AMENDMENT 397

Amendment: Section 2D1.7 is amended in the title by deleting "Interstate Sale and Transporting" and inserting in lieu thereof "Sale or Transportation".

Section 2D1.7 is amended by inserting the following additional subsection:

"(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.".

The Commentary to §2D1.7 captioned "Statutory Provision" is amended by deleting "21 U.S.C. § 857" and inserting in lieu thereof "21 U.S.C. § 863 (formerly 21 U.S.C. § 857)".

The Commentary to §2D1.7 is amended by inserting the following at the end:

"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.".

Reason for Amendment: This amendment revises the title of the guideline to address the expanded coverage of the underlying statute, as amended by Section 2401 of the Crime Control Act of 1990 (Public Law 101-647), adds a cross reference to address cases in which the

underlying conduct involves a controlled substance offense, and adds an application note to specify the "heartland" types of cases addressed by the offense level set forth in the guideline.

Effective Date: The effective date of this amendment is November 1, 1991.