82 FR 47322 - Sentencing Guidelines for United States Courts

UNITED STATES SENTENCING COMMISSION

Federal Register Volume 82, Issue 195 (October 11, 2017)

In August 2017, the Commission indicated that one of its policy priorities would be the ``[c]ontinuation of its multiyear study of offenses involving synthetic cathinones (such as methylone, MDPV, and mephedrone) and synthetic cannabinoids (such as JWH-018 and AM- 2201), as well as tetrahydrocannabinol (THC), fentanyl, and fentanyl analogues, and consideration of appropriate guideline amendments, including simplifying the determination of the most closely related substance under Application Note 6 of the Commentary to Sec. 2D1.1.'' See 82 FR 39949 (Aug. 22, 2017). As part of its continuing work on this priority, the Commission is publishing this request for public comment on issues related to fentanyl and fentanyl analogues. The issues for comment are set forth in the SUPPLEMENTARY INFORMATION portion of this notice.

[Federal Register Volume 82, Number 195 (Wednesday, October 11, 2017)]
[Notices]
[Pages 47322-47324]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-21820]


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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 2017, the Commission indicated that one of its 
policy priorities would be the ``[c]ontinuation of its multiyear study 
of offenses involving synthetic cathinones (such as methylone, MDPV, 
and mephedrone) and synthetic cannabinoids (such as JWH-018 and AM-
2201), as well as tetrahydrocannabinol (THC), fentanyl, and fentanyl 
analogues, and consideration of appropriate guideline amendments, 
including simplifying the determination of the most closely related 
substance under Application Note 6 of the Commentary to Sec.  2D1.1.'' 
See 82 FR 39949 (Aug. 22, 2017). As part of its continuing work on this 
priority, the Commission is publishing this request for public comment 
on issues related to fentanyl and fentanyl analogues. The issues for 
comment are set forth in the SUPPLEMENTARY INFORMATION portion of this 
notice.

DATES: Public comment regarding the issues for comment set forth in 
this notice should be received by the Commission not later than 
November 13, 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 U.S. Sentencing Comm'n, 
``Notice of Final Priorities,'' 81 FR 58004 (Aug. 24, 2016). On August 
17, 2017, the Commission revised the priority to study offenses 
involving synthetic cathinones (such as methylone, MDPV, and 
mephedrone) and synthetic cannabinoids (such as JWH-018 and AM-2201), 
as well as tetrahydrocannabinol (THC), fentanyl, and fentanyl 
analogues. See U.S. Sentencing Comm'n, ``Notice of Final Priorities,'' 
82 FR 39949 (Aug. 22, 2017). The Commission also stated that, as part 
of the study, it would consider possible approaches to simplify the 
determination of the most closely related substance under Application 
Note 6 of the Commentary to Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy). The Commission 
expects to solicit comment several times during the study period from 
experts and other members of the public.
    On December 19, 2016, the Commission published a notice inviting 
general comment on synthetic cathinones (MDPV, methylone, and 
mephedrone) and synthetic cannabinoids (JWH-018 and AM-2201), as well 
as about the application of the factors the Commission traditionally 
considers when determining the marihuana equivalencies for specific 
controlled substances to the substances under study. See U.S. 
Sentencing Comm'n, ``Request for Public Comment,'' 81 FR 92021 (Dec. 
19, 2016).
    On April 18, 2017, the Commission held a public hearing related to 
this priority. The Commission received testimony from experts on the 
synthetic drugs related to the study, including testimony about their 
chemical structure, pharmacological effects, trafficking patterns, and 
community impact.
    On June 21, 2017, the Commission published a second notice 
requesting public comment on issues specifically related to MDMA/
ecstasy and methylone, one of the synthetic cathinones included in the 
Commission's study. See U.S. Sentencing Comm'n, ``Request for

[[Page 47323]]

Public Comment,'' 82 FR 28382 (June 21, 2017).
    On August 25, 2017, the Commission published a third notice 
requesting public comment on issues related to (1) synthetic cathinones 
and (2) tetrahydrocannabinol (THC) and synthetic cannabinoids. See U.S. 
Sentencing Comm'n, ``Request for Public Comment,'' 82 FR 40648 (Aug. 
25, 2017).
    As part of its continuing work on this priority, the Commission is 
publishing this fourth request for public comment focusing on issues 
related to fentanyl and fentanyl analogues. In addition to the 
substance-specific topics discussed below, the Commission anticipates 
that its work will continue to be guided by the factors the Commission 
traditionally considers when determining the marihuana equivalencies 
for specific controlled substances, including their chemical structure, 
pharmacological effects, legislative and scheduling history, potential 
for addiction and abuse, the patterns of abuse and harms associated 
with their abuse, and the patterns of trafficking and harms associated 
with their trafficking.
    The Commission will also consider possible approaches to simplify 
the determination of the most closely related substance under 
Application Note 6 of the Commentary to Sec.  2D1.1. The Commission has 
received comment from the public suggesting that questions regarding 
``the most closely related controlled substance'' arise frequently in 
cases involving the substances included in the study, and that the 
Application Note 6 process requires courts to hold extensive hearings 
to receive expert testimony on behalf of the government and the 
defendant.
    Fentanyl and Fentanyl Analogues.--According to the National 
Institute on Drug Abuse, fentanyl is a powerful synthetic opioid 
analgesic that is similar to morphine but 50 to 100 times more potent. 
See National Institute on Drug Abuse, DrugFacts: Fentanyl (June 2016), 
available at https://www.drugabuse.gov/publications/drugfacts/fentanyl. 
Fentanyl is a prescription drug that can be diverted for illicit use. 
Non-pharmaceutical fentanyl and analogues of fentanyl are also produced 
in clandestine laboratories for illicit use. See, e.g., U.N. Office on 
Drugs & Crime, Fentanyl and Its Analogues--50 Years On, Global Smart 
Update 17 (March 2017), available at https://www.unodc.org/documents/scientific/Global_SMART_Update_17_web.pdf. The clandestinely 
manufactured fentanyl and fentanyl analogues have frequently been 
identified as the substances associated with recent increases in drug 
overdose deaths. These substances are sold in the illicit drug market 
as powder, pills, absorbed on blotter paper, mixed with or substituted 
for heroin, or as tablets that may mimic the appearance of other 
opioids.
    The Controlled Substances Act (21 U.S.C. 801 et seq.) classifies 
fentanyl as a Schedule II controlled substance, along with heroin and 
other opiates. While there is no other specific reference to the term 
``fentanyl'' in Title 21, United States Code, a subsequent section 
establishes a mandatory minimum penalty for a substance identified as 
``N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propenamide.'' 21 U.S.C. 
841(b)(1)(A)(vi). A Department of Justice regulation explains that N-
phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propenamide is the substance 
``commonly known as fentanyl.'' 28 CFR 50.21(d)(4)(vii). The Controlled 
Substances Act prescribes a mandatory minimum penalty of five years for 
trafficking 40 or more grams of the substance, or ten or more grams of 
an analogue of the substance. 21 U.S.C. 841(b)(1)(A)(vi); 
(b)(1)(B)(vi).
    The Drug Quantity Table in Sec.  2D1.1 contains entries for both 
``fentanyl'' and ``fentanyl analogue,'' at ratios equivalent to those 
established by statute. The Drug Equivalency Tables in the Commentary 
to Sec.  2D1.1 clearly identify fentanyl with the specific substance 
associated with the statutory minimum penalty by providing a marihuana 
equivalency for 1 gm of ``Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] Propenamide)'' equal to 2.5 kg of marihuana (i.e., a 
1:2,500 ratio). The Drug Equivalency Tables also sets forth the 
marihuana equivalencies for two other substances, Alpha-Methylfentanyl 
and 3-Methylfentanyl. Both substances have the same marihuana 
equivalency ratio, 1:10,000, as fentanyl analogue. Alpha-Methylfentanyl 
and 3-Methylfentanyl are pharmaceutical analogues of fentanyl that were 
developed in the 1960s or 1970s. See, e.g., T.J. Gillespie et al., 
Identification and Quantification of Alpha-Methylfentanyl in Post 
Mortem Specimens, 6(3) J. of Analytical Toxicology 139 (May-June 1982).
    In cases involving a fentanyl analogue other than the two listed 
above, courts are required by Application Note 6 of the Commentary to 
Sec.  2D1.1 to ``determine the base offense level using the marihuana 
equivalency of the most closely related controlled substance referenced 
in [Sec.  2D1.1].'' Section 2D1.1 provides a three-step process for 
making this determination. See USSG Sec.  2D1.1, comment. (n.6, 8). 
First, a court determines the most closely related controlled substance 
by considering, to the extent practicable, the factors set forth in 
Application Note 6. Next, the court determines the appropriate quantity 
of marihuana equivalent of the most closely related controlled 
substance, using the Drug Equivalency Tables at Application Note 8(D). 
Finally, the court uses the Drug Quantity Table in Sec.  2D1.1(c) to 
determine the base offense level that corresponds to that amount of 
marihuana.
    Issues for Comment.--
    1. The Commission invites general comment on fentanyl and fentanyl 
analogues, particularly on their chemical structures, their 
pharmacological effects, potential for addiction and abuse, the 
patterns of abuse and harms associated with their abuse, and the 
patterns of trafficking and harms associated with their trafficking. 
How are fentanyl and fentanyl analogues manufactured, distributed, 
possessed, and used? What are the characteristics of the offenders 
involved in these various activities? What harms are posed by these 
activities? How do these harms differ from those associated with other 
opioids such as heroin, morphine, hydrocodone, or oxycodone? How, if at 
all, do the harms associated with pharmaceutical fentanyl differ from 
the harms associated with non-pharmaceutical fentanyl? To the extent 
the harms posed by these substances are different, should the 
guidelines provide different penalties for pharmaceutical fentanyl and 
non-pharmaceutical fentanyl?
    2. Fentanyl, when identified as N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propenamide, and analogues of that specific chemical, are 
subject to mandatory minimum penalties under current law, with 
analogues punished four times more harshly than fentanyl itself. Those 
penalties have shaped the guidelines provisions related to fentanyl 
since 1987. The Commission seeks comment on whether there are 
controlled substances that might commonly be regarded as ``fentanyl 
analogues'' that are not analogues of N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propenamide and therefore do not meet the statutory 
definition of an ``analogue.'' If so, should the guidelines provide 
penalties for such controlled substances consistent with the mandatory 
minimum provisions applicable to fentanyl analogues that meet the 
statutory definition? Should the guidelines instead account for such 
substances in a different manner than

[[Page 47324]]

substances to which the mandatory minimum penalty applies?
    3. The Commission invites general comment on whether and, if so 
how, the guidelines should be amended to account for fentanyl and 
fentanyl analogues. How, if at all, should the guideline provisions 
related to fentanyl and the fentanyl analogues specifically listed in 
Sec.  2D1.1 be amended? For example, should the Commission revise the 
marihuana equivalencies already provided for fentanyl, Alpha-
Methylfentanyl, and 3-Methylfentanyl? If so, what equivalency should 
the Commission provide for each substance, and why?
    Should the Commission amend Sec.  2D1.1 to account for other 
unlisted fentanyl analogues? For example, should the Commission 
establish marihuana equivalencies for fentanyl analogues currently not 
listed in Sec.  2D1.1? If so, what specific fentanyl analogues should 
the Commission include in the Drug Equivalency Tables and what 
equivalency should the Commission provide for each such substance? What 
factors should the Commission consider when deciding whether to account 
for these substances?
    4. The Commission has received anecdotal information about the 
availability of several fentanyl analogues. How are these novel 
fentanyl analogues developed, manufactured and trafficked? To what 
extent are these substances legally manufactured for pharmaceutical 
purposes and then diverted for illicit trafficking and use, as opposed 
to having been manufactured illegally? How complex is the procedure to 
develop these substances and how frequently are they introduced into 
the illicit drug market?
    Instead of providing marihuana equivalencies for individual 
fentanyl analogues, should the Commission consider establishing a 
single marihuana equivalency applicable to all fentanyl analogues? Are 
fentanyl analogues sufficiently similar to one another in chemical 
structure, pharmacological effects, potential for addiction and abuse, 
patterns of trafficking and abuse, and associated harms, to support the 
adoption of a broad class-based approach for sentencing purposes? If 
so, what marihuana equivalency should the Commission provide for 
fentanyl analogues as a class and why? What factors should the 
Commission account for if it considers adopting a broad class-based 
approach for fentanyl and its analogues? Should the Commission define 
``fentanyl analogues'' for purposes of this broad class-based approach? 
If so, how? Are there any fentanyl analogues that should not be 
included as part of a broad class-based approach and for which the 
Commission should provide a marihuana equivalency separate from other 
fentanyl analogues? If so, what equivalency should the Commission 
provide for each such fentanyl analogue, and why?
    What are the advantages and disadvantages of a broad class-based 
approach for fentanyl analogues? If the Commission were to provide a 
different approach to account for fentanyl analogues in the guidelines, 
what should that different approach be?

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

William H. Pryor, Jr.,
Acting Chair.
[FR Doc. 2017-21820 Filed 10-10-17; 8:45 am]
 BILLING CODE 2210-40-P