AMENDMENT 556
Amendment: Section 2D1.1(d) is amended by deleting "Reference" and inserting in lieu thereof "References";
and by inserting after subdivision (1) the following additional subdivision:
"(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.".
Section 2D1.1(c)(10) is amended by deleting the period after "Schedule III substances" and inserting in lieu thereof a semicolon; and by inserting at the end the following additional subdivision:
"2,500 or more units of Flunitrazepam.".
Section 2D1.1(c)(11) is amended by deleting the period after "Schedule III substances" and inserting in lieu thereof a semicolon; and by inserting at the end the following additional subdivision:
"At least 1,250 but less than 2,500 units of Flunitrazepam.".
Section 2D1.1(c)(12) is amended by deleting the period after "Schedule III substances" and inserting in lieu thereof a semicolon; and by inserting at the end the following additional subdivision:
"At least 625 but less than 1,250 units of Flunitrazepam.".
Section 2D1.1(c)(13) is amended by deleting the period after "Schedule III substances" and inserting in lieu thereof a semicolon; and by inserting at the end the following additional subdivision:
"At least 312 but less than 625 units of Flunitrazepam.".
Section 2D1.1(c)(14) is amended by inserting after "Schedule III substances;" the following additional subdivision:
"At least 156 but less than 312 units of Flunitrazepam;";
and by inserting "(except Flunitrazepam)" after "Schedule IV substances".
Section 2D1.1(c)(15) is amended by inserting after "Schedule III substances;" the following additional subdivision:
"At least 62 but less than 156 units of Flunitrazepam;";
and by inserting "(except Flunitrazepam)" after "Schedule IV substances".
Section 2D1.1(c)(16) is amended by inserting after "Schedule III substances;" the following additional subdivision:
"Less than 62 units of Flunitrazepam;";
and by inserting "(except Flunitrazepam)" after "Schedule IV substances".
Section 2D1.1(c)(17) is amended by inserting "(except Flunitrazepam)" after "Schedule IV substances".
The Commentary to §2D1.1 captioned "Statutory Provisions" is amended by inserting "(7)," after "(3),".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10 in the "Drug Equivalency Tables" by inserting before the subdivision captioned "Schedule I or II Depressants**" the following additional subdivision:
"Flunitrazepam **
1 unit of Flunitrazepam = 16 gm of marihuana
** Provided, that the combined equivalent weight of flunitrazepam, all Schedule I or II depressants, Schedule III substances, Schedule IV substances, and Schedule V substances shall not exceed 99.99 kilograms of marihuana.
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.".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10 in the "Drug Equivalency Tables" in the subdivision captioned "Schedule I or II Depressants" by inserting an additional asterisk after "**" in both instances; and by inserting "(except flunitrazepam)" after "Schedule IV substances".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10 in the "Drug Equivalency Tables" in the subdivision captioned "Schedule III Substances" by inserting an additional asterisk after "***" in both instances; and by inserting "(except flunitrazepam)" after "Schedule IV substances".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10 in the "Drug Equivalency Tables" in the subdivision captioned "Schedule IV Substances" is amended by inserting "(except Flunitrazepam)" after "Substances"; by inserting an additional asterisk after "****" in both instances; by inserting "(except flunitrazepam)" after "Substance"; and by inserting "(except flunitrazepam)" before "and V".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10 in the Drug Equivalency Tables in the subdivision captioned "Schedule V Substances" by inserting an additional asterisk after "*****" in both instances.
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 17 by adding at the end:
"Similarly, in the case of a controlled substance for which the maximum offense level is less than level 38 (e.g., the maximum offense level in the Drug Quantity Table for flunitrazepam is level 20), 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.".
Section 2D2.1(a)(2) is amended by inserting "flunitrazepam," after "cocaine,".
The Commentary to §2D2.1 is amended by inserting before "Background:":
"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.".
Reason for Amendment: This amendment implements the directive to the Commission in the Drug-Induced Rape Prevention and Punishment Act of 1996, Pub. L. 104-305, 110 Stat. 3807. Section 2 of the Act directs the Commission to amend the guidelines to reflect the serious nature of offenses involving flunitrazepam. This amendment reflects the increases in statutory maximum penalties for offenses involving trafficking and simple possession, respectively, of flunitrazepam. In addition, the amendment contains a cross reference to cover the new offense created under this Act involving the distribution of a controlled substance to an individual in order to commit a crime of violence against that individual.
Effective Date: The effective date of this amendment is November 1, 1997.