2005 Federal Sentencing Guidelines
Chapter 2 - PART D - OFFENSES INVOLVING
DRUGS
§2D1.12. Unlawful Possession, Manufacture, Distribution, Transportation,
Exportation, or Importation of Prohibited Flask, Equipment, Chemical, Product,
or Material; Attempt or Conspiracy
(a) Base Offense Level (Apply the greater):
(1) 12, if the defendant intended
to manufacture a controlled substance or knew or believed the prohibited
flask, equipment, chemical, product, or material was to be used to manufacture
a controlled substance; or
(2) 9, if the defendant had reasonable
cause to believe the prohibited flask, equipment, chemical, product, or material
was to be used to manufacture a controlled substance.
(b) Specific Offense Characteristics
(1) If the defendant (A) intended to manufacture methamphetamine, or (B)
knew, believed, or had reasonable cause to believe that prohibited flask,
equipment, chemical, product, or material was to be used to manufacture methamphetamine,
increase by 2 levels.
(2) If the offense involved (A) an unlawful discharge, emission, or release
into the environment of a hazardous or toxic substance; or (B) the unlawful
transportation, treatment, storage, or disposal of a hazardous waste, increase
by 2 levels.
(3) If the defendant, or a person for whose conduct the defendant is accountable
under §1B1.3 (Relevant Conduct), distributed any prohibited flask, equipment,
chemical, product, or material through mass-marketing by means of an interactive
computer service, increase by 2 levels.
(4) If the offense involved stealing anhydrous ammonia or transporting stolen
anhydrous ammonia, increase by 6 levels.
(c) Cross Reference
(1) If the offense involved unlawfully manufacturing a controlled substance,
or attempting to manufacture a controlled substance unlawfully, apply §2D1.1
(Unlawful Manufacturing, Importing, Exporting, or Trafficking) if the resulting
offense level is greater than that determined above.
Commentary
Statutory Provisions: 21
U.S.C. §§ 843(a)(6), (7), 864.
Application Notes:
1. 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.
2. "Offense involved unlawfully manufacturing a controlled substance
or attempting to manufacture a controlled substance unlawfully," as used
in subsection (c)(1), means that the defendant, or a person for whose conduct
the defendant is accountable under §1B1.3 (Relevant Conduct), completed
the actions sufficient to constitute the offense of unlawfully manufacturing
a controlled substance or attempting to manufacture a controlled substance
unlawfully.
3. Subsection (b)(2) applies if the conduct for which the defendant is accountable
under §1B1.3 (Relevant Conduct) involved any discharge, emission, release,
transportation, treatment, storage, or disposal violation covered by the Resource
Conservation and Recovery Act, 42 U.S.C. § 6928(d), the Federal Water
Pollution Control Act, 33 U.S.C. § 1319(c), or the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 5124,
9603(b). In some cases, the enhancement under subsection (b)(2) may not adequately
account for the seriousness of the environmental harm or other threat to public
health or safety (including the health or safety of law enforcement and cleanup
personnel). In such cases, an upward departure may be warranted. Additionally,
any costs of environmental cleanup and harm to persons or property should be
considered by the court in determining the amount of restitution under §5E1.1
(Restitution) and in fashioning appropriate conditions of supervision under §§5B1.3
(Conditions of Probation) and 5D1.3 (Conditions of Supervised Release).
4. Application of Subsection (b)(3).—For purposes of subsection (b)(3), "mass-marketing
by means of an interactive computer service" means the solicitation, by
means of an interactive computer service, of a large number of persons to induce
those persons to purchase a controlled substance. For example, subsection (b)(3)
would apply to a defendant who operated a web site to promote the sale of prohibited
flasks but would not apply to coconspirators who use an interactive computer
service only to communicate with one another in furtherance of the offense.
"Interactive computer service", for purposes of subsection (b)(3)
and this note, has the meaning given that term in section 230(e)(2) of the
Communications Act of 1934 (47 U.S.C. §
230(f)(2)).
Historical Note: Effective
November 1, 1991 (see Appendix
C, amendment 371). Amended effective November 1, 1992 (see Appendix
C, amendment 447); November 1, 1995 (see Appendix
C, amendment 520); November 1, 1997 (see Appendix
C, amendment 558); November 1, 2000 (see Appendix
C, amendment 605); November 1, 2001 (see Appendix
C, amendment 626); November 1, 2004 (see Appendix
C, amendment 667).