WebST. Subsection (b)(2) applies if the conduct for which the defendant is accountable under 1B1.3 (Relevant Conduct) involved any discharge, emission, release, transportation, treatment, storage, or disposal violation covered by the Resource Conservation and Recovery Act, 42 U.S.C. Under federal law, in order to be convicted of possession with intent to distribute, all three of the following legal elements must be satisfied: Illegal drug In such a case, a downward departure may be warranted. Subsection (b)(17) implements the directive to the Commission in section 7(2) of Public Law 111220. Such conduct is covered by 3C1.1 (Obstructing or Impeding the Administration of Justice) and, if applicable, 2D1.1(b)(16)(D). Here, the judge must impose a sentence pursuant to the Federal Sentencing Guidelines Manual without regard to any statutory minimum sentence, if the court finds 1. In a case involving 100 grams of oxymorphone, the converted drug weight would be 500 kilograms, which corresponds to a base offense level of 26 in the Drug Quantity Table. 4. increase by 3 levels. 812 (2020).) %%EOF If the substance (except gamma-hydroxybutyric acid) is in liquid form, one unit means 0.5 milliliters. 9603(b), and 49 U.S.C. For example, subsection (b)(7) 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. 841(c)(2) and (f)(1), and 960(d)(2), (d)(3), and (d)(4) do not require that the defendant have knowledge or an actual belief that the listed chemical was to be used to manufacture a controlled substance unlawfully. (1) If a victim was killed under circumstances that would constitute murder under 18 U.S.C. Application of Subsection (c)(1)."Offense involved unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully," as used in subsection (c)(1), means that the defendant, or a person for whose conduct the defendant is accountable under 1B1.3 (Relevant Conduct), completed the actions sufficient to constitute the offense of unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully. (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 converted drug weight for the class should be used to determine the appropriate offense level. (A) Determining the Base Offense Level for Two or More Chemicals.Except as provided in subdivision (B), if the offense involves two or more chemicals, use the quantity of the single chemical that results in the greatest offense level, regardless of whether the chemicals are set forth in different tables or in different categories (i.e., list I or list II) under this guideline. (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. 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. (2) 9, if the defendant had reasonable cause to believe the prohibited flask, equipment, chemical, product, or material was to be used to manufacture a controlled substance. Guidelines for the imposition, duration, and conditions of supervised release are set forth in Chapter Five, Part D (Supervised Release). Determine the offense level under each guideline separately. Statutory Provisions: 21 U.S.C. 6. Offenses covered by this guideline may vary widely with regard to harm and risk of harm. (C) Upward Departure Based on Unusually High Purity.Trafficking in controlled substances, compounds, or mixtures of unusually high purity may warrant an upward departure, except in the case of PCP, amphetamine, methamphetamine, hydrocodone, or oxycodone for which the guideline itself provides for the consideration of purity (see the footnote to the Drug Quantity Table). See 21 U.S.C. 3553(f) provides an exception to the applicability of mandatory minimum sentences in certain cases. Structuring Chemical Transactions or Creating a Chemical Mixture to Evade Reporting or Recordkeeping Requirements; Presenting False or Fraudulent Identification to Obtain a Listed Chemical; Attempt or Conspiracy, (1) The offense level from 2D1.11 (Unlawfully Distributing, Importing, Exporting, or Possessing a Listed Chemical) if the defendant knew or believed that the chemical was to be used to manufacture a controlled substance unlawfully; or, (2) The offense level from 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical) reduced by 3 levels if the defendant had reason to believe that the chemical was to be used to manufacture a controlled substance unlawfully; or. (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 (d) 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. In some cases, the enhancement under subsection (b)(3) may not adequately account for the seriousness of the environmental harm or other threat to public health or safety (including the health or safety of law enforcement and cleanup personnel). Amended effective November 1, 1991 (amendment 421); November1, 1992 (amendment 447); November 1, 1993 (amendment 481); November1, 1995 (amendment 534). Note, however, that if an adjustment from subsection (b)(3)(C) applies, do not apply 3B1.3 (Abuse of Position of Trust or Use of Special Skill). (3) 4, if the substance is any other controlled substance or a list I chemical. 841(c)(1), (2), (f)(1), 865, 960(d)(1), (2), (3), (4). |&`A'girQ!,|^k,b h0731Yfx` ,u'VeTB*g#-y00. ________________________ 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. Application of Subsection (b)(1)."Firearm" and "dangerous weapon" are defined in the Commentary to 1B1.1 (Application Instructions). 15. *Notes to Drug Quantity Table: (A) Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance. (17) If the defendant receives the 4-level (minimal participant) reduction in 3B1.2(a) and the offense involved all of the following factors: (A) the defendant was motivated by an intimate or familial relationship or by threats or fear to commit the offense and was otherwise unlikely to commit such an offense; (B) the defendant received no monetary compensation from the illegal purchase, sale, transport, or storage of controlled substances; and. Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy. He pled (8) If the offense involved the distribution of an anabolic steroid and a masking agent, increase by 2 levels. The converted drug weight for the Schedule IV substance is subject to a cap of 9.99 kilograms set forth as the maximum converted weight for Schedule IV substances (without the cap it would have been 12.5kilograms). Amended effective November 1, 1992 (amendment 447); November 1, 2002 (amendment 646). Weba conviction of possession with intent to distribute carries a five year sentence for quantities of 500 grams or more. (2) If the defendant used violence, made a credible threat to use violence, or directed the use of violence, increase by 2 levels. (F) In the case of Schedule I or II Depressants (except gamma-hydroxybutyric acid), Schedule III substances, Schedule IV substances, and Schedule V substances, one unit means one pill, capsule, or tablet. Statutory Provisions: 21 U.S.C. Any person who violates this subsection (b) shall be guilty of a Class 3 felony, 20. When this is not the case, it is to be presumed that each 1/4 inch by 1/4 inch section of the blotter paper is equal to one dose. 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)). Historical Note:Effective November 1, 1987. Statutory Provision: 21 U.S.C. Historical Note: Effective November 1, 1991 (amendment 371). For additional statutory provision(s), see Appendix A (Statutory Index). PAUL A Bemidji man has pleaded guilty to possession with intent to distribute methamphetamine after law enforcement seized a pound of 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). At least 6,000 KG but less than 18,000 KG of Hashish; Nonetheless, there may be cases in which the substance involved in the offense is a synthetic cannabinoid not combined with any other substance. Subsection (b)(12) implements the directive to the Commission in section 6(2) of Public Law 111220. 21a-278a (a) 845b). UNLAWFUL MANUFACTURING, IMPORTING, EXPORTING, TRAFFICKING, OR POSSESSION; CONTINUING CRIMINAL ENTERPRISE, 2D1.1. Section 841 (a) makes it unlawful to knowingly or intentionally possess with intent to distribute any controlled substance. This guideline applies only in a case in which the defendant is convicted of a statutory violation of drug trafficking in a protected location or involving an underage or pregnant individual (including an attempt or conspiracy to commit such a violation) or in a case in which the defendant stipulated to such a statutory violation. Background: This section covers the offense of assembling, placing, or causing to be placed, or maintaining a "booby-trap" on federal property where a controlled substance is being manufactured or distributed. (10) If the defendant was convicted under 21 U.S.C. Subsection (b)(14)(A) implements the instruction to the Commission in section 303 of Public Law103237. 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 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). Nonetheless, this approach does not override the applicability of mixture or substance for the purpose of applying any mandatory minimum sentence (see Chapman; 5G1.1(b)). 860a of distributing, or possessing with intent to distribute, methamphetamine on premises where a minor is present or resides, increase by 2levels. 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C. (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. (1) If a dangerous weapon (including a firearm) was possessed, increase by 2levels. hbbd```b``uA$2r "80d6#HT M^WbOo]#| 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. Placing or Maintaining Dangerous Devices on Federal Property to Protect the Unlawful Production of Controlled Substances; Attempt or Conspiracy. 841, 960, 962, and 46 U.S.C. 841(c)(2) or (f)(1), or 960(d)(2), (d)(3), or (d)(4), decrease by 3 levels, unless the defendant knew or believed that the listed chemical was to be used to manufacture a controlled substance unlawfully. Since controlled substances are often diluted and combined with other substances as they pass down the chain of distribution, the fact that a defendant is in possession of unusually pure narcotics may indicate a prominent role in the criminal enterprise and proximity to the source of the drugs. Application of Subsection (b)(3).Subsection (b)(3) applies if the conduct for which the defendant is accountable under 1B1.3 (Relevant Conduct) involved any discharge, emission, release, transportation, treatment, storage, or disposal violation covered by the Resource Conservation and Recovery Act, 42 U.S.C. Unlawful Sale or Transportation of Drug Paraphernalia; Attempt or Conspiracy. (D) Departure Based on Potency of Synthetic Cathinones.In addition to providing converted drug weights for specific controlled substances and groups of substances, the Drug Conversion Tables provide converted drug weights for certain classes of controlled substances, such as synthetic cathinones. In such a case, an upward departure would be warranted. In a case in which the defendant possessed or distributed the listed chemical without such knowledge or belief, a 3-level reduction is provided to reflect that the defendant is less culpable than one who possessed or distributed listed chemicals knowing or believing that they would be used to manufacture a controlled substance unlawfully. If the offense involved the large-scale manufacture, distribution, transportation, exportation, or importation of prohibited flasks, equipment, chemicals, products, or material, an upward departure may be warranted. Application of Subsection (b)(11).Subsection (b)(11) does not apply if the purpose of the bribery was to obstruct or impede the investigation, prosecution, or sentencing of the defendant. Note, however, that 18 U.S.C. Cases Involving Multiple Chemicals.. In 1991, the Commission amended the Drug Equivalency Tables to provide for one substance, marihuana, as the single conversion factor in 2D1.1. For marihuana plants, the Commission has adopted an equivalency of 100 grams per plant, or the actual weight of the usable marihuana, whichever is greater. When a mandatory minimum penalty exceeds the guideline range, the mandatory minimum becomes the guideline sentence. To determine these finer distinctions, the Commission consulted numerous experts and practitioners, including authorities at the Drug Enforcement Administration, chemists, attorneys, probation officers, and members of the Organized Crime Drug Enforcement Task Forces, who also advocate the necessity of these distinctions. I cover safety valve in great detail for your benefit. 2. 2. At least 600 KG but less than 1,800 KG of Hashish Oil; 12. Applicability of Subsection (b)(6).The applicability of subsection (b)(6) shall be determined without regard to the offense of conviction. See 1B1.3(a)(2) (Relevant Conduct). (III) The duration of the offense, and the extent of the manufacturing operation. In such cases, an upward departure may be warranted. See1B1.1 (Application Instructions), Application Note 4(A). A Pascagoula man was sentenced to 70 months in federal prison for possession with intent to distribute methamphetamine, announced U.S. Attorney Darren J. LaMarca and Special Agent in Charge Jermicha Fomby of the Federal Bureau of Investigation. Historical Note: Effective November 1, 1987. 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. 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. 1. The last sentence of subsection (a)(5) implements the directive to the Commission in section 7(1) of Public Law 111220. (B) Substantial Risk of Harm Associated with the Manufacture of Amphetamine and Methamphetamine (Subsection (b)(14)(C)(D)).. WebIf a person has between 5 and 49 grams of pure meth, or 50 to 499 grams of a mixture, it is considered possession with intent to distribute (trafficking), and federal 2285 was used, or (C) the defendant acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer aboard any craft or vessel carrying a controlled substance, increase by 2 levels. Additionally, any costs of environmental cleanup and harm to persons or property should be considered by the court in determining the amount of restitution under 5E1.1 (Restitution) and in fashioning appropriate conditions of supervision under 5B1.3 (Conditions of Probation) and 5D1.3 (Conditions of Supervised Release). 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. Knowingly or Intentionally Amended effective November 1, 1992 (amendment 447); November 1, 2002 (amendment 646). 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). Additionally, in determining the amount of restitution under 5E1.1 (Restitution) and in fashioning appropriate conditions of probation and supervision under 5B1.3 (Conditions of Probation) and 5D1.3 (Conditions of Supervised Release), respectively, any costs of environmental cleanup and harm to individuals or property shall be considered by the court in cases involving the manufacture of amphetamine or methamphetamine and should be considered by the court in cases involving the manufacture of a controlled substance other than amphetamine or methamphetamine. 3553(f) provides an exception to the applicability of mandatory minimum sentences in certain cases. At least 15 KG but less than 45 KG of Methamphetamine, or Drug Offenses Occurring Near Protected Locations or Involving Underage or Pregnant Individuals; Attempt or Conspiracy. 865 would achieve the "total punishment" in a manner that satisfies the statutory requirement of a consecutive sentence. Statutory Provisions: 21 U.S.C. (b) Specific Offense Characteristics. If you're charged with a federal drug crime, you should contact an attorney who practices in federal court (not me). At least 30 KG but less than 90 KG of Heroin; An adjustment from Chapter Three, Part B is not authorized because the offense level of this guideline already reflects an adjustment for role in the offense. 5. If the offense involved both a substantive drug offense and an attempt or conspiracy (e.g.,sale of five grams of heroin and an attempt to sell an additional ten grams of heroin), the total quantity involved shall be aggregated to determine the scale of the offense. (A) Controlled Substances Not Referenced in Drug Quantity Table.The Commission has used the sentences provided in, and equivalences derived from, the statute (21 U.S.C. 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. Manufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendants primary or principal uses for the premises, rather than one of the defendants incidental or collateral uses for the premises. 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