AMENDMENT 839
Amendment: Section 2D1.1(b)(12), as redesignated by Amendment 837, is amended—
by striking “fentanyl (N-phenyl-N-[1-(2-phenylethyl )-4-piperidinyl] propanamide) or a fentanyl analogue” both places it appears and inserting “fentanyl (N-phenyl-N-[1-(2-phenylethyl )-4-piperidinyl] propanamide), a fentanyl analogue, or a fentanyl-related substance”;
and by inserting at the end the following new paragraph:
“Provided, however, that this enhancement shall only apply in a case involving a fentanyl-related substance if the court applies the offense level specified in the Drug Quantity Table for fentanyl (N-phenyl-N-[1-(2-phenylethyl )-4-piperidinyl] propanamide), a fentanyl analogue, or a fentanyl-related substance.”.
Section 2D1.1(c)(1) is amended by inserting after the line referenced to a Fentanyl Analogue the following line:
“• 9 KG or more of a Fentanyl-Related Substance;”.
Section 2D1.1(c)(2) is amended by inserting after the line referenced to a Fentanyl Analogue the following line:
“• At least 3 KG but less than 9 KG of a Fentanyl-Related Substance;”.
Section 2D1.1(c)(3) is amended by inserting after the line referenced to a Fentanyl Analogue the following line:
“• At least 1 KG but less than 3 KG of a Fentanyl-Related Substance;”.
Section 2D1.1(c)(4) is amended by inserting after the line referenced to a Fentanyl Analogue the following line:
“• At least 300 G but less than 1 KG of a Fentanyl-Related Substance;”.
Section 2D1.1(c)(5) is amended by inserting after the line referenced to a Fentanyl Analogue the following line:
“• At least 100 G but less than 300 G of a Fentanyl-Related Substance;”.
Section 2D1.1(c)(6) is amended by inserting after the line referenced to a Fentanyl Analogue the following line:
“• At least 70 G but less than 100 G of a Fentanyl-Related Substance;”.
Section 2D1.1(c)(7) is amended by inserting after the line referenced to a Fentanyl Analogue the following line:
“• At least 40 G but less than 70 G of a Fentanyl-Related Substance;”.
Section 2D1.1(c)(8) is amended by inserting after the line referenced to a Fentanyl Analogue the following line:
“• At least 10 G but less than 40 G of a Fentanyl-Related Substance;”.
Section 2D1.1(c)(9) is amended by inserting after the line referenced to a Fentanyl Analogue the following line:
“• At least 8 G but less than 10 G of a Fentanyl-Related Substance;”.
Section 2D1.1(c)(10) is amended by inserting after the line referenced to a Fentanyl Analogue the following line:
“• At least 6 G but less than 8 G of a Fentanyl-Related Substance;”.
Section 2D1.1(c)(11) is amended by inserting after the line referenced to a Fentanyl Analogue the following line:
“• At least 4 G but less than 6 G of a Fentanyl-Related Substance;”.
Section 2D1.1(c)(12) is amended by inserting after the line referenced to a Fentanyl Analogue the following line:
“• At least 2 G but less than 4 G of a Fentanyl-Related Substance;”.
Section 2D1.1(c)(13) is amended by inserting after the line referenced to a Fentanyl Analogue the following line:
“• At least 1 G but less than 2 G of a Fentanyl-Related Substance;”.
Section 2D1.1(c)(14) is amended by inserting after the line referenced to a Fentanyl Analogue the following line:
“• Less than 1 G of a Fentanyl-Related Substance;”.
The annotation to §2D1.1(c) captioned “Notes to Drug Quantity Table” is amended—
by redesignating Note (K) as Note (L);
and by inserting after Note (J) the following new Note (K):
“(K) The term ‘Fentanyl-Related Substance’ is defined in 21 U.S.C. § 812(e). There is a rebuttable presumption that the base offense level specified in the Drug Quantity Table applies to fentanyl-related substances. However, if the defendant establishes either that the fentanyl-related substance (i) functions to block, diminish, or counteract the effect produced by fentanyl (N-phenyl-N-[1-(2-phenylethyl )-4-piperidinyl] propanamide) or a fentanyl analogue, or (ii) is significantly less potent than fentanyl (N-phenyl-N-[1-(2-phenylethyl )-4-piperidinyl] propanamide), the court should instead determine the base offense level for the fentanyl-related substance using the converted drug weight of the most closely related controlled substance referenced in this guideline (as provided in Application Note 6 below).”.
The Commentary to §2D1.1 captioned “Application Notes,” as amended by Amendment 837, is further amended in Note 8(D), under the heading relating to Schedule I or II Opiates by inserting after the line referenced to a Fentanyl Analogue the following line:
“1 gm of a Fentanyl-Related Substance = 10 kg”.
The Commentary to §2D1.6 captioned “Application Notes” is amended in Note 1 by striking “fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide), or fentanyl analogue” and inserting “fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide), fentanyl analogue, or fentanyl-related substance”.
Reason for Amendment: This amendment responds to the enactment of the Halt All Lethal Trafficking of Fentanyl Act (Pub. L. 119–26) (2025) (“HALT Fentanyl Act” or “Act”), which permanently scheduled “fentanyl-related substances” as Schedule I substances under 21 U.S.C. § 812. The Act also expanded the offenses prohibited by 21 U.S.C. §§ 841 and 960 to include “fentanyl-related substances,” setting the quantities that trigger mandatory minimum penalties at the same level as fentanyl analogues. The Act defined “fentanyl-related substances” in 21 U.S.C. § 812(e).
This amendment amends the Drug Quantity Table at subsection (c) of §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) and the Drug Equivalency Tables at Application Note 8(D) of the Commentary to §2D1.1 to add “fentanyl-related substances.” It sets the quantity thresholds and base offense levels for fentanyl-related substances at the same level as fentanyl analogues, to mirror the equivalencies between these substances in the Act. This approach also is consistent with Commission data showing that prior to the HALT Fentanyl Act, courts sentenced most individuals convicted of offenses involving fentanyl-related substances as if those offenses involved fentanyl analogues.
The amendment also adds a new Note to the Drug Quantity Table that defines “fentanyl-related substance” by reference to the definition in 21 U.S.C. § 812(e), allowing for flexibility in case the statutory definition is amended in the future. The new Note reiterates that the base offense level specified in the Drug Quantity Table presumptively applies to fentanyl-related substances. However, in light of the class-based nature of the definition—which is based on chemical structure alone—and the resulting breadth of substances that it currently covers or could cover in the future, the Note also provides a safety valve by which, under specified conditions, that presumption can be rebutted. If a defendant establishes that the fentanyl-related substance either (i) functions to block, diminish, or counteract the effect produced by fentanyl (N-phenyl-N-[1-(2-phenylethyl )-4-piperidinyl] propanamide) or a fentanyl analogue, or (ii) is significantly less potent than fentanyl (N-phenyl-N-[1-(2-phenylethyl )-4-piperidinyl] propanamide), the Note instructs the court to instead determine the base offense level for the fentanyl-related substance using the converted drug weight of the most closely related controlled substance referenced in §2D1.1 (as provided in Application Note 6).
To maintain consistency within §2D1.1, the amendment also adds “fentanyl-related substance” to the existing enhancement at §2D1.1(b)(13), which currently increases penalties for representing or marketing fentanyl or a fentanyl analogue as another substance or as a legitimately manufactured drug. As amended, the enhancement will also apply if a fentanyl-related substance is represented or marketed as a legitimately manufactured drug. Consistent with the new Note to the Drug Quantity Table, the amendment includes a proviso that the enhancement at subsection (b)(13) shall only apply in a case involving a fentanyl-related substance if the court applies the offense level specified in the Drug Quantity Table for fentanyl, a fentanyl analogue, or a fentanyl-related substance.
Finally, this amendment makes a technical change to Application Note 1 to §2D1.6 (Use of Communication Facility in Committing Drug Offense; Attempt or Conspiracy) to include fentanyl-related substance as one of the substances for which the Drug Quantity Table in §2D1.1 provides a minimum offense level of 12.
Effective Date: The effective date of this amendment is November 1, 2026.