 Idaho 338, 343, 127
P.3d 954, 959 (2005).       “There are two theories under which a particular offense may be
determined to be a lesser included offense of a charged offense.” State v. Curtis, 130 Idaho 522,
524, 944 P.2d 119, 121 (1997). “One theory is referred to as the ‘statutory theory.’ ” State v.
Flegel, 151 Idaho 525, 527, 261 P.3d 519, 521 (2011). “Under this theory, one offense is not
considered a lesser included of another unless it is necessarily so under the statutory definition of
the crime.” State v. Thompson, 101 Idaho 430, 433, 614 P.2d 970, 973 (1980). “We apply the
Blockburger test, which originated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180,
76 L.Ed. 306 (1932), to determine whether an offense is a lesser included offense under the
statutory theory.” Flegel, 151 Idaho at 527, 261 P.3d at 521. “The other theory is called the
‘pleading theory.’ ” Id. at 529, 261 P.3d at 523. “ ‘This theory holds “that an offense is an
included offense if it is alleged in the information [or indictment] as a means or element of the
commission of the higher offense.” ’ ” Sivak v. State, 112 Idaho 197, 211, 731 P.2d 192, 206
(1986).
          In this case, Defendant first relies upon the statutory theory. “Traditionally the law has
considered conspiracy and the completed substantive offense to be separate crimes.” Iannelli v.
United States, 420 U.S. 770, 777 (1975). As the Supreme Court explained, “[T]he conspiracy to
commit an offense and the subsequent commission of that crime normally do not merge into a
single punishable act. Thus, it is well recognized that in most cases separate sentences can be
imposed for the conspiracy to do an act and for the subsequent accomplishment of that end.” Id.
at 777-78.
          We have not had occasion to address whether a defendant can be punished for both the
conspiracy to commit a crime and the commission of the crime, but our Court of Appeals has


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acknowledged that “[i]t is generally accepted that a conviction and sentence on a count charging
conspiracy will not, on the theory of double punishment, prevent conviction and sentence on
another count charging the substantive offense.” State v. Gallatin, 106 Idaho 564, 567, 682 P.2d
105, 108 (Ct. App. 1984).
       Defendant argues that the statutory definitions of the crimes of conspiracy and trafficking
alleged in this case show that they are the same offense. Idaho Code section 37-2732B(a)(4)
makes it a felony to knowingly possess twenty-eight or more grams of methamphetamine.
Subsection (b) of the statute states, “Any person who agrees, conspires, combines or
confederates with another person or solicits another person to commit any act prohibited in
subsection (a) of this section is guilty of a felony and is punishable as if he had actually
committed such prohibited act.”     Defendant emphasizes the words “as if he had actually
committed such prohibited act” to argue that the statute defines conspiracy and possession to be
the same crime. He misconstrues the statute.
       The wording he relies upon states how the crime of conspiracy is punishable. It does not
define the crime of conspiracy. The words “and is punishable as if he had actually committed
such prohibited act” in the statute mean that the punishment for the crime of conspiracy under
subsection (b) is the same as the punishment for the substantive crime that the defendant
conspired to commit. The fact that the two crimes have the same penalty does not make them
the same crime. The penalty for the substantive crime varies depending upon the quantity of
drugs involved, and so the punishment for conspiracy depends upon the quantity of drugs that
were the subject of the conspiracy. I.C. § 37-2732B(a)(4)(A)-(D). The statutory definitions of
trafficking and conspiracy do not define the same crime.
       The Defendant also asserts that the conspiracy and the trafficking charges were the same
offense under the pleading theory, although he does not present any argument supporting that
assertion other than merely stating, “In both Counts I and II, Mr. Sanchez-Castro was alleged to
have committed the relevant offenses by possessing 400 or more grams of methamphetamine or
a mixture or substance containing a detectable amount of methamphetamine.” He apparently
bases this assertion upon the language in the conspiracy count that Defendant and others “did
willfully and knowingly combine, conspire, confederate and agree to traffic in a controlled
substance, by knowingly possessing methamphetamine, to wit: in excess of four-hundred (400)
grams or more of methamphetamine.”


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       The crime of trafficking in methamphetamine is committed when a person “knowingly
delivers, or brings into this state, or [] is knowingly in actual or constructive possession of,
twenty-eight (28) grams or more of methamphetamine or amphetamine or of any mixture or
substance containing a detectable amount of methamphetamine or amphetamine.”                  37-
2732B(a)(4). Knowingly possessing a specified quantity of methamphetamine is one manner of
committing the crime of trafficking. The language upon which Defendant apparently relies
states that he and others conspired “to traffic in a controlled substance, by knowingly possessing
methamphetamine.” The words “by knowingly possessing methamphetamine” were not alleged
as the means by which the Defendant and others were alleged to have committed the conspiracy.
The words obviously referred to the object of the conspiracy—they conspired to traffic in a
controlled substance by knowlingly possessing methamphetamine.


                                             III.
                                          Conclusion.

       The judgment of the district court is affirmed.


       Chief Justice BURDICK, Justices J. JONES, HORTON and Senior Justice Pro Tem
WALTERS CONCUR.




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