(2) If the defendant was convicted under 21 U.S.C. (5) If (A) the offense involved the importation of amphetamine or methamphetamine or the manufacture of amphetamine or methamphetamine from listed chemicals that the defendant knew were imported unlawfully, and (B) the defendant is not subject to an adjustment under 3B1.2 (Mitigating Role), increase by 2 levels. Possession with intent to distribute harder drugs like methamphetamines, heroin, cocaine, PCP, LSD, Fentanyl, or concentrated THC is a Class II felony. 845b). Any reference to cocaine includes ecgonine and coca leaves, except extracts of coca leaves from which cocaine and ecgonine have been removed. The converted drug weight for the Schedule V substance is subject to the cap of 2.49 kilograms set forth as the maximum converted weight for Schedule V substances (without the cap it would have been 3.75 kilograms). 812 (2020).) Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy. (1) If 3A1.4 (Terrorism) does not apply, increase by 6 levels. During a sentencing hearing held Feb. 21, U.S. District Judge Rebecca Goodgame Ebinger sentenced Divos to 174 months, or 14 years, in federal prison for Renting or Managing a Drug Establishment; Attempt or Conspiracy. (1) It is unlawful knowingly to engage in the. 1285 0 obj <> endobj Examples of such materials include the fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in a cocaine/beeswax statue, and waste water from an illicit laboratory used to manufacture a controlled substance. In controlled substance offenses, an attempt is assigned the same offense level as the object of the attempt. Additionally, an enhancement under 3B1.3 ordinarily would apply in a case in which the defendant used his or her position as a coach to influence an athlete to use an anabolic steroid. For example, ephedrine reacts with other chemicals to form methamphetamine. At least 30,000 KG but less than 90,000 KG of Converted Drug Weight. A grand jury indicted McDowell on one count of distribution of fentanyl resulting in death in December 2021. The amount of ephedrine directly affects the amount of methamphetamine produced. 843(a)(3). [Subsection (c) (Drug Quantity Table) is set forth after subsection (e) (Special Instruction).]. (C) Examples for Combining Differing Controlled Substances.. 2D1.5. If the offense resulted in the death or serious bodily injury of a large number of persons, such that the resulting offense level under subsection (b) would not adequately reflect the seriousness of the offense, an upward departure may be warranted. Application of Subsection (b)(9).For purposes of subsection (b)(9), athlete means an individual who participates in an athletic activity conducted by (A) an intercollegiate athletic association or interscholastic athletic association; (B) a professional athletic association; or (C) an amateur athletic organization. Five kilograms of ephedrine result in a base offense level of level 36; 300 grams of hydriodic acid result in a base offense level of level 24. A woman has pleaded guilty in Amarillo Federal Court for one count of "Distribution and Possession With Intent to Distribute Methamphetamine" after she was charged in late August 2022. See 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases). In making this determination, the court should consider how frequently the premises was used by the defendant for manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant for lawful purposes. If the resulting offense level is less than level 14, increase to level 14. As large quantities are normally associated with high purities, this factor is particularly relevant where smaller quantities are involved. The Commission serves as an information resource for Congress, the executive branch, the courts, criminal justice practitioners, the academic community, and the public. For example, if the defendant, as part of the same course of conduct or common scheme or plan, sold 5 grams of heroin near a protected location and 10 grams of heroin elsewhere, the offense level from subsection (a)(1) would be level 14 (2 plus the offense level for the sale of 5 grams of heroin, the amount sold near the protected location); the offense level from subsection (a)(2) would be level 15 (1 plus the offense level for the sale of 15 grams of heroin, the total amount of heroin involved in the offense). Amended effective November 1, 2010 (amendments746 and 748); November 1, 2011 (amendment 750); November 1, 2014 (amendment 783); November 1, 2018 (amendment 807). At least 12 KG but less than 36 KG of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide); Statutory Provisions: 21 U.S.C. 844(a). Background: Mandatory (statutory) minimum penalties for several categories of cases, ranging from fifteen days' to three years' imprisonment, are set forth in 21 U.S.C. An upward departure nonetheless may be warranted when the mixture or substance counted in the Drug Quantity Table is combined with other, non-countable material in an unusually sophisticated manner in order to avoid detection. Because LSD typically is marketed and consumed orally on a carrier medium, the inclusion of some weight attributable to the carrier medium recognizes (A) that offense levels for most other controlled substances are based upon the weight of the mixture containing the controlled substance without regard to purity, and (B) the decision in Chapman v. United States, 500U.S. 453 (1991) (holding that the term mixture or substance in 21 U.S.C. (A) Distributing to a Specified Individual or Involving Such an Individual in the Offense (Subsection (b)(16)(B)).If the defendant distributes a controlled substance to an individual or involves an individual in the offense, as specified in subsection (b)(16)(B), the individual is not a vulnerable victim for purposes of 3A1.1(b). Web(b) It is unlawful for any person knowingly to manufacture, distribute, advertise, or possess with intent to manufacture or distribute a look-alike substance. For example, Tylenol 3 is classified as a Schedule III controlled substance even though it contains a small amount of codeine, a Schedule II opiate. (B) Interaction of Subsections (b)(1) and (b)(2).The enhancements in subsections (b)(1) and (b)(2) may be applied cumulatively (added together), as is generally the case when two or more specific offense characteristics each apply. 21a-278 (a) and (b) 8.3-3 Illegal Distribution of a Controlled Substance to a Minor -- Sec. WebThis list includes all federal (not state) sentencing laws that require the judge to give the offender a mandatory minimum prison term. In each case, convert each of the drugs to its converted drug weight, add the quantities, and look up the total in the Drug Quantity Table to obtain the combined offense level. Interaction with 3B1.3.A defendant who used special skills in the commission of the offense may be subject to an adjustment under 3B1.3 (Abuse of Position of Trust or Use of Special Skill). 841(a), (b)(1)-(3), (7), (g), 860a, 865, 960(a), (b); 49 U.S.C. Guidelines for the imposition, duration, and conditions of supervised release are set forth in Chapter Five, Part D (Supervised Release). Imposition of Consecutive Sentence for 21 U.S.C. Any person who violates this subsection (b) shall be guilty of a Class 3 felony, In such a case, a departure may be warranted. Distribution or intent to sell between 28-140 grams is a Class IC felony, which invokes a minimum five years and up to 50 years. The converted drug weight for the Schedule III substance is 76kilograms (below the cap of 79.99 kilograms of converted drug weight set forth as the maximum converted weight for Schedule III substances). Note that the Drug Quantity Table in 2D1.1 provides a minimum offense level of 12 where the offense involves heroin (or other Schedule I or II opiates), cocaine (or other Schedule I or II stimulants), cocaine base, PCP, methamphetamine, LSD (or other Schedule I or II hallucinogens), fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide), or fentanyl analogue (2D1.1(c)(14)); a minimum offense level of 8 where the offense involves flunitrazepam (2D1.1(c)(16)); and a minimum offense level of 6 otherwise (2D1.1(c)(17)). 17. Determining Quantity of LSD.LSD on a blotter paper carrier medium typically is marked so that the number of doses (hits) per sheet readily can be determined. (a) Base Offense Level: the offense level applicable to the underlying offense. at least 1.5 KG but less than 4.5 KG of "Ice"; I cover safety valve in great detail for your benefit. Placing or Maintaining Dangerous Devices on Federal Property to Protect the Unlawful Production of Controlled Substances; Attempt or Conspiracy. A Bemidji man has pleaded guilty to possession with intent to distribute methamphetamine. In the case of liquid LSD (LSD that has not been placed onto a carrier medium), using the weight of the LSD alone to calculate the offense level may not adequately reflect the seriousness of the offense. (10) If the defendant was convicted under 21 U.S.C. (A) Application of Subsection (b)(1).Definitions of firearm and dangerous weapon are found in the Commentary to 1B1.1 (Application Instructions). (1) If the defendant (A) intended to manufacture methamphetamine, or (B) knew, believed, or had reasonable cause to believe that prohibited flask, equipment, chemical, product, or material was to be used to manufacture methamphetamine, increase by 2 levels. For example, a mixture weighing 10grams containing PCP at 50% purity contains 5 grams of PCP (actual). Historical Note: Section 2D1.3 (Distributing Controlled Substances to Individuals Younger than Twenty-One Years, to Pregnant Women, or Within 1000 Feet of a School or College), effective November 1, 1987, amended effective January15, 1988 (amendment 23), was deleted by consolidation with 2D1.2 effective November 1, 1989 (amendment 135). 865, specifying the number of months to be served consecutively for the conviction under 21 U.S.C. 3. The decision to treat each plant as equal to 100 grams is premised on the fact that the average yield from a mature marihuana plant equals 100 grams of marihuana. 1. Historical Note: Effective November 1, 1987. Section 5C1.2(b), which provides a minimum offense level of level 17, is not pertinent to the determination of whether subsection(b)(18) applies. 26. The offense level for methylamine is determined by using 2D1.11. Application of Subsection (b)(8).For purposes of subsection (b)(8), masking agent means a substance that, when taken before, after, or in conjunction with an anabolic steroid, prevents the detection of the anabolic steroid in an individuals body. 12. If no or only a few passengers were placed at risk, a downward departure may be warranted. Special sentencing provisions for possession of Flunitrazepam (Rohypnol, "roofies" or "roaches") impose a Penalties for possession with intent to distribute are potentially even more severe. The adjustment in subsection (b)(1) should be applied if the weapon was present, unless it is improbable that the weapon was connected with the offense. If the resulting offense level is less than level 26, increase to level 26. 0 Manufacture; distribution. In 2018, the Commission amended 2D1.1 to replace marihuana as the conversion factor with the new term converted drug weight and to change the title of the Drug Equivalency Tables to the Drug Conversion Tables.. Amended effective November 1, 1990 (amendment 320); November 1, 1992 (amendment 447); November 1, 1994 (amendment 505); November 1, 2009 (amendment 737); November 1, 2012 (amendment 770); November 1, 2018 (amendment 807). 1. See 1B1.3(a)(2) (Relevant Conduct). Section 841 (b) lists additional facts that, if proved, trigger penalties. (1) The offense level from 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) applicable to the underlying offense, except that 2D1.1(a)(5)(A), (a)(5)(B), and (b)(18) shall not apply. Unlawful Sale or Transportation of Drug Paraphernalia; Attempt or Conspiracy. 1308.11(d)(31)), (ii) at least two of the following: cannabinol, cannabidiol, or cannabichromene, and (iii) fragments of plant material (such as cystolith fibers). 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. %%EOF I cover safety valve in great detail for your benefit. In determining the appropriate sentence, the court also may consider whether the same quantity of analogue produces a greater effect on the central nervous system than the controlled substance for which it is an analogue. (i) Departure Based on Concentration of Synthetic Cannabinoids.Synthetic cannabinoids are manufactured as powder or crystalline substances. 46317(b). If you're charged with a federal drug crime, you should contact an attorney who practices in federal court (not me). Consequently, the Commission adopted the policy that each plant is to be treated as the equivalent of an attempt to produce 100 grams of marihuana, except where the actual weight of the usable marihuana is greater. Continuing Criminal Enterprise; Attempt or Conspiracy. Penalties for these charges can range from one year in prison to no more than 50 years, depending on the quantity found. The Commission collects, analyzes, and disseminates a broad array of information on federal crime and sentencing practices. (1) If a victim was killed under circumstances that would constitute murder under 18 U.S.C. Thus, the approach decided upon by the Commission will harmonize offense levels for LSD offenses with those for other controlled substances and avoid an undue influence of varied carrier weight on the applicable offense level. Weba Federal or State offense, by whatever designation and wherever committed, consisting of murder (as described in section 1111); manslaughter other than involuntary manslaughter (as described in section 1112); assault with intent to commit murder (as described in section 113(a)); assault with intent to commit rape; aggravated sexual abuse and sexual abuse 841 Prohibits the manufacture and distribution of, and possession with intent to distribute, controlled substances 21 U.S.C. Acquiring a Controlled Substance by Forgery, Fraud, Deception, or Subterfuge; Attempt or Conspiracy. The Typical Weight Per Unit Table, prepared from information provided by the Drug Enforcement Administration, displays the typical weight per dose, pill, or capsule for certain controlled substances. A grand jury indicted McDowell on one count of distribution of fentanyl resulting in death in December 2021. Operating or Directing the Operation of a Common Carrier Under the Influence of Alcohol or Drugs, (2) 21, if serious bodily injury resulted; or. At least 30,000 KG but less than 90,000 KG of Marihuana; (5) 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. Amended effective November 1, 1992 (amendment 447); November 1, 1995 (amendment 520); November 1, 1997 (amendment 558); November 1, 2000 (amendment 605); November 1, 2001 (amendment 626); November 1, 2004 (amendment 667); November 1, 2010 (amendment 746). Drug possession laws generally fall into one of two main categories: Simple possession (for personal use); and Possession with intent to distribute. (16) If the defendant receives an adjustment under 3B1.1 (Aggravating Role) and the offense involved 1 or more of the following factors: (A) (i) the defendant used fear, impulse, friendship, affection, or some combination thereof to involve another individual in the illegal purchase, sale, transport, or storage of controlled substances, (ii) the individual received little or no compensation from the illegal purchase, sale, transport, or storage of controlled substances, and (iii) the individual had minimal knowledge of the scope and structure of the enterprise; (B) the defendant, knowing that an individual was (i) less than 18years of age, (ii) 65 or more years of age, (iii) pregnant, or (iv)unusually vulnerable due to physical or mental condition or otherwise particularly susceptible to the criminal conduct, distributed a controlled substance to that individual or involved that individual in the offense; (C) the defendant was directly involved in the importation of a controlled substance; (D) the defendant engaged in witness intimidation, tampered with or destroyed evidence, or otherwise obstructed justice in connection with the investigation or prosecution of the offense; (E) the defendant committed the offense as part of a pattern of criminal conduct engaged in as a livelihood. WebIt is against federal law to have [controlled substance] in your possession with the intention of distributing it to someone else. In addition, 18 U.S.C. 1319(c), the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. See1B1.1 (Application Instructions), Application Note 4(A). Historical Note: Effective November 1, 1987. These professionals include doctors, pilots, boat captains, financiers, bankers, attorneys, chemists, accountants, and others whose special skill, trade, profession, or position may be used to significantly facilitate the commission of a drug offense. Statutory Provision: 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. In the case of a controlled substance that is not specifically referenced in the Drug Quantity Table, determine the base offense level as follows: (i) Use the Drug Conversion Tables to find the converted drug weight of the controlled substance involved in the offense. The enhancement also applies to offenses that are referenced to 2D1.1; see 2D1.2(a)(1) and (2), 2D1.5(a)(1), 2D1.6, 2D1.7(b)(1), 2D1.8, 2D1.11(c)(1), and 2D1.12(c)(1). 24. In a case involving such a conviction but in which only part of the relevant offense conduct directly involved a protected location or an underage or pregnant individual, subsections (a)(1) and (a)(2) may result in different offense levels. (2) A person who violates paragraph (1) of this. 865.Section 865 of title 21, United States Code, requires the imposition of a mandatory consecutive term of imprisonment of not more than 15 years. The enhancements in subsection (b)(14)(A) and (b)(15) may be applied cumulatively (added together), as is generally the case when two or more specific offense characteristics each apply. Determining Drug Types and Drug Quantities.Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level. Note, however, that 18 U.S.C. When a mandatory minimum penalty exceeds the guideline range, the mandatory minimum becomes the guideline sentence. (15) If (A) the offense involved the cultivation of marihuana on state or federal land or while trespassing on tribal or private land; and (B) the defendant receives an adjustment under 3B1.1 (Aggravating Role), increase by 2levels. Finally, subsection (a)(2) does not apply if the defendant had previously allowed any premises to be used as a drug establishment without regard to whether such prior misconduct resulted in a conviction. 841, 960, 962, and 46 U.S.C. 2. If subsection (b)(3) or (b)(5) applies, do not apply subsection (b)(16)(C). (1) If a dangerous weapon (including a firearm) was possessed, increase by 2levels. See 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases). Because the weights of LSD carrier media vary widely and typically far exceed the weight of the controlled substance itself, the Commission has determined that basing offense levels on the entire weight of the LSD and carrier medium would produce unwarranted disparity among offenses involving the same quantity of actual LSD (but different carrier weights), as well as sentences disproportionate to those for other, more dangerous controlled substances, such as PCP. 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. The statute, however, provides direction only for the more common controlled substances, i.e., heroin, cocaine, PCP, methamphetamine, fentanyl, LSD and marihuana. 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