AMENDMENT 518
Amendment: Section 2D1.1(c) is amended in the notes following the Drug Quantity Table by inserting the following additional notes at the end:
"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)(25)), (ii) at least two of the following: cannabinol, cannabidiol, or cannabichromene, and (iii) fragments of plant material (such as cystolith fibers).
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)(25)), (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.".
Section 2D1.1(c) is amended by inserting "Notes to Drug Quantity Table:" immediately following the asterisk at the beginning of the notes to the Drug Quantity Table; and by inserting a letter designation immediately before each note in alphabetical order beginning with "(A)".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 1 by inserting the following additional paragraph at the end:
"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.".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 8 by inserting the following additional paragraph at the end:
"Note, however, that if an adjustment from subsection (b)(2)(B) applies, do not apply §3B1.3 (Abuse of Position of Trust or Use of Special Skill).".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10 in the Drug Equivalency Table in the subdivision captioned "Schedule I or II Opiates" by inserting at the end:
"1 gm of Levo-alpha-acetylmethadol (LAAM)= 3 kg of marihuana".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10 in the Drug Equivalency Tables in the subdivision captioned "Cocaine and Other Schedule I and II Stimulants" by deleting:
"1 gm of L-Methamphetamine/Levo-methamphetamine/L-Desoxyephedrine = 40 gm of marihuana",
and inserting in lieu thereof:
"1 gm of Khat = .01 gm of marihuana".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 12 by deleting:
"In an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. However, where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing.",
and inserting in lieu thereof:
"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 he or she did not intend to provide, or was not reasonably capable of providing, 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 he or she did not intend to provide or was not reasonably capable of providing.".
The Commentary to §2D1.1 captioned "Application Notes" is amended by deleting Note 13 as follows:
"13. If subsection (b)(2)(B) applies, do not apply §3B1.3 (Abuse of Position of Trust or Use of Special Skill).".
The Commentary to §2D1.1 captioned "Application Notes" is amended by deleting Note 14 as follows:
"14. D-lysergic acid, which is generally used to make LSD, is classified as a Schedule III controlled substance (to which §2D1.1 applies) and as a listed precursor (to which §2D1.11 applies). Where the defendant is convicted under 21 U.S.C. §§ 841(b)(1)(D) or 960(b)(4) of an offense involving d-lysergic acid, apply §2D1.1 or §2D1.11, whichever results in the greater offense level. See Application Note 5 in the Commentary to §1B1.1 (Application Instructions). Where the defendant is accountable for an offense involving the manufacture of LSD, see Application Note 12 above pertaining to the determination of the scale of the offense.",
and by renumbering the remaining notes accordingly.
The Commentary to §2D1.1 captioned "Application Notes" is amended by inserting the following additional note:
"18. 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).".
Reason for Amendment: This is an eight-part amendment. First, this amendment adds definitions of hashish and hashish oil to §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking; Attempt or Conspiracy) in the notes following the Drug Quantity Table. These terms are not defined by statute or in the existing guidelines, leading to litigation as to which substances are to be classified as hashish or hashish oil, as opposed to marihuana. See United States v. Gravelle, 819 F. Supp. 1076 (S.D. Fla. 1993); United States v. Schultz, 810 F. Supp. 230 (S.D. Ohio 1992).
Second, this amendment clarifies the treatment of marihuana that has a moisture content sufficient to render it unusable without drying (e.g., a bale of marihuana left in the rain or recently harvested marihuana that has not had time to dry). In such cases, using the weight of the wet marihuana can increase the offense level for a factor that bears no relationship to the scale of the offense or the marketable form of the marihuana. Prior to the effective date of the 1993 amendments, two circuits had approved weighing wet marihuana despite the fact that the marihuana was not in a usable form. United States v. Pinedo-Montoya, 966 F.2d 591 (10th Cir. 1992); United States v. Garcia, 925 F.2d 170 (7th Cir. 1991). Although Application Note 1 in the Commentary to §2D1.1, effective November 1, 1993 (pertaining to unusable parts of a mixture or substance) should produce the appropriate result because marihuana must be dried before being used, this type of case is sufficiently distinct to warrant a specific reference in this application note to ensure correct application of the guideline.
Third, this amendment simplifies the Commentary to §2D1.1 by consolidating application notes 8 and 13.
Fourth, this amendment deletes an outdated application note in the Commentary to §2D1.1 pertaining to the classification of d-lysergic acid as a listed precursor chemical.
Fifth, this amendment addresses the issue of what constitutes a marihuana plant. Several circuits have confronted the issue of when a cutting from a marihuana plant becomes a "plant." The appellate courts generally have held that the term "plant" should be defined by "its plain and ordinary dictionary meaning. . . . [A] marihuana ‘plant’ includes those cuttings accompanied by root balls." United States v. Edge, 989 F.2d 871, 878 (6th Cir. 1993) (quoting United States v. Eves, 932 F.2d 856, 860 (10th Cir. 1991), appeal after remand, 30 F.3d 134 (6th Cir. 1994)). See also United States v. Malbrough, 922 F.2d 458, 465 (8th Cir. 1990) (acquiescing in the district court’s apparent determination that certain marihuana cuttings that did not have their own "root system" should not be counted as plants), cert. denied, 501 S. Ct. 1258 (1991); United States v. Carlisle, 907 F.2d 94, 96 (9th Cir. 1990) (finding that cuttings were plants where each cutting had previous degrees of root formation not clearly erroneous); United States v. Angell, 794 F. Supp. 874, 875 (D. Minn. 1990) (refusing to count as plants marihuana cuttings that have no visible root structure), aff’d in part and rev’d in part, 11 F.3d 806 (8th Cir.), cert. denied, 114 S. Ct. 3747 (1994); United States v. Fitol, 733 F. Supp. 1312, 1316 (D. Minn. 1990) ("individual cuttings, planted with the intent of growing full size plants, and which had grown roots, are ‘plants’ both within common parlance and within Section 841(b)"); United States v. Speltz, 733 F. Supp. 1311, 1312 (D. Minn. 1990) (small marihuana plants, e.g., cuttings with roots, are nonetheless still marihuana plants), aff’d, 938 F.2d 188 (8th Cir. 1991). Because this issue arises frequently, this amendment adds an application note to the Commentary of §2D1.1 setting forth the definition of a plant for guidelines purposes.
Sixth, this amendment provides equivalencies for two additional controlled substances: (1) khat, and (2) levo-alpha-acetylmethadol (LAAM) in the Drug Equivalency Tables in the Commentary to §2D1.1.
Seventh, this amendment deletes the distinction between d- and l-methamphetamine in the Drug Equivalency Tables in the Commentary to §2D1.1. L-methamphetamine, which is a rather weak form of methamphetamine, is rarely seen and is not made intentionally, but rather results from a botched attempt to produce d-methamphetamine. Under this amendment, l-methamphetamine would be treated the same as d-methamphetamine (i.e., as if an attempt to manufacture or distribute d-methamphetamine). Currently, unless the methamphetamine is specifically tested to determine its form, litigation can result over whether the methamphetamine is l- methamphetamine or d-methamphetamine. In addition, there is another form of methamphetamine (dl-methamphetamine) that is not listed in the Drug Equivalency Table. The listing of l-methamphetamine as a separate form of methamphetamine has led to litigation as to how dl-methamphetamine should be treated. In United States v. Carroll, 6 F.3d 735 (11th Cir. 1993), cert. denied, 114 S. Ct. 1234 (1994), a case in which the Eleventh Circuit held that dl-methamphetamine should be treated as d-methamphetamine, the majority and dissenting opinions both point out the complexity engendered by the current distinction between d- and l- methamphetamine. Under this amendment, all forms of methamphetamine are treated alike, thereby simplifying guideline application.
Eighth, this amendment revises the Commentary to §2D1.1 to provide that in a case involving negotiation for a quantity of a controlled substance, the negotiated quantity is used to determine the offense level unless the completed transaction establishes a different quantity, or the defendant establishes that he or she was not reasonably capable of producing the negotiated amount or otherwise did not intend to produce that amount. Disputes over the interpretation of this application note have produced much litigation. See, e.g., United States v. Tillman,8 F.3d 17 (11th Cir. 1993); United States v. Smiley, 997 F.2d 475 (8th Cir. 1993); United States v. Barnes, 993 F.2d 680 (9th Cir. 1993), cert. denied, 115 S. Ct. 96 (1994); United States v. Rodriguez, 975 F.2d 999 (3d Cir. 1992); United States v. Christian, 942 F.2d 363 (6th Cir. 1991), cert. denied, 502 U.S. 1045 (1992); United States v. Richardson, 939 F.2d 135 (4th Cir.), 502 U.S. 987 (1991); United States v. Ruiz, 932 F.2d 1174 (7th Cir.), cert. denied, 502 U.S. 849 (1991); United States v. Bradley, 917 F.2d 601 (1st Cir. 1990).
Effective Date: The effective date of this amendment is November 1, 1995.