2006 Federal Sentencing Guidelines


CHAPTER 2 - PART D - OFFENSES INVOLVING DRUG

1. UNLAWFUL MANUFACTURING, IMPORTING, EXPORTING, TRAFFICKING, OR POSSESSION; CONTINUING CRIMINAL ENTERPRISE

§2D1.11. Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy

(a) Base Offense Level: The offense level from the Chemical Quantity Table set forth in subsection (d) or (e), as appropriate, except that if (A) the defendant receives an adjustment under §3B1.2 (Mitigating Role); and (B) the base offense level under subsection (e) is (i) level 32, decrease by 2 levels; (ii) level 34 or level 36, decrease by 3 levels; or (iii) level 38, decrease by 4 levels.

(b) Specific Offense Characteristics

(1) If a dangerous weapon (including a firearm) was possessed, increase by 2 levels.

(2) If the defendant is convicted of violating 21 U.S.C. § 841(c)(2) or (f)(1), or § 960(d)(2), (d)(3), or (d)(4), decrease by 3 levels, unless the defendant knew or believed that the listed chemical was to be used to manufacture a controlled substance unlawfully.

(3) If the offense involved (A) an unlawful discharge, emission, or release into the environment of a hazardous or toxic substance; or (B) the unlawful transportation, treatment, storage, or disposal of a hazardous waste, increase by 2 levels.

(4) If the defendant, or a person for whose conduct the defendant is accountable under §1B1.3 (Relevant Conduct), distributed a listed chemical through mass-marketing by means of an interactive computer service, increase by 2 levels.

(c) Cross Reference

(1) If the offense involved unlawfully manufacturing a controlled substance, or attempting to manufacture a controlled substance unlawfully, apply §2D1.1 (Unlawful Manufacturing, Importing, Exporting, Trafficking) if the resulting offense level is greater than that determined above.

(d) EPHEDRINE, PSEUDOEPHEDRINE, AND PHENYLPROPANOLAMINE QUANTITY TABLE*
(Methamphetamine and Amphetamine Precursor Chemicals)

  Quantity Base Offense Level
(1) 3 KG or more of Ephedrine; Level 38
  3 KG or more of Phenylpropanolamine;  
  3 KG or More of Pseudoephedrine.  
(2) At least 1 KG but less than 3 KG of Ephedrine; Level 36
  At least 1 KG but less than 3 KG of Phenylpropanolamine;  
  At least 1 KG but less than 3 KG of Pseudoephedrine.  
(3) At least 300 G but less than 1 KG of Ephedrine; Level 34
  At least 300 G but less than 1 KG of Phenylpropanolamine;  
  At least 300 G but less than 1 KG of Pseudoephedrine.  
(4) At least 100 G but less than 300 G of Ephedrine; Level 32
  At least 100 G but less than 300 G of Phenylpropanolamine;  
  At least 100 G but less than 300 G of Pseudoephedrine.  
(5) At least 70 G but less than 100 G of Ephedrine; Level 30
  At least 70 G but less than 100 G of Phenylpropanolamine;  
  At least 70 G but less than 100 G of Pseuodoephedrine.  
(6) At least 40 G but less than 70 G of Ephedrine; Level 28
  At least 40 G but less than 70 G of Phenylpropanolamine;  
  At least 40 G but less than 70 G of Pseudoephedrine.  
(7) At least 10 G but less than 40 G of Ephedrine; Level 26
  At least 10 G but less than 40 G of Phenylpropanolamine;  
  At least 10 G but less than 40 G of Pseudoephedrine.  
(8) At least 8 G but less than 10 G of Ephedrine; Level 24
  At least 8 G but less than 10 G of Phenylpropanolamine;  
  At least 8 G but less than 10 G of Pseudoephedrine.  
(9) At least 6 G but less than 8 G of Ephedrine; Level 22
  At least 6 G but less than 8 G of Phenylpropanolamine;  
  At least 6 G but less than 8 G of Pseudoephedrine.  
(10) At least 4 G but less than 6 G of Ephedrine; Level 20
  At least 4 G but less than 6 G of Phenylpropanolamine;  
  At least 4 G but less than 6 G of Pseudoephedrine.  
(11) At least 2 G but less than 4 G of Ephedrine; Level 18
  At least 2 G but less than 4 G of Phenylpropanolamine;  
  At least 2 G but less than 4 G of Pseudoephedrine.  
(12) At least 1 G but less than 2 G of Ephedrine; Level 16
  At least 1 G but less than 2 G of Phenylpropanolamine;  
  At least 1 G but less than 2 G of Pseudoephedrine.  
(13) At least 500 MG but less than 1 G of Ephedrine; Level 14
  At least 500 MG but less than 1 G of Phenylpropanolamine;  
  At least 500 MG but less than 1 G of Pseudoephedrine.  
(14) Less than 500 MG of Ephedrine; Level 12
  Less than 500 MG of Phenylpropanolamine;  
  Less than 500 MG of Pseudoephedrine.  

(e) CHEMICAL QUANTITY TABLE*
(All Other Precursor Chemicals)

  Listed Chemicals and Quantity Base Offense Level
(1) List I Chemicals Level 30
  890 G or more of Benzaldehyde;  
  20 KG or more of Benzyl Cyanide;  
  200 G or more of Ergonovine;  
  400 G or more of Ergotamine;  
  20 KG or more of Ethylamine;  
  2.2 KG or more of Hydriodic Acid;  
  320 KG or more of Isosafrole;  
  200 G or more of Methylamine;  
  500 KG or more of N-Methylephedrine;  
  500 KG or more of N-Methylpseudoephedrine;  
  625 G or more of Nitroethane;  
  10 KG or more of Norpseudoephedrine;  
  20 KG or more of Phenylacetic Acid;  
  10 KG or more of Piperidine;  
  320 KG or more of Piperonal;  
  1.6 KG or more of Propionic Anhydride;  
  320 KG or more of Safrole;  
  400 KG or more of 3, 4-Methylenedioxyphenyl-2-propanone;  
  1135.5 L or more of Gamma-butyrolactone;  
  714 G or more of Red Phosphorus, White Phosphorus, or Hypophosphorous Acid.  
     
(2) List I Chemicals Level 28
  At least 267 G but less than 890 G of Benzaldehyde;  
  At least 6 KG but less than 20 KG of Benzyl Cyanide;  
  At least 60 G but less than 200 G of Ergonovine;  
  At least 120 G but less than 400 G of Ergotamine;  
  At least 6 KG but less than 20 KG of Ethylamine;  
  At least 660 G but less than 2.2 KG of Hydriodic Acid;  
  At least 96 KG but less than 320 KG of Isosafrole;  
  At least 60 G but less than 200 G of Methylamine;  
  At least 150 KG but less than 500 KG of N-Methylephedrine;  
  At least 150 KG but less than 500 KG of N-Methylpseudoephedrine;  
  At least 187.5 G but less than 625 G of Nitroethane;  
  At least 3 KG but less than 10 KG of Norpseudoephedrine;  
  At least 6 KG but less than 20 KG of Phenylacetic Acid;  
  At least 3 KG but less than 10 KG of Piperidine;  
  At least 96 KG but less than 320 KG of Piperonal;  
  At least 480 G but less than 1.6 KG of Propionic Anhydride;  
  At least 96 KG but less than 320 KG of Safrole;  
  At least 120 KG but less than 400 KG of 3, 4-Methylenedioxyphenyl-2-propanone;  
  At least 340.7 L but less than 1135.5 L of Gamma-butyrolactone;  
  At least 214 G but less than 714 G of Red Phosphorus, White Phosphorus, or Hypophosphorous Acid;  
     
  List II Chemicals  
  11 KG or more of Acetic Anhydride;  
  1175 KG or more of Acetone;  
  20 KG or more of Benzyl Chloride;  
  1075 KG or more of Ethyl Ether;  
  1200 KG or more of Methyl Ethyl Ketone;  
  10 KG or more of Potassium Permanganate;  
  1300 KG or more of Toluene;  
  376.2 G or more of Iodine.  
     
(3) List I Chemicals Level 26
  At least 89 G but less than 267 G of Benzaldehyde;  
  At least 2 KG but less than 6 KG of Benzyl Cyanide;  
  At least 20 G but less than 60 G of Ergonovine;  
  At least 40 G but less than 120 G of Ergotamine;  
  At least 2 KG but less than 6 KG of Ethylamine;  
  At least 220 G but less than 660 G of Hydriodic Acid;  
  At least 32 KG but less than 96 KG of Isosafrole;  
  At least 20 G but less than 60 G of Methylamine;  
  At least 50 KG but less than 150 KG of N-Methylephedrine;  
  At least 50 KG but less than 150 KG of N-Methylpseudoephedrine;  
  At least 62.5 G but less than 187.5 G of Nitroethane;  
  At least 1 KG but less than 3 KG of Norpseudoephedrine;  
  At least 2 KG but less than 6 KG of Phenylacetic Acid;  
  At least 1 KG but less than 3 KG of Piperidine;  
  At least 32 KG but less than 96 KG of Piperonal;  
  At least 160 G but less than 480 G of Propionic Anhydride;  
  At least 32 KG but less than 96 KG of Safrole;  
  At least 40 KG but less than 120 KG of 3, 4-Methylenedioxyphenyl-2-propanone;  
  At least 113.6 L but less than 340.7 L of Gamma-butyrolactone;  
  At least 71 G but less than 214 G of Red Phosphorus, White Phosphorus, or Hypophosphorous Acid;  
     
  List II Chemicals  
  At least 3.3 KG but less than 11 KG of Acetic Anhydride;  
  At least 352.5 KG but less than 1175 KG of Acetone;  
  At least 6 KG but less than 20 KG of Benzyl Chloride;  
  At least 322.5 KG but less than 1075 KG of Ethyl Ether;  
  At least 360 KG but less than 1200 KG of Methyl Ethyl Ketone;  
  At least 3 KG but less than 10 KG of Potassium Permanganate;  
  At least 390 KG but less than 1300 KG of Toluene;  
  At least 125.4 G but less than 376.2 G of Iodine.  
     
(4) List I Chemicals Level 24
  At least 62.3 G but less than 89 G of Benzaldehyde;  
  At least 1.4 KG but less than 2 KG of Benzyl Cyanide;  
  At least 14 G but less than 20 G of Ergonovine;  
  At least 28 G but less than 40 G of Ergotamine;  
  At least 1.4 KG but less than 2 KG of Ethylamine;  
  At least 154 G but less than 220 G of Hydriodic Acid;  
  At least 22.4 KG but less than 32 KG of Isosafrole;  
  At least 14 G but less than 20 G of Methylamine;  
  At least 35 KG but less than 50 KG of N-Methylephedrine;  
  At least 35 KG but less than 50 KG of N-Methylpseudoephedrine;  
  At least 43.8 G but less than 62.5 G of Nitroethane;  
  At least 700 G but less than 1 KG of Norpseudoephedrine;  
  At least 1.4 KG but less than 2 KG of Phenylacetic Acid;  
  At least 700 G but less than 1 KG of Piperidine;  
  At least 22.4 KG but less than 32 KG of Piperonal;  
  At least 112 G but less than 160 G of Propionic Anhydride;  
  At least 22.4 KG but less than 32 KG of Safrole;  
  At least 28 KG but less than 40 KG of 3, 4-Methylenedioxyphenyl-2-propanone;  
  At least 79.5 L but less than 113.6 L of Gamma-butyrolactone;  
  At least 50 G but less than 71 G of Red Phosphorus, White Phosphorus, or Hypophosphorous Acid;  
     
  List II Chemicals  
  At least 1.1 KG but less than 3.3 KG of Acetic Anhydride;  
  At least 117.5 KG but less than 352.5 KG of Acetone;  
  At least 2 KG but less than 6 KG of Benzyl Chloride;  
  At least 107.5 KG but less than 322.5 KG of Ethyl Ether;  
  At least 120 KG but less than 360 KG of Methyl Ethyl Ketone;  
  At least 1 KG but less than 3 KG of Potassium Permanganate;  
  At least 130 KG but less than 390 KG of Toluene;  
  At least 87.8 G but less than 125.4 G of Iodine.  
     
(5) List I Chemicals Level 22
  At least 35.6 G but less than 62.3 G of Benzaldehyde;  
  At least 800 G but less than 1.4 KG of Benzyl Cyanide;  
  At least 8 G but less than 14 G of Ergonovine;  
  At least 16 G but less than 28 G of Ergotamine;  
  At least 800 G but less than 1.4 KG of Ethylamine;  
  At least 88 G but less than 154 G of Hydriodic Acid;  
  At least 12.8 KG but less than 22.4 KG of Isosafrole;  
  At least 8 G but less than 14 G of Methylamine;  
  At least 20 KG but less than 35 KG of N-Methylephedrine;  
  At least 20 KG but less than 35 KG of N-Methylpseudoephedrine;  
  At least 25 G but less than 43.8 G of Nitroethane;  
  At least 400 G but less than 700 G of Norpseudoephedrine;  
  At least 800 G but less than 1.4 KG of Phenylacetic Acid;  
  At least 400 G but less than 700 G of Piperidine;  
  At least 12.8 KG but less than 22.4 KG of Piperonal;  
  At least 64 G but less than 112 G of Propionic Anhydride;  
  At least 12.8 KG but less than 22.4 KG of Safrole;  
  At least 16 KG but less than 28 KG of 3, 4-Methylenedioxyphenyl-2-propanone;  
  At least 45.4 L but less than 79.5 L of Gamma-butyrolactone;  
  At least 29 G but less than 50 G of Red Phosphorus, White Phosphorus, or Hypophosphorous Acid;  
     
  List II Chemicals  
  At least 726 G but less than 1.1 KG of Acetic Anhydride;  
  At least 82.25 KG but less than 117.5 KG of Acetone;  
  At least 1.4 KG but less than 2 KG of Benzyl Chloride;  
  At least 75.25 KG but less than 107.5 KG of Ethyl Ether;  
  At least 84 KG but less than 120 KG of Methyl Ethyl Ketone;  
  At least 700 G but less than 1 KG of Potassium Permanganate;  
  At least 91 KG but less than 130 KG of Toluene;  
  At least 50.2 G but less than 87.8 G of Iodine.  
     
(6) List I Chemicals Level 20
  At least 8.9 G but less than 35.6 G of Benzaldehyde;  
  At least 200 G but less than 800 G of Benzyl Cyanide;  
  At least 2 G but less than 8 G of Ergonovine;  
  At least 4 G but less than 16 G of Ergotamine;  
  At least 200 G but less than 800 G of Ethylamine;  
  At least 22 G but less than 88 G of Hydriodic Acid;  
  At least 3.2 KG but less than 12.8 KG of Isosafrole;  
  At least 2 G but less than 8 G of Methylamine;  
  At least 5 KG but less than 20 KG of N-Methylephedrine;  
  At least 5 KG but less than 20 KG of N-Methylpseudoephedrine;  
  At least 6.3 G but less than 25 G of Nitroethane;  
  At least 100 G but less than 400 of Norpseudoephedrine;  
  At least 200 G but less than 800 G of Phenylacetic Acid;  
  At least 100 G but less than 400 G of Piperidine;  
  At least 3.2 KG but less than 12.8 KG of Piperonal;  
  At least 16 G but less than 64 G of Propionic Anhydride;  
  At least 3.2 KG but less than 12.8 KG of Safrole;  
  At least 4 KG but less than 16 KG of 3, 4-Methylenedioxyphenyl-2-propanone;  
  At least 11.4 L but less than 45.4 L of Gamma-butyrolactone;  
  At least 7 G but less than 29 G of Red Phosphorus, White Phosphorus, or Hypophosphorous Acid;  
     
  List II Chemicals  
  At least 440 G but less than 726 G of Acetic Anhydride;  
  At least 47 KG but less than 82.25 KG of Acetone;  
  At least 800 G but less than 1.4 KG of Benzyl Chloride;  
  At least 43 KG but less than 75.25 KG of Ethyl Ether;  
  At least 48 KG but less than 84 KG of Methyl Ethyl Ketone;  
  At least 400 G but less than 700 G of Potassium Permanganate;  
  At least 52 KG but less than 91 KG of Toluene;  
  At least 12.5 G but less than 50.2 G of Iodine.  
     
(7) List I Chemicals Level 18
  At least 7.1 G but less than 8.9 G of Benzaldehyde;  
  At least 160 G but less than 200 G of Benzyl Cyanide;  
  At least 1.6 G but less than 2 G of Ergonovine;  
  At least 3.2 G but less than 4 G of Ergotamine;  
  At least 160 G but less than 200 G of Ethylamine;  
  At least 17.6 G but less than 22 G of Hydriodic Acid;  
  At least 2.56 KG but less than 3.2 KG of Isosafrole;  
  At least 1.6 G but less than 2 G of Methylamine;  
  At least 4 KG but less than 5 KG of N-Methylephedrine;  
  At least 4 KG but less than 5 KG of N-Methylpseudoephedrine;  
  At least 5 G but less than 6.3 G of Nitroethane;  
  At least 80 G but less than 100 G of Norpseudoephedrine;  
  At least 160 G but less than 200 G of Phenylacetic Acid;  
  At least 80 G but less than 100 G of Piperidine;  
  At least 2.56 KG but less than 3.2 KG of Piperonal;  
  At least 12.8 G but less than 16 G of Propionic Anhydride;  
  At least 2.56 KG but less than 3.2 KG of Safrole;  
  At least 3.2 KG but less than 4 KG of 3, 4-Methylenedioxyphenyl-2-propanone;  
  At least 9.1 L but less than 11.4 L of Gamma-butyrolactone;  
  At least 6 G but less than 7 G of Red Phosphorus, White Phosphorus, or Hypophosphorous Acid;  
     
  List II Chemicals  
  At least 110 G but less than 440 G of Acetic Anhydride;  
  At least 11.75 KG but less than 47 KG of Acetone;  
  At least 200 G but less than 800 G of Benzyl Chloride;  
  At least 10.75 KG but less than 43 KG of Ethyl Ether;  
  At least 12 KG but less than 48 KG of Methyl Ethyl Ketone;  
  At least 100 G but less than 400 G of Potassium Permanganate;  
  At least 13 KG but less than 52 KG of Toluene;  
  At least 10 G but less than 12.5 G of Iodine.  
     
(8) List I Chemicals Level 16
  3.6 KG or more of Anthranilic Acid;  
  At least 5.3 G but less than 7.1 G of Benzaldehyde;  
  At least 120 G but less than 160 G of Benzyl Cyanide;  
  At least 1.2 G but less than 1.6 G of Ergonovine;  
  At least 2.4 G but less than 3.2 G of Ergotamine;  
  At least 120 G but less than 160 G of Ethylamine;  
  At least 13.2 G but less than 17.6 G of Hydriodic Acid;  
  At least 1.92 KG but less than 2.56 KG of Isosafrole;  
  At least 1.2 G but less than 1.6 G of Methylamine;  
  4.8 KG or more of N-Acetylanthranilic Acid;  
  At least 3 KG but less than 4 KG of N-Methylephedrine;  
  At least 3 KG but less than 4 KG of N-Methylpseudoephedrine;  
  At least 3.8 G but less than 5 G of Nitroethane;  
  At least 60 G but less than 80 G of Norpseudoephedrine;  
  At least 120 G but less than 160 G of Phenylacetic Acid;  
  At least 60 G but less than 80 G of Piperidine;  
  At least 1.92 KG but less than 2.56 KG of Piperonal;  
  At least 9.6 G but less than 12.8 G of Propionic Anhydride;  
  At least 1.92 KG but less than 2.56 KG of Safrole;  
  At least 2.4 KG but less than 3.2 KG of 3, 4-Methylenedioxyphenyl-2-propanone;  
  At least 6.8 L but less than 9.1 L of Gamma-butyrolactone;  
  At least 4 G but less than 6 G of Red Phosphorus, White Phosphorus, or Hypophosphorous Acid;  
     
  List II Chemicals  
  At least 88 G but less than 110 G of Acetic Anhydride;  
  At least 9.4 KG but less than 11.75 KG of Acetone;  
  At least 160 G but less than 200 G of Benzyl Chloride;  
  At least 8.6 KG but less than 10.75 KG of Ethyl Ether;  
  At least 9.6 KG but less than 12 KG of Methyl Ethyl Ketone;  
  At least 80 G but less than 100 G of Potassium Permanganate;  
  At least 10.4 KG but less than 13 KG of Toluene;  
  At least 7.5 G but less than 10 G of Iodine.  
     
(9) List I Chemicals Level 14
  At least 2.7 KG but less than 3.6 KG of Anthranilic Acid;  
  At least 3.6 G but less than 5.3 G of Benzaldehyde;  
  At least 80 G but less than 120 G of Benzyl Cyanide;  
  At least 800 MG but less than 1.2 G of Ergonovine;  
  At least 1.6 G but less than 2.4 G of Ergotamine;  
  At least 80 G but less than 120 G of Ethylamine;  
  At least 8.8 G but less than 13.2 G of Hydriodic Acid;  
  At least 1.44 KG but less than 1.92 KG of Isosafrole;  
  At least 800 MG but less than 1.2 G of Methylamine;  
  At least 3.6 KG but less than 4.8 KG of N-Acetylanthranilic Acid;  
  At least 2.25 KG but less than 3 KG of N-Methylephedrine;  
  At least 2.25 KG but less than 3 KG of N-Methylpseudoephedrine;  
  At least 2.5 G but less than 3.8 G of Nitroethane;  
  At least 40 G but less than 60 G of Norpseudoephedrine;  
  At least 80 G but less than 120 G of Phenylacetic Acid;  
  At least 40 G but less than 60 G of Piperidine;  
  At least 1.44 KG but less than 1.92 KG of Piperonal;  
  At least 7.2 G but less than 9.6 G of Propionic Anhydride;  
  At least 1.44 KG but less than 1.92 KG of Safrole;  
  At least 1.8 KG but less than 2.4 KG of 3, 4-Methylenedioxyphenyl-2-propanone;  
  At least 4.5 L but less than 6.8 L of Gamma-butyrolactone;  
  At least 3 G but less than 4 G of Red Phosphorus, White Phosphorus, or Hypophosphorous Acid;  
     
  List II Chemicals  
  At least 66 G but less than 88 G of Acetic Anhydride;  
  At least 7.05 KG but less than 9.4 KG of Acetone;  
  At least 120 G but less than 160 G of Benzyl Chloride;  
  At least 6.45 KG but less than 8.6 KG of Ethyl Ether;  
  At least 7.2 KG but less than 9.6 KG of Methyl Ethyl Ketone;  
  At least 60 G but less than 80 G of Potassium Permanganate;  
  At least 7.8 KG but less than 10.4 KG of Toluene;  
  At least 5 G but less than 7.5 G of Iodine.  
     
(10) List I Chemicals Level 12
  Less than 2.7 KG of Anthranilic Acid;  
  Less than 3.6 G of Benzaldehyde;  
  Less than 80 G of Benzyl Cyanide;  
  Less than 800 MG of Ergonovine;  
  Less than 1.6 G of Ergotamine;  
  Less than 80 G of Ethylamine;  
  Less than 8.8 G of Hydriodic Acid;  
  Less than 1.44 KG of Isosafrole;  
  Less than 800 MG of Methylamine;  
  Less than 3.6 KG of N-Acetylanthranilic Acid;  
  Less than 2.25 KG of N-Methylephedrine;  
  Less than 2.25 KG of N-Methylpseudoephedrine;  
  Less than 2.5 G of Nitroethane;  
  Less than 40 G of Norpseudoephedrine;  
  Less than 80 G of Phenylacetic Acid;  
  Less than 40 G of Piperidine;  
  Less than 1.44 KG of Piperonal;  
  Less than 7.2 G of Propionic Anhydride;  
  Less than 1.44 KG of Safrole;  
  Less than 1.8 KG of 3, 4-Methylenedioxyphenyl-2-propanone;  
  Less than 4.5 L of Gamma-butyrolactone;  
  Less than 3 G of Red Phosphorus, White Phosphorus, or Hypophosphorous Acid;  
     
  List II Chemicals  
  Less than 66 G of Acetic Anhydride;  
  Less than 7.05 KG of Acetone;  
  Less than 120 G of Benzyl Chloride;  
  Less than 6.45 KG of Ethyl Ether;  
  Less than 7.2 KG of Methyl Ethyl Ketone;  
  Less than 60 G of Potassium Permanganate;  
  Less than 7.8 KG of Toluene;  
  Less than 5 G of Iodine.  

______________

*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) or (e) of this guideline, as appropriate.

(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.

Commentary

Statutory Provisions: 21 U.S.C. §§ 841(c)(1), (2), (f)(1), 960(d)(1), (2), (3), (4).

Application Notes:

1. "Firearm" and "dangerous weapon" are defined in the Commentary to §1B1.1 (Application Instructions). The adjustment in subsection (b)(1) should be applied if the weapon was present, unless it is improbable that the weapon was connected with the offense.

2. "Offense involved unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully," as used in subsection (c)(1), means that the defendant, or a person for whose conduct the defendant is accountable under §1B1.3 (Relevant Conduct), completed the actions sufficient to constitute the offense of unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully.

3. In certain cases, the defendant will be convicted of an offense involving a listed chemical covered under this guideline, and a related offense involving an immediate precursor or other controlled substance covered under §2D1.1 (Unlawfully Manufacturing, Importing, Exporting, or Trafficking). For example, P2P (an immediate precursor) and methylamine (a listed chemical) are used together to produce methamphetamine. Determine the offense level under each guideline separately. The offense level for methylamine is determined by using §2D1.11. The offense level for P2P is determined by using §2D1.1 (P2P is listed in the Drug Equivalency Table under Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)). Under the grouping rules of §3D1.2(b), the counts will be grouped together. Note that in determining the scale of the offense under §2D1.1, the quantity of both the controlled substance and listed chemical should be considered (see Application Note 12 in the Commentary to §2D1.1).

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 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.

5. Convictions under 21 U.S.C. §§ 841(c)(2) and (f)(1), and 960(d)(2), (d)(3), and (d)(4) do not require that the defendant have knowledge or an actual belief that the listed chemical was to be used to manufacture a controlled substance unlawfully. In a case in which the defendant possessed or distributed the listed chemical without such knowledge or belief, a 3-level reduction is provided to reflect that the defendant is less culpable than one who possessed or distributed listed chemicals knowing or believing that they would be used to manufacture a controlled substance unlawfully.

6. Subsection (b)(3) applies if the conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct) involved any discharge, emission, release, transportation, treatment, storage, or disposal violation covered by the Resource Conservation and Recovery Act, 42 U.S.C. § 6928(d), the Federal Water Pollution Control Act, 33 U.S.C. § 1319(c), or the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 5124, 9603(b). In some cases, the enhancement under subsection (b)(3) may not adequately account for the seriousness of the environmental harm or other threat to public health or safety (including the health or safety of law enforcement and cleanup personnel). In such cases, an upward departure may be warranted. Additionally, any costs of environmental cleanup and harm to persons or property should be considered by the court in determining the amount of restitution under §5E1.1 (Restitution) and in fashioning appropriate conditions of supervision under §§5B1.3 (Conditions of Probation) and 5D1.3 (Conditions of Supervised Release).

7. Application of Subsection (b)(4).—For purposes of subsection (b)(4), "mass-marketing by means of an interactive computer service" means the solicitation, by means of an interactive computer service, of a large number of persons to induce those persons to purchase a controlled substance. For example, subsection (b)(4) would apply to a defendant who operated a web site to promote the sale of Gamma-butyrolactone (GBL) but would not apply to coconspirators who use an interactive computer service only to communicate with one another in furtherance of the offense. "Interactive computer service", for purposes of subsection (b)(4) and this note, has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. § 230(f)(2)).

Background: Offenses covered by this guideline involve list I chemicals (including ephedrine, pseudoephedrine, and pheylpropanolamine) and list II chemicals. List I chemicals are important to the manufacture of a controlled substance and usually become part of the final product. For example, ephedrine reacts with other chemicals to form methamphetamine. The amount of ephedrine directly affects the amount of methamphetamine produced. List II chemicals are generally used as solvents, catalysts, and reagents.

Historical Note: Effective November 1, 1991 (see Appendix C, amendment 371). Amended effective November 1, 1992 (see Appendix C, amendment 447); November 1, 1995 (see Appendix C, amendment 519); May 1, 1997 (see Appendix C, amendment 541); November 1, 1997 (see Appendix C, amendment 557); November 1, 2000 (see Appendix C, amendments 605 and 606); May 1, 2001 (see Appendix C, amendment 611); November 1, 2001 (see Appendix C, amendment 625); November 1, 2002 (see Appendix C, amendment 646); November 1, 2003 (see Appendix C, amendment 661); November 1, 2004 (see Appendix C, amendments 667 and 668); November 1, 2005 (see Appendix C, amendment 679).