CHAPTER TWO - OFFENSE CONDUCT


PART D - OFFENSES INVOLVING DRUGS AND NARCO-TERRORISM

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

§2D1.10.Endangering Human Life While Illegally Manufacturing a Controlled Substance; Attempt or Conspiracy

(a)Base Offense Level (Apply the greater):

(1)3 plus the offense level from the Drug Quantity Table in §2D1.1; or

(2)20.

(b)Specific Offense Characteristic

(1)(Apply the greater):

(A)If the offense involved the manufacture of amphetamine or methamphetamine, increase by 3 levels. If the resulting offense level is less than level 27, increase to level 27.

(B)If the offense (i) involved the manufacture of amphetamine or methamphetamine; and (ii) created a substantial risk of harm to the life of a minor or an incompetent, increase by 6 levels. If the resulting offense level is less than level 30, increase to level 30.

Commentary

Statutory Provisions: 21 U.S.C. § 858.

Application Note:

1.Substantial Risk of Harm Associated with the Manufacture of Amphetamine and Methamphetamine.—

(A)Factors to Consider.—In determining, for purposes of subsection (b)(1)(B), whether the offense created a substantial risk of harm to the life of a minor or an incompetent, the court shall include consideration of the following factors:

(i)The quantity of any chemicals or hazardous or toxic substances found at the laboratory, and the manner in which the chemicals or substances were stored.

(ii)The manner in which hazardous or toxic substances were disposed, and the likelihood of release into the environment of hazardous or toxic substances.

(iii)The duration of the offense, and the extent of the manufacturing operation.

(iv)The location of the laboratory (e.g., whether the laboratory is located in a residential neighborhood or a remote area), and the number of human lives placed at substantial risk of harm.

(B)Definitions.—For purposes of subsection (b)(1)(B):

"Incompetent" means an individual who is incapable of taking care of the individual’s self or property because of a mental or physical illness or disability, mental retardation, or senility.

"Minor" has the meaning given that term in Application Note 1 of the Commentary to §2A3.1 (Criminal Sexual Abuse).

Background. Subsection (b)(1) implements the instruction to the Commission in section 102 of Public Law 106–310.

Historical Note: Effective November 1, 1989 (see Appendix C, amendment 140). Amended effective November 1, 1992 (see Appendix C, amendment 447); December 16, 2000 (see Appendix C, amendment 608); November 1, 2001 (see Appendix C, amendment 620).