GANG CRIME ENHANCEMENT
In Nevada, if you commit a felony “in furtherance of a gang,” then the Government may seek to add up to 20 years in prison. This enhancement requires that the Government prove three things: (1) that you committed a felony; (2) that you are a member of a gang; and (3) that the felony was actually “in furtherance” of that gang.
What constitutes a felony in Nevada?
Felonies are the most serious types of charges. Nevada breaks them up in to 5 categories, A through E, with A being the worst of the worst and E being the least serious crimes that are still considered felonies. The following list names many of the crimes that can be charged as felonies in Nevada:
- Sexual assault;
- Battery with intent to commit sexual assault;
- Invasion of the home;
- Grand Larceny;
- Soliciting a child for prostitution.
Please see our discussion of Felony categorization for a more complete explanation of the definitions and possible punishments for each of the felony categories.
Do I have to be convicted of a felony for the gang crime enhancement?
Yes. As the name implies, the gang crime enhancement can only be used to enhance penalties that are already imposed. In other words, the penalties for gang crime can only be added on to a sentence that has been imposed after being convicted of a felony.
How can the prosecutor know whether I am a member of a gang?
This is actually a two-step process: First, the prosecutor will establish the legal definition of a gang, and second, the prosecutor will have to establish that you fall into that definition.
Okay, then what is the legal definition of a gang?
In Nevada the legal definition of a criminal gang has six defining elements:
- Any combination of persons;
- Organized formally or informally
- So constructed that the organization will continue its operation even if individual members enter or leave the organization;
- Has a common name or identifying symbol;
- Has particular conduct, status and customs indicative of it; and
- Has as one of its common activities engaging in criminal activity punishable as a felony, other than the conduct which constitutes the primary offense.
I understand the first four elements, but what exactly do the last two elements mean?
There are a lot of types of conduct that prosecutors will look for to determine if your conduct is “indicative” of a gang, or whether you were engaging in criminal activity:
- Whether you “behave” like a gang member (which means that you follow the social customs that society expects from a gang member);
- Whether you speak in a certain manner, or use specific terminology, known to be specific to gangs;
- Whether you exhibit animosity that suggests a rivalry between gangs;
- Whether you follow codes of conduct known to be associated with a gang, or with gangs;
- Whether you know the common activities and operations of a certain gang;
- Whether you associated with known gang members;
- Whether you have committed crimes that are generally committed by a particular gang or by gangs in general.
It may seem that these definitions are extremely broad and that they don’t rule out many actions. This is absolutely true. As with many laws, the definition is left intentionally broad so that the prosecutor has the discretion to decide whether they want to include the gang crime enhancement.
The government will look to your criminal past to decide whether they want to include the gang crime enhancement. If the prosecutor decides to charge you with the gang crime enhancement, these broad definitions allows the prosecutor to find conduct that can be considered “gang activity.”
Assuming that you have committed a felony, and that the Government has shown that you are, or were, a member of a gang, they still must show that the felony was committed “in furtherance” of the gang.
What exactly does that term mean, “in furtherance”?
This is another term that is left intentionally vague. And, once again, it is left vague so that the prosecutor has the choice of whether or not to apply it. There are, however, some general guidelines for what will constitute an action being “in furtherance” of a gang. Any one of the following reasons for you committing a felony can be used to satisfy this element:
- Committing a felony for the benefit of a gang;
- Committing a felony at the direction of a gang;
- Committing a felony in affiliation with a gang;
- Committing a felony with the intent to promote a gang’s activities;
- Committing a felony with the intent to further a gang’s activities;
- Committing a felony with the intent to assist a gang’s activities.
Please Note: While the Nevada crime of gang recruitment is a felony, it cannot be used as the underlying felony for the gang crime enhancement.
Please Note: It is also important to remember that the gang crime enhancement cannot be added if you did not intentionally act “in furtherance” of the gang. As an example, while it is a felony to murder a gang member, and doing so would be considered “in furtherance” of a rival gang, if you were not intentionally murdering the gang member to benefit the rival gang, then you were not actually committing a felony “in furtherance” of the rival gang.
Are there any defenses I may be able to use?
As with any criminal charge, there are defenses that may apply to your individual circumstances.
- No crime/felony – As already noted above, the gang crime enhancement is not a crime, by itself. It can only be applied if you have been already been convicted of a felony. If you have not been convicted of a felony, or of any crime for that matter, then the gang crime enhancement cannot apply;
- No gang – It should seem obvious that the second element necessary to the gang crime enhancement is the existence of a gang. As mentioned above, there is a legal definition of what constitutes a gang. If the prosecutor cannot prove beyond a reasonable doubt that your group, organization, or club satisfies the legal definition of a gang, then the gang crime enhancement cannot be applied.
- No intent – Again, as noted above, the gang crime enhancement can only be applied if your actions were done with the intent to further a criminal gang enterprise;
- Exceptions where the enhancement cannot be applied. There are number of situations where the gang crime enhancement cannot be applied, even though you may satisfy all of the elements, because you have already been given one of the following enhancement penalties for your crime:
- The felony was committed at a school (N.R.S. 193.161);
- The felony was committed with the assistance of a child (N.R.S. 193.162);
- The felony was committed with a handgun containing metal-penetrating bullets (N.R.S. 193.163);
- The felony was committed using a deadly weapon (N.R.S. 193.165);
- The felony was committed in violation of a protective order in Nevada (N.R.S. 193.166).
- The felony was committed against a person sixty years of age or older, or against another vulnerable person such as an invalid or disabled person (N.R.S. 193.167(;
- The felony was a hate crime (N.R.S. 193.1675);
- The felony was an act of terrorism (N.R.S. 193.1685);
- The felony was the result of failing to seek medical assistance for a person injured or killed by controlled substances (N.R.S. 453.3335);
- Selling dispensing, or manufacturing controlled substances near a school, bus stop, park or recreational facility for minors (N.R.S. 453.3345);
- Making selling, or trafficking methamphetamine in a matter which creates great risk of death or substantial bodily harm to another, or within 500 feet of a residence, business, church, synagogue or other place of religious worship, public or private school, campus, public park, public swimming pool or recreational center for youths (N.R.S. 453.3351);
- Making, selling, or trafficking controlled substances (other than marijuana) that results in death or substantial bodily harm to another (N.R.S. 453.3353);
- Police misconduct – as with most any crime, if the evidence against you was obtained through an illegal search or seizure, then the evidence should not be allowed at trial. If enough of the evidence is thrown out because it was illegally obtained, then your attorney can seek to have the charges against you thrown out.
- Police Informant – While not technically a defense to the crime, if you are convicted of a felony done in furtherance of a gang, you might be able to convince the judge to reduce your sentence, and possibly even suspend your sentence in favor of probation, if you agree to assist the police in the arrest or conviction of other people involved in the gang. However, the judge cannot suspend a sentence or grant probation for the enhancement penalty.
Is the penalty always an automatic 20 years?
No. The gang crime enhancement penalty can be up to 20 years, but only has to be at least 1 year.
Please Note: Remember, the gang crime enhancement is two-fold because you will receive a sentence for the gang crime enhancement and a sentence for the underlying felony.
When determining the length of sentence for the gang crime enhancement, the judge will look to all of the following factors:
- The underlying facts of the crime, including the level of violence involved, the number of people that were injured in its commission, who was affected by it and how, etc.;
- Your criminal history – if this is the first crime you’ve ever been convicted of, the judge is more likely to be lenient on you than if this is the tenth crime you’ve been convicted of. Likewise, if all of your crimes have been non-violent, then the judge will probably look more favorably on you than if you have a history of violent crimes against others;
- How the crime impacted the victim – Robbery taking place in an unoccupied building is likely to be looked upon more favorably than sexual assault;
- Any mitigating factors – this usually involves your background: are you from a broken home, were you abused as a child, did the circumstances of your childhood “force” you into your life of crime;
- The length of your sentence for the underlying felony – It is important to note that the gang crime enhancement penalty cannot be longer than the sentence for the underlying crime;
- Police informant – as noted above, judges cannot suspend a sentence for the gang crime enhancement, but they may use your assistance to the police as a mitigating factor to help reduce your sentence;
- Any other information the judge feels is relevant.
If you have been charged with a crime, whether the gang crime enhancement has been added or not, you should speak with an experienced criminal defense attorney as soon as possible.