Amendment: Section 2D1.12 is amended in the title by inserting "Transportation, Exportation," after "Distribution,"; and by striking "or Equipment" and inserting ", Equipment, Chemical, Product, or Material".
Section 2D1.12(a)(1), (a)(2), and (b)(1) are amended by inserting "flask," after "prohibited" each place it appears; and by inserting ", chemical, product, or material" after "equipment" each place it appears.
The Commentary to §2D1.12 captioned "Statutory Provisions" is amended by inserting "§" before "843"; and by inserting ", 864" after "(7)".
The Commentary to §2D1.12 captioned "Application Notes" is amended by striking the text of Note 1 as follows:
"If the offense involved the large-scale manufacture, distribution, or importation of prohibited flasks or equipment, an upward departure may be warranted.",
and inserting the following:
"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.".
Appendix A (Statutory Index) is amended by inserting after the line referenced to 21 U.S.C. § 863 the following:
"21 U.S.C. § 864 2D1.12".
Reason for Amendment: This amendment addresses the new offense, in section 423 of the Controlled Substances Act, 21 U.S.C. § 864, of stealing or transporting across state lines anhydrous ammonia knowing, intending, or having reasonable cause to believe that such anhydrous ammonia will be used to manufacture a controlled substance. This new offense, created by section 3653 of the Methamphetamine Anti-Proliferation Act of 2000, Pub. L. 106–310, carries the statutory penalties contained in section 403(d) of the Controlled Substances Act, 21 U.S.C. § 843, i.e., not more than four years' imprisonment (or not more than eight years' imprisonment in the case of certain prior convictions), or not more than ten years' imprisonment (or not more than 20 years' imprisonment in the case of certain prior convictions) if the offense involved the manufacture of methamphetamine.
The amendment references the new offense to §2D1.12 (Unlawful Possession, Manufacture, Distribution, or Importation of Prohibited Flask or Equipment; Attempt or Conspiracy). Reference to this guideline is appropriate because the new offense is similar to other offenses that already are referenced to the guideline and have the same penalty structure, such as 21 U.S.C. § 843(a)(6), which among other things, makes it unlawful to possess any chemical, product, or material that may be used to manufacture a controlled substance. In addition, this amendment expands the coverage of Application Note 1 to also apply to cases involving the transportation and exportation of prohibited chemicals, products, or material. Finally, the amendment makes minor, non-substantive changes to the guideline in order to fully incorporate the new and existing offenses.
Effective Date: The effective date of this amendment is November 1, 2001.