Federal Register Notice of Issue for Comment on Synthetic Drugs

UNITED STATES SENTENCING COMMISSION

82 FR 28382

ACTION: Notice; request for public comment.

SUMMARY: In August 2016, the Commission indicated that one of its policy priorities would be the “[s]tudy of offenses involving MDMA/Ecstasy, synthetic cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone), and consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study.” See 81 FR 58004 (Aug. 24, 2016). As part of its continuing work on this priority, the Commission is publishing this request for public comment on issues related to MDMA/Ecstasy and methylone, one of the synthetic cathinones included in the Commission's study. The issue for comment is set forth in the SUPPLEMENTARY INFORMATION portion of this notice.

DATES: Public comment regarding the issues for comment set forth in this notice should be received by the Commission not later than August 7, 2017.

ADDRESSES: All written comment should be sent to the Commission by electronic mail or regular mail. The email address for public comment is Public_Comment@ussc.gov. The regular mail address for public comment is United States Sentencing Commission, One Columbus Circle NE., Suite 2-500, Washington, DC 20002-8002, Attention: Public Affairs.

FOR FURTHER INFORMATION CONTACT: Christine Leonard, Director, Office of Legislative and Public Affairs, (202) 502-4500, pubaffairs@ussc.gov.

The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal courts pursuant to 28 U.S.C. § 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. § 994(o) and submits guideline amendments to the Congress not later than the first day of May each year pursuant to 28 U.S.C. § 994(p).

In August 2016, the Commission indicated that one of its priorities would be the “[s]tudy of offenses involving MDMA/Ecstasy, synthetic cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone), and consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study.” See U.S. Sentencing Comm'n, “Notice of Final Priorities,” 81 FR 58004 (Aug. 24, 2016). The Commission expects that this study will be conducted over a multi-year period, and may solicit comment several times during this period from experts and other members of the public.

On December 19, 2016, the Commission published a request for comment inviting general comment on synthetic cathinones (MDPV, methylone, and mephedrone) and synthetic cannabinoids (JWH-018 and AM-2201), as well as about the application of the factors the Commission traditionally considers when determining the marihuana equivalencies for specific controlled substances to the substances under study. See U.S. Sentencing Comm'n, “Request for Public Comment,” 81 FR 92021 (Dec. 19, 2016). On April 18, 2017, the Commission held a public hearing relating to this priority. The Commission received testimony from experts on the synthetic drugs related to the study, including testimony about their chemical structure, pharmacological effects, trafficking patterns, and community impact.

As part of its continuing work on this priority, the Commission is publishing this second request for comment specifically focused on issues related to MDMA/Ecstasy and methylone, one of the synthetic cathinones included in the Commission's study. In addition to the substance-specific topics discussed below, the Commission anticipates that its work will continue to be guided by the factors the Commission traditionally considers when determining marihuana equivalencies for specific controlled substances, including their chemical structure, pharmacological effects, legislative and scheduling history, potential for addiction and abuse, the pattern of abuse and harms associated with their abuse, and the patterns of trafficking and harms associated with their trafficking.

MDMA.—MDMA (3,4-Methylenedioxy-methamphetamine) is a Schedule I controlled substance with a chemical structure similar to methamphetamine and the hallucinogen mescaline. See U.S. Sentencing Comm'n, Report to the Congress: MDMA Drug Offenses: Explanation of Recent Guideline Amendments 6-7 (May 2001) (“MDMA Report”). MDMA, also known as “ecstasy” or “molly,” was originally developed for therapeutic use, but became a drug of abuse by the late 1970s. Id. at 7. Its use results in enhanced feelings of pleasure, relaxation, and self-confidence, while accompanying physical symptoms may include increased heart rate and blood pressure and difficulty regulating body temperature. MDMA is typically marketed and consumed in pill form. Id.

MDMA is not specifically listed in the Drug Quantity Table at §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy), but it is referenced in the Drug Equivalency Tables. See USSG §2D1.1, comment. (n.8(D)). Prior to 2001, the marihuana equivalency of MDMA was 1 gm of MDMA = 35 gm of marihuana. The Commission established the current marihuana equivalency and penalties for MDMA in 2001 in response to the Ecstasy Anti-Proliferation Act of 2000, Public Law 106-310 (Oct. 17, 2000). The Act directed the Commission to examine whether the then-current penalties associated with MDMA were appropriate, adopt any appropriate amendments to the Guidelines Manual, and submit a report to Congress explaining its actions. Id. at 2. The Act also instructed the Commission to consider five distinct “dangers” associated with unlawful activity involving MDMA: (1) Rapid growth in its use; (2) a recent increase in its importation; (3) the young age at which usage began; (4) the marketing of the substance to youth; and (5) the large number of doses per gram of MDMA. Id. at 3.

The Commission implemented the directive by adopting an amendment setting the marihuana equivalency for MDMA as 1 gm of MDMA = 500 gm of marihuana. See USSG App. C, amend. 609 (effective May 1, 2001). In response to the directive, the Commission also published its MDMA Report and submitted it to Congress. In the MDMA Report, the Commission explained that it had found evidence supporting all of Congress's concerns except for the fifth (the number of doses per gram). See id. at 11-16. The MDMA Report also explained that there was conflicting evidence about MDMA's potential long-term mental and physical harms and dangers relative to other controlled substances. See id. at 17-18. After considering all the evidence, the Commission chose a 500:1 ratio, which was less than an earlier 1,000:1 proposal, but would result in significant increases in the penalties for MDMA offenses. See id. at 6. The 500:1 ratio was intended to punish “local distributors” with sentences of approximately five years, and “upper and middle level distributors” with sentences of ten or more years. See id. at 18.

The marihuana equivalency of MDMA remains 1 gm of MDMA = 500 gm of marihuana. Some public comment and judicial opinions have suggested that the current marihuana equivalency for MDMA may no longer be appropriate in light of scientific and practical developments that have occurred since 2001. Other stakeholders have suggested that the current ratio remains appropriate in light of the concerns expressed by Congress in 2000.

Methylone and Other Synthetic Cathinones.—According to the National Institute on Drug Abuse, synthetic cathinones, also known as “bath salts,” are human-made substances chemically related to cathinone, a stimulant found in the khat plant. See National Institute on Drug Abuse, DrugFacts: Synthetic Cathinones (“Bath Salts”) (January 2016). Methylone (3,4-methylenedioxy-N-methylcathinone), also known as MDMC, is a synthetic cathinone that has been reported to have hallucinogenic effects broadly similar to those of MDMA. Like MDMA, methylone has been associated with use at dance parties or “raves.” According to the Drug Enforcement Agency, methylone is typically imported from abroad and consumed in capsule form. Drug Enforcement Agency, U.S. Dep't of Justice, Drugs of Abuse: A DEA Resource Guide 80 (2015).

Unlike MDMA, methylone is not specifically listed in either the Drug Quantity Table or the Drug Equivalency Tables at §2D1.1. As with any drug trafficking offense that involves a controlled substance not specifically referenced in the guidelines, courts are required in cases involving methylone to “determine the base offense level using the marihuana equivalency of the most closely related controlled substance referenced in [Section 2D1.1].” See USSG §2D1.1, comment. (n.6). The guidelines establish a three-step process for making this determination. See USSG §2D1.1, comment. (n.6, 8). First, a court must determine the most closely related controlled substance by considering, to the extent practicable, the factors set forth in Application Note 6. Once the most closely related controlled substance is determined, the next step is to determine the appropriate quantity of marihuana equivalent, using the Drug Equivalency Tables at Application Note 8(D). The final step is to use the Drug Quantity Table at Section 2D1.1(c) to determine the base offense level that corresponds to that amount of marihuana.

A preliminary review of Commission data regarding cases involving synthetic cathinones indicates that, in determining the most closely related controlled substance, courts recognize distinctions among types of synthetic cathinones. For example, in cases involving methylone, Commission data indicates that courts have almost always identified MDMA as the most closely related controlled substance to methylone, and have used either MDMA's marihuana equivalency of 500:1 or a reduced equivalency.

Issues for Comment.

1. The Commission invites general comment on whether, and if so how, the guidelines for MDMA/Ecstasy trafficking should be changed. As stated above, the marihuana equivalency of MDMA is 1 gm of MDMA = 500 gm of marihuana. Is the marihuana equivalency for MDMA appropriate? Should the Commission establish a different equivalency for MDMA? If so, what equivalency should the Commission provide and on what basis?

The Commission further seeks comment on any relevant developments in the scientific literature on the health effects of MDMA use since the Commission published its MDMA Report and last amended the marihuana equivalency for MDMA in 2001. The Commission also seeks comment about whether there have been changes in MDMA distribution and usage patterns, such as marketing to or prevalence of use among youth, since 2001. For example, how is MDMA typically manufactured, distributed, and marketed today? How does MDMA compare to other controlled substances referenced in §2D1.1 in terms of health effects (including addictiveness and abuse potential), marketing and trafficking patterns, and potency by dosage unit? How should the Commission assess the harms of MDMA relative to those of other controlled substances?

Finally, the Commission seeks comment on whether since 2001 there have been any developments to suggest that the Commission, in addition to or instead of establishing a different equivalency for MDMA, should revise the “typical weight per unit” measure set forth in Application Note 9 to §2D1.1, which is currently set at 250 mg for MDMA. If so, what are those developments? How should the Commission revise the “typical weight per unit” measure set forth for MDMA?

2. As noted above, courts have typically identified MDMA as the most closely related controlled substance to methylone. Under the current guidelines, including Application Note 6 to §2D1.1, is this determination appropriate? If not, is there any controlled substance referenced in §2D1.1 that is most closely related to methylone? If so, what substance?

The Commission seeks comment on whether the Commission should provide a marihuana equivalency for methylone. If so, and MDMA is determined to be the most closely related controlled substance to methylone, should the Commission specify a marihuana equivalency for methylone at the same ratio as MDMA, regardless of whether the ratio for MDMA is changed from its current 500:1 level? Should the Commission establish a marihuana equivalency for methylone at a higher or lower ratio than the current MDMA equivalency? If so, what equivalency should the Commission provide and why? To the extent methylone has different characteristics than MDMA, how do those characteristics compare with other controlled substances referenced in §2D1.1 in terms of health effects (including addictiveness and abuse potential), marketing and trafficking patterns, and potency by dosage unit?

If the Commission were to establish a marihuana equivalency for methylone, which is often marketed and consumed in capsule form, should the Commission establish a “typical weight per unit” for methylone in Application Note 9 to §2D1.1?

3. The Commission seeks general comment on whether there are synthetic cathinones, other than methylone, that are substantially similar in their effects to MDMA. If so, what are those substances? How do those substances compare to MDMA in terms of health effects (including addictiveness and abuse potential), marketing and trafficking patterns, and potency by dosage unit? If the Commission were to include any such other synthetic cathinones in the Drug Equivalency Tables at Application Note 8(D) to §2D1.1, how should the Commission establish marihuana equivalencies for these other synthetic cathinones in relation to one another and to the other controlled substances referenced in §2D1.1?

AUTHORITY: 28 U.S.C. § 994(a), (o), (p), (x); USSC Rules of Practice and Procedure 4.4.

William H. Pryor, Jr.,

Acting Chair

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