81 FR 92021 - Sentencing Guidelines for United States Courts

UNITED STATES SENTENCING COMMISSION

Federal Register Volume 81, Issue 243 (December 19, 2016)

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 81 FR 58004 (Aug. 24, 2016). As part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, the United States Sentencing Commission is publishing this issue for comment to inform the Commission's consideration of the issues related to this policy priority. The issue for comment is set forth in the Supplementary Information portion of this notice.

[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
[Notices]
[Pages 92021-92022]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-30490]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Request for public comment.

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SUMMARY: 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 81 FR 58004 
(Aug. 24, 2016). As part of its statutory authority and responsibility 
to analyze sentencing issues, including operation of the federal 
sentencing guidelines, the United States Sentencing Commission is 
publishing this issue for comment to inform the Commission's 
consideration of the issues related to this policy priority. The issue 
for comment is set forth in the Supplementary Information portion of 
this notice.

DATES: Public comment regarding the issue for comment set forth in this 
notice should be received by the Commission not later than March 10, 
2017.

ADDRESSES: All written comment should be sent to the Commission by 
electronic mail or regular mail. The email address for public comment 
is [email protected]. 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, [email protected].

SUPPLEMENTARY INFORMATION: 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 81 FR 58004 (Aug. 24, 
2016). The Commission intends that this study will be conducted over a 
two-year period and will solicit input, several times during this 
period, from experts and other members of the public. The Commission 
further intends that in the amendment cycle ending May 1, 2018, it may, 
if appropriate, publish a proposed amendment as a result of the study.
    MDMA, Synthetic Cathinones, and Synthetic Cannabinoids.--As part of 
the study related to this policy priority, the Commission intends to 
examine offenses involving the following controlled substances:
    Synthetic Cathinones
 MDPV (Methylenedioxypyrovalerone)
 Methylone (3,4-Methylenedioxy-N-Methylcathinone)
 Mephedrone (4-Methylmethcathinone (4-MMC))
    Synthetic Cannabinoids
 JWH-018 (1-Pentyl-1-3-1-(1-Naphthoyl)Indole)
 AM-2201 (1-(5-Fluoropenty1)-3-(1-Naphthoyl)Indole)
    MDMA/Ecstasy (3,4-Methylenedioxy-Methamphetamine)

[[Page 92022]]

    The synthetic cathinones and synthetic cannabinoids listed above 
are Schedule I controlled substances that are not currently referenced 
at Sec.  2D1.1 (Unlawful Manufacturing, Importing, Exporting, or 
Trafficking (Including Possession with Intent to Commit These 
Offenses); Attempt or Conspiracy).
    MDPV, methylone, and mephedrone, are synthetic cathinones. 
According to the National Institute on Drug Abuse, synthetic 
cathinones, also known as ``bath salts,'' are man-made substances 
related to cathinone, a stimulant found in the khat plant. See National 
Institute on Drug Abuse, DrugFacts: Synthetic Cathinones (``Bath 
Salts'') (Revised January 2016) available at https://www.drugabuse.gov/publications/drugfacts/synthetic-cathinones-bath-salts.
    JWH-018 and AM-2201 are synthetic cannabinoids, sometimes referred 
to as ``Spice'' or ``K2.'' These substances are also man-made and, in 
liquid form, can be sprayed on shredded plant material so they can be 
smoked. See National Institute of Drug Abuse, DrugFacts: Synthetic 
Cannabinoids (Revised November 2015) available at https://www.drugabuse.gov/publications/drugfacts/synthetic-cannabinoids.
    MDMA is a synthetic drug that alters the user's mood and perception 
of surrounding objects and conditions. MDMA, also known as ``ecstasy'' 
or ``molly,'' is both a stimulant and hallucinogen, and is typically 
taken in tablet or capsule form. See National Institute of Drug Abuse, 
DrugFacts: MDMA (Ecstasy/Molly) (Revised October 2016) available at 
https://www.drugabuse.gov/publications/drugfacts/mdma-ecstasymolly.
    Guidelines Penalty Structure.--When a drug trafficking offense 
involves a controlled substance not specifically referenced in the 
guidelines, the Commentary to Sec.  2D1.1 instructs the court to 
``determine the base offense level using the marihuana equivalency of 
the most closely related controlled substance referenced in [Sec.  
2D1.1].'' See USSG Sec.  2D1.1, comment. (n.6). The guidelines 
establish a three-step process for making this determination. See USSG 
Sec.  2D1.1, comment. (n.6, 8).
    First, courts must determine the most closely related controlled 
substance by considering the following factors to the extent 
practicable:
    (A) Whether the controlled substance not referenced in Sec.  2D1.1 
has a chemical structure that is substantially similar to a controlled 
substance referenced in this guideline.
    (B) Whether the controlled substance not referenced in Sec.  2D1.1 
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 Sec.  2D1.1 is needed to produce a 
substantially similar effect on the central nervous system as a 
controlled substance referenced in this guideline.
    Once the most closely related controlled substance is determined, 
the next step is to refer to the marihuana equivalency from the Drug 
Equivalency Tables at Application Note 8(D) for the most closely 
related controlled substance to convert the quantity of controlled 
substance in the offense into its equivalent quantity of marihuana. The 
final step is to find the equivalent quantity of marihuana in the Drug 
Quantity Table at Sec.  2D1.1(c) and use the corresponding offense 
level as the base offense level of the controlled substance involved in 
the offense.
    For example, in cases involving methylone, Commission data 
indicates that in fiscal year 2015, the courts always identified MDMA 
as its most closely related controlled substance. The marihuana 
equivalency of MDMA is 1 gm MDMA = 500 gm marihuana. Pursuant to the 
Drug Equivalency Tables, when sentencing methylone offenders, this is 
the equivalency to be used. Thus, if an offender is accountable for 50 
grams of methylone, the base offense level at Sec.  2D1.1 would be 
determined by multiplying the 50 grams by 500 grams of marihuana. The 
resulting equivalency of 25,000 grams of marihuana provides for a base 
offense level 16.
    In recent years, the Commission has received comment from the 
public suggesting that questions regarding ``the most closely related 
controlled substance'' require courts to hold extensive hearings. In 
addition, the Commission has heard that courts have identified 
different controlled substances as the ``most closely related 
controlled substance'' to the synthetic cathinones and synthetic 
cannabinoids included in the Commission's study and, in some cases, 
adjusted the marihuana equivalency to account for perceived differences 
between the ``most closely related controlled substance'' and the 
controlled substance involved in the offense. Both outcomes may result 
in sentencing disparities among similarly situated defendants. To 
possibly alleviate these issues, one possible outcome of the 
Commission's study may be to establish marihuana equivalencies for each 
of the synthetic cathinones (MDPV, methylone, and mephedrone) and 
synthetic cannabinoids (JWH-018 and AM-2201). The Commission decided to 
include MDMA in its study because courts have identified MDMA as the 
most closely related controlled substance referenced in Sec.  2D1.1 to 
methylone.
    Issue for Comment.--In determining the marihuana equivalencies for 
specific controlled substances, the Commission has considered, among 
other things, the chemical structure, the pharmacological effects, the 
legislative and scheduling history, potential for addiction and abuse, 
the pattern of abuse and harms associated with abuse, and the patterns 
of trafficking and harms associated with trafficking.
    The Commission invites general comment on any or all of these 
factors as they relate to the Commission's study of synthetic 
cathinones (MDPV, methylone, and mephedrone) and synthetic cannabinoids 
(JWH-018 and AM-2201).
    The Commission further seeks broad comment on offenses involving 
synthetic cathinones (MDPV, methylone, and mephedrone) and synthetic 
cannabinoids (JWH-018 and AM-2201), and the offenders involved in such 
offenses. What is the conduct involved in such offenses and the nature 
and seriousness of the harms posed by such offenses? How these offenses 
and offenders compare with other drug offenses and drug offenders? How 
are these substances manufactured, distributed, possessed, and used? 
What are the characteristics of the offenders involved in these various 
activities? What harms are posed by these activities?
    Which of the controlled substances currently referenced in Sec.  
2D1.1 should be identified as the ``most closely related controlled 
substance'' to any of the synthetic cathinones and synthetic 
cannabinoids included in the Commission's study? To what extent does 
the synthetic cathinone or synthetic cannabinoid differ from its ``most 
closely related controlled substance''?

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

Patti B. Saris,
Chair.
[FR Doc. 2016-30490 Filed 12-16-16; 8:45 am]
 BILLING CODE 2210-40-P