BAC2210-40/2211-01

UNITED STATES SENTENCING COMMISSION

Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of: (A) promulgation of temporary, emergency amendments, effective May 1, 2001, for (1) offenses involving the manufacture, importation, exportation, or trafficking of "Ecstasy"; (2) offenses involving the manufacture, importation, or trafficking of amphetamine; (3) offenses involving the trafficking of certain List I chemicals that are used in the manufacture of methamphetamine; and (4) offenses involving peonage and human trafficking; and (B) submission to Congress of additional non-emergency amendments to the sentencing guidelines, effective November 1, 2001.

SUMMARY: The United States Sentencing Commission hereby gives notice of the following actions:

(A) Emergency Amendments.—

(1) "Ecstasy" Offenses.—Pursuant to section 3664 of the Ecstasy Anti-Proliferation Act of 2000, Pub. L. 106–310, the Commission has promulgated a temporary, emergency amendment to §2D1.1.

(2) Amphetamine Offenses.—Pursuant to section 3611 of the Methamphetamine Anti-Proliferation Act of 2000, Pub. L. 106–310, the Commission has promulgated a temporary, emergency amendment to §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses) Attempt and Conspiracy).

(3) List I Chemical Offenses.—Pursuant to section 3651 of the Methamphetamine Anti-Proliferation Act of 2000, the Commission has promulgated a temporary, emergency amendment to §§2D1.1 and 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy).

(4) Human Trafficking Offenses.—Pursuant to section 112(b) of the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106–386, the Commission has promulgated a temporary, emergency amendment to §§2G1.1 (Promoting Prostitution or Prohibited Sexual Conduct), 2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production ), and 2H4.1 (Peonage, Involuntary Servitude, and Slave Trade), and has promulgated a new guideline at §2H4.2 (Willful Violations of the Migrant and Seasonal Agricultural Worker Protection Act).

(B) Non-Emergency Amendments.—Pursuant to its authority under 28 U.S.C. § 994(a) and (p) and several congressional directives more fully described herein, the Commission has promulgated additional, non-emergency amendments to the sentencing guidelines, policy statements, commentary, and statutory index.

This notice sets forth the amendments and the reason for each amendment.

DATES: The Commission has specified an effective date of May 1, 2001, for the emergency amendments set forth in Part (A) of this notice and an effective date of November 1, 2001, for the non-emergency amendments set forth in Part (B) of this notice.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs Officer, 202-502-4590. The amendments set forth in this notice also may be accessed through the Commission’s website at www.ussc.gov.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. § 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. § 994(o) and submits guideline amendments to the Congress not later than the first day of May each year pursuant to 28 U.S.C. § 994(p).

(A) Emergency Amendments.—In January 2001, the Commission published options for promulgating the emergency amendments set forth herein (see 66 FR 7962, January 26, 2001). The Commission held a public hearing on the proposed amendments in Washington, D.C., on March 19, 2001. After a review of hearing testimony and additional public comment, the Commission promulgated the emergency amendments set forth herein. The Commission specified an effective date of May 1, 2001, for these amendments.

(1) "Ecstasy".—The Ecstasy Anti-Proliferation Act of 2000 instructed the Commission to provide increased penalties for the manufacture, importation, exportation, or trafficking of "Ecstasy". The directive specifically required the Commission to increase the base offense level for 3,4-Methylenedioxymethamphetamine (MDMA), 3,4-Methylenedioxyamphetamine (MDA), 3,4-Methylenedioxy-N-ethylamphetamine (MDEA), and Paramethoxymethamphetamine (PMA). The amendment amends the Drug Equivalency Tables in §2D1.1 to increase substantially the marihuana equivalencies for the specified controlled substances, which has the effect of substantially increasing the penalties for offenses involving "Ecstasy".

(2) Amphetamine.—Section 3611 of the Methamphetamine Anti-Proliferation Act of 2000 directed the Commission to provide increased guideline penalties for amphetamine offenses such that those penalties are comparable to the base offense level for methamphetamine offenses. This amendment revises §2D1.1 to include amphetamine in the Drug Quantity Table in subsection (c) of that guideline. This amendment also treats amphetamine and methamphetamine identically, at a 1:1 ratio, because of the similarities of the two substances.

(3) List I Chemicals.—Section 3651 of the Methamphetamine Anti-Proliferation Act of 2000 directed the Commission to "provide increased penalties for offenses involving ephedrine, phenylpropanolamine (PPA), or pseudoephedrine (including their salts, optical isomers, and salts of optical isomers) to correspond to the quantity of controlled substance that reasonably could have been manufactured using the quantity of ephedrine, PPA, and pseudoephedrine possessed or distributed." This amendment provides a new chemical quantity table in §2D1.11 specifically for ephedrine, pseudoephedrine, and phenylpropanolamine (PPA). The table, which has a maximum base offense level of level 38, ties the base offense levels for these chemicals to the base offense levels for methamphetamine (actual) set forth in §2D1.1. The amendment also makes conforming changes to the commentary in §§ 2D1.11 and 2D1.1.

(4) Human Trafficking.—This amendment implements the congressional directive in section 112(b) of the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106–386. The directive requires the Commission to amend, if appropriate, the guidelines applicable to human trafficking (i.e., peonage, involuntary servitude, and forced labor) offenses. It also requires the Commission to ensure that the guidelines "are sufficiently stringent to deter and adequately reflect the heinous nature of these offenses." This amendment (i) creates a new guideline, §2H4.2 (Willful Violations of the Migrant and Seasonal Agricultural Worker Protection Act); (ii) refers violations of four new statutes, 18 U.S.C. §§ 1589 (Forced Labor), 1590 (Trafficking with Respect to Peonage, Involuntary Servitude or Forced Labor), 1591 (Sex Trafficking of Children by Force, Fraud or Coercion), and 1592 (Unlawful Conduct with Respect to Documents in Furtherance of Peonage, Involuntary Servitude, or Forced Labor) to the appropriate guidelines; and (iii) makes changes, consistent with the directive, which both enhance sentences and reflect changes to three existing statutes: 18 U.S.C. §§ 1581(a) (Peonage), 1583 (Enticement into Slavery) and 1584 (Sale into Involuntary Servitude).

(B) Non-Emergency Amendments.—Section 994 of title 28, United States Code, authorizes the Commission to promulgate sentencing guidelines and policy statements for federal courts. See 28 U.S.C. § 994(a). Additionally, 28 U.S.C. § 994 directs the Commission periodically to review and revise guidelines previously promulgated (see 28 U.S.C. § 994(o)) and authorizes it to submit guideline amendments to the Congress at or after the beginning of a regular session of Congress but not later than May 1 (see 18 U.S.C. § 994(p)). Absent action of Congress to the contrary, submitted amendments become effective by operation of law on the date specified by the Commission (generally November 1 of the year in which the amendments are submitted to Congress).

Notice of proposed amendments was published in the Federal Register on November 7, 2000 (see 65 FR 66792), and January 26, 2001 (see 66 FR 7962). The Commission held a public hearing on the proposed amendments in Washington, D.C., on March 19, 2001. After a review of hearing testimony and additional public comment, the Commission promulgated the amendments set forth herein (including amendments to make permanent the temporary, emergency amendments set forth in Part (A) of this notice). On May 1, 2001, the Commission submitted these amendments to Congress and specified an effective date of November 1, 2001.

AUTHORITY: 28 U.S.C. § 994(a), (o), and (p); USSC Rule of Practice and Procedure 4.1.

Diana E. Murphy,
Chair.

(A)      Emergency Amendments to the Sentencing Guidelines, Policy Statements, and Official Commentary, Effective May 1, 2001

1.Amendment: The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10 in the Drug Equivalency Tables in the subdivision captioned "LSD, PCP, and Other Schedule I and II Hallucinogens (and their immediate precursors)*" in the line referenced to "MDA" by striking "50 gm" and inserting "500 gm"; in the line referenced to "MDMA" by striking "35 gm" and inserting "500 gm"; in the line referenced "MDEA" by striking "30 gm" and inserting "500 gm"; and by inserting "1 gm of Paramethoxymethamphetamine/PMA = 500 gm of marihuana" after the line referenced to "MDEA".

Reason for Amendment: This amendment addresses the directive in the Ecstasy Anti-Proliferation Act of 2000 (the "Act"), section 3664 of Pub. L. 106–310, which instructs the Commission to provide, under emergency amendment authority, increased penalties for the manufacture, importation, exportation, or trafficking of Ecstasy. The directive specifically requires the Commission to increase the base offense level for 3,4-Methylenedioxymethamphetamine (MDMA), 3,4-Methylenedioxyamphetamine (MDA), 3,4-Methylenedioxy-N-ethylamphetamine (MDEA), Paramethoxymethamphetamine (PMA), and any other controlled substance that is marketed as Ecstasy and that has either a chemical structure similar to MDMA or an effect on the central nervous system substantially similar to or greater than MDMA.

The amendment addresses the directive by amending the Drug Equivalency Table in §2D1.1, Application Note 10, to increase substantially the marihuana equivalencies for the specified controlled substances, which has the effect of substantially increasing the penalties for offenses involving Ecstasy. The new penalties for Ecstasy trafficking provide penalties which, gram for gram, are more severe than those for powder cocaine. Currently under the Drug Equivalency Table, one gram of powder cocaine has a marihuana equivalency of 200 grams. This amendment sets the marihuana equivalency for one gram of Ecstasy at 500 grams.

There are a combination of reasons why the Commission has substantially increased the penalties in response to the congressional directive. Much evidence received by the Commission indicated that Ecstasy: (1) has powerful pharmacological effects; (2) has the capacity to cause lasting physical harms, including brain damage; and (3) is being abused by rapidly increasing numbers of teenagers and young adults. Indeed, the market for Ecstasy is overwhelmingly comprised of people under the age of 25 years.

Before voting to promulgate this amendment, the Commission considered whether the penalty levels for Ecstasy should be set at the same levels as for heroin (i.e., one gram of heroin has a marihuana equivalency of 1000 grams) and decided that somewhat lesser penalties were appropriate for Ecstasy for a number of reasons: (1) the potential for addiction is greater with heroin; (2) heroin distribution often involves violence while, at this time, violence is not reported in Ecstasy markets; (3) because it is a narcotic and is often injected, the risk of death from overdose is much greater from heroin; and (4) because heroin is often injected, there are more secondary health consequences, such as infections and the transmission of the human immunodeficiency virus (HIV) and hepatitis.

Finally, based on information regarding Ecstasy trafficking patterns, the penalty levels chosen are appropriate and sufficient to target serious and high-level traffickers and to provide appropriate punishment, deterrence, and incentives for cooperation. The penalty levels chosen for Ecstasy offenses provide five year sentences for serious traffickers (those whose relevant conduct involved at least 800 pills) and ten year sentences for high-level traffickers (those whose relevant conduct involved at least 8,000 pills).

2.         Amendment: Section 2D1.1(c)(1) is amended by inserting after the fifth entry the following:

"15 KG or more of Amphetamine, or 1.5 KG or more of Amphetamine (actual);".

Section 2D1.1(c)(2) is amended by inserting after the fifth entry the following:

"At least 5 KG but less than 15 KG of Amphetamine, or at least 500 G but less than 1.5 KG of Amphetamine (actual);".

Section 2D1.1(c)(3) is amended by inserting after the fifth entry the following:

"At least 1.5 KG but less than 5 KG of Amphetamine, or at least 150 G but less than 500 G of Amphetamine (actual);".

Section 2D1.1(c)(4) is amended by inserting after the fifth entry the following:

"At least 500 G but less than 1.5 KG of Amphetamine, or at least 50 G but less than 150 G of Amphetamine (actual);".

Section 2D1.1(c)(5) is amended by inserting after the fifth entry the following:

"At least 350 G but less than 500 G of Amphetamine, or at least 35 G but less than 50 G of Amphetamine (actual);".

Section 2D1.1(c)(6) is amended by inserting after the fifth entry the following:

"At least 200 G but less than 350 G of Amphetamine, or at least 20 G but less than 35 G of Amphetamine (actual);".

Section 2D1.1(c)(7) is amended by inserting after the fifth entry the following:

"At least 50 G but less than 200 G of Amphetamine, or at least 5 G but less than 20 G of Amphetamine (actual);".

Section 2D1.1(c)(8) is amended by inserting after the fifth entry the following:

"At least 40 G but less than 50 G of Amphetamine, or at least 4 G but less than 5 G of Amphetamine (actual);".

Section 2D1.1(c)(9) is amended by inserting after the fifth entry the following:

"At least 30 G but less than 40 G of Amphetamine, or at least 3 G but less than 4 G of Amphetamine (actual);".

Section 2D1.1(c)(10) is amended by inserting after the fifth entry the following:

"At least 20 G but less than 30 G of Amphetamine, or at least 2 G but less than 3 G of Amphetamine (actual);".

Section 2D1.1(c)(11) is amended by inserting after the fifth entry the following:

"At least 10 G but less than 20 G of Amphetamine, or at least 1 G but less than 2 G of Amphetamine (actual);".

Section 2D1.1(c)(12) is amended by inserting after the fifth entry the following:

"At least 5 G but less than 10 G of Amphetamine, or at least 500 MG but less than 1 G of Amphetamine (actual);".

Section 2D1.1(c)(13) is amended by inserting after the fifth entry the following:

"At least 2.5 G but less than 5 G of Amphetamine, or at least 250 MG but less than 500 MG of Amphetamine (actual);".

Section 2D1.1(c)(14) is amended by inserting after the fifth entry the following:

"Less than 2.5 G of Amphetamine, or less than 250 MG of Amphetamine (actual);".

Section 2D1.1(c) is amended in Note (B) of the "Notes to Drug Quantity Table" by inserting ", ‘Amphetamine (actual)’," after "terms ‘PCP (actual)’"; by inserting ", amphetamine," after "substance containing PCP"; and by inserting ", amphetamine (actual)," after "weight of the PCP (actual)".

The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 9 by inserting ", amphetamine," after "PCP".

The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10 in the Drug Equivalency Tables in the subdivision captioned "Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)*" by striking "200 gm" after "1 gm of Amphetamine =" and inserting "2 kg"; and by inserting "1 gm of Amphetamine (Actual) = 20 kg of marihuana" after the line referenced to "Amphetamine".

Reason for Amendment: This emergency amendment implements the directive in the Methamphetamine Anti-Proliferation Act of 2000, section 3611 of Pub. L. 106–310 (the "Act"), which directs the Commission to provide, under emergency amendment authority, increased guideline penalties for amphetamine such that those penalties are comparable to the base offense level for methamphetamine.

This amendment revises §2D1.1 to include amphetamine in the Drug Quantity Table. This amendment also treats amphetamine and methamphetamine identically, at a 1:1 ratio (i.e., the same quantities of amphetamine and methamphetamine would result in the same base offense level) because of the similarities of the two substances. Specifically, amphetamine and methamphetamine (1) chemically are similar; (2) are produced by a similar method and are trafficked in a similar manner; (3) share similar methods of use; (4) affect the same parts of the brain; and (5) have similar intoxicating effects. The amendment also distinguishes between pure amphetamine (i.e., amphetamine (actual)) and amphetamine mixture in the same manner, and at the same quantities, as pure methamphetamine (i.e., methamphetamine (actual)) and methamphetamine mixture, respectively. The amendment reflects the view that the 1:1 ratio is appropriate given the seriousness of these two controlled substances.

3.         Amendment: Section 2D1.11 is amended by striking subsection (d), captioned "Chemical Quantity Table*"; and by striking the Notes that follow subsection (d), captioned "*Notes", and inserting the following:

"(d)(1) EPHEDRINE, PSEUDOEPHEDRINE, AND PHENYLPROPANOLAMINE

QUANTITY TABLE*

(Methamphetamine and Amphetamine Precursor Chemicals)

(d)(2) CHEMICAL QUANTITY TABLE*

(All Other Precursor Chemicals)

______________

*Notes:

            (A)      Except as provided in Note (B), to calculate the base offense level in an offense that involves two or more chemicals, use the quantity of the single chemical that results in the greatest offense level, regardless of whether the chemicals are set forth in different tables or in different categories (i.e., list I or list II) under subsection (d) of this guideline.

            (B)      To calculate the base offense level in an offense that involves two or more chemicals each of which is set forth in the Ephedrine, Pseudoephedrine, and Phenylpropanolamine Quantity Table, (i) aggregate the quantities of all such chemicals, and (ii) determine the base offense level corresponding to the aggregate quantity.

            (C)      In a case involving ephedrine, pseudoephedrine, or phenylpropanolamine tablets, use the weight of the ephedrine, pseudoephedrine, or phenylpropanolamine contained in the tablets, not the weight of the entire tablets, in calculating the base offense level.".

The Commentary to §2D1.11 captioned "Application Notes" is amended by striking Note 4 in its entirety and inserting the following:

            "4.       Cases Involving Multiple Chemicals.—

                        (A)      Determining the Base Offense Level for Two or More Chemicals.—Except as provided in subdivision (B), if the offense involves two or more chemicals, use the quantity of the single chemical that results in the greatest offense level, regardless of whether the chemicals are set forth in different tables or in different categories (i.e., list I or list II) under subsection (d) of this guideline.

Example: The defendant was in possession of five kilograms of ephedrine and 300 grams of hydriodic acid. Ephedrine and hydriodic acid typically are used together in the same manufacturing process to manufacture methamphetamine. The base offense level for each chemical is calculated separately and the chemical with the higher base offense level is used. Five kilograms of ephedrine result in a base offense level of level 38; 300 grams of hydriodic acid result in a base offense level of level 26. In this case, the base offense level would be level 38.

                        (B)      Determining the Base Offense Level for Offenses involving Ephedrine, Pseudoephedrine, or Phenylpropanolamine.—If the offense involves two or more chemicals each of which is set forth in the Ephedrine, Pseudoephedrine, and Phenylpropanolamine Quantity Table, (i) aggregate the quantities of all such chemicals, and (ii) determine the base offense level corresponding to the aggregate quantity.

Example: The defendant was in possession of 80 grams of ephedrine and 50 grams of phenylpropanolamine, an aggregate quantity of 130 grams of such chemicals. The base offense level corresponding to that aggregate quantity is level 32.

                        (C)      Upward Departure.—In a case involving two or more chemicals used to manufacture different controlled substances, or to manufacture one controlled substance by different manufacturing processes, an upward departure may be warranted if the offense level does not adequately address the seriousness of the offense.".

The Commentary to §2D1.11 captioned "Application Notes" is amended by striking Notes 5 and 6 in their entirety; and by redesignating Notes 7 and 8 as Notes 5 and 6, respectively.

The Commentary to §2D1.11 captioned "Background" is amended in the first sentence by inserting "(including ephedrine, pseudoephedrine, and phenylpropanolamine)" after "list I chemicals".

The Commentary to 2D1.1 captioned "Application Notes" is amended in Note 10 in the "Drug Equivalency Tables" by inserting after the subdivision captioned "Schedule V Substances******" the following new subdivision:

"List I Chemicals (relating to the manufacture of amphetamine or methamphetamine)*******

                        1 gm of Ephedrine =                                                   10 kg of marihuana

                        1 gm of Phenylpropanolamine =                                10 kg of marihuana

                        1 gm of Pseudoephedrine =                                        10 kg of marihuana

*******Provided, that in a case involving ephedrine, pseudoephedrine, or phenylpropanolamine tablets, use the weight of the ephedrine, pseudoephedrine, or phenylpropanolamine contained in the tablets, not the weight of the entire tablets, in calculating the base offense level.".

Reason for Amendment: This amendment is in response to the three-part directive in section 3651 of the Methamphetamine Anti-Proliferation Act of 2000, Pub. L. 106–310 (the "Act"), regarding enhanced punishment for trafficking in List I chemicals. That section requires the Commission to promulgate an amendment implementing the directive under emergency amendment authority.

First, this amendment provides a new chemical quantity table specifically for ephedrine, pseudoephedrine, and phenylpropanolamine (PPA). The table ties the base offense levels for these chemicals to the base offense levels for methamphetamine (actual) set forth in §2D1.1, assuming a 50 percent actual yield of the controlled substance from the chemicals. (Methamphetamine (actual) is used rather than methamphetamine mixture because ephedrine, pseudoephedrine, and PPA produce methamphetamine (actual)). This yield is based on information provided by the Drug Enforcement Administration (DEA) that the typical yield of these substances for clandestine laboratories is 50 to 75 percent.

This new chemical quanti