81_FR_92264 81 FR 92021 - Sentencing Guidelines for United States Courts

81 FR 92021 - Sentencing Guidelines for United States Courts

UNITED STATES SENTENCING COMMISSION

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

Page Range92021-92022
FR Document2016-30490

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 Issue 243 (Monday, December 19, 2016)
[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]


-----------------------------------------------------------------------

UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Request for public comment.

-----------------------------------------------------------------------

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



                                                                           Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Notices                                            92021

                                                Note 2(A)(i) by striking ‘‘as determined                   The Commentary to § 2Q1.1 captioned                ADDRESSES:    All written comment should
                                                under the provisions of § 1B1.2                         ‘‘Statutory Provisions’’ is amended by                be sent to the Commission by electronic
                                                (Applicable Guidelines) for the offense                 striking ‘‘42 U.S.C. 6928(e)’’ and                    mail or regular mail. The email address
                                                of conviction’’ and inserting the                       inserting ‘‘42 U.S.C. 6928(e),                        for public comment is Public_
                                                following: ‘‘specifically referenced in                 7413(c)(5)’’, and by inserting at the end             Comment@ussc.gov. The regular mail
                                                Appendix A (Statutory Index) for the                    the following: ‘‘For additional statutory             address for public comment is United
                                                offense of conviction, as determined                    provision(s), see Appendix A (Statutory               States Sentencing Commission, One
                                                under the provisions of § 1B1.2                         Index).’’.                                            Columbus Circle NE., Suite 2–500,
                                                (Applicable Guidelines)’’.                                 The Commentary to § 2Q1.2 captioned                Washington, DC 20002–8002, Attention:
                                                                                                        ‘‘Statutory Provisions’’ is amended by                Public Affairs.
                                                (B) Title References to § 4A1.3                         striking ‘‘7413’’ and inserting                       FOR FURTHER INFORMATION CONTACT:
                                                   The Commentary to § 2Q1.3 captioned                  ‘‘7413(c)(1)–(4)’’.                                   Christine Leonard, Director, Office of
                                                ‘‘Application Notes’’ is amended in                        The Commentary to § 2Q1.3 captioned                Legislative and Public Affairs, (202)
                                                Note 8 by striking ‘‘Adequacy of                        ‘‘Statutory Provisions’’ is amended by                502–4500, pubaffairs@ussc.gov.
                                                Criminal History Category’’ and                         striking ‘‘7413’’ and inserting                       SUPPLEMENTARY INFORMATION: The
                                                inserting ‘‘Departures Based on                         ‘‘7413(c)(1)–(4)’’.                                   United States Sentencing Commission is
                                                Inadequacy of Criminal History                             Section 5D1.3(a)(4) is amended by                  an independent agency in the judicial
                                                Category (Policy Statement)’’.                          striking ‘‘release on probation’’ and                 branch of the United States
                                                   The Commentary to § 2R1.1 captioned                  inserting ‘‘release on supervised                     Government. The Commission
                                                ‘‘Application Notes’’ is amended in                     release’’.                                            promulgates sentencing guidelines and
                                                Note 7 by striking ‘‘Adequacy of                           Appendix A (Statutory Index) is                    policy statements for federal courts
                                                Criminal History Category’’ and                         amended in the line referenced to 18                  pursuant to 28 U.S.C. 994(a). The
                                                inserting ‘‘Departures Based on                         U.S.C. 371 by rearranging the guidelines              Commission also periodically reviews
                                                Inadequacy of Criminal History                          to place them in proper order, and in                 and revises previously promulgated
                                                Category (Policy Statement)’’.                          the line referencing 18 U.S.C. 1591 by                guidelines pursuant to 28 U.S.C. 994(o)
                                                   Section 4A1.2 is amended in                          rearranging the guidelines to place them              and submits guideline amendments to
                                                subsections (h) through (j) by striking                 in proper order.                                      the Congress not later than the first day
                                                ‘‘Adequacy of Criminal History                          [FR Doc. 2016–30493 Filed 12–16–16; 8:45 am]          of May each year pursuant to 28 U.S.C.
                                                Category’’ each place such term appears                 BILLING CODE 2210–40–P                                994(p).
                                                and inserting ‘‘Departures Based on                                                                             In August 2016, the Commission
                                                Inadequacy of Criminal History                                                                                indicated that one of its priorities would
                                                Category (Policy Statement)’’.                          UNITED STATES SENTENCING                              be the ‘‘[s]tudy of offenses involving
                                                   The Commentary to § 4A1.2 captioned                  COMMISSION                                            MDMA/Ecstasy, synthetic cannabinoids
                                                ‘‘Application Notes’’ is amended in                                                                           (such as JWH–018 and AM–2201), and
                                                Notes 6 and 8 by striking ‘‘Adequacy of                 Sentencing Guidelines for United                      synthetic cathinones (such as
                                                Criminal History Category’’ both places                 States Courts                                         Methylone, MDPV, and Mephedrone),
                                                such term appears and inserting                                                                               and consideration of any amendments
                                                ‘‘Departures Based on Inadequacy of                     AGENCY:  United States Sentencing
                                                                                                        Commission.                                           to the Guidelines Manual that may be
                                                Criminal History Category (Policy                                                                             appropriate in light of the information
                                                Statement)’’.                                           ACTION: Request for public comment.
                                                                                                                                                              obtained from such study.’’ See 81 FR
                                                   The Commentary to § 4B1.4 captioned                                                                        58004 (Aug. 24, 2016). The Commission
                                                                                                        SUMMARY:   In August 2016, the
                                                ‘‘Background’’ is amended by striking                                                                         intends that this study will be
                                                                                                        Commission indicated that one of its
                                                ‘‘Adequacy of Criminal History                                                                                conducted over a two-year period and
                                                                                                        priorities would be the ‘‘[s]tudy of
                                                Category’’ and inserting ‘‘Departures                                                                         will solicit input, several times during
                                                                                                        offenses involving MDMA/Ecstasy,
                                                Based on Inadequacy of Criminal                                                                               this period, from experts and other
                                                                                                        synthetic cannabinoids (such as JWH–
                                                History Category (Policy Statement)’’.                                                                        members of the public. The Commission
                                                                                                        018 and AM–2201), and synthetic
                                                (C) Clerical Changes                                    cathinones (such as Methylone, MDPV,                  further intends that in the amendment
                                                                                                        and Mephedrone), and consideration of                 cycle ending May 1, 2018, it may, if
                                                   The Commentary to § 1B1.13
                                                                                                        any amendments to the Guidelines                      appropriate, publish a proposed
                                                captioned ‘‘Application Notes’’ is
                                                                                                        Manual that may be appropriate in light               amendment as a result of the study.
                                                amended in Note 4 by striking ‘‘factors
                                                                                                        of the information obtained from such                   MDMA, Synthetic Cathinones, and
                                                set forth 18 U.S.C. 3553(a)’’ and
                                                                                                        study.’’ See 81 FR 58004 (Aug. 24,                    Synthetic Cannabinoids.—As part of the
                                                inserting ‘‘factors set forth in 18 U.S.C.
                                                                                                        2016). As part of its statutory authority             study related to this policy priority, the
                                                3553(a)’’.
                                                                                                        and responsibility to analyze sentencing              Commission intends to examine
                                                   Section 2D1.11 is amended in
                                                                                                        issues, including operation of the                    offenses involving the following
                                                subsection (d)(6) by striking
                                                                                                        federal sentencing guidelines, the                    controlled substances:
                                                ‘‘Pseuodoephedrine’’ and inserting                                                                              Synthetic Cathinones
                                                ‘‘Pseudoephedrine’’;                                    United States Sentencing Commission is
                                                                                                        publishing this issue for comment to                  • MDPV (Methylenedioxypyrovalerone)
                                                   and in subsection (e)(2), under the                                                                        • Methylone (3,4-Methylenedioxy-N-
                                                heading relating to List I Chemicals, by                inform the Commission’s consideration
                                                                                                                                                                Methylcathinone)
                                                striking the period at the end and                      of the issues related to this policy
                                                                                                                                                              • Mephedrone (4-Methylmethcathinone
                                                                                                        priority. The issue for comment is set
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                                                inserting a semicolon.                                                                                          (4–MMC))
                                                   The Commentary to § 2M2.1                            forth in the Supplementary Information                  Synthetic Cannabinoids
                                                captioned ‘‘Statutory Provisions’’ is                   portion of this notice.                               • JWH-018 (1-Pentyl-1-3-1-(1-
                                                amended by striking ‘‘§ 2153’’ and                      DATES: Public comment regarding the                     Naphthoyl)Indole)
                                                inserting ‘‘§§ 2153’’, and by inserting at              issue for comment set forth in this                   • AM-2201 (1-(5-Fluoropenty1)-3-(1-
                                                the end the following: ‘‘For additional                 notice should be received by the                        Naphthoyl)Indole)
                                                statutory provision(s), see Appendix A                  Commission not later than March 10,                     MDMA/Ecstasy (3,4-Methylenedioxy-
                                                (Statutory Index).’’.                                   2017.                                                 Methamphetamine)


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                                                92022                      Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Notices

                                                   The synthetic cathinones and                         effect on the central nervous system that             equivalencies for each of the synthetic
                                                synthetic cannabinoids listed above are                 is substantially similar to the stimulant,            cathinones (MDPV, methylone, and
                                                Schedule I controlled substances that                   depressant, or hallucinogenic effect on               mephedrone) and synthetic
                                                are not currently referenced at § 2D1.1                 the central nervous system of a                       cannabinoids (JWH-018 and AM-2201).
                                                (Unlawful Manufacturing, Importing,                     controlled substance referenced in this               The Commission decided to include
                                                Exporting, or Trafficking (Including                    guideline.                                            MDMA in its study because courts have
                                                Possession with Intent to Commit These                     (C) Whether a lesser or greater                    identified MDMA as the most closely
                                                Offenses); Attempt or Conspiracy).                      quantity of the controlled substance not              related controlled substance referenced
                                                   MDPV, methylone, and mephedrone,                     referenced in § 2D1.1 is needed to
                                                                                                                                                              in § 2D1.1 to methylone.
                                                are synthetic cathinones. According to                  produce a substantially similar effect on
                                                the National Institute on Drug Abuse,                   the central nervous system as a                          Issue for Comment.—In determining
                                                synthetic cathinones, also known as                     controlled substance referenced in this               the marihuana equivalencies for specific
                                                ‘‘bath salts,’’ are man-made substances                 guideline.                                            controlled substances, the Commission
                                                related to cathinone, a stimulant found                    Once the most closely related                      has considered, among other things, the
                                                in the khat plant. See National Institute               controlled substance is determined, the               chemical structure, the pharmacological
                                                on Drug Abuse, DrugFacts: Synthetic                     next step is to refer to the marihuana                effects, the legislative and scheduling
                                                Cathinones (‘‘Bath Salts’’) (Revised                    equivalency from the Drug Equivalency                 history, potential for addiction and
                                                January 2016) available at https://                     Tables at Application Note 8(D) for the               abuse, the pattern of abuse and harms
                                                www.drugabuse.gov/publications/                         most closely related controlled                       associated with abuse, and the patterns
                                                drugfacts/synthetic-cathinones-bath-                    substance to convert the quantity of                  of trafficking and harms associated with
                                                salts.                                                  controlled substance in the offense into              trafficking.
                                                   JWH-018 and AM-2201 are synthetic                    its equivalent quantity of marihuana.
                                                cannabinoids, sometimes referred to as                  The final step is to find the equivalent                 The Commission invites general
                                                ‘‘Spice’’ or ‘‘K2.’’ These substances are               quantity of marihuana in the Drug                     comment on any or all of these factors
                                                also man-made and, in liquid form, can                  Quantity Table at § 2D1.1(c) and use the              as they relate to the Commission’s study
                                                be sprayed on shredded plant material                   corresponding offense level as the base               of synthetic cathinones (MDPV,
                                                so they can be smoked. See National                     offense level of the controlled substance             methylone, and mephedrone) and
                                                Institute of Drug Abuse, DrugFacts:                     involved in the offense.                              synthetic cannabinoids (JWH-018 and
                                                Synthetic Cannabinoids (Revised                            For example, in cases involving                    AM-2201).
                                                November 2015) available at https://                    methylone, Commission data indicates                     The Commission further seeks broad
                                                www.drugabuse.gov/publications/                         that in fiscal year 2015, the courts
                                                                                                                                                              comment on offenses involving
                                                drugfacts/synthetic-cannabinoids.                       always identified MDMA as its most
                                                                                                                                                              synthetic cathinones (MDPV,
                                                   MDMA is a synthetic drug that alters                 closely related controlled substance.
                                                                                                        The marihuana equivalency of MDMA                     methylone, and mephedrone) and
                                                the user’s mood and perception of
                                                surrounding objects and conditions.                     is 1 gm MDMA = 500 gm marihuana.                      synthetic cannabinoids (JWH-018 and
                                                MDMA, also known as ‘‘ecstasy’’ or                      Pursuant to the Drug Equivalency                      AM-2201), and the offenders involved
                                                ‘‘molly,’’ is both a stimulant and                      Tables, when sentencing methylone                     in such offenses. What is the conduct
                                                hallucinogen, and is typically taken in                 offenders, this is the equivalency to be              involved in such offenses and the nature
                                                tablet or capsule form. See National                    used. Thus, if an offender is accountable             and seriousness of the harms posed by
                                                Institute of Drug Abuse, DrugFacts:                     for 50 grams of methylone, the base                   such offenses? How these offenses and
                                                MDMA (Ecstasy/Molly) (Revised                           offense level at § 2D1.1 would be                     offenders compare with other drug
                                                October 2016) available at https://                     determined by multiplying the 50 grams                offenses and drug offenders? How are
                                                www.drugabuse.gov/publications/                         by 500 grams of marihuana. The                        these substances manufactured,
                                                drugfacts/mdma-ecstasymolly.                            resulting equivalency of 25,000 grams of              distributed, possessed, and used? What
                                                   Guidelines Penalty Structure.—When                   marihuana provides for a base offense                 are the characteristics of the offenders
                                                a drug trafficking offense involves a                   level 16.                                             involved in these various activities?
                                                controlled substance not specifically                      In recent years, the Commission has                What harms are posed by these
                                                referenced in the guidelines, the                       received comment from the public                      activities?
                                                Commentary to § 2D1.1 instructs the                     suggesting that questions regarding ‘‘the
                                                                                                        most closely related controlled                          Which of the controlled substances
                                                court to ‘‘determine the base offense
                                                                                                        substance’’ require courts to hold                    currently referenced in § 2D1.1 should
                                                level using the marihuana equivalency
                                                of the most closely related controlled                  extensive hearings. In addition, the                  be identified as the ‘‘most closely
                                                substance referenced in [§ 2D1.1].’’ See                Commission has heard that courts have                 related controlled substance’’ to any of
                                                USSG § 2D1.1, comment. (n.6). The                       identified different controlled                       the synthetic cathinones and synthetic
                                                guidelines establish a three-step process               substances as the ‘‘most closely related              cannabinoids included in the
                                                for making this determination. See                      controlled substance’’ to the synthetic               Commission’s study? To what extent
                                                USSG § 2D1.1, comment. (n.6, 8).                        cathinones and synthetic cannabinoids                 does the synthetic cathinone or
                                                   First, courts must determine the most                included in the Commission’s study                    synthetic cannabinoid differ from its
                                                closely related controlled substance by                 and, in some cases, adjusted the                      ‘‘most closely related controlled
                                                considering the following factors to the                marihuana equivalency to account for                  substance’’?
                                                extent practicable:                                     perceived differences between the
                                                                                                                                                               Authority: 28 U.S.C. 994(a), (o), (p), (x);
                                                                                                        ‘‘most closely related controlled
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                                                   (A) Whether the controlled substance                                                                       USSC Rules of Practice and Procedure 4.4.
                                                not referenced in § 2D1.1 has a chemical                substance’’ and the controlled substance
                                                structure that is substantially similar to              involved in the offense. Both outcomes                Patti B. Saris,
                                                a controlled substance referenced in this               may result in sentencing disparities                  Chair.
                                                guideline.                                              among similarly situated defendants. To               [FR Doc. 2016–30490 Filed 12–16–16; 8:45 am]
                                                   (B) Whether the controlled substance                 possibly alleviate these issues, one
                                                                                                                                                              BILLING CODE 2210–40–P
                                                not referenced in § 2D1.1 has a                         possible outcome of the Commission’s
                                                stimulant, depressant, or hallucinogenic                study may be to establish marihuana


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Document Created: 2016-12-17 03:15:14
Document Modified: 2016-12-17 03:15:14
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionRequest for public comment.
DatesPublic comment regarding the issue for comment set forth in this notice should be received by the Commission not later than March 10, 2017.
ContactChristine Leonard, Director, Office of Legislative and Public Affairs, (202) 502-4500, [email protected]
FR Citation81 FR 92021 

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