In Nevada, any felonies committed as part of a gang require additional punishments. In some cases the court may impose an extra twenty years in prison.
In this article, our Las Vegas criminal defense attorneys answer these frequently-asked-questions:
- 1. What is a gang enhancement?
- 2. Is it a separate crime?
- 3. Can I get probation instead?
- 4. Do all gang-related felonies get enhancements?
- 5. What is a criminal gang?
- 6. How do I fight the case?
- 7. Is federal law different?
- 8. Are there immigration consequences?
1. What is a gang enhancement?
In Nevada, a gang enhancement is the additional prison sentence you get for committing a criminal gang-related felony.
The minimum sentence for the gang enhancement is one year in prison. The maximum sentence is:
- equal to the underlying felony sentence, or
- 20 years in prison,
whichever is shorter.
Example: As part of his initiation to a criminal gang in Las Vegas, Marcus robs a convenience store. Marcus gets caught and is convicted of robbery with a gang enhancement.
The judge imposes a five-year prison sentence for the robbery. Since Marcus committed the robbery in affiliation with a criminal gang, the judge must impose an additional sentence of one to five years in state prison.
The sentences for the underlying felony conviction and the gang enhancement must be served consecutively. So in the above example, Marcus would serve a total of 10 years.
When calculating the length of the enhancement, district court judges take into account these five factors:
- The facts and circumstances of the primary offense;
- Your criminal history;
- The impact on the victim (if any);
- Any mitigating factors you present (such as having an abusive childhood); and
- Any other relevant information.1
In sum, you face significantly harsher penalties for committing a felony in affiliation with a criminal gang than if you were acting independently.
2. Is it a separate crime?
No. A criminal gang enhancement is a penalty added to the sentence for the underlying felony in Nevada. The sentence enhancement goes away if the underlying felony charge gets dismissed.
Example: Xavier is charged with burglary with a gang enhancement. When video footage surfaces that shows Xavier was not the burglar, the D.A. drops the case.
Since Xavier is no longer charged with burglary, the additional penalty for gang activity disappears. The fact that Xavier is a criminal street gang member is not a crime in and of itself.
Note that prosecutors are required to allege in the original charging documents that you acted on behalf of a gang. If the D.A. forgets this step, then the judge cannot impose a gang enhancement if you get convicted of the underlying felony.1
3. Can I get probation instead?
Nevada judges can never grant probation or suspended sentences in lieu of a gang enhancement.
However, judges can reduce or suspend the sentence for the underlying felony if you provide substantial assistance in the arrest or conviction of people involved in the felony or other gang crimes.3
4. Do all gang-related felonies get enhancements?
No. Nevada courts may not impose a criminal gang enhancement if you were already sentenced to an additional prison term for either:
- committing a felony at a school under NRS 193.161;
- committing a felony with the assistance of a child under NRS 193.162;
- committing a felony with a handgun containing a metal-penetrating bullet under NRS 193.163;
- committing a felony using a deadly weapon or tear gas under NRS 193.165;
- committing a felony in violation of a protective order under NRS 193.166;
- committing a felony against a person sixty years old or older or a vulnerable person (such as a disabled person) under NRS 193.167;
- committing a felony as a hate crime under NRS 193.1675;
- committing a felony as an act of terrorism under NRS 193.1685;
- failing to seek medical assistance for a person injured or killed by controlled substances under NRS 453.3335;
- selling, dispensing or manufacturing a controlled substance near a school, bus stop, park or recreational facility for minors under NRS 453.3345 (see drug crimes);
- making, selling or trafficking methamphetamine in a matter which creates great risk of death or substantial bodily to another, or within 500 feet of a residence, business, church, synagogue or other place of religious worship, public or private school, campus of the Nevada System of Higher Education, playground, public park, public swimming pool or recreational center for youths under NRS 453.3351; or
- making, selling or trafficking controlled substances (other than marijuana) that results in death or substantial bodily harm to another under NRS 453.3353.4
Nevada law also prohibits judges from imposing an enhancement if you are convicted of gang recruitment under NRS 201.570.5
5. What is a criminal gang?
Nevada’s legal definition of a criminal gang is an organization that:
- has a common name or identifying symbol;
- has particular customs and conduct indicative of it; and
- commits felonies as one of its common activities.
Therefore, criminal gangs are more than a pack of truant teens who hang out in alleys and graffiti walls. One of the group’s missions must be committing felony offenses.
Common felonies committed as part of a criminal gang include:
6. How do I fight the cases?
As a result of our experience representing people accused of gang-related activity, we believe the four strongest defenses to gang enhancements are as follows:
- No felony crime. The best way to fight gang enhancements is to fight the underlying charge. Perhaps you were falsely accused or acted in lawful self-defense. If we can persuade the district attorney to dismiss the felony or reduce it to a misdemeanor, then you are no longer subject to a gang enhancement.
- Lack of intent. Gang enhancements apply only if you committed the felony in furtherance of the gang. If we can show that your particular conduct was for your own purposes and not on behalf of a gang, then the judge cannot impose the enhancement.
- No criminal gang. Nevada’s legal definition of a criminal gang is very precise. As long as we can raise a reasonable doubt as to whether the group you belonged to is a bona fide gang, then the court cannot hand down an enhancement.
- Law enforcement misconduct. If we can show that the police department found its evidence through an illegal search, we can ask the court to suppress the evidence. If the judge agrees, then the D.A. may be left with no choice but to drop the entire case for lack of proof.
Ultimately, prosecutors bear the burden to prove beyond a reasonable doubt that your actions were done as part of a criminal gang.8 Therefore, we would compile all the evidence available to poke holes in the state’s case, such as:
- written and recorded communications (texts, emails, voicemails, etc.);
- video surveillance footage; and
- eyewitness accounts.
If we can convince the D.A. that their case is too weak to prove that you acted on behalf of a gang, no enhanced penalties should be applied.
7. Is federal law different?
Yes. The federal gang crime enhancement is a maximum of 10 years as opposed to Nevada’s 20 years. And federal law has a narrow definition of what qualifies as a gang as compared to Nevada state law.9
Learn more about federal gang crime laws.
8. Are there immigration consequences?
Gang-related felonies involving drugs, firearms, or violent crimes are usually deportable.10 This means non-citizens could be expelled from the U.S. after serving their enhanced felony sentence.
Therefore, immigrants facing criminal charges should seek out an experienced attorney to try to get the charges dropped or switched to non-deportable offenses.
Arrested? Contact our DUI and criminal defense lawyers for legal advice. We serve clients throughout the state of Nevada.
In California? Go to our page on Penal Code 186.22 PC.
- NRS 193.168. Felony committed to promote activities of criminal gang; restriction on probation and suspension of sentence; expert testimony.
1. Except as otherwise provided in subsection 5 and NRS 193.169, any person who is convicted of a felony committed knowingly for the benefit of, at the direction of, or in affiliation with, a criminal gang, with the specific intent to promote, further or assist the activities of the criminal gang, shall, in addition to the term of imprisonment prescribed by statute for the crime, be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 20 years. In determining the length of the additional penalty imposed, the court shall consider the following information:
(a) The facts and circumstances of the crime;
(b) The criminal history of the person;
(c) The impact of the crime on any victim;
(d) Any mitigating factors presented by the person; and
(e) Any other relevant information.
–> The court shall state on the record that it has considered the information described in paragraphs (a) to (e), inclusive, in determining the length of the additional penalty imposed.
2. The sentence prescribed by this section:
(a) Must not exceed the sentence imposed for the crime; and
(b) Runs consecutively with the sentence prescribed by statute for the crime.
3. This section does not create any separate offense but provides an additional penalty for the primary offense, whose imposition is contingent upon the finding of the prescribed fact.
4. The court shall not impose an additional penalty pursuant to this section unless:
(a) The indictment or information charging the defendant with the primary offense alleges that the primary offense was committed knowingly for the benefit of, at the direction of, or in affiliation with, a criminal gang, with the specific intent to promote, further or assist the activities of the criminal gang; and
(b) The trier of fact finds that allegation to be true beyond a reasonable doubt.
5. The court shall not impose an additional penalty pursuant to this section if the primary offense is a violation of NRS 201.570.
6. Except as otherwise provided in this subsection, the court shall not grant probation to or suspend the sentence of any person convicted of a felony committed for the benefit of, at the direction of, or in affiliation with, a criminal gang if an additional term of imprisonment may be imposed for that primary offense pursuant to this section. The court may, upon the receipt of an appropriate motion, reduce or suspend the sentence imposed for the primary offense if it finds that the defendant rendered substantial assistance in the arrest or conviction of any other principals, accomplices, accessories or coconspirators to the crime, or of any other persons involved in the commission of a felony which was committed for the benefit of, at the direction of, or in affiliation with, a criminal gang. The agency which arrested the defendant must be given an opportunity to support or oppose such a motion before it is granted or denied. If good cause is shown, the motion may be heard in camera.
7. In any proceeding to determine whether an additional penalty may be imposed pursuant to this section, expert testimony is admissible to show particular conduct, status and customs indicative of criminal gangs, including, but not limited to:
(a) Characteristics of persons who are members of criminal gangs;
(b) Specific rivalries between criminal gangs;
(c) Common practices and operations of criminal gangs and the members of those gangs;
(d) Social customs and behavior of members of criminal gangs;
(e) Terminology used by members of criminal gangs;
(f) Codes of conduct, including criminal conduct, of particular criminal gangs; and
(g) The types of crimes that are likely to be committed by a particular criminal gang or by criminal gangs in general.
8. As used in this section, “criminal gang” means 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, which:
(a) Has a common name or identifying symbol;
(b) Has particular conduct, status and customs indicative of it; and
(c) Has as one of its common activities engaging in criminal activity punishable as a felony, other than the conduct which constitutes the primary offense.
- NRS 193.169.
- NRS 193.168.
- See, for example: Gonzalez v. State, (2015) 131 Nev. 991, 366 P.3d 680. Kirkpatrick v. State, (2006) 122 Nev. 846, 137 P.3d 1193.
- NRS 193.168.
- 18 U.S.C. 521.
- 8 U.S.C. 1227.