AMENDMENT 625
Amendment: The subdivision captioned "List I Chemicals (relating to the manufacture of amphetamine or methamphetamine)*******" in the Drug Equivalency Tables in Note 10 of the Commentary to §2D1.1 captioned "Application Notes" and §2D1.11, effective May 1, 2001 (see Amendment 611), are repromulgated with the following changes:
Section 2D1.11 is amended in the heading to subsection (d)(1) by striking "(d)(1)" before "Ephedrine," and inserting "(d)".
Section 2D1.11 is amended in the heading to subsection (d)(2) by striking "(d)(2)" before "Chemical" and inserting "(e)".
Section 2D1.11(e)(1), as redesignated by this amendment, is amended by striking the period after "3, 4-Methylenedioxyphenyl-2-propanone" and inserting a semicolon; and by adding at the end the following:
"10,000 KG or more of Gamma-butyrolactone.".
Section 2D1.11(e)(2), as redesignated by this amendment, is amended in the subdivision captioned "List I Chemicals" by adding at the end the following:
"At least 3,000 KG but less than 10,000 KG of Gamma-butyrolactone;";
and in the subdivision captioned "List II Chemicals" by striking the period after "Toluene" and inserting a semi-colon; and by adding at the end the following:
"376.2 G or more of Iodine.".
Section 2D1.11(e)(3), as redesignated by this amendment, is amended in the subdivision captioned "List I Chemicals" by adding at the end the following:
"At least 1,000 KG but less than 3,000 KG of Gamma-butyrolactone;";
and in the subdivision captioned "List II Chemicals" by striking the period after "Toluene" and inserting a semi-colon; and by adding at the end the following:
"At least 125.4 G but less than 376.2 G of Iodine.".
Section 2D1.11(e)(4), as redesignated by this amendment, is amended in the subdivision captioned "List I Chemicals" by adding at the end the following:
"At least 700 KG but less than 1,000 KG of Gamma-butyrolactone;";
and in the subdivision captioned "List II Chemicals" by striking the period after "Toluene" and inserting a semi-colon; and by adding at the end the following:
"At least 87.8 G but less than 125.4 G of Iodine.".
Section 2D1.11(e)(5), as redesignated by this amendment, is amended in the subdivision captioned "List I Chemicals" by adding at the end the following:
"At least 400 KG but less than 700 KG of Gamma-butyrolactone;";
and in the subdivision captioned "List II Chemicals" by striking the period after "Toluene" and inserting a semi-colon; and by adding at the end the following:
"At least 50.2 G but less than 87.8 G of Iodine.".
Section 2D1.11(e)(6), as redesignated by this amendment, is amended in the subdivision captioned "List I Chemicals" by adding at the end the following:
"At least 100 KG but less than 400 KG of Gamma-butyrolactone;";
and in the subdivision captioned "List II Chemicals" by striking the period after "Toluene" and inserting a semi-colon; and by adding at the end the following:
"At least 12.5 G but less than 50.2 G of Iodine.".
Section 2D1.11(e)(7), as redesignated by this amendment, is amended in the subdivision captioned "List I Chemicals" by adding at the end the following:
"At least 80 KG but less than 100 KG of Gamma-butyrolactone;";
and in the subdivision captioned "List II Chemicals" by striking the period after "Toluene" and inserting a semi-colon; and by adding at the end the following:
"At least 10 G but less than 12.5 G of Iodine. ".
Section 2D1.11(e)(8), as redesignated by this amendment, is amended in the subdivision captioned "List I Chemicals" by adding at the end the following:
"At least 60 KG but less than 80 KG of Gamma-butyrolactone;";
and in the subdivision captioned "List II Chemicals" by striking the period after "Toluene" and inserting a semi-colon; and by adding at the end the following:
"At least 7.5 G but less than 10 G of Iodine.".
Section 2D1.11(e)(9), as redesignated by this amendment, is amended in the subdivision captioned "List I Chemicals" by adding at the end the following:
"At least 40 KG but less than 60 KG of Gamma-butyrolactone;";
and in the subdivision captioned "List II Chemicals" by striking the period after "Toluene" and inserting a semi-colon; and by adding at the end the following:
"At least 5 G but less than 7.5 G of Iodine.".
Section 2D1.11(e)(10), as redesignated by this amendment, is amended in the subdivision captioned "List I Chemicals" by adding at the end the following:
"Less than 40 KG of Gamma-butyrolactone;";
and in the subdivision captioned "List II Chemicals" by striking the period after "Toluene" and inserting a semi-colon; and by adding at the end the following:
"Less than 5 G of Iodine.".
The Commentary to §2D1.11 captioned "Application Notes" is amended in the first paragraph of Note 4(A) by striking "subsection (d) of".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10 in the Drug Equivalency Tables in the subdivision captioned "List I Chemicals (relating to the manufacture of amphetamine or methamphetamine)*******" in the heading by striking "*******" and inserting "******"; and by striking "*******Provided," and inserting "******Provided,".
Reason for Amendment: This amendment repromulgates, with additional changes, the emergency amendment previously promulgated in response to the three-part directive in section 3651 of the Methamphetamine Anti-Proliferation Act of 2000, Pub. L. 106–310 (the "Act"), regarding enhanced punishment for trafficking in List I chemicals. (See Amendment 611). That section provided the Commission emergency amendment authority to implement the directive.
This amendment provides a new chemical quantity table in §2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy) specifically for ephedrine, pseudoephedrine, and phenylpropanolamine (PPA). The table ties the base offense levels for these chemicals to the base offense levels for methamphetamine (actual) set forth in §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy), assuming a 50 percent actual yield of the controlled substance from the chemicals. (Methamphetamine (actual) is used rather than methamphetamine mixture because ephedrine and pseudoephedrine produce methamphetamine (actual), and PPA produces amphetamine (actual)). This yield is based on information provided by the Drug Enforcement Administration (DEA) that the typical yield of these substances for clandestine laboratories is 50 to 75 percent.
This new chemical quantity table has a maximum base offense level of level 38 (as opposed to a maximum base offense level of level 30 for all other precursor chemicals). Providing a maximum base offense level of level 38 complies with the directive to establish penalties for these precursors that "correspond to the quantity of controlled substance that reasonably could have been manufactured using the quantity of ephedrine, phenylpropanolamine, or pseudoephedrine possessed or distributed." Additionally, this eliminates the six-level distinction that currently exists between precursor chemical offenses that involve intent to manufacture amphetamine or methamphetamine and such offenses that also involve an actual attempt to manufacture amphetamine or methamphetamine.
This amendment eliminates the Ephedrine Equivalency Table in §2D1.11 and, in its place, provides a general rule for the court to determine the base offense level in cases involving multiple precursors (other than ephedrine, pseudoephedrine, or PPA) by using the quantity of the single chemical resulting in the greatest offense level. An upward departure is provided for cases in which the offense level does not adequately address the seriousness of the offense.
However, this amendment provides an exception to that general rule for offenses that involve a combination of ephedrine, pseudoephedrine, or PPA because these chemicals often are used in the same manufacturing process. In a case that involves two or more of these chemicals, the base offense level will be determined using the total quantity of these chemicals involved. The purpose of this exception is twofold: (1) any of the three primary precursors in the same table can be combined without difficulty; and (2) studies conducted by the DEA indicate that because the manufacturing process for amphetamine is essentially identical to the manufacturing process for methamphetamine, there are cases in which the different precursors are included in the same batch of drugs. If the chemical is PPA, amphetamine results; if the chemical is ephedrine or pseudoephedrine, methamphetamine results.
The amendment also adds to the Drug Equivalency Tables in §2D1.1 a conversion table for these precursor chemicals, providing for a 50 percent conversion ratio. This is based on data from the DEA that the actual yield from ephedrine, pseudoephedrine, or PPA typically is in the range of 50 to 75 percent. The purpose of this part of the amendment is to achieve the same punishment level (as is achieved by the first part of this amendment) for an offense involving any of these precursor chemicals when such offense involved the manufacture of amphetamine or methamphetamine and, as a result, is sentenced under §2D1.1 pursuant to the cross reference in §2D1.11.
This amendment also increases the base offense level for Benzaldehyde, Hydriodic Acid, Methylamine, Nitroethane, and Norpseudoephedrine by re-calibrating these levels to the appropriate quantity of methamphetamine (actual) that could be produced assuming a 50 percent yield of chemical to drug and retaining a cap at level 30. Previously, these chemicals had been linked to methamphetamine (mixture) penalty levels. Based on a study conducted by the DEA, ephedrine and pseudoepehdrine are the primary precursors used to make methamphetamine in the United States. Phenylproponolamine is the primary precursor used to make amphetamine. Unlike the five additional List I chemicals, the chemical structures of ephedrine, pseudoephedrine, and PPA are so similar to the resulting drug (i.e., methamphetamine or amphetamine) that the manufacture of methamphetamine or amphetamine from ephedrine, pseudoephedrine, or PPA is a very simple one-step synthesis which anyone can perform using a variety of chemical reagents. The manufacture of methamphetamine or amphetamine from the five additional List I chemicals is a more complex process which requires a heightened level of expertise.
This amendment adds to the emergency amendment in two ways. First, it amends the Chemical Quantity Table in §2D1.11 to include gamma-butyrolactone (GBL), a precursor for gamma hydroxybutyric acid (GHB), as a List I chemical. This change is in response to the Hillory J. Farias and Samantha Reid Date Rape Prohibition Act of 2000, Pub. L. 106–172, which added GBL to the list of List 1 chemicals in section 401 (b)(1)(C) of the Controlled Substances Act, 21 U.S.C. § 841(b)(1)(C). Offense levels for GBL were established in the same manner as other List I chemicals. The offense level for a specific quantity of GHB that can be produced from a given quantity of GBL, assuming a 50 percent yield, was determined using the Drug Quantity Table in §2D1.1. From this offense level, six levels were subtracted to reflect the fact that an attempt to manufacture is not a required element of these offenses and, therefore, they are less serious offenses than offenses covered by §2D1.1.
Second, the amendment adds iodine to the Chemical Quantity Table in §2D1.11(e) in response to a recent classification of iodine as a List II chemical. Iodine is used to produce hydrogen iodide which, in the presence of water, becomes hydriodic acid, a List I chemical that is a reagent used in the production of amphetamine and methamphetamine. The penalties for iodine were established based upon its conversion to hydriodic acid.
Effective Date: The effective date of this amendment is November 1, 2001.