Conspiracy is lesser included offense of engaging in continuing criminal enterprise

DOUBLE JEOPARDY United States v. Atencio, No. 04-2325, ___ F.3d ___ (10th Cir. Jan. 20, 2006)(New Mexico). Appeal of convictions for (1) engaging in marijuana and cocaine-related continuing criminal enterprise in violation of 21 U.S.C. §§ 848(b) and 848(c), and (2) conspiracy to possess marijuana and cocaine with intent to distribute in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). HELD: Conspiracy to possess cocaine and marijuana with intent to distribute is lesser included offense of engaging in continuing criminal enterprise through continuing series of violations of federal drug laws. Therefore, defendant’s rights under Double Jeopardy Clause of Fifth Amendment were violated when sentenced to separate terms of life imprisonment for both drug-related continuing criminal enterprise conviction and drug conspiracy conviction. Conviction for conspiracy reversed. Read the opinion here.