Ark. Code Ann. § 5-64-405 (2026)

Case Notes

Constitutionality.

The language “two or more felony offenses” is sufficiently clear to survive a vagueness challenge. Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993) (decision under prior law).

There is no fatal vagueness problem in the requirement that a criminal enterprise defendant must have received “substantial income or resources” from his or her activity. Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993) (decision under prior law).

Simultaneous conviction and sentence for continuing criminal enterprise and its predicate felony offenses do not violate the protection against multiple punishments for the same offense afforded by the federal and Arkansas constitutional double jeopardy clauses, U.S. Const. Amend. 5 and Ark. Const., Art. 5, § 8. Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995) (decision under prior law).

Elements.

In order to prove the continuing criminal enterprise offense under this section, one of the necessary elements is that the defendant committed “two or more felony offenses” which are part of the Controlled Substances Act. Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993) (decision under prior law).

Defendant's conviction of continuing criminal enterprise under this section and 70-year sentence were affirmed. Regarding the primary felony offense, the circuit court could have reasonably found that defendant constructively transferred methamphetamine to the buyer. The evidence that defendant arranged the price and the location for the buy, combined with defendant's admission that he was a drug dealer and testimony about his method of operation, was substantial evidence that defendant constructively delivered methamphetamine. Hunter v. State, 2017 Ark. App. 256, 522 S.W.3d 793 (2017).

Failing to identify a primary felony offense, the State stated only that the evidence showed defendant committed the requisite underlying felonies and these felonies were part of a series of a continuing criminal enterprise; for due-process reasons, the appellate court rejected the State's use of underlying offenses against defendant that were not named in the criminal information. Hunter v. State, 2017 Ark. App. 256, 522 S.W.3d 793 (2017).

Simply possessing a controlled substance is not a qualifying offense under this section. Hunter v. State, 2017 Ark. App. 256, 522 S.W.3d 793 (2017).

There was sufficient proof that defendant constructively delivered methamphetamine to two buyers, meeting the second element of the continuing criminal enterprise statute; defendant admitted he was a drug dealer, buyers went to buy drugs as directed by defendant, and the court rejected defendant's argument that he could not be guilty of delivering methamphetamine because he did not physically deliver the drugs. Hunter v. State, 2017 Ark. App. 256, 522 S.W.3d 793 (2017).

For purposes of the continuing criminal enterprise statute, circumstantial evidence and direct testimony supported the conclusion that defendant exerted some type of influence over five or more people, and their compliance with his directions or instructions made the case. Hunter v. State, 2017 Ark. App. 256, 522 S.W.3d 793 (2017).

For purposes of the continuing criminal enterprise statute, the circuit court could reasonably have inferred that defendant derived substantial income from selling methamphetamine; he was unemployed or underemployed during most of the seven-year period at issue, yet was shown to have had large amounts of cash at various times, he admitted receiving income from selling methamphetamine, and he provided financial gifts and support to his girlfriends and numerous children. Hunter v. State, 2017 Ark. App. 256, 522 S.W.3d 793 (2017).

Position of Management.

The management element is established by demonstrating that the defendant exerted some type of influence over another individual as exemplified by that individual's compliance with the defendant's directions, instruction, or terms. Hughey v. State, 310 Ark. 721, 840 S.W.2d 183 (1992) (decision under prior law).

Sentencing.

Based on examination of this section and on § 5-1-110 as amended by Acts 1995, No. 595, the General Assembly intended to authorize separate punishments for violations of this section and the underlying substantive predicate offenses. Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995) (decision under prior law).

Sentencing range for a first-time, continuing criminal enterprise conviction is linked to the primary, underlying drug offense in subdivision (a)(1) of this section; the sentencing range is tethered to the sentencing range of the offense charged. Hunter v. State, 2017 Ark. App. 256, 522 S.W.3d 793 (2017).

Defendant's 70-year sentence under this section was within statutory limits based on the statute in force when the offense was committed, but the circuit court erred in also sentencing defendant to 10 years' suspended imposition of sentence, which was forbidden under subsection (e) of this section and also under § 5-4-104. Hunter v. State, 2017 Ark. App. 256, 522 S.W.3d 793 (2017).

Defendant was charged with only one crime: engaging in a continuing criminal enterprise, and although the State charged him as a habitual offender, habitual-offender status is not a separate crime or offense, and the sentence had to be modified accordingly. Hunter v. State, 2017 Ark. App. 256, 522 S.W.3d 793 (2017).

Because defendant's prior felony records were more than 15 years old, and his prior misdemeanor record was more than 10 years old, they did not count toward his criminal history under the presumptive standards, and his criminal-history score was 0, rather than 2. Hunter v. State, 2017 Ark. App. 256, 522 S.W.3d 793 (2017).

Given the testimony against defendant, and because the presumptive sentencing standards are merely advisory, the circuit court did not abuse its discretion by departing from the presumptive sentence of 20 years' imprisonment and imposing 70 years' imprisonment on the continuing criminal enterprise conviction. Hunter v. State, 2017 Ark. App. 256, 522 S.W.3d 793 (2017).