AMENDMENT 807
Amendment: Section 2D1.1 is amended—
by redesignating subsections (b)(13) through (b)(17) as subsections (b)(14) through (b)(18), respectively; and by inserting the following new subsection (b)(13):
“(13) If the defendant knowingly misrepresented or knowingly marketed as another substance a mixture or substance containing fentanyl (N-phenyl-N-[1-(2-phenylethyl )-4-piperidinyl] propanamide) or a fentanyl analogue, increase by 4 levels.”;
and in each of subsections (c)(1) through (c)(14) by striking “of Fentanyl” each place such term appears and inserting “of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide)”.
The annotation to §2D1.1(c) captioned “Notes to Drug Quantity Table” is amended by inserting at the end the following new Note (J):
“(J) Fentanyl analogue, for the purposes of this guideline, means any substance (including any salt, isomer, or salt of isomer thereof), whether a controlled substance or not, that has a chemical structure that is similar to fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide).”.
The Commentary to §2D1.1 captioned “Application Notes” is amended—
in Note 6 by striking “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” and inserting “Except as otherwise provided, any reference to a particular controlled substance in these guidelines includes all salts, isomers, all salts of isomers, and any analogue of that controlled substance”; and by striking “For purposes of this guideline ‘analogue’ has the meaning” and inserting “Unless otherwise specified, ‘analogue,’ for purposes of this guideline, has the meaning”;
in Note 8(D)—
in the table under the heading “Schedule I or II Opiates*”—
by striking the following two lines:
“1 gm of Alpha-Methylfentanyl = 10 kg of marihuana”
“1 gm of 3-Methylfentanyl = 10 kg of marihuana”;
and by inserting after the line referenced to Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide) the following line:
“1 gm of a Fentanyl Analogue = 10 kg of marihuana”;
in the table under the heading “Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)*”, by striking the following line:
“1 gm of Methcathinone = 380 gm of marihuana”;
by inserting after the table under the heading “Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)*” the following new table:
“Synthetic Cathinones (except Schedule III, IV, and V Substances)*
1 gm of a synthetic cathinone (except a Schedule III, IV, or V substance) = 380 gm of marihuana
*Provided, that the minimum offense level from the Drug Quantity Table for any synthetic cathinone (except a Schedule III, IV, or V substance) individually, or in combination with another controlled substance, is level 12.”;
by inserting after the table under the heading “Schedule I Marihuana” the following new table:
“Synthetic Cannabinoids (except Schedule III, IV, and V Substances)*
1 gm of a synthetic cannabinoid (except a Schedule III, IV, or V substance) = 167 gm of marihuana
*Provided, that the minimum offense level from the Drug Quantity Table for any synthetic cannabinoid (except a Schedule III, IV, or V substance) individually, or in combination with another controlled substance, is level 12.
‘Synthetic cannabinoid,’ for purposes of this guideline, means any synthetic substance (other than synthetic tetrahydrocannabinol) that binds to and activates type 1 cannabinoid receptors (CB1 receptors).”;
in Note 16 by striking “§2D1.1(b)(15)(D)” and inserting “§2D1.1(b)(16)(D)”;
in Note 18 by striking “(b)(13)” and inserting “(b)(14)”; by striking “(b)(13)(A)” each place such term appears and inserting “(b)(14)(A)”; by striking “(b)(13)(C)–(D)” and inserting “(b)(14)(C)–(D)”; by striking “(b)(13)(C)(ii)” and inserting “(b)(14)(C)(ii)”; and by striking “(b)(13)(D)” and inserting “(b)(14)(D)”.
in Note 19 by striking “(b)(14)” each place such term appears and inserting “(b)(15)”; and by striking “(b)(13)(A)” and inserting “(b)(14)(A)”;
in Note 20 by striking “(b)(15)” and inserting “(b)(16)”; by striking “(b)(15)(B)” both places such term appears and inserting “(b)(16)(B)”; by striking “(b)(15)(C)” each place such term appears and inserting “(b)(16)(C)”; and by striking “(b)(15)(E)” both places such term appears and inserting “(b)(16)(E)”;
in Note 21 by striking “(b)(17)” each place such term appears and inserting “(b)(18)”;
and in Note 27 by inserting at the end the following new paragraphs:
“(D) Departure Based on Potency of Synthetic Cathinones.—In addition to providing marihuana equivalencies for specific controlled substances and groups of substances, the Drug Equivalency Tables provide marihuana equivalencies for certain classes of controlled substances, such as synthetic cathinones. In the case of a synthetic cathinone that is not specifically referenced in this guideline, the marihuana equivalency for the class should be used to determine the appropriate offense level. However, there may be cases in which a substantially lesser or greater quantity of a synthetic cathinone is needed to produce an effect on the central nervous system similar to the effect produced by a typical synthetic cathinone in the class, such as methcathinone or alpha-PVP. In such a case, a departure may be warranted. For example, an upward departure may be warranted in cases involving MDPV, a substance of which a lesser quantity is usually needed to produce an effect on the central nervous system similar to the effect produced by a typical synthetic cathinone. In contrast, a downward departure may be warranted in cases involving methylone, a substance of which a greater quantity is usually needed to produce an effect on the central nervous system similar to the effect produced by a typical synthetic cathinone.
(E) Departures for Certain Cases involving Synthetic Cannabinoids.—
(i) Departure Based on Concentration of Synthetic Cannabinoids.—Synthetic cannabinoids are manufactured as powder or crystalline substances. The concentrated substance is then usually sprayed on or soaked into a plant or other base material, and trafficked as part of a mixture. Nonetheless, there may be cases in which the substance involved in the offense is a synthetic cannabinoid not combined with any other substance. In such a case, an upward departure would be warranted.
There also may be cases in which the substance involved in the offense is a mixture containing a synthetic cannabinoid diluted with an unusually high quantity of base material. In such a case, a downward departure may be warranted.
(ii) Downward Departure Based on Potency of Synthetic Cannabinoids.—In the case of a synthetic cannabinoid that is not specifically referenced in this guideline, the marihuana equivalency for the class should be used to determine the appropriate offense level. However, there may be cases in which a substantially greater quantity of a synthetic cannabinoid is needed to produce an effect on the central nervous system similar to the effect produced by a typical synthetic cannabinoid in the class, such as JWH-018 or AM-2201. In such a case, a downward departure may be warranted.”.
The Commentary to §2D1.1 captioned “Background” is amended by striking “(b)(13)(A)” and inserting “(b)(14)(A)”; by striking “(b)(13)(C)(ii)” and inserting “(b)(14)(C)(ii)”; by striking “Subsection (b)(15) implements the directive to the Commission in section 6(3)” and inserting “Subsection (b)(16) implements the directive to the Commission in section 6(3)”; and by striking “Subsection (b)(16) implements the directive to the Commission in section 7(2)” and inserting “Subsection (b)(17) implements the directive to the Commission in section 7(2)”.
The Commentary to §2D1.6 captioned “Application Note” is amended in Note 1 by striking “, fentanyl” and inserting “, fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide)”.
Section 2D1.14(a)(1) is amended by striking “(b)(17)” and inserting “(b)(18)”.
The Commentary to §3B1.4 captioned “Application Notes” is amended in Note 2 by striking “§2D1.1(b)(15)(B)” and inserting “§2D1.1(b)(16)(B)”.
The Commentary to §3C1.1 captioned “Application Notes” is amended in Note 7 by striking “§2D1.1(b)(15)(D)” and inserting “§2D1.1(b)(16)(D)”.
Reason for Amendment: This amendment is a result of the Commission’s multi-year study of offenses involving synthetic cathinones (such as methylone, MDPV, and mephedrone) and synthetic cannabinoids (such as JWH-018 and AM-2201), as well as tetrahydrocannabinol (THC), fentanyl, and fentanyl analogues. The study included extensive data collection, review of scientific literature, multiple public comment periods, and four public hearings. The resulting amendment makes various changes to §2D1.1 pertaining to synthetic controlled substances.
The amendment first addresses fentanyl and fentanyl analogues. The Commission learned that while fentanyl has long been a drug of abuse, there are several indications that its abuse has become both more prevalent and more dangerous in recent years. For example, the Drug Enforcement Administration observed a dramatic increase in fentanyl reports between 2013 and 2015, and the Centers for Disease Control and Prevention reported that there were 9,580 deaths involving synthetic opioids (a category including fentanyl) in 2015, a 72.2 percent increase from 2014. The Commission received testimony and other information indicating that fentanyl and its analogues are often trafficked mixed with other controlled substances, including heroin and cocaine. In other instances, fentanyl is placed in pill or tablet form by drug traffickers. Although some purchasers of these substances may be aware that they contain fentanyl (or even seek them out for that reason), others may believe that they are purchasing heroin or pharmaceutically manufactured opioid pain relievers.
Because of fentanyl’s extreme potency, the risk of overdose death is great, particularly when the user is inexperienced or unaware of what substance he or she is using. To address this harm, the amendment adds a new specific offense characteristic at §2D1.1(b)(13) to provide for a 4-level increase whenever the defendant knowingly misrepresented or knowingly marketed as another substance a mixture or substance containing fentanyl or a fentanyl analogue. The Commission determined that it is appropriate for traffickers who knowingly misrepresent fentanyl or a fentanyl analogue as another substance to receive additional punishment. If an offender does not know the substance contains fentanyl or a fentanyl analogue, the enhancement does not apply. The specific offense characteristic includes a mens rea requirement to ensure that only the most culpable offenders are subjected to these increased penalties.
The amendment also makes a definitional change in the Guidelines Manual. Title 21, United States Code, refers to fentanyl by reference to its chemical name (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) and sets mandatory minimum penalties for certain quantities of this substance and for analogues of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide, although lesser quantities of the analogues are required to trigger the mandatory minimum penalties. See, e.g., 21 U.S.C. § 841(b)(1)(A)(vi). Consistent with its past practice concerning setting drug-trafficking penalties, the Commission relied upon the statutory framework in setting penalties for fentanyl and fentanyl analogues. Fentanyl has a marihuana equivalency of 1:2,500, while fentanyl analogues have a marihuana equivalency of 1:10,000. In the Guidelines Manual, however, the Commission did not use the chemical name for fentanyl reflected in Title 21. Instead, the Commission used the terms “fentanyl” and “fentanyl analogue” in the Drug Quantity Table.
Commission data suggests that offenses involving fentanyl analogues are increasing in the federal caseload. In studying these cases, the Commission has learned that the reference to “fentanyl analogue” in the Drug Quantity Table may interact in an unintended way with the definition of “analogue” provided by Application Note 6 and Section 802(32) of Title 21, United States Code. Because the guideline incorporates by reference the statutory definition of “controlled substance analogue,” and that definition specifically excludes already listed “controlled substances,” it appears that a scheduled fentanyl analogue cannot constitute a “controlled substance analogue,” and thus does not constitute a fentanyl “analogue” for purposes of §2D1.1. This may have the result that, at sentencing, fentanyl analogues that have already been scheduled must go through the Application Note 6 process to determine the substance most closely related to them.
Additionally, based on implementation of Application Note 6, many courts have then sentenced such analogue cases at the lower fentanyl ratio rather than the higher ratio applicable to fentanyl analogues in the Drug Quantity Table. To address this problem, the amendment adopts a new definition of “fentanyl analogue” as “any substance (including any salt, isomer, or salt of isomer), whether a controlled substance or not, that has a chemical structure that is similar to fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide).” This portion of the amendment also amends the Drug Quantity Table to clarify that §2D1.1 uses the term “fentanyl” to refer to the chemical name identified by statute and deletes the current listings for alpha-methylfentanyl and 3-methylfentanyl from the Drug Equivalency Tables.
The Commission determined that adopting this definition of “fentanyl analogue” will create a class of fentanyl analogues identical to that already created by statute, clarify the legal confusion that has resulted from the current definition of “analogue” in §2D1.1, and reaffirm that fentanyl analogues are treated differently than fentanyl under the guidelines as well as the statute. Striking the separate references to alpha-methylfentanyl and 3-methylfentanyl will result in the treatment of these substances in common with all other fentanyl analogues. This change, in combination with the adoption of the definition of “fentanyl analogue” and addition of fentanyl analogue to the Drug Equivalency Tables, will limit the use of the listing for “fentanyl” to those cases involving the specific substance named in Title 21.
Next, the amendment addresses synthetic cathinones and synthetic cannabinoids. The Commission received comment from the Department of Justice and others expressing concern that the guidelines do not contain specific “marihuana equivalencies” for synthetic cathinones, such as methylone, mephedrone, and MDPV, or synthetic cannabinoids, such as JWH-018 and AM-2201. For substances that do not appear in either the Drug Quantity Table or the Drug Equivalency Table, Application Note 6 provides courts the process for calculating drug quantities. The note directs courts to identify the “most closely related controlled substance referenced in [§2D1.1]” and to then use that drug’s ratio to marihuana to calculate the quantity for purposes of determining the base offense level. Commenters advised that this process is a time-consuming, burdensome task that leads to sentencing disparities. Because Commission data indicated that the majority of cases relying on the Application Note 6 process involved synthetic cathinones and synthetic cannabinoids, the Commission concluded that this amendment will alleviate the burden associated with its application.
Synthetic cathinones, also known as “bath salts,” are human-made substances chemically related to cathinone, a stimulant found in the khat plant. Although the Commission’s study originally focused on specified cathinones, such as methylone, MDPV, and mephedrone, the Commission received comments indicating that new substances are regularly developed and trafficked and that it would not be feasible to establish a new ratio as each new substance enters the market. Given the large number of potential substances, the Commission found it impracticable to add individual marihuana equivalencies for every synthetic cathinone. In contrast, the Commission determined a class-based approach for synthetic cathinones should capture both current and future synthetic cathinones.
The Commission has determined that synthetic cathinones constitute a well-defined class. Specifically, testimony and comment presented to the Commission consistently indicated that the whether a substance is a synthetic cathinone is not subject to debate. Likewise, comments and testimony made clear that synthetic cathinones share stimulant characteristics and hallucinogenic effects. The Commission determined that a precise definition is not necessary for such substances and that a class-based structure could be reasonably adopted. The Commission likewise determined that, because the class would encompass methcathinone, currently the lone specifically listed synthetic cathinone, the separate reference to methcathinone in the Drug Equivalency Table should be deleted. Given the Commission’s priority to alleviate the burdens associated with the Application Note 6 process and the impracticality of adding many new marihuana equivalencies, the Commission concluded the class-based approach strikes a middle ground between precision and ease of guideline application.
The amendment creates an entry in the Drug Equivalency Tables for the class of synthetic cathinones, providing a marihuana equivalency of 1 gram of a synthetic cathinone (except a Schedule III, IV, or V substance) equals 380 grams of marihuana and applies a minimum base offense level of 12 to the class of synthetic cathinones. The Commission set a minimum base offense level of 12 for the class of synthetic cathinones to maintain consistency with the treatment of other controlled substances. With limited exceptions, all other Schedule I and II controlled substances are subject to the same minimum base offense level. The Commission was not presented with testimony or commentary that indicated a compelling basis to except synthetic cathinones from the minimum offense level.
The Commission adopted the 380-gram equivalency for three reasons. First, a review of the Commission’s data indicated that the 380-gram equivalency was both the median and approximate mean ratio utilized by the courts when sentencing synthetic cathinone cases pursuant to Application Note 6. Thus, the Commission determined that the 380-gram equivalency best reflects the current sentencing practices for courts engaging in the Application Note 6 analysis.
Second, the Commission concluded that a ratio consistent with the existing methcathinone ratio was appropriate. The Commission set the methcathinone ratio based upon a scientific study that found that methcathinone was approximately 1.92 times more potent than amphetamine. At the time, amphetamine had a marihuana equivalency of 1:200, equivalent to the current marihuana equivalency of cocaine. The Commission’s current study of cathinones did not uncover any new scientific evidence undermining its rationale for setting the methcathinone ratio.
Third, the Commission was presented with substantial information about synthetic cathinones’ risks. Testimony before the Commission established that the effects and potencies of synthetic cathinones range from “at least as dangerous as cocaine” to methamphetamine-like. Medical experts discussed the substantial potential health impacts of cathinone use, while law enforcement witnesses offered reports of cathinone users’ aggressive behavior posing threats to first responders. With cocaine at a 1:200 ratio and methamphetamine at a 1:2,000 ratio, the Commission concluded that the ratio of 1:380 minimized the risk of frequent over-punishment for substances in this class while providing penalty levels sufficient to account for the specific harms caused by distribution of these substances.
In adopting a class-based approach for both ease of application and because of the impracticability of listing every new substance in the class as it enters the market, the Commission recognizes, however, that some substances may be significantly more or less potent than the typical substances in the class that the ratio was intended to reflect. Therefore, the Commission added a departure provision to address those substances for which a greater or lesser quantity is needed to produce an effect on the central nervous system similar to the effect produced by a typical synthetic cathinone.
To provide guidance to the court in determining whether to apply the departure, the departure provision identifies substances that the Commission found to be fair representatives of the synthetic cathinones that would fall within the spectrum of substances included in the class, as well as those that may warrant a departure. Specifically, the departure provision notes that: a typical cathinone has a potency comparable to methcathinone or alpha-PVP; methylone is an example of a lower potency substance; and MDPV is an example of a higher potency substance.
Synthetic cannabinoids mimic the effects of tetrahydrocannabinol (“THC”), the main psychoactive chemical in marihuana. Unlike THC, however, most synthetic cannabinoids are “full agonists.” That is, they activate the body’s type 1 cannabinoid receptors (CB1) to a greater degree (i.e., at 100%) than THC, which activates the CB1 receptors only at 30 to 50 percent. Additionally, unlike THC, synthetic cannabinoids do not contain the additional substances that moderate their adverse effects. To the contrary, they may contain additional substances that augment their hallucinogenic effects. Further, some forms of packaged mixtures (e.g., “K2”, “Spice”) may contain preservatives, additives, and other chemicals such as benzodiazepines that may compound the adverse effects caused by the cannabinoids. Also unlike THC, synthetic cannabinoids have been associated with physical harms such as organ failure and death.
Through the Commission’s multi-year synthetic drug study, the Commission learned that hundreds of synthetic cannabinoids exist. When first marketed, synthetic cannabinoids generally have not yet been scheduled as controlled substances. Often, once a synthetic cannabinoid is scheduled, a new one is created to replace it. Given the large number of potential substances, the Commission found it impracticable to add individual marihuana equivalencies for every synthetic cannabinoid. In contrast, the Commission determined that a class-based approach for synthetic cannabinoids would be a better means to capture both current and future synthetic cannabinoids.
Based on hearing testimony, the scientific literature, and public comment, the Commission determined that all synthetic cannabinoids can be covered by a single class because these substances share a similar pharmacological effect: all synthetic cannabinoids bind to and activate the CB1 receptor. Given the Commission’s priority to alleviate the burdens associated with the Application Note 6 process and the impracticality of adding many new marihuana equivalencies, the Commission concluded the class-based approach strikes a middle ground between precision and ease of guideline application.
The amendment defines the term “synthetic cannabinoid” as “any synthetic substance (other than synthetic tetrahydrocannabinol) that binds to and activates type 1 cannabinoid receptors (CB1 receptors).” The amendment establishes a marihuana equivalency for the class of synthetic cannabinoids of 1 gram of a synthetic cannabinoid (except a Schedule III, IV, or V substance) equals 167 grams of marihuana and applies a minimum base offense level of 12 to the class.
The marihuana equivalency selected for the class is identical to the existing marihuana equivalencies for both organic and synthetic tetrahydrocannabinol (THC). The Commission originally derived the organic and synthetic THC equivalencies from a comparison of standard dosage units of THC (3 mg) and marihuana (500 mg) and the relationship between the two, rather than the actual amount of THC commonly found in a dose of marihuana. During its current study, the Commission considered whether to incorporate THC (synthetic) into the new synthetic cannabinoid class. As noted, the new synthetic cannabinoid class will be subject to the minimum base offense level of 12 applicable to most Schedule I and II controlled substances. The Commission set a minimum base offense level of 12 to the class for consistency with other Schedule I and II controlled substances. THC (synthetic) is not currently subject to the same minimum offense level. Thus, incorporating THC (synthetic) into the synthetic cannabinoid class would effectively change penalties for certain THC (synthetic) offenses, an outcome contrary to the Commission’s intent. Consequently, THC (synthetic) is exempted from the class, its separate marihuana equivalency is retained, and that equivalency is applicable only in cases involving THC (synthetic).
Nevertheless, the Commission used the same marihuana equivalency for the class of synthetic cannabinoids. Commission data for cases involving synthetic cannabinoids indicates that the courts almost uniformly apply the marihuana equivalency for THC to such cases. Hence, the 1:167 ratio for the synthetic cannabinoid class reflects the courts’ current sentencing practices. Although synthetic cannabinoids activate the CB1 receptor to a greater degree than THC, the evidence also established that synthetic cannabinoids exhibit a range of potencies. Those most frequently encountered in the Commission’s data exhibited potencies ranging from one to six times that of THC. Adoption of the existing THC marihuana equivalency minimizes the risk of frequent over-punishment for substances in this class while providing penalty levels that are sufficient to account for the specific harms caused by distribution of these substances.
Finally, the amendment provides two departure provisions addressing synthetic cannabinoids. First, the amendment provides for a departure based on the concentration of a synthetic cannabinoid. The Commission learned that synthetic cannabinoids are manufactured as a powder or crystalline substance and are typically sprayed on or mixed with inert material (such as plant matter) before retail sale. As a result, a synthetic cannabinoid seized after it has been prepared for retail sale will typically weigh significantly more than the undiluted form of the same controlled substance.
Given the central role of drug quantity in setting the base offense level, an individual convicted of an offense involving a synthetic cannabinoid mixture would likely be subject to a guideline penalty range significantly higher than another individual convicted of an offense involving an undiluted synthetic cannabinoid (but who could nevertheless produce an equivalent amount of consumable product). In a case involving undiluted synthetic cannabinoid, an upward departure may be appropriate for that reason. By contrast, in a case where the mixture containing synthetic cannabinoids contained a high quantity of inert material, a downward departure may be warranted.
The second departure provision provides that a downward departure may be appropriate where a substantially greater quantity of the synthetic cannabinoid involved in the offense is needed to produce an effect on the central nervous system similar to the effect produced by a typical synthetic cannabinoid in the class. The two synthetic cannabinoids specifically cited in the Commission’s priority, JWH-018 and AM-2201, are three and a half times and five times more potent, respectively, than THC. If an offense involves a substantially less potent synthetic cannabinoid than JWH-018 or AM-2201, the court may wish to consider whether a downward departure is appropriate.
Effective Date: The effective date of this amendment is November 1, 2018.