668


AMENDMENT 668

Amendment: Section 2D1.1(a) is amended by striking subdivision (3) as follows:

"(3) the offense level specified in the Drug Quantity Table set forth in subsection (c), except that if the defendant receives an adjustment under §3B1.2 (Mitigating Role), the base offense level under this subsection shall be not more than level 30.",

and inserting the following:

"(3) the offense level specified in the Drug Quantity Table set forth in subsection (c), except that if (A) the defendant receives an adjustment under §3B1.2 (Mitigating Role); and (B) the base offense level under subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34 or level 36, decrease by 3 levels; or (iii) level 38, decrease by 4 levels.".

Section 2D1.11 is amended by striking subsection (a) as follows:

"(a) Base Offense Level: The offense level from the Chemical Quantity Table set forth in subsection (d) or (e), as appropriate.",

and inserting the following:

"(a) Base Offense Level: The offense level from the Chemical Quantity Table set forth in subsection (d) or (e), as appropriate, except that if (A) the defendant receives an adjustment under §3B1.2 (Mitigating Role); and (B) the base offense level under subsection (e) is (i) level 32, decrease by 2 levels; (ii) level 34 or level 36, decrease by 3 levels; or (iii) level 38, decrease by 4 levels.".

Reason for Amendment: The amendment modifies the maximum base offense level for certain offenders provided at §2D1.1(a)(3) (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy). Prior to the amendment, subsection (a)(3) limited the maximum base offense level to level 30 for all offenders sentenced under §2D1.1 who also received an adjustment under §3B1.2 (Mitigating Role). In order to address proportionality concerns arising from the "mitigating role cap," the amendment modifies §2D1.1(a)(3) to provide a graduated reduction for offenders whose quantity level under §2D1.1(c) results in a base offense level greater than level 30 and who qualify for a mitigating role adjustment under §3B1.2. Specifically, the amendment provides a two-level reduction if the defendant receives an adjustment under §3B1.2 and the base offense level determined at the Drug Quantity Table in §2D1.1 is level 32. If the base offense level determined at §2D1.1(c) is level 34 or 36, and the defendant receives an adjustment under §3B1.2, a three-level reduction is provided. A four-level reduction is provided if the defendant receives an adjustment under §3B1.2 and the base offense level under §2D1.1(c) is level 38. This amendment also provides an identical reduction in §2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy).

Effective Date: The effective date of this amendment is November 1, 2004.