CHAPTER TWO - OFFENSE CONDUCT


PART D - OFFENSES INVOLVING DRUGS AND NARCO-TERRORISM

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 2007 (see Appendix C, amendment 711).


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


§2D1.1.     Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy 

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

(1)       43, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a similar offense; or

(2)       38, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance; or

(3)       30, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(E) or 21 U.S.C. § 960(b)(5), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a similar offense; or

(4)       26, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(E) or 21 U.S.C. § 960(b)(5), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance; or

(5)       the offense level specified in the Drug Quantity Table set forth in subsection (c), except that if (A) the defendant receives an adjustment under §3B1.2 (Mitigating Role); and (B) the base offense level under subsection (c) 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.  If the resulting offense level is greater than level 32 and the defendant receives the 4-level ("minimal participant") reduction in §3B1.2(a), decrease to level 32.

(b)      Specific Offense Characteristics

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

(2)       If the defendant used violence, made a credible threat to use violence, or directed the use of violence, increase by 2 levels.

(3)       If the defendant unlawfully imported or exported a controlled substance under circumstances in which (A) an aircraft other than a regularly scheduled commercial air carrier was used to import or export the controlled substance, (B) a submersible vessel or semi-submersible vessel as described in 18 U.S.C. § 2285 was used, or (C) the defendant acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer aboard any craft or vessel carrying a controlled substance, increase by 2 levels.  If the resulting offense level is less than level 26, increase to level 26.

(4)       If the object of the offense was the distribution of a controlled substance in a prison, correctional facility, or detention facility, increase by 2 levels.

(5)       If (A) the offense involved the importation of amphetamine or methamphetamine or the manufacture of amphetamine or methamphetamine from listed chemicals that the defendant knew were imported unlawfully, and (B) the defendant is not subject to an adjustment under §3B1.2 (Mitigating Role), increase by 2 levels.

(6)       If the defendant is convicted under 21 U.S.C. § 865, increase by 2 levels.

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

(8)       If the offense involved the distribution of an anabolic steroid and a masking agent, increase by 2 levels.

(9)       If the defendant distributed an anabolic steroid to an athlete, increase by 2 levels.

(10)     If the defendant was convicted under 21 U.S.C. § 841(g)(1)(A), increase by 2 levels.

(11)     If the defendant bribed, or attempted to bribe, a law enforcement officer to facilitate the commission of the offense, increase by 2 levels.

(12)     If the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance, increase by 2 levels.

(13)     (Apply the greatest):

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

(B)       If the defendant was convicted under 21 U.S.C. § 860a of distributing, or possessing with intent to distribute, methamphetamine on premises where a minor is present or resides, increase by 2 levels.  If the resulting offense level is less than level 14, increase to level 14.

(C)       If—

(i)       the defendant was convicted under 21 U.S.C. § 860a of manufacturing, or possessing with intent to manufacture, methamphetamine on premises where a minor is present or resides; or

(ii)      the offense involved the manufacture of amphetamine or methamphetamine and the offense created a substantial risk of harm to (I) human life other than a life described in subdivision (D); or (II) the environment,

increase by 3 levels.  If the resulting offense level is less than level 27, increase to level 27.

(D)       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.  

(14)     If the defendant receives an adjustment under §3B1.1 (Aggravating Role) and the offense involved 1 or more of the following factors:

(A)       (i) the defendant used fear, impulse, friendship, affection, or some combination thereof to involve another individual in the illegal purchase, sale, transport, or storage of controlled substances, (ii) the individual received little or no compensation from the illegal purchase, sale, transport, or storage of controlled substances, and (iii) the individual had minimal knowledge of the scope and structure of the enterprise;

(B)       the defendant, knowing that an individual was (i) less than 18 years of age, (ii) 65 or more years of age, (iii) pregnant, or (iv) unusually vulnerable due to physical or mental condition or otherwise particularly susceptible to the criminal conduct, distributed a controlled substance to that individual or involved that individual in the offense;

(C)       the defendant was directly involved in the importation of a controlled substance;

(D)       the defendant engaged in witness intimidation, tampered with or destroyed evidence, or otherwise obstructed justice in connection with the investigation or prosecution of the offense;

(E)        the defendant committed the offense as part of a pattern of criminal conduct engaged in as a livelihood,

increase by 2 levels.

(15)     If the defendant receives the 4-level ("minimal participant") reduction in §3B1.2(a) and the offense involved all of the following factors:

(A)       the defendant was motivated by an intimate or familial relationship or by threats or fear to commit the offense and was otherwise unlikely to commit such an offense;

(B)       the defendant received no monetary compensation from the illegal purchase, sale, transport, or storage of controlled substances; and

(C)       the defendant had minimal knowledge of the scope and structure of the enterprise,

decrease by 2 levels.

(16)     If the defendant meets the criteria set forth in subdivisions (1)-(5) of subsection (a) of §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases), decrease by 2 levels.

[Subsection (c) (Drug Quantity Table) is set forth on the following pages.]

(d)      Cross References

(1)       If a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply §2A1.1 (First Degree Murder) or §2A1.2 (Second Degree Murder), as appropriate, if the resulting offense level is greater than that determined under this guideline.

(2)       If the defendant was convicted under 21 U.S.C. § 841(b)(7) (of distributing a controlled substance with intent to commit a crime of violence), apply §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to the crime of violence that the defendant committed, or attempted or intended to commit, if the resulting offense level is greater than that determined above.

(e)       Special Instruction

(1)       If (A) subsection (d)(2) does not apply; and (B) the defendant committed, or attempted to commit, a sexual offense against another individual by distributing, with or without that individual's knowledge, a controlled substance to that individual, an adjustment under §3A1.1(b)(1) shall apply.


(c) DRUG QUANTITY TABLE

Controlled Substances and Quantity* Base Offense Level
(1) ● 30 KG or more of Heroin;
● 150 KG or more of Cocaine;
● 8.4 KG or more of Cocaine Base;
● 30 KG or more of PCP, or 3 KG or more of PCP (actual);
● 15 KG or more of Methamphetamine, or 1.5 KG or more of Methamphetamine (actual), or 1.5 KG or more of "Ice";
● 15 KG or more of Amphetamine, or 1.5 KG or more of Amphetamine (actual);
● 300 G or more of LSD;
● 12 KG or more of Fentanyl;
● 3 KG or more of a Fentanyl Analogue;
● 30,000 KG or more of Marihuana;
● 6,000 KG or more of Hashish;
● 600 KG or more of Hashish Oil;
● 30,000,000 units or more of Ketamine;
● 30,000,000 units or more of Schedule I or II Depressants;
● 1,875,000 units or more of Flunitrazepam.
Level 38
(2) ● At least 10 KG but less than 30 KG of Heroin;
● At least 50 KG but less than 150 KG of Cocaine;
● At least 2.8 KG but less than 8.4 KG of Cocaine Base;
● At least 10 KG but less than 30 KG of PCP, or at least 1 KG but less than 3 KG of PCP (actual);
● At least 5 KG but less than 15 KG of Methamphetamine, or at least 500 G but less than 1.5 KG of Methamphetamine (actual), or at least 500 G but less than 1.5 KG of "Ice";
● 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);
● At least 100 G but less than 300 G of LSD;
● At least 4 KG but less than 12 KG of Fentanyl;
● At least 1 KG but less than 3 KG of a Fentanyl Analogue;
● At least 10,000 KG but less than 30,000 KG of Marihuana;
● At least 2,000 KG but less than 6,000 KG of Hashish;
● At least 200 KG but less than 600 KG of Hashish Oil;
● At least 10,000,000 but less than 30,000,000 units of Ketamine;
● At least 10,000,000 but less than 30,000,000 units of Schedule I or II Depressants;
● At least 625,000 but less than 1,875,000 units of Flunitrazepam.
Level 36
(3) ● At least 3 KG but less than 10 KG of Heroin;
● At least 15 KG but less than 50 KG of Cocaine;
● At least 840 G but less than 2.8 KG of Cocaine Base;
● At least 3 KG but less than 10 KG of PCP, or at least 300 G but less than 1 KG of PCP (actual);
● At least 1.5 KG but less than 5 KG of Methamphetamine, or at least 150 G but less than 500 G of Methamphetamine (actual), or at least 150 G but less than 500 G of "Ice";
● 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);
● At least 30 G but less than 100 G of LSD;
● At least 1.2 KG but less than 4 KG of Fentanyl;
● At least 300 G but less than 1 KG of a Fentanyl Analogue;
● At least 3,000 KG but less than 10,000 KG of Marihuana;
● At least 600 KG but less than 2,000 KG of Hashish;
● At least 60 KG but less than 200 KG of Hashish Oil;
● At least 3,000,000 but less than 10,000,000 units of Ketamine;
● At least 3,000,000 but less than 10,000,000 units of Schedule I or II Depressants;
● At least 187,500 but less than 625,000 units of Flunitrazepam.
Level 34
(4) ● At least 1 KG but less than 3 KG of Heroin;
● At least 5 KG but less than 15 KG of Cocaine;
● At least 280 G but less than 840 G of Cocaine Base;
● At least 1 KG but less than 3 KG of PCP, or at least 100 G but less than 300 G of PCP (actual);
● At least 500 G but less than 1.5 KG of Methamphetamine, or at least 50 G but less than 150 G of Methamphetamine (actual), or at least 50 G but less than 150 G of "Ice";
● 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);
● At least 10 G but less than 30 G of LSD;
● At least 400 G but less than 1.2 KG of Fentanyl;
● At least 100 G but less than 300 G of a Fentanyl Analogue;
● At least 1,000 KG but less than 3,000 KG of Marihuana;
● At least 200 KG but less than 600 KG of Hashish;
● At least 20 KG but less than 60 KG of Hashish Oil;
● At least 1,000,000 but less than 3,000,000 units of Ketamine;
● At least 1,000,000 but less than 3,000,000 units of Schedule I or II Depressants;
● At least 62,500 but less than 187,500 units of Flunitrazepam.
Level 32
(5) ● At least 700 G but less than 1 KG of Heroin;
● At least 3.5 KG but less than 5 KG of Cocaine;
● At least 196 G but less than 280 G of Cocaine Base;
● At least 700 G but less than 1 KG of PCP, or at least 70 G but less than 100 G of PCP (actual);
● At least 350 G but less than 500 G of Methamphetamine, or at least 35 G but less than 50 G of Methamphetamine (actual), or at least 35 G but less than 50 G of  "Ice";
● At least 350 G but less than 500 G of Amphetamine, or at least 35 G but less than 50 G of Amphetamine (actual);
● At least 7 G but less than 10 G of LSD;
● At least 280 G but less than 400 G of Fentanyl;
● At least 70 G but less than 100 G of a Fentanyl Analogue;
● At least 700 KG but less than 1,000 KG of Marihuana;
● At least 140 KG but less than 200 KG of Hashish;
● At least 14 KG but less than 20 KG of Hashish Oil;
● At least 700,000 but less than 1,000,000 units of Ketamine;
● At least 700,000 but less than 1,000,000 units of Schedule I or II Depressants;
● 700,000 or more units of Schedule III Hydrocodone;
● At least 43,750 but less than 62,500 units of Flunitrazepam.
Level 30
(6) ● At least 400 G but less than 700 G of Heroin;
● At least 2 KG but less than 3.5 KG of Cocaine;
● At least 112 G but less than 196 G of Cocaine Base;
● At least 400 G but less than 700 G of PCP, or at least 40 G but less than 70 G of PCP (actual);
● At least 200 G but less than 350 G of Methamphetamine, or at least 20 G but less than 35 G of Methamphetamine (actual), or at least 20 G but less than 35 G of "Ice";
● At least 200 G but less than 350 G of Amphetamine, or at least 20 G but less than 35 G of Amphetamine (actual);
● At least 4 G but less than 7 G of LSD;
● At least 160 G but less than 280 G of Fentanyl;
● At least 40 G but less than 70 G of a Fentanyl Analogue;
● At least 400 KG but less than 700 KG of Marihuana;
● At least 80 KG but less than 140 KG of Hashish;
● At least 8 KG but less than 14 KG of Hashish Oil;
● At least 400,000 but less than 700,000 units of Ketamine;
● At least 400,000 but less than 700,000 units of Schedule I or II Depressants;
● At least 400,000 but less than 700,000 units of Schedule III Hydrocodone;
● At least 25,000 but less than 43,750 units of Flunitrazepam.
Level 28
(7) ● At least 100 G but less than 400 G of Heroin;
● At least 500 G but less than 2 KG of Cocaine;
● At least 28 G but less than 112 G of Cocaine Base;
● At least 100 G but less than 400 G of PCP, or at least 10 G but less than 40 G of PCP (actual);
● At least 50 G but less than 200 G of Methamphetamine, or at least 5 G but less than 20 G of Methamphetamine (actual), or at least 5 G but less than 20 G of  "Ice";
● At least 50 G but less than 200 G of Amphetamine, or at least 5 G but less than 20 G of Amphetamine (actual);
● At least 1 G but less than 4 G of LSD;
● At least 40 G but less than 160 G of Fentanyl;
● At least 10 G but less than 40 G of a Fentanyl Analogue;
● At least 100 KG but less than 400 KG of Marihuana;
● At least 20 KG but less than 80 KG of Hashish;
● At least 2 KG but less than 8 KG of Hashish Oil;
● At least 100,000 but less than 400,000 units of Ketamine;
● At least 100,000 but less than 400,000 units of Schedule I or II Depressants;
● At least 100,000 but less than 400,000 units of Schedule III Hydrocodone;
● At least 6,250 but less than 25,000 units of Flunitrazepam.
Level 26
(8) ● At least 80 G but less than 100 G of Heroin;
● At least 400 G but less than 500 G of Cocaine;
● At least 22.4 G but less than 28 G of Cocaine Base;
● At least 80 G but less than 100 G of PCP, or at least 8 G but less than 10 G of  PCP (actual);
● At least 40 G but less than 50 G of Methamphetamine, or at least 4 G but less than 5 G of Methamphetamine (actual), or at least 4 G but less than 5 G of "Ice";
● At least 40 G but less than 50 G of Amphetamine, or at least 4 G but less than 5 G of Amphetamine (actual);
● At least 800 MG but less than 1 G of LSD;
● At least 32 G but less than 40 G of Fentanyl;
● At least 8 G but less than 10 G of a Fentanyl Analogue;
● At least 80 KG but less than 100 KG of Marihuana;
● At least 16 KG but less than 20 KG of Hashish;
● At least 1.6 KG but less than 2 KG of Hashish Oil;
● At least 80,000 but less than 100,000 units of Ketamine;
● At least 80,000 but less than 100,000 units of Schedule I or II Depressants;
● At least 80,000 but less than 100,000 units of Schedule III Hydrocodone;
● At least 5,000 but less than 6,250 units of Flunitrazepam.
Level 24
(9) ● At least 60 G but less than 80 G of Heroin;
● At least 300 G but less than 400 G of Cocaine;
● At least 16.8 G but less than 22.4 G of Cocaine Base;
● At least 60 G but less than 80 G of PCP, or at least 6 G but less than 8 G of PCP (actual);
● At least 30 G but less than 40 G of Methamphetamine, or at least 3 G but less than 4 G of Methamphetamine (actual), or at least 3 G but less than 4 G of  "Ice";
● At least 30 G but less than 40 G of Amphetamine, or at least 3 G but less than 4 G of Amphetamine (actual);
● At least 600 MG but less than 800 MG of LSD;
● At least 24 G but less than 32 G of Fentanyl;
● At least 6 G but less than 8 G of a Fentanyl Analogue;
● At least 60 KG but less than 80 KG of Marihuana;
● At least 12 KG but less than 16 KG of Hashish;
● At least 1.2 KG but less than 1.6 KG of Hashish Oil;
● At least 60,000 but less than 80,000 units of Ketamine;
● At least 60,000 but less than 80,000 units of Schedule I or II Depressants;
● At least 60,000 but less than 80,000 units of Schedule III Hydrocodone;
● At least 3,750 but less than 5,000 units of Flunitrazepam.
Level 22
(10) ● At least 40 G but less than 60 G of Heroin;
● At least 200 G but less than 300 G of Cocaine;
● At least 11.2 G but less than 16.8 G of Cocaine Base;
● At least 40 G but less than 60 G of PCP, or at least 4 G but less than 6 G of PCP (actual);
● At least 20 G but less than 30 G of Methamphetamine, or at least 2 G but less than 3 G of Methamphetamine (actual), or at least 2 G but less than 3 G of "Ice";
● At least 20 G but less than 30 G of Amphetamine, or at least 2 G but less than 3 G of Amphetamine (actual);
● At least 400 MG but less than 600 MG of LSD;
● At least 16 G but less than 24 G of Fentanyl;
● At least 4 G but less than 6 G of a Fentanyl Analogue;
● At least 40 KG but less than 60 KG of Marihuana;
● At least 8 KG but less than 12 KG of Hashish;
● At least 800 G but less than 1.2 KG of Hashish Oil;
● At least 40,000 but less than 60,000 units of Ketamine;
● At least 40,000 but less than 60,000 units of Schedule I or II Depressants;
● At least 40,000 but less than 60,000 units of Schedule III Hydrocodone;
● 40,000 or more units of Schedule III substances (except Ketamine or Hydrocodone);
● At least 2,500 but less than 3,750 units of Flunitrazepam.
Level 20
(11) ● At least 20 G but less than 40 G of Heroin;
● At least 100 G but less than 200 G of Cocaine;
● At least 5.6 G but less than 11.2 G of Cocaine Base;
● At least 20 G but less than 40 G of PCP, or at least 2 G but less than 4 G of  PCP (actual);
● At least 10 G but less than 20 G of Methamphetamine, or at least 1 G but less than 2 G of Methamphetamine (actual), or at least 1 G but less than 2 G of "Ice";
● At least 10 G but less than 20 G of Amphetamine, or at least 1 G but less than 2 G of Amphetamine (actual);
● At least 200 MG but less than 400 MG of LSD;
● At least 8 G but less than 16 G of Fentanyl;
● At least 2 G but less than 4 G of a Fentanyl Analogue;
● At least 20 KG but less than 40 KG of Marihuana;
● At least 5 KG but less than 8 KG of Hashish;
● At least 500 G but less than 800 G of Hashish Oil;
● At least 20,000 but less than 40,000 units of Ketamine;
● At least 20,000 but less than 40,000 units of Schedule I or II Depressants;
● At least 20,000 but less than 40,000 units of Schedule III Hydrocodone;
● At least 20,000 but less than 40,000 units of Schedule III substances (except Ketamine or Hydrocodone);
● At least 1,250 but less than 2,500 units of Flunitrazepam.
Level 18
(12) ● At least 10 G but less than 20 G of Heroin;
● At least 50 G but less than 100 G of Cocaine;
● At least 2.8 G but less than 5.6 G of Cocaine Base;
● At least 10 G but less than 20 G of PCP, or at least 1 G but less than 2 G of  PCP (actual);
● At least 5 G but less than 10 G of Methamphetamine, or at least 500 MG but less than 1 G of Methamphetamine (actual), or at least 500 MG but less than 1 G of "Ice";
● At least 5 G but less than 10 G of Amphetamine, or at least 500 MG but less than 1 G of Amphetamine (actual);
● At least 100 MG but less than 200 MG of LSD;
● At least 4 G but less than 8 G of Fentanyl;
● At least 1 G but less than 2 G of a Fentanyl Analogue;
● At least 10 KG but less than 20 KG of Marihuana;
● At least 2 KG but less than 5 KG of Hashish;
● At least 200 G but less than 500 G of Hashish Oil;
● At least 10,000 but less than 20,000 units of Ketamine;
● At least 10,000 but less than 20,000 units of Schedule I or II Depressants;
● At least 10,000 but less than 20,000 units of Schedule III Hydrocodone;
● At least 10,000 but less than 20,000 units of Schedule III substances (except Ketamine or Hydrocodone);
● At least 625 but less than 1,250 units of Flunitrazepam.
Level 16
(13) ● At least 5 G but less than 10 G of Heroin;
● At least 25 G but less than 50 G of Cocaine;
● At least 1.4 G but less than 2.8 G of Cocaine Base;
● At least 5 G but less than 10 G of PCP, or at least 500 MG but less than 1 G of PCP (actual);
● At least 2.5 G but less than 5 G of Methamphetamine, or at least 250 MG but less than 500 MG of Methamphetamine (actual), or at least 250 MG but less than 500 MG of "Ice";
● 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);
● At least 50 MG but less than 100 MG of LSD;
● At least 2 G but less than 4 G of Fentanyl;
● At least 500 MG but less than 1 G of a Fentanyl Analogue;
● At least 5 KG but less than 10 KG of Marihuana;
● At least 1 KG but less than 2 KG of Hashish;
● At least 100 G but less than 200 G of Hashish Oil;
● At least 5,000 but less than 10,000 units of Ketamine;
● At least 5,000 but less than 10,000 units of Schedule I or II Depressants;
● At least 5,000 but less than 10,000 units of Schedule III Hydrocodone;
● At least 5,000 but less than 10,000 units of Schedule III substances (except Ketamine or Hydrocodone);
● At least 312 but less than 625 units of Flunitrazepam.
Level 14
(14) ● Less than 5 G of Heroin;
● Less than 25 G of Cocaine;
● Less than 1.4 G of Cocaine Base;
● Less than 5 G of PCP, or less than 500 MG of PCP (actual);
● Less than 2.5 G of Methamphetamine, or less than 250 MG of Methamphetamine (actual), or less than 250 MG of "Ice";
● Less than 2.5 G of Amphetamine, or less than 250 MG of Amphetamine (actual); 
● Less than 50 MG of LSD;
● Less than 2 G of Fentanyl;
● Less than 500 MG of a Fentanyl Analogue;
● At least 2.5 KG but less than 5 KG of Marihuana;
● At least 500 G but less than 1 KG of Hashish;
● At least 50 G but less than 100 G of Hashish Oil;
● At least 2,500 but less than 5,000 units of Ketamine;
● At least 2,500 but less than 5,000 units of Schedule I or II Depressants;
● At least 2,500 but less than 5,000 units of Schedule III Hydrocodone;
● At least 2,500 but less than 5,000 units of Schedule III substances (except Ketamine or Hydrocodone);
● At least 156 but less than 312 units of Flunitrazepam;
● 40,000 or more units of Schedule IV substances (except Flunitrazepam).
Level 12
(15) ● At least 1 KG but less than 2.5 KG of Marihuana;    
● At least 200 G but less than 500 G of Hashish;
● At least 20 G but less than 50 G of Hashish Oil;
● At least 1,000 but less than 2,500 units of Ketamine;
● At least 1,000 but less than 2,500 units of Schedule I or II Depressants;
● At least 1,000 but less than 2,500 units of Schedule III Hydrocodone;
● At least 1,000 but less than 2,500 units of Schedule III substances (except Ketamine or Hydrocodone);
● At least 62 but less than 156 units of Flunitrazepam;
● At least 16,000 but less than 40,000 units of Schedule IV substances (except Flunitrazepam).
Level 10
(16) ● At least 250 G but less than 1 KG of Marihuana; 
● At least 50 G but less than 200 G of Hashish;
● At least 5 G but less than 20 G of Hashish Oil;
● At least 250 but less than 1,000 units of Ketamine;
● At least 250 but less than 1,000 units of Schedule I or II Depressants;
● At least 250 but less than 1,000 units of Schedule III Hydrocodone;
● At least 250 but less than 1,000 units of Schedule III substances (except Ketamine or Hydrocodone);
● Less than 62 units of Flunitrazepam;
● At least 4,000 but less than 16,000 units of Schedule IV substances (except Flunitrazepam);
● 40,000 or more units of Schedule V substances.
Level 8
(17) ● Less than 250 G of Marihuana;    
● Less than 50 G of Hashish;
● Less than 5 G of Hashish Oil;
● Less than 250 units of Ketamine;
● Less than 250 units of Schedule I or II Depressants;
● Less than 250 units of Schedule III Hydrocodone;
● Less than 250 units of Schedule III substances (except Ketamine or Hydrocodone);
● Less than 4,000 units of Schedule IV substances (except Flunitrazepam);
● Less than 40,000 units of Schedule V substances.
Level 6

________________________
*Notes to Drug Quantity Table:

(A)   Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.  If a mixture or substance contains more than one controlled substance, the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater offense level.

(B)    The terms "PCP (actual)", "Amphetamine (actual)", and "Methamphetamine (actual)" refer to the weight of the controlled substance, itself, contained in the mixture or substance.  For example, a mixture weighing 10 grams containing PCP at 50% purity contains 5 grams of PCP (actual).  In the case of a mixture or substance containing PCP, amphetamine, or methamphetamine, use the offense level determined by the entire weight of the mixture or substance, or the offense level determined by the weight of the PCP (actual), amphetamine (actual), or methamphetamine (actual), whichever is greater.

The term "Oxycodone (actual)" refers to the weight of the controlled substance, itself, contained in the pill, capsule, or mixture.

(C)    "Ice," for the purposes of this guideline, means a mixture or substance containing d-methampheta­mine hydrochloride of at least 80% purity.

(D)   "Cocaine base," for the purposes of this guideline, means "crack."  "Crack" is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.

(E)    In the case of an offense involving marihuana plants, treat each plant, regardless of sex, as equivalent to 100 G of marihuana.  Provided, however, that if the actual weight of the marihuana is greater, use the actual weight of the marihuana.

(F)    In the case of Schedule I or II Depressants (except gamma-hydroxybutyric acid), Schedule III substances, Schedule IV substances, and Schedule V substances, one "unit" means one pill, capsule, or tablet.  If the substance (except gamma-hydroxybutyric acid) is in liquid form, one "unit" means 0.5 ml.  For an anabolic steroid that is not in a pill, capsule, tablet, or liquid form (e.g., patch, topical cream, aerosol), the court shall determine the base offense level using a reasonable estimate of the quantity of anabolic steroid involved in the offense.  In making a reasonable estimate, the court shall consider that each 25 mg of an anabolic steroid is one "unit".

(G)   In the case of LSD on a carrier medium (e.g., a sheet of blotter paper), do not use the weight of the LSD/carrier medium.  Instead, treat each dose of LSD on the carrier medium as equal to 0.4 mg of LSD for the purposes of the Drug Quantity Table.

(H)   Hashish, for the purposes of this guideline, means a resinous substance of cannabis that includes (i) one or more of the tetrahydrocannabinols (as listed in 21 C.F.R. § 1308.11(d)(30)), (ii) at least two of the following:  cannabinol, cannabidiol, or cannabichromene, and (iii) fragments of plant material (such as cystolith fibers).

(I)     Hashish oil, for the purposes of this guideline, means a preparation of the soluble cannabinoids derived from cannabis that includes (i) one or more of the tetrahydrocannabinols (as listed in 21 C.F.R. § 1308.11(d)(30)), (ii) at least two of the following:  cannabinol, cannabidiol, or cannabi­chromene, and (iii) is essentially free of plant material (e.g., plant fragments).  Typically, hashish oil is a viscous, dark colored oil, but it can vary from a dry resin to a colorless liquid.


Commentary

Statutory Provisions:  21 U.S.C. §§ 841(a), (b)(1)-(3), (7), (g), 860a, 865, 960(a), (b); 49 U.S.C. § 46317(b).  For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1.      "Mixture or Substance".—"Mixture or substance" as used in this guideline has the same meaning as in 21 U.S.C. § 841, except as expressly provided.  Mixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used.  Examples of such materials include the fiberglass in a cocaine/ fiberglass bonded suitcase, beeswax in a cocaine/beeswax statue, and waste water from an illicit laboratory used to manufacture a controlled substance.  If such material cannot readily be separated from the mixture or substance that appropriately is counted in the Drug Quantity Table, the court may use any reasonable method to approximate the weight of the mixture or substance to be counted.

An upward departure nonetheless may be warranted when the mixture or substance counted in the Drug Quantity Table is combined with other, non-countable material in an unusually sophisticated manner in order to avoid detection.

Similarly, in the case of marihuana having a moisture content that renders the marihuana unsuitable for consumption without drying (this might occur, for example, with a bale of rain-soaked marihuana or freshly harvested marihuana that had not been dried), an approximation of the weight of the marihuana without such excess moisture content is to be used.

2.      "Plant".—For purposes of the guidelines, a "plant" is an organism having leaves and a readily observable root formation (e.g., a marihuana cutting having roots, a rootball, or root hairs is a marihuana plant).

3.      Classification of Controlled Substances.—Certain pharmaceutical preparations are classified as Schedule III, IV, or V controlled substances by the Drug Enforcement Administration under 21 C.F.R. § 1308.13-15 even though they contain a small amount of a Schedule I or II controlled substance.  For example, Tylenol 3 is classified as a Schedule III controlled substance even though it contains a small amount of codeine, a Schedule II opiate.  For the purposes of the guidelines, the classification of the controlled substance under 21 C.F.R. § 1308.13-15 is the appropriate classification.

4.      Applicability to "Counterfeit" Substances.—The statute and guideline also apply to "counterfeit" substances, which are defined in 21 U.S.C. § 802 to mean controlled substances that are falsely labeled so as to appear to have been legitimately manufactured or distributed.

5.      Determining Drug Types and Drug Quantities.—Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level.  See §1B1.3(a)(2) (Relevant Conduct).  Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance.  In making this determination, the court may consider, for example, the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved.

If the offense involved both a substantive drug offense and an attempt or conspiracy (e.g., sale of five grams of heroin and an attempt to sell an additional ten grams of heroin), the total quantity involved shall be aggregated to determine the scale of the offense. 

In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of the controlled substance shall be used to determine the offense level unless the sale is completed and the amount delivered more accurately reflects the scale of the offense.  For example, a defendant agrees to sell 500 grams of cocaine, the transaction is completed by the delivery of the controlled substance - actually 480 grams of cocaine, and no further delivery is scheduled.  In this example, the amount delivered more accurately reflects the scale of the offense.  In contrast, in a reverse sting, the agreed-upon quantity of the controlled substance would more accurately reflect the scale of the offense because the amount actually delivered is controlled by the government, not by the defendant.  If, however, the defendant establishes that the defendant did not intend to provide or purchase, or was not reasonably capable of providing or purchasing, the agreed-upon quantity of the controlled substance, the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that the defendant did not intend to provide or purchase or was not reasonably capable of providing or purchasing.

6.      Analogues and Controlled Substances Not Referenced in this Guideline.—Any reference to a particular controlled substance in these guidelines includes all salts, isomers, all salts of isomers, and, except as otherwise provided, any analogue of that controlled substance.  Any reference to cocaine includes ecgonine and coca leaves, except extracts of coca leaves from which cocaine and ecgonine have been removed.  For purposes of this guideline "analogue" has the meaning given the term "controlled substance analogue" in 21 U.S.C. § 802(32).  In determining the appropriate sentence, the court also may consider whether the same quantity of analogue produces a greater effect on the central nervous system than the controlled substance for which it is an analogue.

In the case of a controlled substance that is not specifically referenced in this guideline, determine the base offense level using the marihuana equivalency of the most closely related controlled substance referenced in this guideline.  In determining the most closely related controlled substance, the court shall, to the extent practicable, consider the following:

(A)    Whether the controlled substance not referenced in this guideline has a chemical structure that is substantially similar to a controlled substance referenced in this guideline.

(B)    Whether the controlled substance not referenced in this guideline has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance referenced in this guideline.

(C)   Whether a lesser or greater quantity of the controlled substance not referenced in this guideline is needed to produce a substantially similar effect on the central nervous system as a controlled substance referenced in this guideline.

7.      Multiple Transactions or Multiple Drug Types.—Where there are multiple transactions or multiple drug types, the quantities of drugs are to be added.  Tables for making the necessary conversions are provided below.

8.      Use of Drug Equivalency Tables.–

(A)    Controlled Substances Not Referenced in Drug Quantity Table.—The Commission has used the sentences provided in, and equivalences derived from, the statute (21 U.S.C. § 841(b)(1)), as the primary basis for the guideline sentences.  The statute, however, provides direction only for the more common controlled substances, i.e., heroin, cocaine, PCP, methamphetamine, fentanyl, LSD and marihuana.  In the case of a controlled substance that is not specifically referenced in the Drug Quantity Table, determine the base offense level as follows:

(i)     Use the Drug Equivalency Tables to convert the quantity of the controlled substance involved in the offense to its equivalent quantity of marihuana.

(ii)    Find the equivalent quantity of marihuana in the Drug Quantity Table.

(iii)   Use the offense level that corresponds to the equivalent quantity of marihuana as the base offense level for the controlled substance involved in the offense.

(See also Application Note 6.)  For example, in the Drug Equivalency Tables set forth in this Note, 1 gm of a substance containing oxymorphone, a Schedule I opiate, converts to an equivalent quantity of 5 kg of marihuana.  In a case involving 100 gm of oxymorphone, the equivalent quantity of marihuana would be 500 kg, which corresponds to a base offense level of 28 in the Drug Quantity Table.

(B)    Combining Differing Controlled Substances.—The Drug Equivalency Tables also provide a means for combining differing controlled substances to obtain a single offense level.  In each case, convert each of the drugs to its marihuana equivalent, add the quantities, and look up the total in the Drug Quantity Table to obtain the combined offense level.

For certain types of controlled substances, the marihuana equivalencies in the Drug Equivalency Tables are "capped" at specified amounts (e.g., the combined equivalent weight of all Schedule V controlled substances shall not exceed 999 grams of marihuana).  Where there are controlled substances from more than one schedule (e.g., a quantity of a Schedule IV substance and a quantity of a Schedule V substance), determine the marihuana equivalency for each schedule separately (subject to the cap, if any, applicable to that schedule).  Then add the marihuana equivalencies to determine the combined marihuana equivalency (subject to the cap, if any, applicable to the combined amounts).

Note:  Because of the statutory equivalences, the ratios in the Drug Equivalency Tables do not necessarily reflect dosages based on pharmacological equivalents.

(C)   Examples for Combining Differing Controlled Substances.–

(i)     The defendant is convicted of selling 70 grams of a substance containing PCP (Level 22) and 250 milligrams of a substance containing LSD (Level 18).  The PCP converts to 70 kilograms of marihuana; the LSD converts to 25 kilograms of marihuana.  The total is therefore equivalent to 95 kilograms of marihuana, for which the Drug Quantity Table provides an offense level of 24.

(ii)    The defendant is convicted of selling 500 grams of marihuana (Level 8) and five kilograms of diazepam (Level 8).  The diazepam, a Schedule IV drug, is equivalent to 625 grams of marihuana.  The total, 1.125 kilograms of marihuana, has an offense level of 10 in the Drug Quantity Table.

(iii)   The defendant is convicted of selling 80 grams of cocaine (Level 16) and 2 grams of cocaine base (Level 14).  The cocaine is equivalent to 16 kilograms of marihuana, and the cocaine base is equivalent to 7.142 kilograms of marihuana.  The total is therefore equivalent to 23.142 kilograms of marihuana, which has an offense level of 18 in the Drug Quantity Table.

(iv)   The defendant is convicted of selling 56,000 units of a Schedule III substance, 100,000 units of a Schedule IV substance, and 200,000 units of a Schedule V substance.  The marihuana equivalency for the Schedule III substance is 56 kilograms of marihuana (below the cap of 59.99 kilograms of marihuana set forth as the maximum equivalent weight for Schedule III substances).  The marihuana equivalency for the Schedule IV substance is subject to a cap of 4.99 kilograms of marihuana set forth as the maximum equivalent weight for Schedule IV substances (without the cap it would have been 6.25 kilograms).  The marihuana equivalency for the Schedule V substance is subject to the cap of 999 grams of marihuana set forth as the maximum equivalent weight for Schedule V substances (without the cap it would have been 1.25 kilograms).  The combined equivalent weight, determined by adding together the above amounts, is subject to the cap of 59.99 kilograms of marihuana set forth as the maximum combined equivalent weight for Schedule III, IV, and V substances.  Without the cap, the combined equivalent weight would have been 61.99 (56 + 4.99 + .999) kilograms.

(D)       Drug Equivalency Tables.—

Schedule I or II Opiates*    
1 gm of Heroin =    1 kg of marihuana
1 gm of Alpha-Methylfentanyl =   10 kg of marihuana
1 gm of Dextromoramide =    670 gm of marihuana
1 gm of Dipipanone =    250 gm of marihuana
1 gm of 3-Methylfentanyl =     10 kg of marihuana
1 gm of 1-Methyl-4-phenyl-4-propionoxypiperidine/MPPP =   700 gm of marihuana
1 gm of 1-(2-Phenylethyl)-4-phenyl-4-acetyloxypiperidine/PEPAP =   700 gm of marihuana
1 gm of Alphaprodine =   100 gm of marihuana
1 gm of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide) =   2.5 kg of marihuana
1 gm of Hydromorphone/Dihydromorphinone =   2.5 kg of marihuana
1 gm of Levorphanol =   2.5 kg of marihuana
1 gm of Meperidine/Pethidine =    50 gm of marihuana
1 gm of Methadone =   500 gm of marihuana
1 gm of 6-Monoacetylmorphine =     1 kg of marihuana
1 gm of Morphine =   500 gm of marihuana
1 gm of Oxycodone (actual) =   6700 gm of marihuana
1 gm of Oxymorphone =   5 kg of marihuana
1 gm of Racemorphan =   800 gm of marihuana
1 gm of Codeine =   80 gm of marihuana
1 gm of Dextropropoxyphene/Propoxyphene-Bulk =   50 gm of marihuana
1 gm of Ethylmorphine =    165 gm of marihuana
1 gm of Hydrocodone/Dihydrocodeinone =   500 gm of marihuana
1 gm of Mixed Alkaloids of Opium/Papaveretum =   250 gm of marihuana
1 gm of Opium =    50 gm of marihuana
1 gm of Levo-alpha-acetylmethadol (LAAM) =   3 kg of marihuana
*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually, or in combination with another controlled substance, is level 12.
     
Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)*
1 gm of Cocaine =    200 gm of marihuana
1 gm of N-Ethylamphetamine =     80 gm of marihuana
1 gm of Fenethylline =   40 gm of marihuana
1 gm of Amphetamine =    2 kg of marihuana
1 gm of Amphetamine (Actual) =   20 kg of marihuana
1 gm of Methamphetamine =    2 kg of marihuana
1 gm of Methamphetamine (Actual) =   20 kg of marihuana
1 gm of "Ice" =   20 kg of marihuana
1 gm of Khat =   .01 gm of marihuana
1 gm of 4-Methylaminorex ("Euphoria") =   100 gm of marihuana
1 gm of Methylphenidate (Ritalin) =     100 gm of marihuana
1 gm of Phenmetrazine =     80 gm of marihuana
1 gm Phenylacetone/P2P (when possessed for the purpose of manufacturing methamphetamine) =   416 gm of marihuana
1 gm Phenylacetone/P2P (in any other case) =    75 gm of marihuana
1 gm Cocaine Base ('Crack') =   3,571 gm of marihuana
1 gm of Aminorex =   100 gm of marihuana
1 gm of Methcathinone =   380 gm of marihuana
1 gm of N-N-Dimethylamphetamine =   40 gm of marihuana
1 gm of N-Benzylpiperazine =   100 gm of marihuana
*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually, or in combination with another controlled substance, is level 12.
     
LSD, PCP, and Other Schedule I and II Hallucinogens (and their immediate precursors)*
1 gm of Bufotenine =     70 gm of marihuana
1 gm of D-Lysergic Acid Diethylamide/Lysergide/LSD =   100 kg of marihuana
1 gm of Diethyltryptamine/DET =   80 gm of marihuana
1 gm of Dimethyltryptamine/DMT =    100 gm of marihuana
1 gm of Mescaline =   10 gm of marihuana
1 gm of Mushrooms containing Psilocin and/or Psilocybin (Dry) =   1 gm of marihuana
1 gm of Mushrooms containing Psilocin and/or Psilocybin (Wet) =   0.1 gm of marihuana
1 gm of Peyote (Dry) =   0.5 gm of marihuana
1 gm of Peyote (Wet) =   0.05 gm of marihuana
1 gm of Phencyclidine/PCP =     1 kg of marihuana
1 gm of Phencyclidine (actual) /PCP (actual) =    10 kg of marihuana
1 gm of Psilocin =     500 gm of marihuana
1 gm of Psilocybin =   500 gm of marihuana
1 gm of Pyrrolidine Analog of Phencyclidine/PHP =    1 kg of marihuana
1 gm of Thiophene Analog of Phencyclidine/TCP =     1 kg of marihuana
1 gm of 4-Bromo-2,5-Dimethoxyamphetamine/DOB =   2.5 kg of marihuana
1 gm of 2,5-Dimethoxy-4-methylamphetamine/DOM =   1.67 kg of marihuana
1 gm of 3,4-Methylenedioxyamphetamine/MDA =   500 gm of marihuana
1 gm of 3,4-Methylenedioxymethamphetamine/MDMA =   500 gm of marihuana
1 gm of 3,4-Methylenedioxy-N-ethylamphetamine/MDEA =   500 gm of marihuana
1 gm of Paramethoxymethamphetamine/PMA =   500 gm of marihuana  
1 gm of 1-Piperidinocyclohexanecarbonitrile/PCC =    680 gm of marihuana
1 gm of N-ethyl-1-phenylcyclohexylamine (PCE) =   1 kg of marihuana
*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually, or in combination with another controlled substance, is level 12.
     
Schedule I Marihuana
1 gm of Marihuana/Cannabis, granulated, powdered, etc. =    1 gm of marihuana
1 gm of Hashish Oil =    50 gm of marihuana
1 gm of Cannabis Resin or Hashish =   5 gm of marihuana
1 gm of Tetrahydrocannabinol, Organic =   167 gm of marihuana
1 gm of Tetrahydrocannabinol, Synthetic =   167 gm of marihuana
     
Flunitrazepam **
1 unit of Flunitrazepam =    16 gm of marihuana
**Provided, that the minimum offense level from the Drug Quantity Table for flunitrazepam individually, or in combination with any Schedule I or II depressants, Schedule III substances, Schedule IV substances, and Schedule V substances is level 8.
     
Schedule I or II Depressants (except gamma-hydroxybutyric acid)
1 unit of a Schedule I or II Depressant (except gamma-hydroxybutyric acid) =   1 gm of marihuana
     
Gamma-hydroxybutyric Acid
1 ml of gamma-hydroxybutyric acid =   8.8 gm of marihuana
     
Schedule III Substances (except ketamine and hydrocodone)***
1 unit of a Schedule III Substance =    1 gm of marihuana
***Provided, that the combined equivalent weight of all Schedule III substances (except ketamine and hydrocodone), Schedule IV substances (except flunitrazepam), and Schedule V substances shall not exceed 59.99 kilograms of marihuana.
     
Schedule III Hydrocodone****
1 unit of Schedule III hydrocodone =    1 gm of marihuana
****Provided, that the combined equivalent weight of all Schedule III substances (except ketamine), Schedule IV substances (except flunitrazepam), and Schedule V substances shall not exceed 999.99 kilograms of marihuana.
     
Ketamine
1 unit of ketamine =    1 gm of marihuana
     
Schedule IV Substances (except flunitrazepam)*****
1 unit of a Schedule IV Substance (except Flunitrazepam) =   0.0625 gm of marihuana
*****Provided, that the combined equivalent weight of all Schedule IV (except flunitrazepam) and V substances shall not exceed 4.99 kilograms of marihuana.
     
Schedule V Substances******
1 unit of a Schedule V Substance =   0.00625 gm of marihuana
******Provided, that the combined equivalent weight of Schedule V substances shall not exceed 999 grams of marihuana.
     
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.
     
Date Rape Drugs (except flunitrazipam, GHB, or ketamine)
1 ml of 1,4-butanediol =     8.8 gm marihuana
1 ml of gamma butyrolactone =   8.8 gm marihuana

To facilitate conversions to drug equivalencies, the following table is provided:


MEASUREMENT CONVERSION TABLE    
1 oz = 28.35 gm    
1 lb = 453.6 gm    
1 lb = 0.4536 kg    
1 gal = 3.785 liters    
1 qt = 0.946 liters    
1 gm = 1 ml (liquid)    
1 liter = 1,000 ml    
1 kg = 1,000 gm    
1 gm = 1,000 mg    
1 grain = 64.8 mg.    

9.    Determining Quantity Based on Doses, Pills, or Capsules.—If the number of doses, pills, or capsules but not the weight of the controlled substance is known, multiply the number of doses, pills, or capsules by the typical weight per dose in the table below to estimate the total weight of the controlled substance (e.g., 100 doses of Mescaline at 500 mg per dose = 50 gms of mescaline).  The Typical Weight Per Unit Table, prepared from information provided by the Drug Enforcement Administration, displays the typical weight per dose, pill, or capsule for certain controlled substances.  Do not use this table if any more reliable estimate of the total weight is available from case-specific information.


TYPICAL WEIGHT PER UNIT (DOSE, PILL, OR CAPSULE) TABLE    
Hallucinogens    
MDA    250 mg
MDMA   250 mg
Mescaline     500 mg
PCP*   5 mg
Peyote (dry)    12 gm
Peyote (wet)   120 gm
Psilocin*    10 mg
Psilocybe mushrooms (dry)   5 gm
Psilocybe mushrooms (wet)    50 gm
Psilocybin*     10 mg
2,5-Dimethoxy-4-methylamphetamine (STP, DOM)*   3 mg
Marihuana    
1 marihuana cigarette    0.5 gm
Stimulants    
Amphetamine*      10 mg
Methamphetamine*     5 mg
Phenmetrazine (Preludin)*   75 mg
*For controlled substances marked with an asterisk, the weight per unit shown is the weight of the actual controlled substance, and not generally the weight of the mixture or substance containing the controlled substance.  Therefore, use of this table provides a very conservative estimate of the total weight.

10.    Determining Quantity of LSD.—LSD on a blotter paper carrier medium typically is marked so that the number of doses ("hits") per sheet readily can be determined.  When this is not the case, it is to be presumed that each 1/4 inch by 1/4 inch section of the blotter paper is equal to one dose.

In the case of liquid LSD (LSD that has not been placed onto a carrier medium), using the weight of the LSD alone to calculate the offense level may not adequately reflect the seriousness of the offense.  In such a case, an upward departure may be warranted.

11.    Application of Subsections (b)(1) and (b)(2).—

(A)    Application of Subsection (b)(1).— Definitions of "firearm" and "dangerous weapon" are found in the Commentary to §1B1.1 (Application Instructions).  The enhancement for weapon possession in subsection (b)(1) reflects the increased danger of violence when drug traffickers possess weapons.  The enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.  For example, the enhancement would not be applied if the defendant, arrested at the defendant’s residence, had an unloaded hunting rifle in the closet.  The enhancement also applies to offenses that are referenced to §2D1.1; see §§2D1.2(a)(1) and (2), 2D1.5(a)(1), 2D1.6, 2D1.7(b)(1), 2D1.8, 2D1.11(c)(1), and 2D1.12(c)(1).

(B)    Interaction of Subsections (b)(1) and (b)(2).—The enhancements in subsections (b)(1) and (b)(2) may be applied cumulatively (added together), as is generally the case when two or more specific offense characteristics each apply.  See §1B1.1 (Application Instructions), Application Note 4(A). However, in a case in which the defendant merely possessed a dangerous weapon but did not use violence, make a credible threat to use violence, or direct the use of violence, subsection (b)(2) would not apply.

12.    Application of Subsection (b)(5).—If the offense involved importation of amphetamine or methamphetamine, and an adjustment from subsection (b)(3) applies, do not apply subsection (b)(5).

13.    Application of Subsection (b)(7).—For purposes of subsection (b)(7), "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)(7) would apply to a defendant who operated a web site to promote the sale of Gamma-hydroxybutyric Acid (GHB) 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)(7) 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)).

14.    Application of Subsection (b)(8).—For purposes of subsection (b)(8), "masking agent" means a substance that, when taken before, after, or in conjunction with an anabolic steroid, prevents the detection of the anabolic steroid in an individual’s body.

15.    Application of Subsection (b)(9).—For purposes of subsection (b)(9), "athlete" means an individual who participates in an athletic activity conducted by (A) an intercollegiate athletic association or interscholastic athletic association; (B) a professional athletic association; or (C) an amateur athletic organization.

16.    Application of Subsection (b)(11).—Subsection (b)(11) does not apply if the purpose of the bribery was to obstruct or impede the investigation, prosecution, or sentencing of the defendant.  Such conduct is covered by §3C1.1 (Obstructing or Impeding the Administration of Justice) and, if applicable, §2D1.1(b)(14)(D).

17.    Application of Subsection (b)(12).—Subsection (b)(12) applies to a defendant who knowingly maintains a premises (i.e., a building, room, or enclosure) for the purpose of manufacturing or distributing a controlled substance, including storage of a controlled substance for the purpose of distribution.

Among the factors the court should consider in determining whether the defendant "maintained" the premises are (A) whether the defendant held a possessory interest in (e.g., owned or rented) the premises and (B) the extent to which the defendant controlled access to, or activities at, the premises.

Manufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant's primary or principal uses for the premises, rather than one of the defendant's incidental or collateral uses for the premises.  In making this determination, the court should consider how frequently the premises was used by the defendant for manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant for lawful purposes.

18.    Application of Subsection (b)(13).—

(A)    Hazardous or Toxic Substances (Subsection (b)(13)(A)).—Subsection (b)(13)(A) 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); the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9603(b); or 49 U.S.C. § 5124 (relating to violations of laws and regulations enforced by the Department of Transportation with respect to the transportation of hazardous material).  In some cases, the enhancement under subsection (b)(13)(A) may not account adequately 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, in determining the amount of restitution under §5E1.1 (Restitution) and in fashioning appropriate conditions of probation and supervision under §§5B1.3 (Conditions of Probation) and 5D1.3 (Conditions of Supervised Release), respectively, any costs of environmental cleanup and harm to individuals or property shall be considered by the court in cases involving the manufacture of amphetamine or methamphetamine and should be considered by the court in cases involving the manufacture of a controlled substance other than amphetamine or methamphetamine.  See 21 U.S.C. § 853(q) (mandatory restitution for cleanup costs relating to the manufacture of amphetamine and methamphetamine).

(B)    Substantial Risk of Harm Associated with the Manufacture of Amphetamine and Methamphetamine (Subsection (b)(13)(C)–(D)).—

(i)     Factors to Consider.—In determining, for purposes of subsection (b)(13)(C)(ii) or (D), whether the offense created a substantial risk of harm to human life or the environment, 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.

(ii)    Definitions.—For purposes of subsection (b)(13)(D):

"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).

19.    Application of Subsection (b)(14).—

(A)    Distributing to a Specified Individual or Involving Such an Individual in the Offense (Subsection (b)(14)(B)).—If the defendant distributes a controlled substance to an individual or involves an individual in the offense, as specified in subsection (b)(14)(B), the individual is not a "vulnerable victim" for purposes of §3A1.1(b).

(B)    Directly Involved in the Importation of a Controlled Substance (Subsection (b)(14)(C)).—Sub­section (b)(14)(C) applies if the defendant is accountable for the importation of a controlled substance under subsection (a)(1)(A) of §1B1.3 (Relevant Conduct (Factors that Determine the Guideline Range)), i.e., the defendant committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused the importation of a controlled substance.

If subsection (b)(3) or (b)(5) applies, do not apply subsection (b)(14)(C).

(C)   Pattern of Criminal Conduct Engaged in as a Livelihood (Subsection (b)(14)(E)).—For purposes of subsection (b)(14)(E), "pattern of criminal conduct" and "engaged in as a livelihood" have the meaning given such terms in §4B1.3 (Criminal Livelihood).

20.    Applicability of Subsection (b)(16).—The applicability of subsection (b)(16) shall be determined without regard to whether the defendant was convicted of an offense that subjects the defendant to a mandatory minimum term of imprisonment.  Section §5C1.2(b), which provides a minimum offense level of level 17, is not pertinent to the determination of whether subsection (b)(16) applies.

21.    Application of Subsection (e)(1).—

(A)    Definition.—For purposes of this guideline, "sexual offense" means a "sexual act" or "sexual contact" as those terms are defined in 18 U.S.C. § 2246(2) and (3), respectively.

(B)    Upward Departure Provision.—If the defendant committed a sexual offense against more than one individual, an upward departure would be warranted.

22.    Interaction with §3B1.3.—A defendant who used special skills in the commission of the offense may be subject to an adjustment under §3B1.3 (Abuse of Position of Trust or Use of Special Skill).  Certain professionals often occupy essential positions in drug trafficking schemes.  These professionals include doctors, pilots, boat captains, financiers, bankers, attorneys, chemists, accountants, and others whose special skill, trade, profession, or position may be used to significantly facilitate the commission of a drug offense.  Additionally, an enhancement under §3B1.3 ordinarily would apply in a case in which the defendant used his or her position as a coach to influence an athlete to use an anabolic steroid.  Likewise, an adjustment under §3B1.3 ordinarily would apply in a case in which the defendant is convicted of a drug offense resulting from the authorization of the defendant to receive scheduled substances from an ultimate user or long-term care facility.  See 21 U.S.C. § 822(g).

Note, however, that if an adjustment from subsection (b)(3)(C) applies, do not apply §3B1.3 (Abuse of Position of Trust or Use of Special Skill).

23.    Cases Involving Mandatory Minimum Penalties.—Where a mandatory (statutory) minimum sentence applies, this mandatory minimum sentence may be "waived" and a lower sentence imposed (including a downward departure), as provided in 28 U.S.C. § 994(n), by reason of a defendant’s "substantial assistance in the investigation or prosecution of another person who has committed an offense."  See §5K1.1 (Substantial Assistance to Authorities).  In addition, 18 U.S.C. § 3553(f) provides an exception to the applicability of mandatory minimum sentences in certain cases.  See §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases).

24.    Imposition of Consecutive Sentence for 21 U.S.C. § 860a or § 865.—Sections 860a and 865 of title 21, United States Code, require the imposition of a mandatory consecutive term of imprisonment of not more than 20 years and 15 years, respectively.  In order to comply with the relevant statute, the court should determine the appropriate "total punishment" and divide the sentence on the judgment form between the sentence attributable to the underlying drug offense and the sentence attributable to 21 U.S.C. § 860a or § 865, specifying the number of months to be served consecutively for the conviction under 21 U.S.C. § 860a or § 865.  For example, if the applicable adjusted guideline range is 151-188 months and the court determines a "total punishment" of 151 months is appropriate, a sentence of 130 months for the underlying offense plus 21 months for the conduct covered by 21 U.S.C. § 860a or § 865 would achieve the "total punishment" in a manner that satisfies the statutory requirement of a consecutive sentence.

25.    Cases Involving "Small Amount of Marihuana for No Remuneration".—Distribution of "a small amount of marihuana for no remuneration", 21 U.S.C. § 841(b)(4), is treated as simple possession, to which §2D2.1 applies.

26.    Departure Considerations.—

(A)    Downward Departure Based on Drug Quantity in Certain Reverse Sting Operations.—If, in a reverse sting (an operation in which a government agent sells or negotiates to sell a controlled substance to a defendant), the court finds that the government agent set a price for the controlled substance that was substantially below the market value of the controlled substance, thereby leading to the defendant’s purchase of a significantly greater quantity of the controlled substance than his available resources would have allowed him to purchase except for the artificially low price set by the government agent, a downward departure may be warranted.

(B)    Upward Departure Based on Drug Quantity.—In an extraordinary case, an upward departure above offense level 38 on the basis of drug quantity may be warranted.  For example, an upward departure may be warranted where the quantity is at least ten times the minimum quantity required for level 38.  Similarly, in the case of a controlled substance for which the maximum offense level is less than level 38, an upward departure may be warranted if the drug quantity substantially exceeds the quantity for the highest offense level established for that particular controlled substance.

(C)   Upward Departure Based on Unusually High Purity.—Trafficking in controlled substances, compounds, or mixtures of unusually high purity may warrant an upward departure, except in the case of PCP, amphetamine, methamphetamine, or oxycodone for which the guideline itself provides for the consideration of purity (see the footnote to the Drug Quantity Table).  The purity of the controlled substance, particularly in the case of heroin, may be relevant in the sentencing process because it is probative of the defendant’s role or position in the chain of distribution.  Since controlled substances are often diluted and combined with other substances as they pass down the chain of distribution, the fact that a defendant is in possession of unusually pure narcotics may indicate a prominent role in the criminal enterprise and proximity to the source of the drugs.  As large quantities are normally associated with high purities, this factor is particularly relevant where smaller quantities are involved. 

Background:  Offenses under 21 U.S.C. §§ 841 and 960 receive identical punishment based upon the quantity of the controlled substance involved, the defendant’s criminal history, and whether death or serious bodily injury resulted from the offense. 

The base offense levels in §2D1.1 are either provided directly by the Anti-Drug Abuse Act of 1986 or are proportional to the levels established by statute, and apply to all unlawful trafficking.  Levels 32 and 26 in the Drug Quantity Table are the distinctions provided by the Anti-Drug Abuse Act; however, further refinement of drug amounts is essential to provide a logical sentencing structure for drug offenses.  To determine these finer distinctions, the Commission consulted numerous experts and practitioners, including authorities at the Drug Enforcement Administration, chemists, attorneys, probation officers, and members of the Organized Crime Drug Enforcement Task Forces, who also advocate the necessity of these distinctions.  Where necessary, this scheme has been modified in response to specific congressional directives to the Commission.

The base offense levels at levels 26 and 32 establish guideline ranges with a lower limit as close to the statutory minimum as possible; e.g., level 32 ranges from 121 to 151 months, where the statutory minimum is ten years or 120 months. 

For marihuana plants, the Commission has adopted an equivalency of 100 grams per plant, or the actual weight of the usable marihuana, whichever is greater.  The decision to treat each plant as equal to 100 grams is premised on the fact that the average yield from a mature marihuana plant equals 100 grams of marihuana.  In controlled substance offenses, an attempt is assigned the same offense level as the object of the attempt.  Consequently, the Commission adopted the policy that each plant is to be treated as the equivalent of an attempt to produce 100 grams of marihuana, except where the actual weight of the usable marihuana is greater.

Because the weights of LSD carrier media vary widely and typically far exceed the weight of the controlled substance itself, the Commission has determined that basing offense levels on the entire weight of the LSD and carrier medium would produce unwarranted disparity among offenses involving the same quantity of actual LSD (but different carrier weights), as well as sentences disproportionate to those for other, more dangerous controlled substances, such as PCP.  Consequently, in cases involving LSD contained in a carrier medium, the Commission has established a weight per dose of 0.4 milligram for purposes of determining the base offense level.

The dosage weight of LSD selected exceeds the Drug Enforcement Administration’s standard dosage unit for LSD of 0.05 milligram (i.e., the quantity of actual LSD per dose) in order to assign some weight to the carrier medium.  Because LSD typically is marketed and consumed orally on a carrier medium, the inclusion of some weight attributable to the carrier medium recognizes (A) that offense levels for most other controlled substances are based upon the weight of the mixture containing the controlled substance without regard to purity, and (B) the decision in Chapman v. United States, 500 U.S. 453 (1991) (holding that the term "mixture or substance" in 21 U.S.C. § 841(b)(1) includes the carrier medium in which LSD is absorbed).  At the same time, the weight per dose selected is less than the weight per dose that would equate the offense level for LSD on a carrier medium with that for the same number of doses of PCP, a controlled substance that comparative assessments indicate is more likely to induce violent acts and ancillary crime than is LSD.  (Treating LSD on a carrier medium as weighing 0.5 milligram per dose would produce offense levels equivalent to those for PCP.) Thus, the approach decided upon by the Commission will harmonize offense levels for LSD offenses with those for other controlled substances and avoid an undue influence of varied carrier weight on the applicable offense level.  Nonetheless, this approach does not override the applicability of "mixture or substance" for the purpose of applying any mandatory minimum sentence (see Chapman; §5G1.1(b)).

Frequently, a term of supervised release to follow imprisonment is required by statute for offenses covered by this guideline.  Guidelines for the imposition, duration, and conditions of supervised release are set forth in Chapter Five, Part D (Supervised Release).

The last sentence of subsection (a)(5) implements the directive to the Commission in section 7(1) of Public Law 111–220.

Subsection (b)(2) implements the directive to the Commission in section 5 of Public Law 111–220.

Subsection (b)(3) is derived from Section 6453 of the Anti-Drug Abuse Act of 1988.

Subsection (b)(11) implements the directive to the Commission in section 6(1) of Public Law 111–220.

Subsection (b)(12) implements the directive to the Commission in section 6(2) of Public Law 111–220.

Subsection (b)(13)(A) implements the instruction to the Commission in section 303 of Public Law 103–237.

Subsections (b)(13)(C)(ii) and (D) implement, in a broader form, the instruction to the Commission in section 102 of Public Law 106–310.

Subsection (b)(14) implements the directive to the Commission in section 6(3) of Public Law 111–220.

Subsection (b)(15) implements the directive to the Commission in section 7(2) of Public Law 111–220.

Historical Note:  Effective November 1, 1987.  Amended effective January 15, 1988 (see Appendix C, amendments 19, 20, and 21); November 1, 1989 (see Appendix C, amendments 123-134, 302, and 303); November 1, 1990 (see Appendix C, amendment 318); November 1, 1991 (see Appendix C, amendments 369-371 and 394-396); November 1, 1992 (see Appendix C, amendments 446 and 447); November 1, 1993 (see Appendix C, amendments 479, 484-488, and 499); September 23, 1994 (see Appendix C, amendment 509); November 1, 1994 (see Appendix C, amendment 505); November 1, 1995 (see Appendix C, amendments 514-518); November 1, 1997 (see Appendix C, amendments 555 and 556); November 1, 2000 (see Appendix C, amendments 594 and 605); December 16, 2000 (see Appendix C, amendment 608); May 1, 2001 (see Appendix C, amendments 609-611); November 1, 2001 (see Appendix C, amendments  620-625); November 1, 2002 (see Appendix C, amendment 640); November 1, 2003 (see Appendix C, amendment 657); November 1, 2004 (see Appendix C, amendments 667, 668, and 674); November 1, 2005 (see Appendix C, amendment 679); March 27, 2006 (see Appendix C, amendment 681); November 1, 2006 (see Appendix C, amendments 684 and 688); November 1, 2007 (see Appendix C, amendments 705, 706, and 711); May 1, 2008 (see Appendix C, amendment 715); November 1, 2009 (see Appendix C, amendments 727 and 728); November 1, 2010 (see Appendix C, amendments 746 and 748); November 1, 2011 (see Appendix C, amendments 750, 751, and 760); November 1, 2012 (see Appendix C, amendments 762 and 770).


§2D1.2.     Drug Offenses Occurring Near Protected Locations or Involving Underage or Pregnant Individuals; Attempt or Conspiracy

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

(1)       2 plus the offense level from §2D1.1 applicable to the quantity of controlled substances directly involving a protected location or an underage or pregnant individual; or

(2)       1 plus the offense level from §2D1.1 applicable to the total quantity of controlled substances involved in the offense; or

(3)       26, if the offense involved a person less than eighteen years of age; or

(4)       13, otherwise.


Commentary

Statutory Provisions:  21 U.S.C. §§ 859 (formerly 21 U.S.C. § 845), 860 (formerly 21 U.S.C. § 845a), 861 (formerly 21 U.S.C. § 845b).

Application Note:

1.      This guideline applies only in a case in which the defendant is convicted of a statutory violation of drug trafficking in a protected location or involving an underage or pregnant individual (including an attempt or conspiracy to commit such a violation) or in a case in which the defendant stipulated to such a statutory violation.  See §1B1.2(a).  In a case involving such a conviction but in which only part of the relevant offense conduct directly involved a protected location or an underage or pregnant individual, subsections (a)(1) and (a)(2) may result in different offense levels.  For example, if the defendant, as part of the same course of conduct or common scheme or plan, sold 5 grams of heroin near a protected location and 10 grams of heroin elsewhere, the offense level from subsection (a)(1) would be level 16 (2 plus the offense level for the sale of 5 grams of heroin, the amount sold near the protected location); the offense level from subsection (a)(2) would be level 17 (1 plus the offense level for the sale of 15 grams of heroin, the total amount of heroin involved in the offense).

Background:  This section implements the direction to the Commission in Section 6454 of the Anti-Drug Abuse Act of 1988.

Historical Note:  Effective November 1, 1987.  Amended effective January 15, 1988 (see Appendix C, amendment 22); November 1, 1989 (see Appendix C, amendment 135); November 1, 1990 (see Appendix C, amendment 319); November 1, 1991 (see Appendix C, amendment 421); November 1, 1992 (see Appendix C, amendment 447); November 1, 2000 (see Appendix C, amendment 591).


§2D1.3. [Deleted]

Historical Note:  Section 2D1.3 (Distributing Controlled Substances to Individuals Younger than Twenty-One Years, to Pregnant Women, or Within 1000 Feet of a School or College), effective November 1, 1987, amended effective January 15, 1988 (see Appendix C, amendment 23), was deleted by consolidation with §2D1.2 effective November 1, 1989 (see Appendix C, amendment 135).


§2D1.4. [Deleted]

Historical Note:  Section 2D1.4 (Attempts and Conspiracies), effective November 1, 1987, amended effective November 1, 1989 (see Appendix C, amendments 136-138), was deleted by consolidation with the guidelines applicable to the underlying substantive offenses effective November 1, 1992 (see Appendix C, amendment 447).


§2D1.5.     Continuing Criminal Enterprise; Attempt or Conspiracy

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

(1)       4 plus the offense level from §2D1.1 applicable to the underlying offense; or

(2)       38.


Commentary

Statutory Provision:  21 U.S.C. § 848.

Application Notes:

1.      Do not apply any adjustment from Chapter Three, Part B (Role in the Offense).

2.      If as part of the enterprise the defendant sanctioned the use of violence, or if the number of persons managed by the defendant was extremely large, an upward departure may be warranted.

3.      Under 21 U.S.C. § 848, certain conduct for which the defendant has previously been sentenced may be charged as part of the instant offense to establish a "continuing series of violations."  A sentence resulting from a conviction sustained prior to the last overt act of the instant offense is to be considered a prior sentence under §4A1.2(a)(1) and not part of the instant offense.

4.      Violations of 21 U.S.C. § 848 will be grouped with other drug offenses for the purpose of applying Chapter Three, Part D (Multiple Counts).

Background:  Because a conviction under 21 U.S.C. § 848 establishes that a defendant controlled and exercised authority over one of the most serious types of ongoing criminal activity, this guideline provides a minimum base offense level of 38.  An adjustment from Chapter Three, Part B is not authorized because the offense level of this guideline already reflects an adjustment for role in the offense.

Title 21 U.S.C. § 848 provides a 20-year minimum mandatory penalty for the first conviction, a 30-year minimum mandatory penalty for a second conviction, and a mandatory life sentence for principal administrators of extremely large enterprises.  If the application of the guidelines results in a sentence below the minimum sentence required by statute, the statutory minimum shall be the guideline sentence.  See §5G1.1(b).

Historical Note:  Effective November 1, 1987.  Amended effective October 15, 1988 (see Appendix C, amendment 66); November 1, 1989 (see Appendix C, amendment 139); November 1, 1992 (see Appendix C, amendment 447).


§2D1.6.     Use of Communication Facility in Committing Drug Offense; Attempt or Conspiracy

(a)      Base Offense Level:  the offense level applicable to the underlying offense.


Commentary

Statutory Provision:  21 U.S.C. § 843(b). 

Application Note:

1.      Where the offense level for the underlying offense is to be determined by reference to §2D1.1, see Application Note 5 of the Commentary to §2D1.1 for guidance in determining the scale of the offense.  Note that the Drug Quantity Table in §2D1.1 provides a minimum offense level of 12 where the offense involves heroin (or other Schedule I or II opiates), cocaine (or other Schedule I or II stimulants), cocaine base, PCP, methamphetamine, LSD (or other Schedule I or II hallucinogens), fentanyl, or fentanyl analogue (§2D1.1(c)(14)); a minimum offense level of 8 where the offense involves flunitrazepam (§2D1.1(c)(16)); and a minimum offense level of 6 otherwise (§2D1.1(c)(17)).

Background:  This section covers the use of a communication facility in committing a drug offense.  A communication facility includes any public or private instrument used in the transmission of writing, signs, signals, pictures, and sound; e.g., telephone, wire, radio. 

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1990 (see Appendix C, amendment 320); November 1, 1992 (see Appendix C, amendment 447); November 1, 1994 (see Appendix C, amendment 505); November 1, 2009 (see Appendix C, amendment 737); November 1, 2012 (see Appendix C, amendment 770).


§2D1.7.     Unlawful Sale or Transportation of Drug Paraphernalia; Attempt or Conspiracy 

(a)      Base Offense Level:  12

(b)      Cross Reference

(1)       If the offense involved a controlled substance, apply §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking) or §2D2.1 (Unlawful Possession), as appropriate, if the resulting offense level is greater than that determined above.


Commentary

Statutory Provision:  21 U.S.C. § 863 (formerly 21 U.S.C. § 857).

Application Note:

1.      The typical case addressed by this guideline involves small-scale trafficking in drug paraphernalia (generally from a retail establishment that also sells items that are not unlawful).  In a case involving a large-scale dealer, distributor, or manufacturer, an upward departure may be warranted.  Conversely, where the offense was not committed for pecuniary gain (e.g., transportation for the defendant’s personal use), a downward departure may be warranted.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1991 (see Appendix C, amendment 397); November 1, 1992 (see Appendix C, amendment 447).


§2D1.8.     Renting or Managing a Drug Establishment; Attempt or Conspiracy 

(a)      Base Offense Level:

(1)       The offense level from §2D1.1 applicable to the underlying controlled substance offense, except as provided below.

(2)       If the defendant had no participation in the underlying controlled substance offense other than allowing use of the premises, the offense level shall be 4 levels less than the offense level from §2D1.1 applicable to the underlying controlled substance offense, but not greater than level 26

(b)      Special Instruction

(1)       If the offense level is determined under subsection (a)(2), do not apply an adjustment under §3B1.2 (Mitigating Role).


Commentary

Statutory Provision:  21 U.S.C. § 856. 

Application Note:

1.      Subsection (a)(2) does not apply unless the defendant had no participation in the underlying controlled substance offense other than allowing use of the premises.  For example, subsection (a)(2) would not apply to a defendant who possessed a dangerous weapon in connection with the offense, a defendant who guarded the cache of controlled substances, a defendant who arranged for the use of the premises for the purpose of facilitating a drug transaction, a defendant who allowed the use of more than one premises, a defendant who made telephone calls to facilitate the underlying controlled substance offense, or a defendant who otherwise assisted in the commission of the underlying controlled substance offense.  Furthermore, subsection (a)(2) does not apply unless the defendant initially leased, rented, purchased, or otherwise acquired a possessory interest in the premises for a legitimate purpose.  Finally, subsection (a)(2) does not apply if the defendant had previously allowed any premises to be used as a drug establishment without regard to whether such prior misconduct resulted in a conviction.

Background:  This section covers the offense of knowingly opening, maintaining, managing, or controlling any building, room, or enclosure for the purpose of manufacturing, distributing, storing, or using a controlled substance contrary to law (e.g., a "crack house"). 

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1991 (see Appendix C, amendment 394); November 1, 1992 (see Appendix C, amendments 447 and 448); November 1, 2002 (see Appendix C, amendment 640).


§2D1.9.     Placing or Maintaining Dangerous Devices on Federal Property to Protect the Unlawful Production of Controlled Substances; Attempt or Conspiracy 

(a)      Base Offense Level:  23


Commentary

Statutory Provision:  21 U.S.C. § 841(d)(1).

Background:  This section covers the offense of assembling, placing, or causing to be placed, or maintaining a "booby-trap" on federal property where a controlled substance is being manufactured or distributed. 

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1992 (see Appendix C, amendment 447); November 1, 2002 (see Appendix C, amendment 646).


§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 Provision:  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).


§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 (d) 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.

(5)       If the defendant is convicted under 21 U.S.C. § 865, increase by 2 levels.

(6)       If the defendant meets the criteria set forth in subdivisions (1)-(5) of subsection (a) of §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases), decrease 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;
3 KG or more of Phenylpropanolamine;
3 KG or More of Pseudoephedrine.
Level 38
(2) At least 1 KG but less than 3 KG of Ephedrine;                                             
At least 1 KG but less than 3 KG of Phenylpropanolamine;
At least 1 KG but less than 3 KG of Pseudoephedrine.
Level 36
(3)  At least 300 G but less than 1 KG of Ephedrine;                                            
At least 300 G but less than 1 KG of Phenylpropanolamine;
At least 300 G but less than 1 KG of Pseudoephedrine.
Level 34
(4) At least 100 G but less than 300 G of Ephedrine;                                           
At least 100 G but less than 300 G of Phenylpropanolamine;
At least 100 G but less than 300 G of Pseudoephedrine.
Level 32
(5)  At least 70 G but less than 100 G of Ephedrine;                                             
At least 70 G but less than 100 G of Phenylpropanolamine;
At least 70 G but less than 100 G of Pseuodoephedrine.
Level 30
(6) At least 40 G but less than 70 G of Ephedrine;                                               
At least 40 G but less than 70 G of Phenylpropanolamine;
At least 40 G but less than 70 G of Pseudoephedrine.  
Level 28
(7) At least 10 G but less than 40 G of Ephedrine;                                               
At least 10 G but less than 40 G of Phenylpropanolamine;
At least 10 G but less than 40 G of Pseudoephedrine.
Level 26
(8) At least 8 G but less than 10 G of Ephedrine;                                                 
At least 8 G but less than 10 G of Phenylpropanolamine;
At least 8 G but less than 10 G of Pseudoephedrine.
Level 24
(9) At least 6 G but less than 8 G of Ephedrine;                                                   
At least 6 G but less than 8 G of Phenylpropanolamine;
At least 6 G but less than 8 G of Pseudoephedrine.
Level 22
(10) At least 4 G but less than 6 G of Ephedrine;                                                   
At least 4 G but less than 6 G of Phenylpropanolamine;
At least 4 G but less than 6 G of Pseudoephedrine.
Level 20
(11) At least 2 G but less than 4 G of Ephedrine;                                                   
At least 2 G but less than 4 G of Phenylpropanolamine;
At least 2 G but less than 4 G of Pseudoephedrine.
Level 18
(12) At least 1 G but less than 2 G of Ephedrine;                                                  
At least 1 G but less than 2 G of Phenylpropanolamine;
At least 1 G but less than 2 G of Pseudoephedrine.
  Level 16
(13) At least 500 MG but less than 1 G of Ephedrine;                                            
At least 500 MG but less than 1 G of Phenylpropanolamine;
At least 500 MG but less than 1 G of Pseudoephedrine.
Level 14
(14) Less than 500 MG of Ephedrine;                                                                    
Less than 500 MG of Phenylpropanolamine;
Less than 500 MG of Pseudoephedrine.
Level 12

(e) CHEMICAL QUANTITY TABLE*

(All Other Precursor Chemicals)

Listed Chemicals and Quantity Base Offense Level
(1) List I Chemicals
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;
1.3 KG or more of Iodine; 
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.
Level 30
(2) List I Chemicals                                                                                              
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 376.2 G but less than 1.3 KG of Iodine;
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.
Level 28
(3) List I Chemicals
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 125.4 G but less than 376.2 G of Iodine;
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.
Level 26
(4) List I Chemicals                                                                                              
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 87.8 G but less than 125.4 G of Iodine;
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.
Level 24
(5) List I Chemicals                                                                                             
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 50.2 G but less than 87.8 G of Iodine;
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.
  Level 22
(6) List I Chemicals                                                                                              
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 12.5 G but less than 50.2 G of Iodine;
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.
Level 20
(7)  List I Chemicals                                                                                              
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 10 G but less than 12.5 G of Iodine;
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.
Level 18
(8) List I Chemicals                                                                                             
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 7.5 G but less than 10 G of Iodine;
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.
  Level 16
(9)  List I Chemicals                                                                                              
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 5 G but less than 7.5 G of Iodine;
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.
Level 14
(10) List I Chemicals                                                                                              
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 5 G of Iodine;
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.
Level 12

______________
*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), 865, 960(d)(1), (2), (3), (4).

Application Notes:

1.     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.

2.      Application of Subsection (b)(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.

3.      Application of Subsection (b)(2).—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.

4.      Application of Subsection (b)(3).—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), the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9603(b), and 49 U.S.C. § 5124 (relating to violations of laws and regulations enforced by the Department of Transportation with respect to the transportation of hazardous material).  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).

5.      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)).

6.      Imposition of Consecutive Sentence for 21 U.S.C. § 865.—Section 865 of title 21, United States Code, requires the imposition of a mandatory consecutive term of imprisonment of not more than 15 years.  In order to comply with the relevant statute, the court should determine the appropriate "total punishment" and, on the judgment form, divide the sentence between the sentence attributable to the underlying drug offense and the sentence attributable to 21 U.S.C. § 865, specifying the number of months to be served consecutively for the conviction under 21 U.S.C. § 865.  For example, if the applicable adjusted guideline range is 151-188 months and the court determines a "total punishment" of 151 months is appropriate, a sentence of 130 months for the underlying offense plus 21 months for the conduct covered by 21 U.S.C. § 865 would achieve the "total punishment" in a manner that satisfies the statutory requirement of a consecutive sentence.

7.      Applicability of Subsection (b)(6).—The applicability of subsection (b)(6) shall be determined without regard to the offense of conviction.  If subsection (b)(6) applies, §5C1.2(b) does not apply.  See §5C1.2(b)(2)(requiring a minimum offense level of level 17 if the "statutorily required minimum sentence is at least five years").

8.      Application of Subsection (c)(1).—"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.

9.      Offenses Involving Immediate Precursors or Other Controlled Substances Covered Under §2D1.1.—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 5 in the Commentary to §2D1.1).

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); November 1, 2007 (see Appendix C, amendments 705 and 707); November 1, 2010 (see Appendix C, amendments 745 and 746); November 1, 2012 (see Appendix C, amendments 763 and 770).


§2D1.12.   Unlawful Possession, Manufacture, Distribution, Transportation, Exportation, or Importation of Prohibited Flask, Equipment, Chemical, Product, or Material; Attempt or Conspiracy

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

(1)       12, if the defendant intended to manufacture a controlled substance or knew or believed the prohibited flask, equipment, chemical, product, or material was to be used to manufacture a controlled substance; or

(2)       9, if the defendant had reasonable cause to believe the prohibited flask, equipment, chemical, product, or material was to be used to manufacture a controlled substance.

(b)      Specific Offense Characteristics

(1)       If the defendant (A) intended to manufacture methamphetamine, or (B) knew, believed, or had reasonable cause to believe that prohibited flask, equipment, chemical, product, or material was to be used to manufacture methamphetamine, increase by 2 levels.

(2)       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.

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

(4)       If the offense involved stealing anhydrous ammonia or transporting stolen anhydrous ammonia, increase by 6 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, or Trafficking) if the resulting offense level is greater than that determined above.


Commentary

Statutory Provisions: 21 U.S.C. §§ 843(a)(6), (7), 864.

Application Notes:

1.      If the offense involved the large-scale manufacture, distribution, transportation, exportation, or importation of prohibited flasks, equipment, chemicals, products, or material, an upward departure may be warranted.

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.      Subsection (b)(2) 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), the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9603(b), and 49 U.S.C. § 5124 (relating to violations of laws and regulations enforced by the Department of Transportation with respect to the transportation of hazardous material).  In some cases, the enhancement under subsection (b)(2) 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).

4.      Application of Subsection (b)(3).—For purposes of subsection (b)(3), "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)(3) would apply to a defendant who operated a web site to promote the sale of prohibited flasks 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)(3) 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)).

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 520); November 1, 1997 (see Appendix C, amendment 558); November 1, 2000 (see Appendix C, amendment 605); November 1, 2001 (see Appendix C, amendment 626); November 1, 2004 (see Appendix C, amendment 667); November 1, 2010 (see Appendix C, amendment 746).


§2D1.13.   Structuring Chemical Transactions or Creating a Chemical Mixture to Evade Reporting or Recordkeeping Requirements; Presenting False or Fraudulent Identification to Obtain a Listed Chemical; Attempt or Conspiracy

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

(1)       The offense level from §2D1.11 (Unlawfully Distributing, Importing, Exporting, or Possessing a Listed Chemical) if the defendant knew or believed that the chemical was to be used to manufacture a controlled substance unlawfully; or

(2)       The offense level from §2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical) reduced by 3 levels if the defendant had reason to believe that the chemical was to be used to manufacture a controlled substance unlawfully; or

(3)       6, otherwise.


Commentary

Statutory Provisions:  21 U.S.C. §§ 841(c)(3), (f)(1), 843(a)(4)(B), (a)(8).

Application Note:

1.      "The offense level from §2D1.11" includes the base offense level and any applicable specific offense characteristic or cross reference; see §1B1.5 (Interpretation of References to Other Offense Guidelines).

Historical Note:  Effective November 1, 1991 (see Appendix C, amendment 371).  Amended effective November 1, 1992 (see Appendix C, amendment 447); November 1, 2002 (see Appendix C, amendment 646).


§2D1.14.   Narco-Terrorism

(a)       Base Offense Level:

(1)       The offense level from §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) applicable to the underlying offense, except that §2D1.1(a)(5)(A), (a)(5)(B), and (b)(16) shall not apply.

(b)      Specific Offense Characteristic

(1)       If §3A1.4 (Terrorism) does not apply, increase by 6 levels.


Commentary

Statutory Provision:  21 U.S.C. § 960a.

Historical Note:  Effective November 1, 2007 (see Appendix C, amendment 700).  Amended effective November 1, 2010 (see Appendix C, amendments 746 and 748); November 1, 2011 (see Appendix C, amendment 750).


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2.      UNLAWFUL POSSESSION


§2D2.1.     Unlawful Possession; Attempt or Conspiracy 

(a)      Base Offense Level:

(1)       8, if the substance is heroin or any Schedule I or II opiate, an analogue of these, or cocaine base; or

(2)       6, if the substance is cocaine, flunitrazepam, LSD, or PCP; or

(3)       4, if the substance is any other controlled substance or a list I chemical.

(b)      Cross Reference

(1)       If the offense involved possession of a controlled substance in a prison, correctional facility, or detention facility, apply §2P1.2 (Providing or Possessing Contraband in Prison).


Commentary

Statutory Provision:  21 U.S.C. § 844(a).  For additional statutory provision(s), see Appendix A (Statutory Index).

Application Note:

1.      The typical case addressed by this guideline involves possession of a controlled substance by the defendant for the defendant’s own consumption.  Where the circumstances establish intended consumption by a person other than the defendant, an upward departure may be warranted.

Background:  Mandatory (statutory) minimum penalties for several categories of cases, ranging from fifteen days’ to three years’ imprisonment, are set forth in 21 U.S.C. § 844(a).  When a mandatory minimum penalty exceeds the guideline range, the mandatory minimum becomes the guideline sentence.  See §5G1.1(b).  Note, however, that 18 U.S.C. § 3553(f) provides an exception to the applicability of mandatory minimum sentences in certain cases.  See §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases).

Historical Note:  Effective November 1, 1987.  Amended effective January 15, 1988 (see Appendix C, amendment 24); November 1, 1989 (see Appendix C, amendment 304); November 1, 1990 (see Appendix C, amendment 321); November 1, 1992 (see Appendix C, amendment 447); September 23, 1994 (see Appendix C, amendment 509); November 1, 1995 (see Appendix C, amendment 514); November 1, 1997 (see Appendix C, amendments 556 and 558); November 1, 2010 (see Appendix C, amendments 746 and 748); November 1, 2011 (see Appendix C, amendment 750).


§2D2.2.     Acquiring a Controlled Substance by Forgery, Fraud, Deception, or Subterfuge; Attempt or Conspiracy 

(a)      Base Offense Level:  8


Commentary

Statutory Provision:  21 U.S.C. § 843(a)(3). 

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1992 (see Appendix C, amendment 447).


§2D2.3.     Operating or Directing the Operation of a Common Carrier Under the Influence of Alcohol or Drugs

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

(1)       26, if death resulted; or

(2)       21, if serious bodily injury resulted; or

(3)       13, otherwise.

(b)      Special Instruction:

(1)       If the defendant is convicted of a single count involving the death or serious bodily injury of more than one person, apply Chapter Three, Part D (Multiple Counts) as if the defendant had been convicted of a separate count for each such victim.


Commentary

Statutory Provision:  18 U.S.C. § 342.

Background:  This section implements the direction to the Commission in Section 6482 of the Anti-Drug Abuse Act of 1988.  Offenses covered by this guideline may vary widely with regard to harm and risk of harm.  The offense levels assume that the offense involved the operation of a common carrier carrying a number of passengers, e.g., a bus.  If no or only a few passengers were placed at risk, a downward departure may be warranted.  If the offense resulted in the death or serious bodily injury of a large number of persons, such that the resulting offense level under subsection (b) would not adequately reflect the seriousness of the offense, an upward departure may be warranted.

Historical Note:  Effective November 1, 1987.  Amended effective January 15, 1988 (see Appendix C, amendment 25); November 1, 1989 (see Appendix C, amendment 141).


*   *   *   *   *


3.      REGULATORY VIOLATIONS


§2D3.1.     Regulatory Offenses Involving Registration Numbers; Unlawful Advertising Relating to Scheduled Substances; Attempt or Conspiracy 

(a)      Base Offense Level:  6


Commentary

Statutory Provisions:  21 U.S.C. §§ 842(a)(1), 843(a)(1), (2).  For additional statutory provision(s), see Appendix A (Statutory Index).

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1991 (see Appendix C, amendment 421); November 1, 1992 (see Appendix C, amendment 447); November 1, 1995 (see Appendix C, amendment 534); November 1, 2009 (see Appendix C, amendment 727).


§2D3.2.     Regulatory Offenses Involving Controlled Substances or Listed Chemicals; Attempt or Conspiracy

(a)      Base Offense Level:  4


Commentary

Statutory Provisions:  21 U.S.C. §§ 842(a)(2), (9), (10), (b), 954, 961.  For additional statutory provision(s), see Appendix A (Statutory Index).

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1991 (see Appendix C, amendment 421); November 1, 1992 (see Appendix C, amendment 447); November 1, 1993 (see Appendix C, amendment 481); November 1, 1995 (see Appendix C, amendment 534).


§2D3.3. [Deleted]

Historical Note:  Section 2D3.3 (Illegal Use of Registration Number to Distribute or Dispense a Controlled Substance to Another Registrant or Authorized Person; Attempt or Conspiracy), effective November 1, 1987, amended effective November 1, 1991 (see Appendix C, amendment 421) and November 1, 1992 (see Appendix C, amendment 447), was deleted by consolidation with §2D3.2 effective November 1, 1993 (see Appendix C, amendment 481).


§2D3.4. [Deleted]

Historical Note:  Section 2D3.4 (Illegal Transfer or Transshipment of a Controlled Substance; Attempt or Conspiracy), effective November 1, 1987, amended effective November 1, 1990 (see Appendix C, amendment 359) and November 1, 1992 (see Appendix C, amendment 447), was deleted by consolidation with §2D3.2 effective November 1, 1993 (see Appendix C, amendment 481).


§2D3.5. [Deleted]

Historical Note:  Section 2D3.5 (Violation of Recordkeeping or Reporting Requirements for Listed Chemicals and Certain Machines; Attempt or Conspiracy), effective November 1, 1991 (see Appendix C, amendment 371), amended effective November 1, 1992 (see Appendix C, amendment 447), was deleted by consolidation with §2D3.2 effective November 1, 1993 (see Appendix C, amendment 481).