AMENDMENT 667
Amendment: Section 2D1.1(b) is amended by redesignating subdivisions (5) and (6) as subdivisions (6) and (7), respectively; and by inserting after subdivision (4) the following:
"(5) If the defendant, or a person for whose conduct the defendant is accountable under §1B1.3 (Relevant Conduct), distributed a controlled substance through mass-marketing by means of an interactive computer service, increase by 2 levels.".
Section 2D1.1 is amended by adding after subsection (d) the following:
"(e) Special Instruction
(1) If (A) subsection (d)(2) does not apply; and (B) the defendant committed, or attempted to commit, a sexual offense against another individual by distributing, with or without that individual’s knowledge, a controlled substance to that individual, an adjustment under §3A1.1(b)(1) shall apply.".
Section 2D1.1(c) is amended in subdivision (10) by striking "or Schedule III substances" in the thirteenth entry; and by inserting after the thirteenth entry the following:
"40,000 or more units of Schedule III substances;";
in subdivision (11) by striking "or Schedule III substances" in the thirteenth entry; and by inserting after the thirteenth entry the following:
"At least 20,000 but less than 40,000 units of Schedule III substances;";
in subdivision (12) by striking "or Schedule III substances" in the thirteenth entry; and by inserting after the thirteenth entry the following:
"At least 10,000 but less than 20,000 units of Schedule III substances;";
in subdivision (13) by striking "or Schedule III substances" in the thirteenth entry; and by inserting after the thirteenth entry the following:
"At least 5,000 but less than 10,000 units of Schedule III substances;";
in subdivision (14) by striking "or Schedule III substances" in the thirteenth entry; and by inserting after the thirteenth entry the following:
"At least 2,500 but less than 5,000 units of Schedule III substances;";
in subdivision (15) by striking "or Schedule III substances" in the fourth entry; and by inserting after the fourth entry the following:
"At least 1,000 but less than 2,500 units of Schedule III substances;";
in subdivision (16) by striking "or Schedule III substances" in the fourth entry; and by inserting after the fourth entry the following:
"At least 250 but less than 1,000 units of Schedule III substances;"; and
in subdivision (17) by striking "or Schedule III substances" in the fourth entry; and by inserting after the fourth entry the following:
"Less than 250 units of Schedule III substances;".
Section 2D1.1 is amended in the subdivision captioned "*Notes to Drug Quantity Table" in Note (F) in the first sentence by inserting "(except gamma-hydroxybutyric acid)" after "Depressants"; and in the second sentence by inserting "(except gamma-hydroxybutyric acid)" after "substance", and by striking "gm" and inserting "ml".
The Commentary to §2D1.1 captioned "Application Notes" is amended by striking Note 5 as follows:
"5. Any reference to a particular controlled substance in these guidelines includes all salts, isomers, and all salts of isomers. Any reference to cocaine includes ecgonine and coca leaves, except extracts of coca leaves from which cocaine and ecgonine have been removed.",
and inserting the following:
"5. Analogues and Controlled Substances Not Referenced in this Guideline.—Any reference to a particular controlled substance in these guidelines includes all salts, isomers, all salts of isomers, and, except as otherwise provided, any analogue of that controlled substance. Any reference to cocaine includes ecgonine and coca leaves, except extracts of coca leaves from which cocaine and ecgonine have been removed. For purposes of this guideline ‘analogue’ has the meaning given the term ‘controlled substance analogue’ in 21 U.S.C. § 802(32). In determining the appropriate sentence, the court also may consider whether a greater quantity of the analogue is needed to produce a substantially similar effect on the central nervous system as the controlled substance for which it is an analogue.
In the case of a controlled substance that is not specifically referenced in this guideline, determine the base offense level using the marihuana equivalency of the most closely related controlled substance referenced in this guideline. In determining the most closely related controlled substance, the court shall, to the extent practicable, consider the following:
(A) Whether the controlled substance not referenced in this guideline has a chemical structure that is substantially similar to a controlled substance referenced in this guideline.
(B) Whether the controlled substance not referenced in this guideline has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance referenced in this guideline.
(C) Whether a lesser or greater quantity of the controlled substance not referenced in this guideline is needed to produce a substantially similar effect on the central nervous system as a controlled substance referenced in this guideline.".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10 in the Drug Equivalency Tables by striking the subdivision captioned "Schedule I or II Depressants" as follows:
"Schedule I or II Depressants
1 unit of a Schedule I or II Depressant = 1 gm of marihuana",
and inserting the following new subdivisions:
"Schedule I or II Depressants (except gamma-hydroxybutyric acid)
1 unit of a Schedule I or II Depressant
(except gamma-hydroxybutyric acid) = 1 gm of marihuana
Gamma-hydroxybutyric Acid
1 ml of gamma-hydroxybutyric acid = 8.8 gm of marihuana".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 12 by striking the last sentence of the third paragraph as follows:
"If, however, the defendant establishes that he or she did not intend to provide, or was not reasonably capable of providing, the agreed-upon quantity of the controlled substance, the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that he or she did not intend to provide or was not reasonably capable of providing.",
and inserting the following:
"If, however, the defendant establishes that the defendant did not intend to provide or purchase, or was not reasonably capable of providing or purchasing, the agreed-upon quantity of the controlled substance, the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that the defendant did not intend to provide or purchase or was not reasonably capable of providing or purchasing.".
The Commentary to §2D1.1 captioned "Application Notes" is amended by adding at the end the following:
"22. Application of Subsection (b)(5).—For purposes of subsection (b)(5), ‘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)(5) would apply to a defendant who operated a web site to promote the sale of Gamma-hydroxybutyric Acid (GHB) 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)(5) 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)).
23. Application of Subsection (e)(1).—
(A) Definition.—For purposes of this guideline, ‘sexual offense’ means a ‘sexual act’ or ‘sexual contact’ as those terms are defined in 18 U.S.C. § 2246(2) and (3), respectively.
(B) Upward Departure Provision.—If the defendant committed a sexual offense against more than one individual, an upward departure would be warranted.".
Section 2D1.11(b)(2) is amended by striking "21 U.S.C. §§ 841(d)(2), (g)(1), or 960(d)(2)," and inserting "21 U.S.C. § 841(c)(2) or (f)(1), or § 960(d)(2), (d)(3), or (d)(4),".
Section 2D1.11(b) is amended by adding at the end the following:
"(4) If the defendant, or a person for whose conduct the defendant is accountable under §1B1.3 (Relevant Conduct), distributed a listed chemical through mass-marketing by means of an interactive computer service, increase by 2 levels.".
Section 2D1.11(e) is amended in subdivision (1) by striking "10,000 KG or more of Gamma-butyrolactone;" and inserting "2271 L or more of Gamma-butyrolactone;"; and by inserting ", White Phosphorus, or Hypophosphorous Acid" after "Red Phosphorus";
in subdivision (2) by striking "At least 3,000 KG but less than 10,000 KG of Gamma-butyrolactone;" and inserting "At least 681.3 L but less than 2271 L of Gamma-butyrolactone;"; and by inserting ", White Phosphorus, or Hypophosphorous Acid" after "Red Phosphorus";
in subdivision (3) by striking "At least 1,000 KG but less than 3,000 KG of Gamma-butyrolactone;" and inserting "At least 227.1 L but less than 681.3 L of Gamma-butyrolactone;"; and by inserting ", White Phosphorus, or Hypophosphorous Acid" after "Red Phosphorus";
in subdivision (4) by striking "At least 700 KG but less than 1,000 KG of Gamma-butyrolactone;" and inserting "At least 159 L but less than 227.1 L of Gamma-butyrolactone;"; and by inserting ", White Phosphorus, or Hypophosphorous Acid" after "Red Phosphorus";
in subdivision (5) by striking "At least 400 KG but less than 700 KG of Gamma-butyrolactone;" and inserting "At least 90.8 L but less than 159 L of Gamma-butyrolactone;"; and by inserting ", White Phosphorus, or Hypophosphorous Acid" after "Red Phosphorus";
in subdivision (6) by striking "At least 100 KG but less than 400 KG of Gamma-butyrolactone;" and inserting "At least 22.7 L but less than 90.8 L of Gamma-butyrolactone;"; and by inserting ", White Phosphorus, or Hypophosphorous Acid" after "Red Phosphorus";
in subdivision (7) by striking "At least 80 KG but less than 100 KG of Gamma-butyrolactone;" and inserting "At least 18.2 L but less than 22.7 L of Gamma-butyrolactone;"; and by inserting ", White Phosphorus, or Hypophosphorous Acid" after "Red Phosphorus";
in subdivision (8) by striking "At least 60 KG but less than 80 KG of Gamma-butyrolactone;" and inserting "At least 13.6 L but less than 18.2 L of Gamma-butyrolactone;"; and by inserting ", White Phosphorus, or Hypophosphorous Acid" after "Red Phosphorus";
in subdivision (9) by striking "At least 40 KG but less than 60 KG of Gamma-butyrolactone;" and inserting "At least 9.1 L but less than 13.6 L of Gamma-butyrolactone;";
and by inserting ", White Phosphorus, or Hypophosphorous Acid" after "Red Phosphorus";
in subdivision (10) by striking "Less than 40 KG of Gamma-butyrolactone;" and inserting "Less than 9.1 L of Gamma-butyrolactone;"; and by inserting ", White Phosphorus, or Hypophosphorous Acid" after "Red Phosphorus".
The Commentary to §2D1.11 captioned "Statutory Provisions" is amended by inserting ", (3), (4)" after "(d)(1), (2)".
The Commentary to §2D1.11 captioned "Application Notes" is amended in Note 5 by striking "21 U.S.C. §§ 841(d)(2), (g)(1), and 960(d)(2)" and inserting "21 U.S.C. §§ 841(c)(2) and (f)(1), and 960(d)(2), (d)(3), and (d)(4)"; and by striking "Where" and inserting "In a case in which".
The Commentary to §2D1.11 captioned "Application Notes" is amended by adding at the end the following:
"7. Application of Subsection (b)(4).—For purposes of subsection (b)(4), ‘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)(4) would apply to a defendant who operated a web site to promote the sale of Gamma-butyrolactone (GBL) 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)(4) 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)).".
Section 2D1.12(b) is amended by adding at the end the following:
"(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.".
The Commentary to §2D1.12 captioned "Application Notes" is amended by adding at the end the following:
"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)).".
Appendix A (Statutory Index) is amended by striking the following:
"21 U.S.C. § 957 2D1.1".
Reason for Amendment: This amendment makes several modifications to the guidelines in Chapter Two, Part D (Offenses Involving Drugs). First, this amendment implements section 608 of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, (the "PROTECT Act"), Pub. L. 108–21, which directs the Commission to review and consider amending the guidelines with respect to gamma-hydroxybutyric acid (GHB) to provide increased penalties that reflect the seriousness of offenses involving GHB and the need to deter them. The Commission identified several harms associated with GHB offenses and separately increased penalties for Internet trafficking and drug facilitated sexual assault, two harms associated with trafficking and use of this and other controlled substances. Specifically, the amendment modifies §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to provide an approximate five-year term of imprisonment (equivalent to base offense level 26, Criminal History Category I) for distribution of three gallons of GHB. The Commission determined, based on information provided by the Drug Enforcement Administration, that this quantity typically reflects a mid-level distributor. The trigger for the ten-year penalty (base offense level 32) is set at 30 gallons, reflecting quantities associated with a high-level distributor. This amendment also increases the penalties under §2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy) for offenses involving gamma-butyrolactone (GBL), a precursor for GHB. The quantities in §2D1.11 track the quantities used in §2D1.1.
Second, this amendment adds a two-level enhancement in §§2D1.1, 2D1.11, and 2D1.12 (Unlawful Possession, Manufacture, Distribution, Transportation, Exportation, or Importation of Prohibited Flask, Equipment, Chemical, Product, or Material; Attempt or Conspiracy) for mass marketing of a controlled substance, listed chemical, or prohibited equipment, respectively, through the use of an interactive computer service. The Commission identified use of an interactive computer service as a tool providing easier access to illegal products. Use of an interactive computer service enables drug traffickers to market their illegal products more efficiently and anonymously to a wider audience than through traditional drug trafficking means, while making it more difficult for law enforcement authorities to discover the offense and apprehend the offenders.
Third, this amendment provides a special instruction in §2D1.1(e) that requires application of the vulnerable victim adjustment in §3A1.1(b)(1) (Hate Crime Motivation or Vulnerable Victim) if the defendant commits a sexual offense by distributing a controlled substance to another individual, with or without that individual’s knowledge. The amendment addresses cases in which the cross reference in §2D1.1(d)(2) does not apply. The cross reference in §2D1.1(d)(2) is limited to cases involving a conviction under 21 U.S.C. § 841(b)(7), which prescribes a 20-year statutory maximum penalty for the distribution of a controlled substance to another individual, without that individual’s knowledge, with the intent to commit a crime of violence (including rape). Because the statute requires that the distribution occur without knowledge, the cross reference does not apply to drug facilitated sexual assaults when the victim of the sexual assault knowingly ingests the controlled substance. This amendment reflects the Commission’s view that a defendant who commits a drug-facilitated sexual assault should receive increased punishment whether or not the victim knowingly ingested the controlled substance distributed by the defendant.
Fourth, this amendment modifies the existing rule at Application Note 5 of §2D1.1 to provide a uniform mechanism for determining sentences in cases involving analogues of controlled substances or controlled substances not specifically referenced in this guideline. The genesis of this amendment was the Commission’s investigation of GHB, during which the Commission learned that analogues of GHB, specifically GBL and 1,4 Butanediol (BD), among others, often are used in its stead and cause the same effects as GHB. The Commission was concerned that analogues of other drugs might be similarly used. Additionally, the Commission became aware that courts employ a variety of means to determine the applicable guideline range for defendants charged with offenses involving controlled substances not specifically referenced in §2D1.1, resulting in disparate sentences. The purpose of the amendment is to provide a more uniform mechanism for determining sentences in cases involving analogues or controlled substances not specifically referenced in this guideline.
Fifth, this amendment corrects a technical error in the Drug Quantity Table at §2D1.1(c) with respect to Schedule III substances. Specifically, the maximum base offense level for Schedule III substances is level 20, but prior to the amendment there was no corresponding language in the Drug Quantity Table to so indicate.
Sixth, this amendment addresses a circuit conflict regarding the interpretation of the last sentence in Application Note 12 of §2D1.1. See United States v. Smack, 347 F.3d 533 (3rd Cir. 2003) (criticizing language of note); compare United States v. Gomez, 103 F.3d 249, 252-53 (2d Cir. 1997) (holding that the last sentence of the note is intended to apply only to sellers); United States v. Perez de Dios, 237 F.3d 1192 (10th Cir. 2001) (same); United States v. Brassard, 212 F.3d 54, 58 (1st Cir. 2000) (same), with United States v. Minore, 40 Fed. Appx. 536, 537 (9th Cir. 2002) (mem.op.) (applying the final sentence of the new Note 12 to a buyer in reverse sting operation); United States v. Estrada, 256 F.3d 466, 476 (7th Cir. 2001) (same). Application Note 12 covers offenses involving an agreement to sell a specific quantity of a controlled substance. This amendment makes clear that the court shall exclude from the offense level determination the amount of the controlled substance, if any, that the defendant establishes that he or she did not intend to provide or purchase, or was not reasonably capable of providing or purchasing, regardless of whether the defendant agreed to be the seller or the buyer of the controlled substance.
Seventh, this amendment updates the statutory references in §2D1.11(b)(2) and accompanying commentary to conform to statutory redesignations of certain offenses, and also expands application of §2D1.11(b)(2) to include 21 U.S.C. § 960(d)(3) and (d)(4) among the statutes of conviction for which the three-level reduction at subsection (b)(2) is available. The reduction formerly applied in cases in which the defendant, convicted under 21 U.S.C. § 841(c)(2), (f)(1), or § 960(d)(2), as properly redesignated, did not have knowledge or actual belief that the listed chemical would be used to manufacture a controlled substance. Section 841(c)(2) of title 21, United States Code, requires a finding of either knowledge or a reasonable cause to believe that the listed chemical would be used to manufacture a controlled substance. Sections 960(d)(3) and (d)(4) of title 21, United States Code, similarly require a finding that a person who imports, exports, or serves as a broker for, a listed chemical knows or has a reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance. Given that the reduction applies in 21 U.S.C. § 841(c)(2) cases in which the defendant had a reasonable cause to believe, but not knowledge or actual belief, that the listed chemical would be used to manufacture a controlled substance, and the mens rea in 21 U.S.C. § 841(c)(2) is the same as in 21 U.S.C. § 960(d)(3) and (d)(4), the amendment adds 21 U.S.C. § 960(d)(3) and (d)(4) to §2D1.11(b)(2).
Eighth, this amendment adds white phosphorus and hypophosphorous acid to the Chemical Quantity Table in §2D1.11(e). Both substances are List I chemicals that can be substituted for red phosphorus in the manufacture of methamphetamine. Red phosphorus was added to the Chemical Quantity Table effective November 1, 2003 (see Amendment 661), but notice and comment requirements prevented white phosphorus and hypophosphorous acid from being added contemporaneously.
Ninth, this amendment provides an enhancement of six levels at §2D1.12 if the offense involved stealing anhydrous ammonia or transporting stolen anhydrous ammonia. A widely used source of nitrogen fertilizer for crops, anhydrous ammonia also is used in the manufacture of methamphetamine. Anhydrous ammonia must be stored and handled under high pressure, which requires specially designed and well-maintained equipment. The improper handling and storage of anhydrous ammonia can result in permanent injury (such as cell destruction and severe chemical burns) and explosions. Methamphetamine manufacturers often obtain anhydrous ammonia by siphoning large-volume tanks at fertilizer plants and farms, and rarely have the knowledge or equipment required to properly handle it. This enhancement accounts for the inherent dangers created by such conduct, as well as the likely intended unlawful use.
Finally, this amendment modifies Appendix A (Statutory Index) by deleting the reference to 21 U.S.C. § 957, which is not a substantive criminal offense, but rather a registration provision for which violations are prosecuted under 21 U.S.C. § 960(a) or (b) (for controlled substances) or § 960(d)(6) (for listed chemicals).
Effective Date: The effective date of this amendment is November 1, 2004.