519


AMENDMENT 519

Amendment: Section 2D1.11(d) is amended in the Chemical Quantity Table by deleting "Listed Precursor" wherever it occurs and inserting in lieu thereof "List I"; and by deleting "Listed Essential" wherever it appears and inserting in lieu thereof "List II".

Section 2D1.11(d) is amended in subdivisions (1)-(9) by deleting the line referencing "D-Lysergic Acid" from each subdivision as set forth below:

(1) "200 G or more of D-Lysergic Acid;",

(2) "At least 60 G but less than 200 G of D-Lysergic Acid;",

(3) "At least 20 G but less than 60 G of D-Lysergic Acid;",

(4) "At least 14 G but less than 20 G of D-Lysergic Acid;",

(5) "At least 8 G but less than 14 G of D-Lysergic Acid;",

(6) "At least 2 G but less than 8 G of D-Lysergic Acid;",

(7) "At least 1.6 G but less than 2 G of D-Lysergic Acid;",

(8) "At least 1.2 G but less than 1.6 G of D-Lysergic Acid;",

(9) "Less than 1.2 G of D-Lysergic Acid;".

Section 2D1.11(d) is amended in subdivisions (1)-(9) by inserting the following list I chemicals (formerly Listed Precursor Chemicals) in the appropriate place in alphabetical order by subdivision as follows:

(1) "17.8 KG or more of Benzaldehyde;",

"12.6 KG or more of Nitroethane;",

(2) "At least 5.3 KG but less than 17.8 KG of Benzaldehyde;",

"At least 3.8 KG but less than 12.6 KG of Nitroethane;",

(3) "At least 1.8 KG but less than 5.3 KG of Benzaldehyde;",

"At least 1.3 KG but less than 3.8 KG of Nitroethane;",

(4) "At least 1.2 KG but less than 1.8 KG of Benzaldehyde;",

"At least 879 G but less than 1.3 KG of Nitroethane;",

(5) "At least 712 G but less than 1.2 KG of Benzaldehyde;",

"At least 503 G but less than 879 G of Nitroethane;",

(6) "At least 178 G but less than 712 G of Benzaldehyde;",

"At least 126 G but less than 503 G of Nitroethane;",

(7) "At least 142 G but less than 178 G of Benzaldehyde;",

"At least 100 G but less than 126 G of Nitroethane;",

(8) "At least 107 G but less than 142 G of Benzaldehyde;",

"At least 75 G but less than 100 G of Nitroethane;",

(9) "Less than 107 G of Benzaldehyde;",

"Less than 75 G of Nitroethane;".

Section 2D1.11 is amended in the List 1 Chemical Equivalency Table by inserting the following chemicals, in the appropriate place in alphabetical order:

"1 gm of Benzaldehyde** = 1.124 gm of Ephedrine",

"1 gm of Nitroethane** = 1.592 gm of Ephedrine";

and by deleting "1 gm of D-lysergic acid = 1 gm of Ephedrine".

Section 2D1.11(d) is amended in the notes following the Chemical Quantity Table by deleting Note (A) as follows:

"(A) If more than one listed precursor chemical is involved, use the Precursor Chemical Equivalency Table to determine the offense level.",

and inserting in lieu thereof:

"(A) The List I Chemical Equivalency Table provides a method for combining different precursor chemicals to obtain a single offense level. In a case involving two or more list I chemicals used to manufacture different controlled substances or to manufacture one controlled substance by different manufacturing processes, convert each to its ephedrine equivalency from the table below, add the quantities, and use the Chemical Quantity Table to determine the base offense level. In a case involving two or more list I chemicals used together to manufacture a controlled substance in the same manufacturing process, use the quantity of the single list I chemical that results in the greatest base offense level.";

in Notes (B) and (C) by deleting "listed essential" wherever it appears and inserting in lieu thereof in each instance "list II"; in Note (C) by deleting "listed precursor" and inserting in lieu thereof "list I"; by deleting Note (D) as follows:

"(D) The Precursor Chemical Equivalency Table provides a means for combining different listed precursor chemicals to obtain a single offense level. In cases involving multiple precursor chemicals, convert each to its ephedrine equivalency from the table below, add the quantities, and apply the Chemical Quantity Table to obtain the applicable offense level.",

and inserting in lieu thereof:

"(D) In a case involving ephedrine tablets, use the weight of the ephedrine contained in the tablets, not the weight of the entire tablets, in calculating the base offense level.";

and by deleting "PRECURSOR" and inserting in lieu thereof "(E) LIST I".

Section 2D1.11(d) is amended in the List I Chemical Equivalency Table (formerly the Precursor Chemical Equivalency Table) by inserting "**" immediately after each of the following substances: "Ethylamine", "N-Methylephedrine", "N-Methylpseudoephedrine", "Norpseudoephedrine", "Phenylpropanolamine", "Pseudoephedrine", and "3,4-Methylenedioxyphenyl-2-propanone".

Section 2D1.11(d) is amended in the note following the List I Chemical Equivalency Table (formerly the Precursor Chemical Equivalency Table) designated by two asterisks by deleting "both hydriodic acid and ephedrine" and inserting in lieu thereof:

"(A) hydriodic acid and one of the following: ephedrine, N-methylephedrine, N-methylpseudoephedrine, norpseudoephedrine, phenylpropanolamine, or pseudoephedrine; or (B) ethylamine and 3,4-methylenedioxyphenyl-2-propanone; or (C) benzaldehyde and nitroethane".

The Commentary to §2D1.11 captioned "Application Notes" is amended in Note 3 by deleting "3, 4 methylenedioxphenyl-2-propanone" wherever it appears and inserting in lieu thereof in each instance "methylamine"; and by deleting "LSD, PCP, and other Schedule I and II Hallucinogens" and inserting in lieu thereof "Cocaine and Other Schedule I and II Stimulants".

The Commentary to §2D1.11 captioned "Application Notes" is amended by deleting:

"4. Where there are multiple listed precursor chemicals, the quantities of all listed precursors are added together for purposes of determining the base offense level, except as expressly noted (see Note A to the Chemical Quantity Table). This reflects that only one listed precursor typically is used in a given manufacturing process. For example, in the case of an offense involving 300 grams of piperidine and 800 grams of benzyl cyanide, the piperidine is converted to 600 grams of ephedrine and the benzyl cyanide is converted to 800 grams of ephedrine, using the Precursor Chemical Equivalency Table, for a total of 1400 grams of ephedrine. Applying the Chemical Quantity Table to 1400 grams (1.4 kilograms) of ephedrine results in a base offense level of 22.",

and inserting in lieu thereof:

"4. When two or more list I chemicals are used together in the same manufacturing process, calculate the offense level for each separately and use the quantity that results in the greatest base offense level. In any other case, the quantities should be added together (using the List I Chemical Equivalency Table) for the purpose of calculating the base offense level.

Examples:

(a) The defendant was in possession of five kilograms of ephedrine and three kilograms of hydriodic acid. Ephedrine and hydriodic acid typically are used together in the same manufacturing process to manufacture methamphetamine. Therefore, the base offense level for each listed chemical is calculated separately and the list I chemical with the higher base offense level is used. Five kilograms of ephedrine result in a base offense level of 24; 300 grams of hydriodic acid result in a base offense level of 14. In this case, the base offense level would be 24.

(b) The defendant was in possession of five kilograms of ephedrine and two kilograms of phenylacetic acid. Although both of these chemicals are used to manufacture methamphetamine, they are not used together in the same manufacturing process. Therefore, the quantity of phenylacetic acid should be converted to an ephedrine equivalency using the List I Chemical Equivalency Table and then added to the quantity of ephedrine. In this case, the two kilograms of phenylacetic acid convert to two kilograms of ephedrine (see List I Chemical Equivalency Table), resulting in a total equivalency of seven kilograms of ephedrine.".

The Commentary to §2D1.11 is amended by deleting "listed precursor" wherever it appears and inserting in lieu thereof "list I"; and by deleting "listed essential" and inserting in lieu thereof in each instance "list II".

The Commentary to §2D1.11 captioned "Background" is amended in the second sentence by deleting "Listed precursor chemicals are critical to the formation of a controlled substance and" and inserting in lieu thereof "List I chemicals are important to the manufacture of a controlled substance and usually".

The Commentary to §2D1.11 captioned "Background" is amended by deleting the last sentence as follows:

"Listed essential chemicals are generally solvents, catalysts, and reagents, and do not become part of the finished product.",

and inserting in lieu thereof:

"List II chemicals are generally used as solvents, catalysts, and reagents.".

Reason for Amendment: The Domestic Chemical Diversion Act of 1993, Pub. L. 103-200, 107 Stat. 2333, changed the designations of the listed chemicals from "listed precursor chemicals" and "listed essential chemicals" to "list I chemicals" and "list II chemicals," respectively. This amendment conforms §2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy) to these statutory changes.

The Act also adds pills containing ephedrine as a list I chemical. Ephedrine itself is a list I chemical under 21 U.S.C. § 802(34). Pills containing ephedrine previously were not covered by the statute and, thus, legally could be purchased "over the counter." Purchases of these pills were sometimes made in large quantities and the pills crushed and processed to extract the ephedrine (which can be used to make methamphetamine). Unlike ephedrine, which is purchased from a chemical company and is virtually 100 percent pure, these tablets contain a substantially lower percentage of ephedrine (about 25 percent). To avoid unwarranted disparity, this amendment adds a note to §2D1.11 providing that the amount of actual ephedrine contained in a pill is to be used in determining the offense level.

In addition, the Act removes three chemicals from, and adds two others to, the listed chemicals controlled under the Controlled Substances Act. Two of the chemicals removed from the list are not currently listed in §2D1.11 because the Commission was aware that they are not used in the manufacture of any controlled substance. The third chemical removed from the list, d-lysergic acid, was listed both as a listed chemical in §2D1.11 and as a controlled substance in §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking; Attempt or Conspiracy). This amendment conforms §2D1.11 by deleting all references to d-lysergic acid. The two chemicals added as listed chemicals are benzaldehyde and nitroethane. Both of these chemicals are used to make methamphetamine. The base offense levels for listed chemicals in §2D1.11 are determined by reference to the most common controlled substance the chemical is used to manufacture; consequently, this amendment adds these chemicals to the Chemical Quantity Table based on information provided by the Drug Enforcement Administration regarding their use in the production of methamphetamine.

A number of the chemicals in the Chemical Quantity Table in §2D1.11 are used in the same process to make a controlled substance. A note at the end of the existing Precursor Chemical Equivalency Table addresses this situation for hydriodic acid and ephedrine. This amendment expands this note to cover other chemicals that similarly are used together.

In addition, this amendment corrects Application Note 3 of the Commentary to §2D1.11 with respect to an example of a listed chemical that is used with P2P to manufacture methamphetamine and a reference to a subdivision of the Drug Equivalency Tables in the Commentary to §2D1.1.

Effective Date: The effective date of this amendment is November 1, 1995.