83 FR 3869 - Sentencing Guidelines for United States Courts
UNITED STATES SENTENCING COMMISSION Federal Register Volume 83, Issue 18 (January 26, 2018)
Federal Register Volume 83, Issue 18 (January 26, 2018)
| Page Range | 3869-3878 | |
| FR Document | 2018-01328 |
[Federal Register Volume 83, Number 18 (Friday, January 26, 2018)] [Notices] [Pages 3869-3878] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-01328] ======================================================================= ----------------------------------------------------------------------- UNITED STATES SENTENCING COMMISSION Sentencing Guidelines for United States Courts AGENCY: United States Sentencing Commission. ACTION: Notice of proposed amendments to sentencing guidelines, policy statements, and commentary. Request for public comment, including public comment regarding retroactive application of any of the proposed amendments. Notice of public hearing. ----------------------------------------------------------------------- SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United States Code, the United States Sentencing Commission is considering promulgating amendments to the sentencing guidelines, policy statements, and commentary. This notice sets forth the proposed amendments and, for each proposed amendment, a synopsis of the issues addressed by that amendment. This notice also sets forth several issues for comment, some of which are set forth together with the proposed amendments, and one of which (regarding retroactive application of proposed amendments) is set forth in the SUPPLEMENTARY INFORMATION section of this notice. DATES: (1) Written Public Comment.--Written public comment regarding the proposed amendments and issues for comment set forth in this notice, [[Page 3870]] including public comment regarding retroactive application of any of the proposed amendments, should be received by the Commission not later than March 6, 2018. Written reply comments, which may only respond to issues raised during the original comment period, should be received by the Commission not later than March 28, 2018. Public comment regarding a proposed amendment received after the close of the comment period, and reply comment received on issues not raised during the original comment period, may not be considered. (2) Public Hearing.--The Commission may hold a public hearing regarding the proposed amendments and issues for comment set forth in this notice. Further information regarding any public hearing that may be scheduled, including requirements for testifying and providing written testimony, as well as the date, time, location, and scope of the hearing, will be provided by the Commission on its website at www.ussc.gov. 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). Publication of a proposed amendment requires the affirmative vote of at least three voting members of the Commission and is deemed to be a request for public comment on the proposed amendment. See USSC Rules of Practice and Procedure 2.2, 4.4. In contrast, the affirmative vote of at least four voting members is required to promulgate an amendment and submit it to Congress. See id. 2.2; 28 U.S.C. 994(p). The proposed amendments in this notice are presented in one of two formats. First, some of the amendments are proposed as specific revisions to a guideline, policy statement, or commentary. Bracketed text within a proposed amendment indicates a heightened interest on the Commission's part in comment and suggestions regarding alternative policy choices; for example, a proposed enhancement of [2][4][6] levels indicates that the Commission is considering, and invites comment on, alternative policy choices regarding the appropriate level of enhancement. Similarly, bracketed text within a specific offense characteristic or application note means that the Commission specifically invites comment on whether the proposed provision is appropriate. Second, the Commission has highlighted certain issues for comment and invites suggestions on how the Commission should respond to those issues. In summary, the proposed amendments and issues for comment set forth in this notice are as follows: (1) A multi-part proposed amendment to Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy), including (A) amending the Drug Equivalency Tables in Sec. 2D1.1 to (i) set forth a class-based marihuana equivalency applicable to synthetic cathinones (except Schedule III, IV, and V substances) of 1 gram = [200]/[380]/[500] grams of marihuana, bracketing the possibility of making this class-based marihuana equivalency also applicable to methcathinone, and (ii) establish a minimum base offense level of [12] for cases involving synthetic cathinones (except Schedule III, IV, and V substances), and related issues for comment; (B) amending the Drug Equivalency Tables in Sec. 2D1.1 to (i) set forth a class-based marihuana equivalency applicable to synthetic cannabinoids (except Schedule III, IV, and V substances) of 1 gram = [167]/[334]/[500] grams of marihuana, (ii) provide a definition for the term ``synthetic cannabinoid,'' and (iii) bracket the possibility of establishing a minimum base offense level of [12] for cases involving synthetic cannabinoids (except Schedule III, IV, and V substances), and related issues for comment; and (C) amending Sec. 2D1.1 to (i) provide penalties for offenses involving fentanyl equivalent to the higher penalties currently provided for offenses involving fentanyl analogues, (ii) provide a definition for the term ``fentanyl analogue,'' set forth a single marihuana equivalency applicable to any fentanyl analogue of 1 gram = 10 kilograms of marihuana, and specify in the Drug Quantity Table that the penalties relating to ``fentanyl'' apply to the substance identified as ``N- phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] Propenamide,'' and (iii) provide an enhancement in cases in which fentanyl or a fentanyl analogue is misrepresented or marketed as another substance, and related issues for comment; (2) a multi-part proposed amendment to Sec. 2L1.2 (Unlawfully Entering or Remaining in the United States) to respond to miscellaneous guidelines application issues, including (A) amending Sec. 2L1.2(b)(2) so that its applicability turns on whether the defendant ``engaged in criminal conduct'' before he or she was ordered deported or ordered removed from the United States for the first time, rather than whether the defendant sustained the resulting conviction or convictions before that event, and a related issue for comment; and (B) amending Application Note 2 of the Commentary to Sec. 2L1.2 to clarify that, consistent with the meaning of ``sentence of imprisonment'' under Sec. 4A1.2 (Definitions and Instructions for Computing Criminal History), the phrase ``sentence imposed'' in Sec. 2L1.2 includes any term of imprisonment given upon revocation of probation, parole, or supervised release, regardless of when the revocation occurred; and (3) a proposed amendment to make various technical changes to the Guidelines Manual, including (A) technical changes to provide updated references to certain sections in Title 16, United States Code, that were restated, with minor revisions, when Congress enacted a new Title 54; (B) technical changes to reflect the editorial reclassification of certain provisions bearing on crime control and law enforcement, previously scattered throughout various parts of the United States Code, to a new Title 34; and (C) a clerical change to Sec. 8C2.1 (Applicability of Fine Guidelines) to delete an outdated reference to Sec. 2C1.6, which was deleted by consolidation with Sec. 2C1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity) effective November 1, 2004. In addition, the Commission requests public comment regarding whether, pursuant to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), any proposed amendment published in this notice should be included in subsection (d) of Sec. 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) as an amendment that may be applied retroactively to previously sentenced defendants. The [[Page 3871]] Commission lists in Sec. 1B1.10(d) the specific guideline amendments that the court may apply retroactively under 18 U.S.C. 3582(c)(2). The background commentary to Sec. 1B1.10 lists the purpose of the amendment, the magnitude of the change in the guideline range made by the amendment, and the difficulty of applying the amendment retroactively to determine an amended guideline range under Sec. 1B1.10(b) as among the factors the Commission considers in selecting the amendments included in Sec. 1B1.10(d). To the extent practicable, public comment should address each of these factors. The text of the proposed amendments and related issues for comment are set forth below. Additional information pertaining to the proposed amendments and issues for comment described in this notice may be accessed through the Commission's website at www.ussc.gov. Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of Practice and Procedure 2.2, 4.3, 4.4. William H. Pryor, Jr., Acting Chair. Proposed Amendments to the Sentencing Guidelines, Policy Statements, and Official Commentary 1. Synthetic Drugs Synopsis of Proposed Amendment: This proposed amendment is a result of the Commission's 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 controlled substance under Application Note 6 of the Commentary to Sec. 2D1.1. See U.S. Sentencing Comm'n, ``Notice of Final Priorities,'' 82 FR 39949 (Aug. 22, 2017). The proposed amendment contains three parts (Parts A through C). The Commission is considering whether to promulgate any or all of these parts, as they are not mutually exclusive. Part A of the proposed amendment would amend the Drug Equivalency Tables in Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to adopt a class-based approach to account for synthetic cathinones. It sets forth a single marihuana equivalency applicable to synthetic cathinones (except Schedule III, IV, and V substances) of 1 gram = [200]/[380]/[500] grams of marihuana. Part A of the proposed amendment also brackets the possibility of making this class-based marihuana equivalency also applicable to methcathinone, by deleting the specific reference to this controlled substance in the Drug Equivalency Tables. Finally, Part A of the proposed amendment establishes a minimum base offense level of [12] for cases involving synthetic cathinones (except Schedule III, IV, and V substances). Issues for comment are also provided. Part B of the proposed amendment would amend the Drug Equivalency Tables in Sec. 2D1.1 to adopt a class-based approach to account for synthetic cannabinoids. It sets forth a single marihuana equivalency applicable to synthetic cannabinoids (except Schedule III, IV, and V substances) of 1 gram = [167]/[334]/[500] grams of marihuana. It also adds a provision defining the term ``synthetic cannabinoid.'' Finally, Part B of the proposed amendment brackets for comment a provision establishing a minimum base offense level of [12] for cases involving synthetic cannabinoids (except Schedule III, IV, and V substances). Issues for comment are also provided. Part C of the proposed amendment would amend Sec. 2D1.1 in several ways to account for fentanyl and fentanyl analogues. First, it provides penalties for offenses involving fentanyl that are equivalent to the higher penalties currently provided for offenses involving fentanyl analogues. Second, the proposed amendment revises Sec. 2D1.1 to provide a definition of the term ``fentanyl analogue,'' set forth a single marihuana equivalency applicable to any fentanyl analogue of 1 gram = 10 kilograms of marihuana, and specify in the Drug Quantity Table that the penalties relating to ``fentanyl'' apply to the substance identified as ``N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide.'' Finally, Part C of the proposed amendment amends Sec. 2D1.1 to provide an enhancement in cases in which fentanyl or a fentanyl analogue is misrepresented or marketed as another substance. Issues for comment are also provided. (A) Synthetic Cathinones Synopsis of the Proposed Amendment: Synthetic cathinones are human- made drugs chemically related to cathinone, a stimulant found in the khat plant. See National Institute on Drug Abuse, DrugFacts: Synthetic Cathinones (``Bath Salts'') (January 2016), available at https://www.drugabuse.gov/publications/drugfacts/synthetic-cathinones-bath-salts. According to the National Institute on Drug Abuse, synthetic variants of cathinone can be much stronger than the natural cathinone and, in some cases, very dangerous. Id. Abuse of synthetic cathinones, sometimes referred to as ``bath salts,'' has become more prevalent over the last decade. Currently, Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) specifically lists only one synthetic cathinone, Methcathinone. Because other synthetic cathinones are not specifically listed in either the Drug Quantity Table or the Drug Equivalency Tables in Sec. 2D1.1, cases involving these substances require courts to use 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].'' The Commission has received comment suggesting that questions regarding ``the most closely related controlled substance'' arise frequently in cases involving synthetic cathinones, 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. The Commission has also received comment indicating that a large number of synthetic cathinones are currently available on the illicit drug market and that new varieties are regularly developed for illegal trafficking. Given this information, it would likely be difficult and impracticable for the Commission to provide individual marihuana equivalencies for each synthetic cathinone in the Guidelines Manual. Testimony received by the Commission indicates that whether a substance is properly classified as a synthetic cathinone is not generally subject to debate, as there appears to be broad agreement that the basic chemical structure of cathinone remains present throughout all synthetic cathinones. Part A of the proposed amendment would amend the Drug Equivalency Tables in Sec. 2D1.1 to adopt a class-based approach to account for synthetic cathinones. It sets forth a single marihuana equivalency applicable to synthetic cathinones (except Schedule III, IV, and V substances) of 1 gram = [200]/[380]/[500] grams of marihuana. The proposed amendment also establishes a minimum base offense level of [12] for cases involving synthetic cathinones (except Schedule III, IV, and V substances). Finally, the [[Page 3872]] proposed amendment brackets the possibility of making this class-based marihuana equivalency also applicable to methcathinone, by deleting the specific reference to this controlled substance in the Drug Equivalency Tables. Issues for comment are also provided. Proposed Amendment The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is amended in Note 8(D)-- [in the table under the heading ``Cocaine and Other Schedule I and II Stimulants (and their immediate precursors) *'', by striking the following: ``1 gm of Methcathinone = 380 gm of marihuana''; and] by inserting after the table under the heading ``Cocaine and Other Schedule I and II Stimulants (and their immediate precursors) *'' the following new table: ``Synthetic Cathinones (except Schedule III, IV, and V Substances) * 1 gm of a synthetic cathinone (except a Schedule III, IV, or V substance) = [200]/[380]/[500] gm of marihuana * Provided, that the minimum offense level from the Drug Quantity Table for any synthetic cathinone (except a Schedule III, IV, or V substance) individually, or in combination with another controlled substance, is level [12].''. Issues for Comment 1. Part A of the proposed amendment would amend the Drug Equivalency Tables in Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to adopt a class-based approach to account for synthetic cathinones. It sets forth a single marihuana equivalency applicable to synthetic cathinones (except Schedule III, IV, and V substances) of 1 gram = [200]/[380]/[500] grams of marihuana. The Commission seeks comment on how, if at all, the guidelines should be amended to account for synthetic cathinones. Should the Commission provide a class-based approach to account for synthetic cathinones? Are synthetic cathinones sufficiently similar to one another in chemical structure, pharmacological effects, potential for addiction and abuse, patterns of trafficking and abuse, and/or associated harms, to support the adoption of a class-based approach for sentencing purposes? Are there any synthetic cathinones that should not be included as part of a class-based approach and for which the Commission should provide a marihuana equivalency separate from other synthetic cathinones? If so, what equivalency should the Commission provide for each such synthetic cathinone, and why? If the Commission were to provide a different approach to account for synthetic cathinones in the guidelines, what should that different approach be? Which, if any, of the proposed [1:200]/[1:380]/[1:500] marihuana equivalency ratios is appropriate for synthetic cathinones (except Schedule III, IV, and V substances) as a class? Should the Commission establish a different equivalency applicable to such a class? If so, what equivalency should the Commission provide and on what basis? 2. Part A of the proposed amendment brackets the possibility of making the marihuana equivalency applicable to synthetic cathinones also applicable to methcathinone by deleting the specific reference to this controlled substance in the Drug Equivalency Tables. Is methcathinone sufficiently similar to other synthetic cathinones in chemical structure, pharmacological effects, potential for addiction and abuse, patterns of trafficking and abuse, and/or associated harms to be included as part of a class-based approach for synthetic cathinones? Should the Commission instead continue to provide a marihuana equivalency for methcathinone separate from other synthetic cathinones? 3. The Commission seeks comment whether it should amend the Commentary to Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to provide guidance on how to apply the new class-based marihuana equivalency for synthetic cathinones. What guidance, if any, should the Commission provide on the application of the proposed class-based marihuana equivalency? Should the Commission define the term ``synthetic cathinone'' for purposes of this class-based approach? If so, what definition should the Commission provide for such term? What factors should the Commission account for if it considers providing a definition for ``synthetic cathinone''? (B) Synthetic Cannabinoids Synopsis of the Proposed Amendment: Synthetic cannabinoids are human-made, mind-altering chemicals developed to mimic the effects of tetrahydrocannabinol (THC), the main psychoactive chemical found in the marihuana plant. Like THC, synthetic cannabinoids act as an agonist at a specific part of the central nervous system known as the cannabinoid receptors, binding to and activating these receptors to produce psychoactive effects. However, the available scientific literature on this subject suggests that some synthetic cannabinoids bind more strongly to cell receptors affected by THC, and may produce stronger effects. See National Institute of Drug Abuse, DrugFacts: Synthetic Cannabinoids (Revised November 2015) available at https://www.drugabuse.gov/publications/drugfacts/synthetic-cannabinoids. The Commission has received comment indicating that the synthetic cannabinoids encountered on the illicit market are predominantly potent cannabinoid agonists that are pharmacologically similar to THC, but may cause a more severe toxicity and more serious adverse effects than THC. According to commenters, THC is only a partial agonist at type 1 cannabinoid receptors (CB1 receptors) and produces 30 to 50 percent (or less) of the highest possible response in receptor activation. Synthetic cannabinoids are full agonists at CB1 receptors that elicit close to 100 percent response in receptor activation. Some commenters have argued that this high activation response may contribute to the increased toxicity and more severe adverse effects of synthetic cannabinoids when compared with THC. According to commenters, some of the adverse effects of synthetic cannabinoids are more prevalent or more severe than those produced by marihuana and THC, and may be produced at lower doses. The Commission was also informed by commenters that drug discrimination data is available on at least 26 different synthetic cannabinoids. JWH-018, one of the substances included in the Commission's study, was shown in the drug discrimination assay to be approximately three times as potent as THC. Another substance included in the Commission's study, AM-2201, was shown to be approximately five times as potent as THC using the same assay. Newer synthetic cannabinoids have been shown to be even more potent than these substances. According to the Drug Enforcement Administration, on rare occasions synthetic cannabinoids have been shown to be less potent than THC, as substances with a lower potency are often abandoned by manufacturers following negative user reports relating to their effects. Currently, Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) specifically lists [[Page 3873]] only one synthetic cannabinoid, synthetic THC. Synthetic THC has a marihuana equivalency of 1 gram = 167 grams of marihuana. Because other synthetic cannabinoids are not specifically listed in either the Drug Quantity Table or the Drug Equivalency Tables in Sec. 2D1.1, cases involving these substances require courts to use 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].'' Although courts often rely on the synthetic THC equivalency in cases involving synthetic cannabinoids, the Commission has received comment suggesting that questions regarding ``the most closely related controlled substance'' arise frequently in such cases, 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. The Commission has also received comment suggesting that, like synthetic cathinones, a large number of synthetic cannabinoids are currently available on the illicit drug market and new varieties are regularly developed for illegal trafficking. Given this information, it would likely be difficult and impracticable for the Commission to provide individual marihuana equivalencies for each synthetic cannabinoid in the Guidelines Manual. Unlike synthetic cathinones, synthetic cannabinoids cannot be defined as a single class based on a common chemical structure. Synthetic cannabinoids regularly developed for illegal trafficking come from several different structural classes. However, the Commission received testimony from experts indicating that, while synthetic cannabinoids may differ in chemical structure, these substances all produce the same pharmacological effects: They act as an agonist at type 1 cannabinoid receptors (CB1 receptors). Part B of the proposed amendment would amend the Drug Equivalency Tables in Sec. 2D1.1 to adopt a class-based approach to account for synthetic cannabinoids. It sets forth a single marihuana equivalency applicable to synthetic cannabinoids (except Schedule III, IV, and V substances) of 1 gram = [167]/[334]/[500] grams of marihuana. The proposed amendment would also add a provision defining ``synthetic cannabinoid'' as ``any synthetic substance (other than synthetic tetrahydrocannabinol) that [acts as an agonist at][binds to and activates] type 1 cannabinoid receptors (CB1 receptors).'' Finally, Part B of the proposed amendment brackets for comment a provision establishing a minimum base offense level of [12] for cases involving synthetic cannabinoids (except Schedule III, IV, and V substances). Issues for comment are also provided. Proposed Amendment The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is amended in Note 8(D) by inserting after the table under the heading ``Schedule I Marihuana'' the following new table: ``Synthetic Cannabinoids (except Schedule III, IV, and V Substances)[*] 1 gm of a synthetic cannabinoid (except a Schedule III, IV, or V substance) = [167]/[334]/[500] gm of marihuana [*Provided, that the minimum offense level from the Drug Quantity Table for any synthetic cannabinoid (except a Schedule III, IV, or V substance) individually, or in combination with another controlled substance, is level [12].] `Synthetic cannabinoid,' for purposes of this guideline, means any synthetic substance (other than synthetic tetrahydrocannabinol) that [acts as an agonist at][binds to and activates] type 1 cannabinoid receptors (CB1 receptors).''. Issues for Comment 1. Part B of the proposed amendment would amend the Drug Equivalency Tables in Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to adopt a class-based approach to account for synthetic cannabinoids. It sets forth a single marihuana equivalency applicable to synthetic cannabinoids (except Schedule III, IV, and V substances) of 1 gram of such a synthetic cannabinoid = [167]/[334]/[500] grams of marihuana. The Commission seeks comment on how, if at all, the guidelines should be amended to account for synthetic cannabinoids. Should the Commission provide a class-based approach to account for synthetic cannabinoids? Are synthetic cannabinoids sufficiently similar to one another in chemical structure, pharmacological effects, potential for addiction and abuse, patterns of trafficking and abuse, and/or associated harms to support the adoption of a class-based approach for sentencing purposes? Are there any synthetic cannabinoids that should not be included as part of a class-based approach and for which the Commission should provide a marihuana equivalency separate from other synthetic cannabinoids? If so, what equivalency should the Commission provide for each such synthetic cannabinoid, and why? If the Commission were to provide a different approach to account for synthetic cannabinoids in the guidelines, what should that different approach be? Which, if any, of the proposed [1:167]/[1:334]/[1:500] marihuana equivalency ratios is appropriate for synthetic cannabinoids (except Schedule III, IV, and V substances) as a class? Should the Commission establish a different equivalency applicable to such a class? If so, what equivalency should the Commission provide and on what basis? 2. The Commission seeks comment on whether the Commission should make a distinction between a synthetic cannabinoid in ``actual'' form (i.e., as a powder or crystalline substance) and a synthetic cannabinoid as part of a mixture (e.g., sprayed on or soaked into a plant or other base material, or otherwise mixed with other substances), by establishing a different marihuana equivalency for each of these forms in which synthetic cannabinoids are trafficked. If so, what equivalencies should the Commission provide and on what basis? Are there differences in terms of pharmacological effects, potential for addiction and abuse, patterns of trafficking and abuse, and/or associated harms between the various forms in which synthetic cannabinoids are trafficked that would support this distinction? Is the use of the term ``actual'' appropriate in cases involving synthetic cannabinoids? If not, what term should the Commission use to refer to a synthetic cannabinoid as a powder or crystalline substance that has not been mixed with other substances (e.g., sprayed on or soaked into a plant or other base material)? 3. Part B of the proposed amendment would include in the Commentary to Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) a provision defining the term ``synthetic cannabinoid'' as ``any synthetic substance (other than synthetic tetrahydrocannabinol) that [acts as an agonist at][binds to and activates] type 1 cannabinoid receptors (CB1 receptors).'' Is this definition appropriate? If not, what definition, if any, should the Commission provide? Are there any synthetic cannabinoids that would not be included under this definition but should be? Are there any [[Page 3874]] substances that would be included in this definition but should not be? What factors should the Commission take into account in defining ``synthetic cannabinoid''? What additional guidance, if any, should the Commission provide on how to apply the proposed class-based marihuana equivalency for synthetic cannabinoids? 4. Part B of the proposed amendment brackets the possibility of establishing a minimum base offense level of [12] for cases involving synthetic cannabinoids (except Schedule III, IV, and V substances) individually, or in combination with another substance. Should the Commission provide a minimum base offense level for such cases? What minimum base offense level, if any, should the Commission provide for cases involving synthetic cannabinoids, and under what circumstances should it apply? 5. The Commission seeks comment on whether, if the Commission were to adopt a 1:167 equivalency ratio for synthetic cannabinoids, this class-based marihuana equivalency should also be applicable to synthetic tetrahydrocannabinol (THC). If so, should the Commission delete the specific reference to this controlled substance in the Drug Equivalency Tables and expand the proposed definition of ``synthetic cannabinoid'' to include ``any synthetic substance that [acts as an agonist at][binds to and activates] type 1 cannabinoid receptors (CB1 receptors)''? Is synthetic THC covered by this definition of ``synthetic cannabinoid''? Is synthetic THC sufficiently similar to other synthetic cannabinoids in chemical structure, pharmacological effects, potential for addiction and abuse, patterns of trafficking and abuse, and/or associated harms, to be included as part of a class-based approach for synthetic cannabinoids? Should the Commission instead continue to provide a marihuana equivalency for synthetic THC separate from other synthetic cannabinoids? (C) Fentanyl and Fentanyl Analogues Synopsis of Proposed Amendment: 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. 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. These substances are sold on 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 prescription opioids. While most fentanyl analogues are typically about as potent as fentanyl itself, some analogues, such as sufentanil and carfentanil, are reported to be many times more potent than fentanyl. The Statutory and Guidelines Framework The Controlled Substances Act (21 U.S.C. 801 et seq.) classifies fentanyl as a Schedule II controlled substance, along with 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] propanamide.'' 21 U.S.C. 841(b)(1)(A)(vi). A Department of Justice regulation explains that N- phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide 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 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) contains entries for both ``fentanyl'' and ``fentanyl analogue,'' at severity levels that reflect the mandatory minimum penalty structure. 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] Propanamide)'' equal to 2.5 kg of marihuana (i.e., a 1:2,500 ratio). The Drug Equivalency Tables also set forth the marihuana equivalencies for two other substances, alpha- methylfentanyl and 3-methylfentanyl. Both substances have the same marihuana equivalency ratio, 1:10,000, which corresponds with the penalties for fentanyl analogues. 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). Higher Penalties for Offenses Involving Fentanyl First, Part C of the proposed amendment would revise Sec. 2D1.1 to increase penalties for offenses involving fentanyl. The Commission has received comment indicating that the proliferation and ease of availability of multiple varieties of fentanyl and fentanyl analogues has resulted in an increased number of deaths from overdoses. Commenters have argued that Sec. 2D1.1 does not adequately reflect the serious dangers posed by fentanyl and its analogues, including their high potential for abuse and addiction. Public health data shows that the harms associated with abuse of fentanyl and fentanyl analogues far exceed those associated with other opioid analgesics. Part C of the proposed amendment would amend Sec. 2D1.1 to provide penalties for fentanyl that are equivalent to the higher penalties currently provided for fentanyl analogues. The proposed amendment would accomplish this objective by changing the base offense levels for fentanyl in the Drug Quantity Table at Sec. 2D1.1(c) to parallel the base offense levels established for fentanyl analogues. It would also amend the Drug Equivalency Tables in the Commentary to Sec. 2D1.1 to change the marihuana equivalency ratio for fentanyl to the same ratio, 1:10,000, provided for fentanyl analogues. Issues Relating to ``Fentanyl Analogues'' Second, Part C of the proposed amendment would revise Sec. 2D1.1 to address several issues relating to offenses involving fentanyl analogues. The Commission has received comment that the penalty for ``fentanyl analogue'' set forth in the guidelines interacts in a potentially confusing way with the guideline definition of the term ``analogue.'' Although the term ``fentanyl analogue'' is not defined by the guidelines, Application Note 6 states that, for purposes of Sec. 2D1.1, ``analogue'' has the meaning given the term ``controlled substance analogue'' in 21 U.S.C. 802(32). Section 802(32) defines ``controlled substance analogue'' to exclude ``a controlled substance''--that is, a substance that has been scheduled. Thus, once the Drug Enforcement Administration (or Congress) schedules a substance that is a ``fentanyl analogue'' in the scientific sense, that substance may not qualify as a ``fentanyl analogue'' for purposes of the Drug [[Page 3875]] Quantity Table. Hence, in cases involving a scheduled ``fentanyl analogue'' other than the two fentanyl analogues listed by name in the Drug Equivalency Tables, courts would be 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].'' The Commission has received comment suggesting that the Application Note 6 process requires courts to hold extensive hearings to receive expert testimony on behalf of the government and the defendant. This process is likely to determine that fentanyl, rather than one of the two listed variants in the guideline, is the most closely related controlled substance to a scheduled ``fentanyl analogue.'' This will result in a substance that would scientifically be considered a fentanyl analogue being punished under the 1:2,500 fentanyl ratio, rather than the 1:10,000 ``fentanyl analogue'' ratio. Part C of the proposed amendment would address this situation by revising Sec. 2D1.1 to define ``fentanyl analogue'' as ``any substance (including any salt, isomer, or salt of isomer thereof), whether a controlled substance or not, that has a chemical structure that is [substantially] similar to fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4- piperidinyl] propanamide).'' It would also amend the Drug Equivalency Tables in Sec. 2D1.1 to provide a single marihuana equivalency applicable to any fentanyl analogue of 1 gram = 10 kilograms of marihuana. The proposed amendment brackets the possibility of making this new marihuana equivalency also applicable to alpha-methylfentanyl and 3-methylfentanyl by deleting the specific references to these controlled substances in the Drug Equivalency Tables. In addition, the proposed amendment would amend the Drug Quantity Table to specify that the penalties relating to ``fentanyl'' apply to the substance identified in the statute as ``N-phenyl-N-[1-(2-phenylethyl)-4- piperidinyl] propanamide.'' Increased Penalties for Offenses Involving Fentanyl and Fentanyl Analogues Misrepresented as Another Substance Finally, Part C of the proposed amendment would amend Sec. 2D1.1 to address cases involving fentanyl and fentanyl analogues misrepresented as another substance. The Commission has received comment that fentanyl and fentanyl analogues are being mixed with, and in some instances substituted for, other drugs, such as heroin and cocaine. According to commenters, fentanyl and fentanyl analogues are also being pressed into pills that resemble prescription opioids, such as oxycodone and hydrocodone. Commenters have also suggested that the harms associated with the use of fentanyl and fentanyl analogues are heightened by the fact that users may unknowingly consume fentanyl or fentanyl analogues in products misrepresented or sold as other substances, such as heroin or counterfeit prescription pills. Because such users may be unaware that what they believe to be a certain substance, such as heroin, is either fentanyl or has been laced with fentanyl, they may not mitigate against the added risks of use, including overdose. Part C of the proposed amendment would add a new specific offense characteristic at Sec. 2D1.1(b)(13) providing an enhancement of [2][4] levels to address these cases. It provides two alternatives for such an enhancement. Under the first alternative, the enhancement would apply if the offense involved a mixture or substance containing a detectable amount of fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue that was misrepresented or marketed as another substance. Under the second alternative, the enhancement would apply if the offense involved a mixture or substance containing fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue and the defendant knowingly misrepresented or knowingly marketed that mixture or substance as another substance. Issues for comment are also provided. Proposed Amendment Section 2D1.1(b) is amended by redesignating paragraphs (13) through (17) as paragraphs (14) through (18), respectively, and by inserting the following new paragraph (13): ``(13) [If the offense involved a mixture or substance containing fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue that was misrepresented or marketed as another substance][If the offense involved a mixture or substance containing fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue and the defendant knowingly misrepresented or knowingly marketed that mixture or substance as another substance], increase by [2][4] levels.''. Section 2D1.1(c)(1) is amended by striking ``36 KG or more of Fentanyl;'' and inserting the following: ``[9] KG or more of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4- piperidinyl] Propanamide);''. Section 2D1.1(c)(2) is amended by striking ``At least 12 KG but less than 36 KG of Fentanyl;'' and inserting the following: ``At least [3] KG but less than [9] KG of Fentanyl (N-phenyl-N-[1-(2- phenylethyl)-4-piperidinyl] Propanamide);''. Section 2D1.1(c)(3) is amended by striking ``At least 4 KG but less than 12 KG of Fentanyl;'' and inserting the following: ``At least [1] KG but less than [3] KG of Fentanyl (N-phenyl-N-[1-(2- phenylethyl)-4-piperidinyl] Propanamide);''. Section 2D1.1(c)(4) is amended by striking ``At least 1.2 KG but less than 4 KG of Fentanyl;'' and inserting the following: ``At least [300] G but less than [1] KG of Fentanyl (N-phenyl-N-[1-(2- phenylethyl)-4-piperidinyl] Propanamide);''. Section 2D1.1(c)(5) is amended by striking ``At least 400 G but less than 1.2 KG of Fentanyl;'' and inserting the following: ``At least [100] G but less than [300] G of Fentanyl (N-phenyl-N-[1-(2- phenylethyl)-4-piperidinyl] Propanamide);''. Section 2D1.1(c)(6) is amended by striking ``At least 280 G but less than 400 G of Fentanyl;'' and inserting the following: ``At least [70] G but less than [100] G of Fentanyl (N-phenyl-N-[1-(2- phenylethyl)-4-piperidinyl] Propanamide);''. Section 2D1.1(c)(7) is amended by striking ``At least 160 G but less than 280 G of Fentanyl;'' and inserting the following: ``At least [40] G but less than [70] G of Fentanyl ((N-phenyl-N-[1-(2- phenylethyl)-4-piperidinyl] Propanamide);''. Section 2D1.1(c)(8) is amended by striking ``At least 40 G but less than 160 G of Fentanyl;'' and inserting the following: ``At least [10] G but less than [40] G of Fentanyl (N-phenyl-N-[1-(2- phenylethyl)-4-piperidinyl] Propanamide);''. Section 2D1.1(c)(9) is amended by striking ``At least 32 G but less than 40 [[Page 3876]] G of Fentanyl;'' and inserting the following: ``At least [8] G but less than [10] G of Fentanyl (N-phenyl-N-[1-(2- phenylethyl)-4-piperidinyl] Propanamide);''. Section 2D1.1(c)(10) is amended by striking ``At least 24 G but less than 32 G of Fentanyl;'' and inserting the following: ``At least [6] G but less than [8] G of Fentanyl (N-phenyl-N-[1-(2- phenylethyl)-4-piperidinyl] Propanamide);''. Section 2D1.1(c)(11) is amended by striking ``At least 16 G but less than 24 G of Fentanyl;'' and inserting the following: ``At least [4] G but less than [6] G of Fentanyl (N-phenyl-N-[1-(2- phenylethyl)-4-piperidinyl] Propanamide);''. Section 2D1.1(c)(12) is amended by striking ``At least 8 G but less than 16 G of Fentanyl;'' and inserting the following: ``At least [2] G but less than [4] G of Fentanyl (N-phenyl-N-[1-(2- phenylethyl)-4-piperidinyl] Propanamide);''. Section 2D1.1(c)(13) is amended by striking ``At least 4 G but less than 8 G of Fentanyl;'' and inserting the following: ``At least [1] G but less than [2] G of Fentanyl (N-phenyl-N-[1-(2- phenylethyl)-4-piperidinyl] Propanamide);''. Section 2D1.1(c)(14) is amended by striking ``Less than 4 G of Fentanyl;'' and inserting the following: ``Less than [1] G of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4- piperidinyl] Propanamide);''. The annotation to Sec. 2D1.1(c) captioned ``Notes to Drug Quantity Table'' is amended by inserting at the end the following new Note (J): ``(J) Fentanyl analogue, for the purposes of this guideline, means any substance (including any salt, isomer, or salt of isomer thereof), whether a controlled substance or not, that has a chemical structure that is [substantially] similar to fentanyl (N-phenyl-N-[1-(2- phenylethyl)-4-piperidinyl] propanamide).''. The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is amended--in Note 6 by striking ``Any reference to a particular controlled substance in these guidelines'' and inserting ``Except as otherwise provided, any reference to a particular controlled substance in these guidelines'', and by striking ``For purposes of this guideline `analogue' has the meaning'' and inserting ``Unless otherwise specified, `analogue,' for purposes of this guideline, has the meaning''; and in note 8(D), in the table under the heading ``Schedule I or II Opiates*''-- [by striking the following two lines: ``1 gm of Alpha-Methylfentanyl = 10 kg of marihuana'' ``1 gm of 3-Methylfentanyl = 10 kg of marihuana'' and] by inserting after the line referenced to Fentanyl (N-phenyl-N-[1- (2-phenylethyl)- 4-piperidinyl] Propanamide) the following: ``1 gm of a Fentanyl Analogue = [10] kg of marihuana''. Issues for Comment 1. Part C of the proposed amendment would amend the ``Notes to Drug Quantity Table'' in Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to include a provision defining ``fentanyl analogue'' as ``any substance (including any salt, isomer, or salt of isomer thereof), whether a controlled substance or not, that has a chemical structure that is [substantially] similar to fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide).'' Is this definition appropriate? If not, what definition, if any, should the Commission provide? For example, should the Commission specify that to qualify as a ``fentanyl analogue,'' a substance, whether a controlled substance or not, must (A) have a chemical structure that is [substantially] similar to fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4- piperidinyl] propanamide) and (B) either (i) have an effect on the central nervous system that is substantially similar to [or greater than] fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide), or (ii) be represented or intended to have such an effect? 2. The proposed amendment would amend Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to adopt a class-based approach to account for all fentanyl analogues, whether they are controlled substances or not. Are fentanyl analogues sufficiently similar to one another in chemical structure, pharmacological effects, potential for addiction and abuse, patterns of trafficking and abuse, and/or associated harms to support such class- based approach for sentencing purposes? If so, are the penalties set forth in the Drug Quantity Table and the proposed 1:10,000 marihuana equivalency ratio appropriate for fentanyl analogues as a class? Should the Commission establish different penalties or a different equivalency applicable to such substances? If so, what penalties should the Commission provide and on what basis? Are there any fentanyl analogues that should not be included as part of a class-based approach and for which the Commission should provide penalties separate from other fentanyl analogues? If so, what penalties should the Commission provide for each such fentanyl analogue, and why? If the Commission were to provide a different approach to account for fentanyl analogues in the guidelines, what should that different approach be? The proposed amendment brackets the possibility of making the marihuana equivalency applicable to all fentanyl analogues that are commonly regarded as analogues of ``Fentanyl (N-phenyl-N-[1-(2- phenylethyl)-4-piperidinyl] Propanamide'' also applicable to alpha- methylfentanyl and 3-methylfentanyl by deleting the specific references to these controlled substances in the Drug Equivalency Tables. Are alpha-methylfentanyl and 3-methylfentanyl sufficiently similar to other fentanyl analogues in chemical structure, pharmacological effects, potential for addiction and abuse, patterns of trafficking and abuse, and/or associated harms, to be included as part of a class-based approach for fentanyl analogues? Should the Commission instead continue to provide marihuana equivalencies for alpha-methylfentanyl and 3- methylfentanyl separate from other fentanyl analogues? 3. According to the Drug Enforcement Administration (DEA) and other sources, fentanyl and fentanyl analogues are typically manufactured in China and then shipped via freight forwarding companies or parcel post to the United States or to other places in the Western Hemisphere. Additionally, fentanyl and fentanyl analogues are available for purchase online through the ``dark net'' (commercial websites functioning as black markets) and regular websites, and commonly shipped into the United States. According to the DEA, the improper handling of fentanyl and fentanyl analogues presents grave danger to individuals who may inadvertently come into contact with such substances. Those at risk include law enforcement and emergency personnel who may unknowingly encounter these substances during arrests, searches, or emergency calls. [[Page 3877]] The Commission seeks comment on whether the guidelines provide appropriate penalties for cases in which fentanyl or a fentanyl analogue may create a substantial threat to the public health or safety (including the health or safety of law enforcement and emergency personnel). If not, how should the Commission revise the guidelines to provide appropriate penalties in such cases? Should the Commission provide new enhancements, adjustments, or departure provisions to account for such cases? If the Commission were to provide such a provision, what specific offense conduct, harm, or other factor should be the basis for applying the provision? What penalty increase should be provided? 2. Illegal Reentry Guideline Enhancements Synopsis of Proposed Amendment: This proposed amendment is a result of the Commission's consideration of miscellaneous guidelines application issues. See U.S. Sentencing Comm'n, ``Notice of Final Priorities,'' 82 FR 39949 (Aug. 22, 2017). It responds to issues that have arisen regarding application of the illegal reentry guideline at Sec. 2L1.2 (Unlawfully Entering or Remaining in the United States). The proposed amendment contains two parts (Part A and Part B). The Commission is considering whether to promulgate either or both of these parts, as they are not mutually exclusive. Part A of the proposed amendment responds to an issue brought to the Commission's attention by the Department of Justice. See Annual Letter from the Department of Justice to the Commission (July 31, 2017), available at https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/20170731/DOJ.pdf. In its annual letter to the Commission, the Department suggested that the illegal reentry guideline's enhancements for prior convictions (other than convictions for illegal reentry) contain a gap in coverage. Subsection (b)(2) of the guideline provides for an increase in the defendant's offense level if, before the defendant was ordered deported or ordered removed from the United States for the first time, the defendant ``sustained . . . a conviction'' for a felony offense (other than an illegal reentry offense) or ``three or more convictions'' for certain misdemeanor offenses. Subsection (b)(3) of the guideline provides for an increase in the defendant's offense level, if after the defendant was ordered deported or ordered removed from the United States for the first time, the defendant ``engaged in criminal conduct resulting in'' such a felony conviction or three or more such misdemeanor convictions. Neither subsection (b)(2) nor subsection (b)(3), however, provides for an increase in the defendant's offense level in the situation where a defendant engaged in criminal conduct before being ordered deported or ordered removed from the United States for the first time but did not sustain a conviction or convictions for that criminal conduct until after he or she was first ordered deported or ordered removed. Part A of the proposed amendment would amend Sec. 2L1.2 to cover this situation by revising subsection (b)(2) so that its applicability turns on whether the defendant ``engaged in criminal conduct'' before he or she was first ordered deported or order removed, rather than whether the defendant sustained the resulting conviction or convictions before that event. Part A would also make non-substantive, conforming changes to the language of subsection (b)(3). An issue for comment is also provided. Part B of the proposed amendment responds to an issue that has arisen in litigation concerning how Sec. 2L1.2's enhancements for prior convictions apply in the situation where a defendant's prior conviction included a term of probation, parole, or supervised release that was subsequently revoked and an additional term of imprisonment imposed. As described above, subsections (b)(2) and (b)(3) of Sec. 2L1.2 provide for increases in a defendant's offense level for prior convictions (other than convictions for illegal reentry). The magnitude of the offense level increase that the subsections provide for a prior felony conviction varies depending on the length of the ``sentence imposed.'' Application Note 2 of the Commentary to Sec. 2L1.2 states that `` `[s]entence imposed' has the meaning given the term `sentence of imprisonment' in Application Note 2 and subsection (b) of Sec. 4A1.2 (Definitions and Instructions for Computing Criminal History).'' Under Sec. 4A1.2, the ``sentence of imprisonment'' includes not only the original term of imprisonment imposed but also any term of imprisonment imposed upon revocation of probation, parole, or supervised release. See USSG Sec. 4A1.2, comment. (n.11). Consistent with that approach, Application Note 2 of the Commentary to Sec. 2L1.2 states that, under Sec. 2L1.2, ``[t]he length of the sentence imposed includes any term of imprisonment given upon revocation of probation, parole, or supervisory release.'' Two courts of appeals have held, however, that, under Sec. 2L1.2(b)(2), the ``sentence imposed'' does not include a period of imprisonment imposed upon revocation of probation, parole, or supervisory release if that revocation occurred after the defendant was ordered deported or ordered removed from the United States for the first time. See United States v. Martinez, 870 F.3d 1163 (9th Cir. 2017); United States v. Franco-Galvan, 846 F.3d 338 (5th Cir. 2017). Part B of the proposed amendment would revise the definition of ``sentence imposed'' in Application Note 2 of the Commentary to Sec. 2L1.2 to clarify that, consistent with the meaning of ``sentence of imprisonment'' under Sec. 4A1.2, the phrase ``sentence imposed'' in Sec. 2L1.2 includes any term of imprisonment given upon revocation of probation, parole, or supervised release, regardless of when the revocation occurred. Proposed Amendment (A) Closing the Coverage Gap Section 2L1.2(b)(2) is amended by striking ``the defendant sustained'' and inserting ``the defendant engaged in criminal conduct that, at any time, resulted in''. Section 2L1.2(b)(3) is amended by striking ``If, at any time after the defendant was ordered deported or ordered removed from the United States for the first time, the defendant engaged in criminal conduct resulting in'' and inserting ``If, after the defendant was ordered deported or ordered removed from the United States for the first time, the defendant engaged in criminal conduct that, at any time, resulted in''. Issue for Comment 1. The Commission has received comments indicating that the enhancements for prior convictions (other than convictions for illegal reentry) in Sec. 2L1.2 (Unlawfully Entering or Remaining in the United States) currently do not apply in the situation where a defendant engaged in criminal conduct before being ordered deported or ordered removed from the United States for the first time but did not sustain a conviction or convictions for that criminal conduct until after he or she was first ordered deported or ordered removed. Part A of the proposed amendment would address this situation by revising the language of Sec. 2L1.2(b)(2) so that its applicability would turn on when the defendant ``engaged in criminal conduct resulting in'' one or more of the covered convictions, rather than when the [[Page 3878]] defendant ``sustained'' that ``conviction'' or ``convictions.'' Should the Commission amend Sec. 2L1.2 to cover the situation where a defendant engages in criminal conduct before a first order of removal or deportation but does not sustain a conviction or convictions for the criminal conduct until after that order? How frequently does this situation occur? Does Part A of the proposed amendment appropriately address this situation? Should the Commission address the situation differently? If so, how? (B) Treatment of Revocations of Probation, Parole, or Supervised Release The Commentary to Sec. 2L1.2 captioned ``Application Notes'' is amended in Note 2 in the paragraph that begins `` `Sentence imposed' has the meaning'' by striking ``term of imprisonment given upon revocation of probation, parole, or supervised release'' and inserting ``term of imprisonment given upon revocation of probation, parole, or supervised release, regardless of when the revocation occurred''. 3. Technical Amendment Synopsis of the Proposed Amendment: This proposed amendment makes various technical changes to the Guidelines Manual. First, the proposed amendment makes technical changes to provide updated references to certain sections in the United States Code that were restated in legislation. As part of an Act to codify existing law relating to the National Park System, Congress repealed numerous sections in Title 16 of the United States Code, and restated them in Title 18 and a newly enacted Title 54. See Public Law 113-287 (Dec. 19, 2014). The proposed amendment amends the Commentary to Sec. 2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources or Paleontological Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources or Paleontological Resources) to correct outdated references to certain sections in Title 16 that were restated, with minor revisions, when Congress enacted Title 54. It also deletes from the Commentary to Sec. 2B1.5 the provision relating to the definition of ``historic resource,'' as that term was omitted from Title 54. In addition, the proposed amendment makes a technical change to Appendix A (Statutory Index), to correct an outdated reference to 16 U.S.C. 413 by replacing it with the appropriate reference to 18 U.S.C. 1865(c). Second, the proposed amendment also makes technical changes to reflect the editorial reclassification of certain sections in the United States Code. Effective September 1, 2017, the Office of Law Revision Counsel transferred certain provisions bearing on crime control and law enforcement, previously scattered throughout various parts of the United States Code, to a new Title 34. To reflect the new section numbers of the reclassified provisions, Part B of the proposed amendment makes changes to-- (1) The Commentary to Sec. 2A3.5 (Failure to Register as a Sex Offender); (2) the Commentary to Sec. 2X5.2 (Class A Misdemeanors (Not Covered by Another Specific Offense Guideline)); (3) subsection (a)(10) of Sec. 5B1.3 (Conditions of Probation); (4) subsection (a)(8) of Sec. 5D1.3 (Conditions of Supervised Release); and (5) Appendix A (Statutory Index), by updating references to certain sections in Title 42 to reflect their reclassified section numbers in the new Title 34. Finally, the proposed amendment revises subsection (a) of Sec. 8C2.1 (Applicability of Fine Guidelines) by deleting an outdated reference to Sec. 2C1.6, which was deleted by consolidation with Sec. 2C1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity) effective November 1, 2004. Proposed Amendment The Commentary to Sec. 2A3.5 captioned ``Application Notes'' is amended in Note 1-- in the paragraph that begins `` `Sex offense' has the meaning'' by striking ``42 U.S.C. 16911(5)'' and inserting ``34 U.S.C. 20911(5)''; and in the paragraph that begins `` `Tier I offender', `Tier II offender', and `Tier III offender' have the meaning'' by striking ``42 U.S.C. 16911'' and inserting ``34 U.S.C. 20911''. The Commentary to Sec. 2B1.5 captioned ``Application Notes'' is amended-- in Note 1(A) by striking clause (ii) and redesignating clauses (iii) through (vii) as clauses (ii) through (vi), respectively; in Note 1(A)(i) by striking ``16 U.S.C. 470w(5)'' and inserting ``54 U.S.C. 300308''; in Note 3(C) by striking ``16 U.S.C. 470a(a)(1)(B)'' and inserting ``54 U.S.C. 302102''; in Note 3(E) by striking ``the Antiquities Act of 1906 (16 U.S.C. 431)'' and inserting ``54 U.S.C. 320301''; and in Note 3(F) by striking ``16 U.S.C. 1c(a)'' and inserting ``54 U.S.C. 100501''. The Commentary to Sec. 2X5.2 captioned ``Statutory Provisions'' is amended by striking ``42 U.S.C. 14133'' and inserting ``34 U.S.C. 12593''. Section 5B1.3(a)(10) is amended by striking ``42 U.S.C. 14135a'' and inserting ``34 U.S.C. 40702''. Section 5D1.3(a)(8) is amended by striking ``42 U.S.C. 14135a'' and inserting ``34 U.S.C. 40702''. Section 8C2.1(a) is amended by striking ``Sec. Sec. 2C1.1, 2C1.2, 2C1.6;'' and inserting ``Sec. Sec. 2C1.1, 2C1.2;''. Appendix A (Statutory Index) is amended-- by striking the line referenced to 16 U.S.C. 413; by inserting after the line referenced to 18 U.S.C. 1864 the following: ``18 U.S.C. 1865(c) 2B1.1''; by inserting after the line referenced to 33 U.S.C. 3851 the following: ``34 U.S.C. 10251 2B1.1 34 U.S.C. 10271 2B1.1 34 U.S.C. 12593 2X5.2 34 U.S.C. 20962 2H3.1 34 U.S.C. 20984 2H3.1''; and by striking the lines referenced to 42 U.S.C. 3791, 42 U.S.C. 3795, 42 U.S.C. 14133, 42 U.S.C. 16962, and 42 U.S.C. 16984. [FR Doc. 2018-01328 Filed 1-25-18; 8:45 am] BILLING CODE 2210-40-P
![Federal Register / Vol. 83, No. 18 / Friday, January 26, 2018 / Notices 3869
classified as loss, off-balance-sheet 5(t)(2)(B) of HOLA, savings associations supplementary leverage ratio standards
items classified as loss, any expenses are required to maintain tangible capital to the institution subsidiaries under
that are necessary for the institution to in an amount not less than 1.5 percent their supervisory jurisdiction of a top-
record in order to replenish its general of total assets.21 The capital rules of the tier bank holding company that has
valuation allowances to an adequate OCC and the FDIC include a more than $700 billion in total assets or
level, and estimated losses on requirement that covered savings more than $10 trillion in assets under
contingent liabilities. The Board and the associations maintain a tangible capital custody.28
OCC expect their supervised institutions ratio of 1.5 percent.22 This statutory Dated: January 11, 2018.
to promptly recognize examiner- requirement does not apply to banks
Grace E. Dailey,
identified losses, but the requirement is and, thus, there is no comparable
Senior Deputy Comptroller and Chief,
not explicit under their capital rules. regulatory provision for banks. The
National Bank Examiner, Office of the
Instead, the Board and the OCC apply distinction is of little practical Comptroller of the Currency.
their supervisory authorities to ensure consequence, however, because under
the Prompt Corrective Action (PCA) By order of the Board of Governors of the
that their supervised institutions charge Federal Reserve System, January 11, 2018.
off any identified losses. framework, all institutions are
considered critically undercapitalized if Ann E. Misback,
Subsidiaries of Savings Associations their tangible equity falls below 2 Secretary of the Board.
There are special statutory percent of total assets.23 Generally Dated at Washington, DC, this 19th day of
requirements for the agencies’ capital speaking, the appropriate federal January 2018.
treatment of a savings association’s banking agency must appoint a receiver By order of the Board of Directors.
investment in or credit to its within 90 days after an institution Federal Deposit Insurance Corporation.
subsidiaries as compared with the becomes critically undercapitalized.24 Robert E. Feldman,
capital treatment of such transactions Executive Secretary.
Enhanced Supplementary Leverage
between other types of institutions and Ratio [FR Doc. 2018–01434 Filed 1–25–18; 8:45 am]
their subsidiaries. Specifically, the BILLING CODE 4810–33–P; 6210–01–P; 6714–01–P
Home Owners’ Loan Act (HOLA) The agencies adopted enhanced
distinguishes between subsidiaries of supplementary leverage ratio standards
savings associations engaged in that take effect beginning on January 1,
2018.25 These standards require certain UNITED STATES SENTENCING
activities that are permissible for COMMISSION
national banks and those engaged in bank holding companies to exceed a 5
activities that are not permissible for percent supplementary leverage ratio to
Sentencing Guidelines for United
national banks.18 When subsidiaries of a avoid limitations on distributions and
States Courts
savings association are engaged in certain discretionary bonus payments
activities that are not permissible for and also require the subsidiary AGENCY: United States Sentencing
national banks,19 the parent savings institutions of these bank holding Commission.
association generally must deduct the companies to meet a 6 percent ACTION: Notice of proposed amendments
parent’s investment in and extensions of supplementary leverage ratio to be to sentencing guidelines, policy
credit to these subsidiaries from the considered ‘‘well capitalized’’ under the statements, and commentary. Request
capital of the parent savings association. PCA framework.26 The rule text for public comment, including public
If a subsidiary of a savings association establishing the scope of application for comment regarding retroactive
engages solely in activities permissible the enhanced supplementary leverage application of any of the proposed
for national banks, no deduction is ratio differs among the agencies. amendments. Notice of public hearing.
required and investments in and loans However, the distinction is of little
practical consequence at this time SUMMARY: Pursuant to section 994(a),
to that organization may be assigned the
because the rules of each agency apply (o), and (p) of title 28, United States
risk weight appropriate for the
the enhanced supplementary leverage Code, the United States Sentencing
activity.20 As the appropriate federal
ratio to the same set of bank holding Commission is considering
banking agencies for federal and state
companies. The Board applies the promulgating amendments to the
savings associations, respectively, the
enhanced supplementary leverage ratio sentencing guidelines, policy
OCC and the FDIC apply this capital
standards to bank holding companies statements, and commentary. This
treatment to those types of institutions.
identified as global systemically notice sets forth the proposed
The Board’s regulatory capital
important bank holding companies as amendments and, for each proposed
framework does not apply to savings
defined in 12 CFR 217.2 and those bank amendment, a synopsis of the issues
associations and therefore does not
holding companies’ Board-supervised, addressed by that amendment. This
include this requirement.
institution subsidiaries.27 The OCC and notice also sets forth several issues for
Tangible Capital Requirement the FDIC apply enhanced comment, some of which are set forth
Federal statutory law subjects savings together with the proposed
associations to a specific tangible capital
21 See 12 U.S.C. 1464(t)(1)(A)(ii) and (t)(2)(B). amendments, and one of which
22 See 12 CFR 3.10(a)(6) (OCC); 12 CFR
requirement but does not similarly do so (regarding retroactive application of
324.10(a)(6) (FDIC). The Board’s regulatory capital
with respect to banks. Under section framework does not apply to savings associations
proposed amendments) is set forth in
and, therefore, does not include this requirement. the SUPPLEMENTARY INFORMATION section
23 See 12 U.S.C. 1831o(c)(3); see also 12 CFR 6.4 of this notice.
daltland on DSKBBV9HB2PROD with NOTICES
18 See 12 U.S.C. 1464(t)(5).
19 Subsidiaries engaged in activities not (OCC); 12 CFR 208.45 (Board); 12 CFR 324.403 DATES: (1) Written Public Comment.—
permissible for national banks are considered non- (FDIC).
24 12 U.S.C. 1831o(h)(3)(A).
Written public comment regarding the
includable subsidiaries.
20 A deduction from capital is only required to the 25 See 79 FR 24528 (May 1, 2014). proposed amendments and issues for
extent that the savings association’s investment 26 See 12 CFR 6.4(c)(1)(iv)(B) (OCC); 12 CFR comment set forth in this notice,
exceeds the generally applicable thresholds for 208.43(b)(1)(iv)(B) (Board); 12 CFR 324.403(b)(1)(v)
deduction of investments in the capital of an (FDIC). 28 See 12 CFR 6.4(c)(1)(iv)(B) (OCC); 12 CFR
unconsolidated financial institution. 27 See 80 FR 49082 (August 14, 2015). 324.403(b)(1)(v) (FDIC).
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![3870 Federal Register / Vol. 83, No. 18 / Friday, January 26, 2018 / Notices
including public comment regarding The proposed amendments in this any fentanyl analogue of 1 gram = 10
retroactive application of any of the notice are presented in one of two kilograms of marihuana, and specify in
proposed amendments, should be formats. First, some of the amendments the Drug Quantity Table that the
received by the Commission not later are proposed as specific revisions to a penalties relating to ‘‘fentanyl’’ apply to
than March 6, 2018. Written reply guideline, policy statement, or the substance identified as ‘‘N-phenyl-
comments, which may only respond to commentary. Bracketed text within a N-[1-(2-phenylethyl)-4-piperidinyl]
issues raised during the original proposed amendment indicates a Propenamide,’’ and (iii) provide an
comment period, should be received by heightened interest on the enhancement in cases in which fentanyl
the Commission not later than March Commission’s part in comment and or a fentanyl analogue is misrepresented
28, 2018. Public comment regarding a suggestions regarding alternative policy or marketed as another substance, and
proposed amendment received after the choices; for example, a proposed related issues for comment;
close of the comment period, and reply enhancement of [2][4][6] levels indicates (2) a multi-part proposed amendment
comment received on issues not raised that the Commission is considering, and to § 2L1.2 (Unlawfully Entering or
during the original comment period, invites comment on, alternative policy Remaining in the United States) to
may not be considered. choices regarding the appropriate level respond to miscellaneous guidelines
(2) Public Hearing.—The Commission of enhancement. Similarly, bracketed application issues, including (A)
may hold a public hearing regarding the text within a specific offense amending § 2L1.2(b)(2) so that its
proposed amendments and issues for characteristic or application note means applicability turns on whether the
comment set forth in this notice. Further that the Commission specifically invites defendant ‘‘engaged in criminal
information regarding any public comment on whether the proposed conduct’’ before he or she was ordered
hearing that may be scheduled, provision is appropriate. Second, the deported or ordered removed from the
including requirements for testifying Commission has highlighted certain United States for the first time, rather
and providing written testimony, as issues for comment and invites than whether the defendant sustained
well as the date, time, location, and suggestions on how the Commission the resulting conviction or convictions
scope of the hearing, will be provided should respond to those issues. before that event, and a related issue for
by the Commission on its website at In summary, the proposed comment; and (B) amending
www.ussc.gov. amendments and issues for comment set Application Note 2 of the Commentary
ADDRESSES: All written comment should
forth in this notice are as follows: to § 2L1.2 to clarify that, consistent with
(1) A multi-part proposed amendment the meaning of ‘‘sentence of
be sent to the Commission by electronic
to § 2D1.1 (Unlawful Manufacturing, imprisonment’’ under § 4A1.2
mail or regular mail. The email address
Importing, Exporting, or Trafficking (Definitions and Instructions for
for public comment is Public_
(Including Possession with Intent to Computing Criminal History), the
Comment@ussc.gov. The regular mail
Commit These Offenses); Attempt or phrase ‘‘sentence imposed’’ in § 2L1.2
address for public comment is United
Conspiracy), including (A) amending includes any term of imprisonment
States Sentencing Commission, One
the Drug Equivalency Tables in § 2D1.1 given upon revocation of probation,
Columbus Circle NE, Suite 2–500,
to (i) set forth a class-based marihuana parole, or supervised release, regardless
Washington, DC 20002–8002, Attention:
equivalency applicable to synthetic of when the revocation occurred; and
Public Affairs. cathinones (except Schedule III, IV, and (3) a proposed amendment to make
FOR FURTHER INFORMATION CONTACT: V substances) of 1 gram = [200]/[380]/ various technical changes to the
Christine Leonard, Director, Office of [500] grams of marihuana, bracketing Guidelines Manual, including (A)
Legislative and Public Affairs, (202) the possibility of making this class- technical changes to provide updated
502–4500, pubaffairs@ussc.gov. based marihuana equivalency also references to certain sections in Title 16,
SUPPLEMENTARY INFORMATION: The applicable to methcathinone, and (ii) United States Code, that were restated,
United States Sentencing Commission is establish a minimum base offense level with minor revisions, when Congress
an independent agency in the judicial of [12] for cases involving synthetic enacted a new Title 54; (B) technical
branch of the United States cathinones (except Schedule III, IV, and changes to reflect the editorial
Government. The Commission V substances), and related issues for reclassification of certain provisions
promulgates sentencing guidelines and comment; (B) amending the Drug bearing on crime control and law
policy statements for federal courts Equivalency Tables in § 2D1.1 to (i) set enforcement, previously scattered
pursuant to 28 U.S.C. 994(a). The forth a class-based marihuana throughout various parts of the United
Commission also periodically reviews equivalency applicable to synthetic States Code, to a new Title 34; and (C)
and revises previously promulgated cannabinoids (except Schedule III, IV, a clerical change to § 8C2.1
guidelines pursuant to 28 U.S.C. 994(o) and V substances) of 1 gram = [167]/ (Applicability of Fine Guidelines) to
and submits guideline amendments to [334]/[500] grams of marihuana, (ii) delete an outdated reference to § 2C1.6,
the Congress not later than the first day provide a definition for the term which was deleted by consolidation
of May each year pursuant to 28 U.S.C. ‘‘synthetic cannabinoid,’’ and (iii) with § 2C1.2 (Offering, Giving,
994(p). bracket the possibility of establishing a Soliciting, or Receiving a Gratuity)
Publication of a proposed amendment minimum base offense level of [12] for effective November 1, 2004.
requires the affirmative vote of at least cases involving synthetic cannabinoids In addition, the Commission requests
three voting members of the (except Schedule III, IV, and V public comment regarding whether,
Commission and is deemed to be a substances), and related issues for pursuant to 18 U.S.C. 3582(c)(2) and 28
request for public comment on the comment; and (C) amending § 2D1.1 to U.S.C. 994(u), any proposed amendment
daltland on DSKBBV9HB2PROD with NOTICES
proposed amendment. See USSC Rules (i) provide penalties for offenses published in this notice should be
of Practice and Procedure 2.2, 4.4. In involving fentanyl equivalent to the included in subsection (d) of § 1B1.10
contrast, the affirmative vote of at least higher penalties currently provided for (Reduction in Term of Imprisonment as
four voting members is required to offenses involving fentanyl analogues, a Result of Amended Guideline Range
promulgate an amendment and submit (ii) provide a definition for the term (Policy Statement)) as an amendment
it to Congress. See id. 2.2; 28 U.S.C. ‘‘fentanyl analogue,’’ set forth a single that may be applied retroactively to
994(p). marihuana equivalency applicable to previously sentenced defendants. The
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![Federal Register / Vol. 83, No. 18 / Friday, January 26, 2018 / Notices 3871
Commission lists in § 1B1.10(d) the III, IV, and V substances) of 1 gram = www.drugabuse.gov/publications/
specific guideline amendments that the [200]/[380]/[500] grams of marihuana. drugfacts/synthetic-cathinones-bath-
court may apply retroactively under 18 Part A of the proposed amendment also salts. According to the National Institute
U.S.C. 3582(c)(2). The background brackets the possibility of making this on Drug Abuse, synthetic variants of
commentary to § 1B1.10 lists the class-based marihuana equivalency also cathinone can be much stronger than
purpose of the amendment, the applicable to methcathinone, by the natural cathinone and, in some
magnitude of the change in the deleting the specific reference to this cases, very dangerous. Id. Abuse of
guideline range made by the controlled substance in the Drug synthetic cathinones, sometimes
amendment, and the difficulty of Equivalency Tables. Finally, Part A of referred to as ‘‘bath salts,’’ has become
applying the amendment retroactively the proposed amendment establishes a more prevalent over the last decade.
to determine an amended guideline minimum base offense level of [12] for Currently, § 2D1.1 (Unlawful
range under § 1B1.10(b) as among the cases involving synthetic cathinones Manufacturing, Importing, Exporting, or
factors the Commission considers in (except Schedule III, IV, and V Trafficking (Including Possession with
selecting the amendments included in substances). Issues for comment are also Intent to Commit These Offenses);
§ 1B1.10(d). To the extent practicable, provided. Attempt or Conspiracy) specifically lists
public comment should address each of Part B of the proposed amendment only one synthetic cathinone,
these factors. would amend the Drug Equivalency Methcathinone. Because other synthetic
The text of the proposed amendments Tables in § 2D1.1 to adopt a class-based cathinones are not specifically listed in
and related issues for comment are set approach to account for synthetic either the Drug Quantity Table or the
forth below. Additional information cannabinoids. It sets forth a single Drug Equivalency Tables in § 2D1.1,
pertaining to the proposed amendments marihuana equivalency applicable to cases involving these substances require
and issues for comment described in synthetic cannabinoids (except courts to use Application Note 6 of the
this notice may be accessed through the Schedule III, IV, and V substances) of 1 Commentary to § 2D1.1 to ‘‘determine
Commission’s website at www.ussc.gov. gram = [167]/[334]/[500] grams of the base offense level using the
Authority: 28 U.S.C. 994(a), (o), (p), (x); marihuana. It also adds a provision marihuana equivalency of the most
USSC Rules of Practice and Procedure 2.2, defining the term ‘‘synthetic closely related controlled substance
4.3, 4.4. cannabinoid.’’ Finally, Part B of the referenced in [§ 2D1.1].’’ The
proposed amendment brackets for Commission has received comment
William H. Pryor, Jr.,
comment a provision establishing a suggesting that questions regarding ‘‘the
Acting Chair. minimum base offense level of [12] for most closely related controlled
Proposed Amendments to the cases involving synthetic cannabinoids substance’’ arise frequently in cases
Sentencing Guidelines, Policy (except Schedule III, IV, and V involving synthetic cathinones, and that
Statements, and Official Commentary substances). Issues for comment are also the Application Note 6 process requires
provided. courts to hold extensive hearings to
1. Synthetic Drugs Part C of the proposed amendment receive expert testimony on behalf of
Synopsis of Proposed Amendment: would amend § 2D1.1 in several ways to the government and the defendant.
This proposed amendment is a result of account for fentanyl and fentanyl The Commission has also received
the Commission’s multiyear study of analogues. First, it provides penalties comment indicating that a large number
offenses involving synthetic cathinones for offenses involving fentanyl that are of synthetic cathinones are currently
(such as methylone, MDPV, and equivalent to the higher penalties available on the illicit drug market and
mephedrone) and synthetic currently provided for offenses that new varieties are regularly
cannabinoids (such as JWH–018 and involving fentanyl analogues. Second, developed for illegal trafficking. Given
AM–2201), as well as the proposed amendment revises this information, it would likely be
tetrahydrocannabinol (THC), fentanyl, § 2D1.1 to provide a definition of the difficult and impracticable for the
and fentanyl analogues, and term ‘‘fentanyl analogue,’’ set forth a Commission to provide individual
consideration of appropriate guideline single marihuana equivalency marihuana equivalencies for each
amendments, including simplifying the applicable to any fentanyl analogue of 1 synthetic cathinone in the Guidelines
determination of the most closely gram = 10 kilograms of marihuana, and Manual. Testimony received by the
related controlled substance under specify in the Drug Quantity Table that Commission indicates that whether a
Application Note 6 of the Commentary the penalties relating to ‘‘fentanyl’’ substance is properly classified as a
to § 2D1.1. See U.S. Sentencing apply to the substance identified as ‘‘N- synthetic cathinone is not generally
Comm’n, ‘‘Notice of Final Priorities,’’ 82 phenyl-N-[1-(2-phenylethyl)-4- subject to debate, as there appears to be
FR 39949 (Aug. 22, 2017). The proposed piperidinyl] propanamide.’’ Finally, broad agreement that the basic chemical
amendment contains three parts (Parts Part C of the proposed amendment structure of cathinone remains present
A through C). The Commission is amends § 2D1.1 to provide an throughout all synthetic cathinones.
considering whether to promulgate any enhancement in cases in which fentanyl Part A of the proposed amendment
or all of these parts, as they are not or a fentanyl analogue is misrepresented would amend the Drug Equivalency
mutually exclusive. or marketed as another substance. Issues Tables in § 2D1.1 to adopt a class-based
Part A of the proposed amendment for comment are also provided. approach to account for synthetic
would amend the Drug Equivalency cathinones. It sets forth a single
Tables in § 2D1.1 (Unlawful (A) Synthetic Cathinones marihuana equivalency applicable to
Manufacturing, Importing, Exporting, or Synopsis of the Proposed synthetic cathinones (except Schedule
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Trafficking (Including Possession with Amendment: Synthetic cathinones are III, IV, and V substances) of 1 gram =
Intent to Commit These Offenses); human-made drugs chemically related [200]/[380]/[500] grams of marihuana.
Attempt or Conspiracy) to adopt a class- to cathinone, a stimulant found in the The proposed amendment also
based approach to account for synthetic khat plant. See National Institute on establishes a minimum base offense
cathinones. It sets forth a single Drug Abuse, DrugFacts: Synthetic level of [12] for cases involving
marihuana equivalency applicable to Cathinones (‘‘Bath Salts’’) (January synthetic cathinones (except Schedule
synthetic cathinones (except Schedule 2016), available at https:// III, IV, and V substances). Finally, the
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![3872 Federal Register / Vol. 83, No. 18 / Friday, January 26, 2018 / Notices
proposed amendment brackets the which the Commission should provide at a specific part of the central nervous
possibility of making this class-based a marihuana equivalency separate from system known as the cannabinoid
marihuana equivalency also applicable other synthetic cathinones? If so, what receptors, binding to and activating
to methcathinone, by deleting the equivalency should the Commission these receptors to produce psychoactive
specific reference to this controlled provide for each such synthetic effects. However, the available scientific
substance in the Drug Equivalency cathinone, and why? If the Commission literature on this subject suggests that
Tables. were to provide a different approach to some synthetic cannabinoids bind more
Issues for comment are also provided. account for synthetic cathinones in the strongly to cell receptors affected by
guidelines, what should that different THC, and may produce stronger effects.
Proposed Amendment
approach be? See National Institute of Drug Abuse,
The Commentary to § 2D1.1 captioned Which, if any, of the proposed DrugFacts: Synthetic Cannabinoids
‘‘Application Notes’’ is amended in [1:200]/[1:380]/[1:500] marihuana (Revised November 2015) available at
Note 8(D)— equivalency ratios is appropriate for https://www.drugabuse.gov/
[in the table under the heading ‘‘Cocaine synthetic cathinones (except Schedule publications/drugfacts/synthetic-
and Other Schedule I and II Stimulants III, IV, and V substances) as a class? cannabinoids.
(and their immediate precursors) *’’, by Should the Commission establish a The Commission has received
striking the following: different equivalency applicable to such comment indicating that the synthetic
‘‘1 gm of Methcathinone = 380 gm of a class? If so, what equivalency should cannabinoids encountered on the illicit
marihuana’’; the Commission provide and on what market are predominantly potent
basis? cannabinoid agonists that are
and] by inserting after the table under 2. Part A of the proposed amendment pharmacologically similar to THC, but
the heading ‘‘Cocaine and Other brackets the possibility of making the may cause a more severe toxicity and
Schedule I and II Stimulants (and their marihuana equivalency applicable to more serious adverse effects than THC.
immediate precursors) *’’ the following synthetic cathinones also applicable to According to commenters, THC is only
new table: methcathinone by deleting the specific a partial agonist at type 1 cannabinoid
‘‘Synthetic Cathinones (except Schedule reference to this controlled substance in receptors (CB1 receptors) and produces
III, IV, and V Substances) * 1 gm of the Drug Equivalency Tables. Is 30 to 50 percent (or less) of the highest
a synthetic cathinone (except a methcathinone sufficiently similar to possible response in receptor activation.
Schedule III, IV, or V substance) = other synthetic cathinones in chemical Synthetic cannabinoids are full agonists
[200]/[380]/[500] gm of marihuana structure, pharmacological effects, at CB1 receptors that elicit close to 100
* Provided, that the minimum offense potential for addiction and abuse, percent response in receptor activation.
level from the Drug Quantity Table patterns of trafficking and abuse, and/or Some commenters have argued that this
for any synthetic cathinone (except associated harms to be included as part high activation response may contribute
a Schedule III, IV, or V substance) of a class-based approach for synthetic to the increased toxicity and more
individually, or in combination cathinones? Should the Commission severe adverse effects of synthetic
with another controlled substance, instead continue to provide a marihuana cannabinoids when compared with
is level [12].’’. equivalency for methcathinone separate THC. According to commenters, some of
Issues for Comment from other synthetic cathinones? the adverse effects of synthetic
3. The Commission seeks comment cannabinoids are more prevalent or
1. Part A of the proposed amendment whether it should amend the more severe than those produced by
would amend the Drug Equivalency Commentary to § 2D1.1 (Unlawful marihuana and THC, and may be
Tables in § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or produced at lower doses. The
Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Commission was also informed by
Trafficking (Including Possession with Intent to Commit These Offenses); commenters that drug discrimination
Intent to Commit These Offenses); Attempt or Conspiracy) to provide data is available on at least 26 different
Attempt or Conspiracy) to adopt a class- guidance on how to apply the new synthetic cannabinoids. JWH–018, one
based approach to account for synthetic class-based marihuana equivalency for of the substances included in the
cathinones. It sets forth a single synthetic cathinones. What guidance, if Commission’s study, was shown in the
marihuana equivalency applicable to any, should the Commission provide on drug discrimination assay to be
synthetic cathinones (except Schedule the application of the proposed class- approximately three times as potent as
III, IV, and V substances) of 1 gram = based marihuana equivalency? Should THC. Another substance included in the
[200]/[380]/[500] grams of marihuana. the Commission define the term Commission’s study, AM–2201, was
The Commission seeks comment on ‘‘synthetic cathinone’’ for purposes of shown to be approximately five times as
how, if at all, the guidelines should be this class-based approach? If so, what potent as THC using the same assay.
amended to account for synthetic definition should the Commission Newer synthetic cannabinoids have
cathinones. provide for such term? What factors been shown to be even more potent than
Should the Commission provide a should the Commission account for if it these substances. According to the Drug
class-based approach to account for considers providing a definition for Enforcement Administration, on rare
synthetic cathinones? Are synthetic ‘‘synthetic cathinone’’? occasions synthetic cannabinoids have
cathinones sufficiently similar to one been shown to be less potent than THC,
another in chemical structure, (B) Synthetic Cannabinoids
as substances with a lower potency are
pharmacological effects, potential for Synopsis of the Proposed often abandoned by manufacturers
daltland on DSKBBV9HB2PROD with NOTICES
addiction and abuse, patterns of Amendment: Synthetic cannabinoids following negative user reports relating
trafficking and abuse, and/or associated are human-made, mind-altering to their effects.
harms, to support the adoption of a chemicals developed to mimic the Currently, § 2D1.1 (Unlawful
class-based approach for sentencing effects of tetrahydrocannabinol (THC), Manufacturing, Importing, Exporting, or
purposes? Are there any synthetic the main psychoactive chemical found Trafficking (Including Possession with
cathinones that should not be included in the marihuana plant. Like THC, Intent to Commit These Offenses);
as part of a class-based approach and for synthetic cannabinoids act as an agonist Attempt or Conspiracy) specifically lists
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![Federal Register / Vol. 83, No. 18 / Friday, January 26, 2018 / Notices 3873
only one synthetic cannabinoid, Finally, Part B of the proposed approach and for which the
synthetic THC. Synthetic THC has a amendment brackets for comment a Commission should provide a
marihuana equivalency of 1 gram = 167 provision establishing a minimum base marihuana equivalency separate from
grams of marihuana. Because other offense level of [12] for cases involving other synthetic cannabinoids? If so,
synthetic cannabinoids are not synthetic cannabinoids (except what equivalency should the
specifically listed in either the Drug Schedule III, IV, and V substances). Commission provide for each such
Quantity Table or the Drug Equivalency Issues for comment are also provided. synthetic cannabinoid, and why? If the
Tables in § 2D1.1, cases involving these Commission were to provide a different
Proposed Amendment approach to account for synthetic
substances require courts to use
Application Note 6 of the Commentary The Commentary to § 2D1.1 captioned cannabinoids in the guidelines, what
to § 2D1.1 to ‘‘determine the base ‘‘Application Notes’’ is amended in should that different approach be?
offense level using the marihuana Note 8(D) by inserting after the table Which, if any, of the proposed
equivalency of the most closely related under the heading ‘‘Schedule I [1:167]/[1:334]/[1:500] marihuana
controlled substance referenced in Marihuana’’ the following new table: equivalency ratios is appropriate for
[§ 2D1.1].’’ Although courts often rely ‘‘Synthetic Cannabinoids (except synthetic cannabinoids (except
on the synthetic THC equivalency in Schedule III, IV, and V Schedule III, IV, and V substances) as a
cases involving synthetic cannabinoids, Substances)[*] class? Should the Commission establish
the Commission has received comment 1 gm of a synthetic cannabinoid a different equivalency applicable to
suggesting that questions regarding ‘‘the (except a Schedule III, IV, or V such a class? If so, what equivalency
most closely related controlled substance) = [167]/[334]/[500] gm of should the Commission provide and on
substance’’ arise frequently in such what basis?
marihuana
cases, and that the Application Note 6 2. The Commission seeks comment on
process requires courts to hold [*Provided, that the minimum offense whether the Commission should make a
extensive hearings to receive expert level from the Drug Quantity Table distinction between a synthetic
testimony on behalf of the government for any synthetic cannabinoid cannabinoid in ‘‘actual’’ form (i.e., as a
and the defendant. (except a Schedule III, IV, or V powder or crystalline substance) and a
The Commission has also received substance) individually, or in synthetic cannabinoid as part of a
comment suggesting that, like synthetic combination with another mixture (e.g., sprayed on or soaked into
cathinones, a large number of synthetic controlled substance, is level [12].] a plant or other base material, or
cannabinoids are currently available on ‘Synthetic cannabinoid,’ for purposes of otherwise mixed with other substances),
the illicit drug market and new varieties this guideline, means any synthetic by establishing a different marihuana
are regularly developed for illegal substance (other than synthetic equivalency for each of these forms in
trafficking. Given this information, it tetrahydrocannabinol) that [acts as which synthetic cannabinoids are
would likely be difficult and an agonist at][binds to and trafficked. If so, what equivalencies
impracticable for the Commission to activates] type 1 cannabinoid should the Commission provide and on
provide individual marihuana receptors (CB1 receptors).’’. what basis? Are there differences in
equivalencies for each synthetic Issues for Comment terms of pharmacological effects,
cannabinoid in the Guidelines Manual. potential for addiction and abuse,
Unlike synthetic cathinones, synthetic 1. Part B of the proposed amendment patterns of trafficking and abuse, and/or
cannabinoids cannot be defined as a would amend the Drug Equivalency associated harms between the various
single class based on a common Tables in § 2D1.1 (Unlawful forms in which synthetic cannabinoids
chemical structure. Synthetic Manufacturing, Importing, Exporting, or are trafficked that would support this
cannabinoids regularly developed for Trafficking (Including Possession with distinction? Is the use of the term
illegal trafficking come from several Intent to Commit These Offenses); ‘‘actual’’ appropriate in cases involving
different structural classes. However, Attempt or Conspiracy) to adopt a class- synthetic cannabinoids? If not, what
the Commission received testimony based approach to account for synthetic term should the Commission use to refer
from experts indicating that, while cannabinoids. It sets forth a single to a synthetic cannabinoid as a powder
synthetic cannabinoids may differ in marihuana equivalency applicable to or crystalline substance that has not
chemical structure, these substances all synthetic cannabinoids (except been mixed with other substances (e.g.,
produce the same pharmacological Schedule III, IV, and V substances) of 1 sprayed on or soaked into a plant or
effects: They act as an agonist at type 1 gram of such a synthetic cannabinoid = other base material)?
cannabinoid receptors (CB1 receptors). [167]/[334]/[500] grams of marihuana. 3. Part B of the proposed amendment
Part B of the proposed amendment The Commission seeks comment on would include in the Commentary to
would amend the Drug Equivalency how, if at all, the guidelines should be § 2D1.1 (Unlawful Manufacturing,
Tables in § 2D1.1 to adopt a class-based amended to account for synthetic Importing, Exporting, or Trafficking
approach to account for synthetic cannabinoids. (Including Possession with Intent to
cannabinoids. It sets forth a single Should the Commission provide a Commit These Offenses); Attempt or
marihuana equivalency applicable to class-based approach to account for Conspiracy) a provision defining the
synthetic cannabinoids (except synthetic cannabinoids? Are synthetic term ‘‘synthetic cannabinoid’’ as ‘‘any
Schedule III, IV, and V substances) of 1 cannabinoids sufficiently similar to one synthetic substance (other than
gram = [167]/[334]/[500] grams of another in chemical structure, synthetic tetrahydrocannabinol) that
marihuana. The proposed amendment pharmacological effects, potential for [acts as an agonist at][binds to and
daltland on DSKBBV9HB2PROD with NOTICES
would also add a provision defining addiction and abuse, patterns of activates] type 1 cannabinoid receptors
‘‘synthetic cannabinoid’’ as ‘‘any trafficking and abuse, and/or associated (CB1 receptors).’’ Is this definition
synthetic substance (other than harms to support the adoption of a appropriate? If not, what definition, if
synthetic tetrahydrocannabinol) that class-based approach for sentencing any, should the Commission provide?
[acts as an agonist at][binds to and purposes? Are there any synthetic Are there any synthetic cannabinoids
activates] type 1 cannabinoid receptors cannabinoids that should not be that would not be included under this
(CB1 receptors).’’ included as part of a class-based definition but should be? Are there any
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substances that would be included in 2017), available at https:// e.g., T.J. Gillespie, et al., Identification
this definition but should not be? What www.unodc.org/documents/scientific/ and Quantification of Alpha-
factors should the Commission take into Global_SMART_Update_17_web.pdf. Methylfentanyl in Post Mortem
account in defining ‘‘synthetic These substances are sold on the illicit Specimens, 6(3) J. of Analytical
cannabinoid’’? What additional drug market as powder, pills, absorbed Toxicology 139 (May–June 1982).
guidance, if any, should the on blotter paper, mixed with or
Higher Penalties for Offenses Involving
Commission provide on how to apply substituted for heroin, or as tablets that
Fentanyl
the proposed class-based marihuana may mimic the appearance of
equivalency for synthetic cannabinoids? prescription opioids. While most First, Part C of the proposed
4. Part B of the proposed amendment fentanyl analogues are typically about as amendment would revise § 2D1.1 to
brackets the possibility of establishing a potent as fentanyl itself, some increase penalties for offenses involving
minimum base offense level of [12] for analogues, such as sufentanil and fentanyl. The Commission has received
cases involving synthetic cannabinoids carfentanil, are reported to be many comment indicating that the
(except Schedule III, IV, and V times more potent than fentanyl. proliferation and ease of availability of
substances) individually, or in multiple varieties of fentanyl and
combination with another substance. The Statutory and Guidelines fentanyl analogues has resulted in an
Should the Commission provide a Framework increased number of deaths from
minimum base offense level for such The Controlled Substances Act (21 overdoses. Commenters have argued
cases? What minimum base offense U.S.C. 801 et seq.) classifies fentanyl as that § 2D1.1 does not adequately reflect
level, if any, should the Commission a Schedule II controlled substance, the serious dangers posed by fentanyl
provide for cases involving synthetic along with other opiates. While there is and its analogues, including their high
cannabinoids, and under what no other specific reference to the term potential for abuse and addiction.
circumstances should it apply? ‘‘fentanyl’’ in Title 21, United States Public health data shows that the harms
5. The Commission seeks comment on Code, a subsequent section establishes a associated with abuse of fentanyl and
whether, if the Commission were to mandatory minimum penalty for a fentanyl analogues far exceed those
adopt a 1:167 equivalency ratio for substance identified as ‘‘N-phenyl-N-[1- associated with other opioid analgesics.
synthetic cannabinoids, this class-based (2-phenylethyl)-4-piperidinyl] Part C of the proposed amendment
marihuana equivalency should also be propanamide.’’ 21 U.S.C. would amend § 2D1.1 to provide
applicable to synthetic 841(b)(1)(A)(vi). A Department of Justice penalties for fentanyl that are equivalent
tetrahydrocannabinol (THC). If so, regulation explains that N-phenyl-N-[1- to the higher penalties currently
should the Commission delete the (2-phenylethyl)-4-piperidinyl] provided for fentanyl analogues. The
specific reference to this controlled propanamide is the substance proposed amendment would
substance in the Drug Equivalency ‘‘commonly known as fentanyl.’’ 28 CFR accomplish this objective by changing
Tables and expand the proposed 50.21(d)(4)(vii). The Controlled the base offense levels for fentanyl in
definition of ‘‘synthetic cannabinoid’’ to Substances Act prescribes a mandatory the Drug Quantity Table at § 2D1.1(c) to
include ‘‘any synthetic substance that minimum penalty of five years for parallel the base offense levels
[acts as an agonist at][binds to and trafficking 40 or more grams of the established for fentanyl analogues. It
activates] type 1 cannabinoid receptors substance, or ten or more grams of an would also amend the Drug Equivalency
(CB1 receptors)’’? Is synthetic THC analogue of the substance. 21 U.S.C. Tables in the Commentary to § 2D1.1 to
covered by this definition of ‘‘synthetic 841(b)(1)(A)(vi); (b)(1)(B)(vi). change the marihuana equivalency ratio
cannabinoid’’? Is synthetic THC The Drug Quantity Table in § 2D1.1 for fentanyl to the same ratio, 1:10,000,
sufficiently similar to other synthetic (Unlawful Manufacturing, Importing, provided for fentanyl analogues.
cannabinoids in chemical structure, Exporting, or Trafficking (Including
Issues Relating to ‘‘Fentanyl Analogues’’
pharmacological effects, potential for Possession with Intent to Commit These
addiction and abuse, patterns of Offenses); Attempt or Conspiracy) Second, Part C of the proposed
trafficking and abuse, and/or associated contains entries for both ‘‘fentanyl’’ and amendment would revise § 2D1.1 to
harms, to be included as part of a class- ‘‘fentanyl analogue,’’ at severity levels address several issues relating to
based approach for synthetic that reflect the mandatory minimum offenses involving fentanyl analogues.
cannabinoids? Should the Commission penalty structure. The Drug Equivalency The Commission has received comment
instead continue to provide a marihuana Tables in the Commentary to § 2D1.1 that the penalty for ‘‘fentanyl analogue’’
equivalency for synthetic THC separate clearly identify fentanyl with the set forth in the guidelines interacts in a
from other synthetic cannabinoids? specific substance associated with the potentially confusing way with the
statutory minimum penalty by guideline definition of the term
(C) Fentanyl and Fentanyl Analogues providing a marihuana equivalency for ‘‘analogue.’’ Although the term
Synopsis of Proposed Amendment: 1 gm of ‘‘Fentanyl (N-phenyl-N-[1-(2- ‘‘fentanyl analogue’’ is not defined by
Fentanyl is a powerful synthetic opioid phenylethyl)-4-piperidinyl] the guidelines, Application Note 6 states
analgesic that is similar to morphine but Propanamide)’’ equal to 2.5 kg of that, for purposes of § 2D1.1, ‘‘analogue’’
50 to 100 times more potent. See marihuana (i.e., a 1:2,500 ratio). The has the meaning given the term
National Institute on Drug Abuse, Drug Equivalency Tables also set forth ‘‘controlled substance analogue’’ in 21
DrugFacts: Fentanyl (June 2016), the marihuana equivalencies for two U.S.C. 802(32). Section 802(32) defines
available at https://www.drugabuse.gov/ other substances, alpha-methylfentanyl ‘‘controlled substance analogue’’ to
publications/drugfacts/fentanyl. and 3-methylfentanyl. Both substances exclude ‘‘a controlled substance’’—that
daltland on DSKBBV9HB2PROD with NOTICES
Fentanyl is a prescription drug that can have the same marihuana equivalency is, a substance that has been scheduled.
be diverted for illicit use. Fentanyl and ratio, 1:10,000, which corresponds with Thus, once the Drug Enforcement
analogues of fentanyl are also produced the penalties for fentanyl analogues. Administration (or Congress) schedules
in clandestine laboratories for illicit use. Alpha-methylfentanyl and 3- a substance that is a ‘‘fentanyl
See, e.g., U.N. Office on Drugs & Crime, methylfentanyl are pharmaceutical analogue’’ in the scientific sense, that
Fentanyl and Its Analogues—50 Years analogues of fentanyl that were substance may not qualify as a ‘‘fentanyl
On, Global Smart Update 17 (March developed in the 1960s or 1970s. See, analogue’’ for purposes of the Drug
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Quantity Table. Hence, in cases for, other drugs, such as heroin and Section 2D1.1(c)(1) is amended by
involving a scheduled ‘‘fentanyl cocaine. According to commenters, striking ‘‘36 KG or more of Fentanyl;’’
analogue’’ other than the two fentanyl fentanyl and fentanyl analogues are also and inserting the following:
analogues listed by name in the Drug being pressed into pills that resemble ‘‘[9] KG or more of Fentanyl (N-phenyl
Equivalency Tables, courts would be prescription opioids, such as oxycodone -N-[1-(2-phenylethyl)-4-piperidinyl]
required by Application Note 6 of the and hydrocodone. Commenters have Propanamide);’’.
Commentary to § 2D1.1 to ‘‘determine also suggested that the harms associated
the base offense level using the Section 2D1.1(c)(2) is amended by
with the use of fentanyl and fentanyl
marihuana equivalency of the most striking ‘‘At least 12 KG but less than 36
analogues are heightened by the fact
closely related controlled substance KG of Fentanyl;’’ and inserting the
that users may unknowingly consume
referenced in [§ 2D1.1].’’ following:
fentanyl or fentanyl analogues in
The Commission has received products misrepresented or sold as ‘‘At least [3] KG but less than [9] KG of
comment suggesting that the other substances, such as heroin or Fentanyl (N-phenyl-N-[1-(2-
Application Note 6 process requires counterfeit prescription pills. Because phenylethyl)-4-piperidinyl]
courts to hold extensive hearings to such users may be unaware that what Propanamide);’’.
receive expert testimony on behalf of they believe to be a certain substance, Section 2D1.1(c)(3) is amended by
the government and the defendant. This such as heroin, is either fentanyl or has striking ‘‘At least 4 KG but less than 12
process is likely to determine that been laced with fentanyl, they may not KG of Fentanyl;’’ and inserting the
fentanyl, rather than one of the two mitigate against the added risks of use, following:
listed variants in the guideline, is the including overdose. ‘‘At least [1] KG but less than [3] KG of
most closely related controlled
Part C of the proposed amendment Fentanyl (N-phenyl-N-[1-(2-
substance to a scheduled ‘‘fentanyl
would add a new specific offense phenylethyl)-4-piperidinyl]
analogue.’’ This will result in a
characteristic at § 2D1.1(b)(13) Propanamide);’’.
substance that would scientifically be
considered a fentanyl analogue being providing an enhancement of [2][4] Section 2D1.1(c)(4) is amended by
punished under the 1:2,500 fentanyl levels to address these cases. It provides striking ‘‘At least 1.2 KG but less than
ratio, rather than the 1:10,000 ‘‘fentanyl two alternatives for such an 4 KG of Fentanyl;’’ and inserting the
analogue’’ ratio. enhancement. Under the first following:
Part C of the proposed amendment alternative, the enhancement would ‘‘At least [300] G but less than [1] KG
would address this situation by revising apply if the offense involved a mixture of Fentanyl (N-phenyl-N-[1-(2-
§ 2D1.1 to define ‘‘fentanyl analogue’’ as or substance containing a detectable phenylethyl)-4-piperidinyl]
‘‘any substance (including any salt, amount of fentanyl (N-phenyl-N-[1-(2- Propanamide);’’.
isomer, or salt of isomer thereof), phenylethyl)-4-piperidinyl]
propanamide) or a fentanyl analogue Section 2D1.1(c)(5) is amended by
whether a controlled substance or not,
that has a chemical structure that is that was misrepresented or marketed as striking ‘‘At least 400 G but less than 1.2
[substantially] similar to fentanyl (N- another substance. Under the second KG of Fentanyl;’’ and inserting the
phenyl-N-[1-(2-phenylethyl)-4- alternative, the enhancement would following:
piperidinyl] propanamide).’’ It would apply if the offense involved a mixture ‘‘At least [100] G but less than [300] G
also amend the Drug Equivalency Tables or substance containing fentanyl (N- of Fentanyl (N-phenyl-N-[1-(2-
in § 2D1.1 to provide a single marihuana phenyl-N-[1-(2-phenylethyl)-4- phenylethyl)-4-piperidinyl]
equivalency applicable to any fentanyl piperidinyl] propanamide) or a fentanyl Propanamide);’’.
analogue of 1 gram = 10 kilograms of analogue and the defendant knowingly Section 2D1.1(c)(6) is amended by
marihuana. The proposed amendment misrepresented or knowingly marketed striking ‘‘At least 280 G but less than
brackets the possibility of making this that mixture or substance as another 400 G of Fentanyl;’’ and inserting the
new marihuana equivalency also substance. following:
applicable to alpha-methylfentanyl and Issues for comment are also provided. ‘‘At least [70] G but less than [100] G of
3-methylfentanyl by deleting the Fentanyl (N-phenyl-N-[1-(2-
specific references to these controlled Proposed Amendment
phenylethyl)-4-piperidinyl]
substances in the Drug Equivalency Propanamide);’’.
Section 2D1.1(b) is amended by
Tables. In addition, the proposed
redesignating paragraphs (13) through Section 2D1.1(c)(7) is amended by
amendment would amend the Drug
(17) as paragraphs (14) through (18), striking ‘‘At least 160 G but less than
Quantity Table to specify that the
respectively, and by inserting the 280 G of Fentanyl;’’ and inserting the
penalties relating to ‘‘fentanyl’’ apply to
following new paragraph (13): following:
the substance identified in the statute as
‘‘N-phenyl-N-[1-(2-phenylethyl)-4- ‘‘(13) [If the offense involved a ‘‘At least [40] G but less than [70] G of
piperidinyl] propanamide.’’ mixture or substance containing Fentanyl ((N-phenyl-N-[1-(2-
fentanyl (N-phenyl-N-[1-(2-phenylethyl) phenylethyl)-4-piperidinyl]
Increased Penalties for Offenses -4-piperidinyl] propanamide) or a Propanamide);’’.
Involving Fentanyl and Fentanyl fentanyl analogue that was
Analogues Misrepresented as Another Section 2D1.1(c)(8) is amended by
misrepresented or marketed as another
Substance striking ‘‘At least 40 G but less than 160
substance][If the offense involved a
G of Fentanyl;’’ and inserting the
Finally, Part C of the proposed mixture or substance containing
following:
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amendment would amend § 2D1.1 to fentanyl (N-phenyl-N-[1-(2-phenylethyl)
address cases involving fentanyl and -4-piperidinyl] propanamide) or a ‘‘At least [10] G but less than [40] G of
fentanyl analogues misrepresented as fentanyl analogue and the defendant Fentanyl (N-phenyl-N-[1-(2-
another substance. The Commission has knowingly misrepresented or knowingly phenylethyl)-4-piperidinyl]
received comment that fentanyl and marketed that mixture or substance as Propanamide);’’.
fentanyl analogues are being mixed another substance], increase by [2][4] Section 2D1.1(c)(9) is amended by
with, and in some instances substituted levels.’’. striking ‘‘At least 32 G but less than 40
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G of Fentanyl;’’ and inserting the purposes of this guideline ‘analogue’ are the penalties set forth in the Drug
following: has the meaning’’ and inserting ‘‘Unless Quantity Table and the proposed
‘‘At least [8] G but less than [10] G of otherwise specified, ‘analogue,’ for 1:10,000 marihuana equivalency ratio
Fentanyl (N-phenyl-N-[1-(2- purposes of this guideline, has the appropriate for fentanyl analogues as a
phenylethyl)-4-piperidinyl] meaning’’; class? Should the Commission establish
Propanamide);’’. and in note 8(D), in the table under the different penalties or a different
heading ‘‘Schedule I or II Opiates*’’— equivalency applicable to such
Section 2D1.1(c)(10) is amended by substances? If so, what penalties should
striking ‘‘At least 24 G but less than 32 [by striking the following two lines:
‘‘1 gm of Alpha-Methylfentanyl = 10 kg the Commission provide and on what
G of Fentanyl;’’ and inserting the basis? Are there any fentanyl analogues
following: of marihuana’’
‘‘1 gm of 3-Methylfentanyl = 10 kg of that should not be included as part of
‘‘At least [6] G but less than [8] G of a class-based approach and for which
marihuana’’
Fentanyl (N-phenyl-N-[1-(2- the Commission should provide
phenylethyl)-4-piperidinyl] and] by inserting after the line
referenced to Fentanyl (N-phenyl-N-[1- penalties separate from other fentanyl
Propanamide);’’. analogues? If so, what penalties should
(2-phenylethyl)- 4-piperidinyl]
Section 2D1.1(c)(11) is amended by Propanamide) the following: the Commission provide for each such
striking ‘‘At least 16 G but less than 24 fentanyl analogue, and why? If the
‘‘1 gm of a Fentanyl Analogue = [10] kg
G of Fentanyl;’’ and inserting the Commission were to provide a different
of marihuana’’.
following: approach to account for fentanyl
‘‘At least [4] G but less than [6] G of Issues for Comment analogues in the guidelines, what
Fentanyl (N-phenyl-N-[1-(2- 1. Part C of the proposed amendment should that different approach be?
phenylethyl)-4-piperidinyl] would amend the ‘‘Notes to Drug The proposed amendment brackets
Propanamide);’’. Quantity Table’’ in § 2D1.1 (Unlawful the possibility of making the marihuana
Manufacturing, Importing, Exporting, or equivalency applicable to all fentanyl
Section 2D1.1(c)(12) is amended by
Trafficking (Including Possession with analogues that are commonly regarded
striking ‘‘At least 8 G but less than 16
Intent to Commit These Offenses); as analogues of ‘‘Fentanyl (N-phenyl-N-
G of Fentanyl;’’ and inserting the
Attempt or Conspiracy) to include a [1-(2-phenylethyl)-4-piperidinyl]
following:
provision defining ‘‘fentanyl analogue’’ Propanamide’’ also applicable to alpha-
‘‘At least [2] G but less than [4] G of methylfentanyl and 3-methylfentanyl by
as ‘‘any substance (including any salt,
Fentanyl (N-phenyl-N-[1-(2- deleting the specific references to these
isomer, or salt of isomer thereof),
phenylethyl)-4-piperidinyl] controlled substances in the Drug
whether a controlled substance or not,
Propanamide);’’. Equivalency Tables. Are alpha-
that has a chemical structure that is
Section 2D1.1(c)(13) is amended by [substantially] similar to fentanyl (N- methylfentanyl and 3-methylfentanyl
striking ‘‘At least 4 G but less than 8 G phenyl-N-[1-(2-phenylethyl)-4- sufficiently similar to other fentanyl
of Fentanyl;’’ and inserting the piperidinyl] propanamide).’’ Is this analogues in chemical structure,
following: definition appropriate? If not, what pharmacological effects, potential for
‘‘At least [1] G but less than [2] G of definition, if any, should the addiction and abuse, patterns of
Fentanyl (N-phenyl-N-[1-(2- Commission provide? For example, trafficking and abuse, and/or associated
phenylethyl)-4-piperidinyl] should the Commission specify that to harms, to be included as part of a class-
Propanamide);’’. qualify as a ‘‘fentanyl analogue,’’ a based approach for fentanyl analogues?
substance, whether a controlled Should the Commission instead
Section 2D1.1(c)(14) is amended by continue to provide marihuana
striking ‘‘Less than 4 G of Fentanyl;’’ substance or not, must (A) have a
chemical structure that is [substantially] equivalencies for alpha-methylfentanyl
and inserting the following: and 3-methylfentanyl separate from
similar to fentanyl (N-phenyl-N-[1-(2-
‘‘Less than [1] G of Fentanyl (N-phenyl- phenylethyl)-4-piperidinyl] other fentanyl analogues?
N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) and (B) either (i) have an 3. According to the Drug Enforcement
Propanamide);’’. effect on the central nervous system that Administration (DEA) and other
The annotation to § 2D1.1(c) is substantially similar to [or greater sources, fentanyl and fentanyl analogues
captioned ‘‘Notes to Drug Quantity than] fentanyl (N-phenyl-N-[1-(2- are typically manufactured in China and
Table’’ is amended by inserting at the phenylethyl)-4-piperidinyl] then shipped via freight forwarding
end the following new Note (J): propanamide), or (ii) be represented or companies or parcel post to the United
‘‘(J) Fentanyl analogue, for the intended to have such an effect? States or to other places in the Western
purposes of this guideline, means any 2. The proposed amendment would Hemisphere. Additionally, fentanyl and
substance (including any salt, isomer, or amend § 2D1.1 (Unlawful fentanyl analogues are available for
salt of isomer thereof), whether a Manufacturing, Importing, Exporting, or purchase online through the ‘‘dark net’’
controlled substance or not, that has a Trafficking (Including Possession with (commercial websites functioning as
chemical structure that is [substantially] Intent to Commit These Offenses); black markets) and regular websites, and
similar to fentanyl (N-phenyl-N-[1-(2- Attempt or Conspiracy) to adopt a class- commonly shipped into the United
phenylethyl)-4-piperidinyl] based approach to account for all States. According to the DEA, the
propanamide).’’. fentanyl analogues, whether they are improper handling of fentanyl and
The Commentary to § 2D1.1 captioned controlled substances or not. Are fentanyl analogues presents grave
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‘‘Application Notes’’ is amended—in fentanyl analogues sufficiently similar danger to individuals who may
Note 6 by striking ‘‘Any reference to a to one another in chemical structure, inadvertently come into contact with
particular controlled substance in these pharmacological effects, potential for such substances. Those at risk include
guidelines’’ and inserting ‘‘Except as addiction and abuse, patterns of law enforcement and emergency
otherwise provided, any reference to a trafficking and abuse, and/or associated personnel who may unknowingly
particular controlled substance in these harms to support such class-based encounter these substances during
guidelines’’, and by striking ‘‘For approach for sentencing purposes? If so, arrests, searches, or emergency calls.
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The Commission seeks comment on for the first time, the defendant release.’’ Two courts of appeals have
whether the guidelines provide ‘‘engaged in criminal conduct resulting held, however, that, under § 2L1.2(b)(2),
appropriate penalties for cases in which in’’ such a felony conviction or three or the ‘‘sentence imposed’’ does not
fentanyl or a fentanyl analogue may more such misdemeanor convictions. include a period of imprisonment
create a substantial threat to the public Neither subsection (b)(2) nor subsection imposed upon revocation of probation,
health or safety (including the health or (b)(3), however, provides for an increase parole, or supervisory release if that
safety of law enforcement and in the defendant’s offense level in the revocation occurred after the defendant
emergency personnel). If not, how situation where a defendant engaged in was ordered deported or ordered
should the Commission revise the criminal conduct before being ordered removed from the United States for the
guidelines to provide appropriate deported or ordered removed from the first time. See United States v. Martinez,
penalties in such cases? Should the United States for the first time but did 870 F.3d 1163 (9th Cir. 2017); United
Commission provide new not sustain a conviction or convictions States v. Franco-Galvan, 846 F.3d 338
enhancements, adjustments, or for that criminal conduct until after he (5th Cir. 2017).
departure provisions to account for such or she was first ordered deported or Part B of the proposed amendment
cases? If the Commission were to ordered removed. would revise the definition of ‘‘sentence
provide such a provision, what specific Part A of the proposed amendment imposed’’ in Application Note 2 of the
offense conduct, harm, or other factor would amend § 2L1.2 to cover this Commentary to § 2L1.2 to clarify that,
should be the basis for applying the situation by revising subsection (b)(2) so consistent with the meaning of
provision? What penalty increase that its applicability turns on whether ‘‘sentence of imprisonment’’ under
should be provided? the defendant ‘‘engaged in criminal § 4A1.2, the phrase ‘‘sentence imposed’’
conduct’’ before he or she was first in § 2L1.2 includes any term of
2. Illegal Reentry Guideline ordered deported or order removed,
Enhancements imprisonment given upon revocation of
rather than whether the defendant probation, parole, or supervised release,
Synopsis of Proposed Amendment: sustained the resulting conviction or regardless of when the revocation
This proposed amendment is a result of convictions before that event. Part A occurred.
the Commission’s consideration of would also make non-substantive,
miscellaneous guidelines application conforming changes to the language of Proposed Amendment
issues. See U.S. Sentencing Comm’n, subsection (b)(3). (A) Closing the Coverage Gap
‘‘Notice of Final Priorities,’’ 82 FR An issue for comment is also
39949 (Aug. 22, 2017). It responds to provided. Section 2L1.2(b)(2) is amended by
issues that have arisen regarding Part B of the proposed amendment striking ‘‘the defendant sustained’’ and
application of the illegal reentry responds to an issue that has arisen in inserting ‘‘the defendant engaged in
guideline at § 2L1.2 (Unlawfully litigation concerning how § 2L1.2’s criminal conduct that, at any time,
Entering or Remaining in the United enhancements for prior convictions resulted in’’.
States). The proposed amendment apply in the situation where a Section 2L1.2(b)(3) is amended by
contains two parts (Part A and Part B). defendant’s prior conviction included a striking ‘‘If, at any time after the
The Commission is considering whether term of probation, parole, or supervised defendant was ordered deported or
to promulgate either or both of these release that was subsequently revoked ordered removed from the United States
parts, as they are not mutually and an additional term of imprisonment for the first time, the defendant engaged
exclusive. imposed. in criminal conduct resulting in’’ and
Part A of the proposed amendment As described above, subsections (b)(2) inserting ‘‘If, after the defendant was
responds to an issue brought to the and (b)(3) of § 2L1.2 provide for ordered deported or ordered removed
Commission’s attention by the increases in a defendant’s offense level from the United States for the first time,
Department of Justice. See Annual for prior convictions (other than the defendant engaged in criminal
Letter from the Department of Justice to convictions for illegal reentry). The conduct that, at any time, resulted in’’.
the Commission (July 31, 2017), magnitude of the offense level increase
that the subsections provide for a prior Issue for Comment
available at https://www.ussc.gov/sites/
default/files/pdf/amendment-process/ felony conviction varies depending on 1. The Commission has received
public-comment/20170731/DOJ.pdf. In the length of the ‘‘sentence imposed.’’ comments indicating that the
its annual letter to the Commission, the Application Note 2 of the Commentary enhancements for prior convictions
Department suggested that the illegal to § 2L1.2 states that ‘‘ ‘[s]entence (other than convictions for illegal
reentry guideline’s enhancements for imposed’ has the meaning given the reentry) in § 2L1.2 (Unlawfully Entering
prior convictions (other than term ‘sentence of imprisonment’ in or Remaining in the United States)
convictions for illegal reentry) contain a Application Note 2 and subsection (b) of currently do not apply in the situation
gap in coverage. Subsection (b)(2) of the § 4A1.2 (Definitions and Instructions for where a defendant engaged in criminal
guideline provides for an increase in the Computing Criminal History).’’ Under conduct before being ordered deported
defendant’s offense level if, before the § 4A1.2, the ‘‘sentence of or ordered removed from the United
defendant was ordered deported or imprisonment’’ includes not only the States for the first time but did not
ordered removed from the United States original term of imprisonment imposed sustain a conviction or convictions for
for the first time, the defendant but also any term of imprisonment that criminal conduct until after he or
‘‘sustained . . . a conviction’’ for a felony imposed upon revocation of probation, she was first ordered deported or
offense (other than an illegal reentry parole, or supervised release. See USSG ordered removed. Part A of the
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offense) or ‘‘three or more convictions’’ § 4A1.2, comment. (n.11). Consistent proposed amendment would address
for certain misdemeanor offenses. with that approach, Application Note 2 this situation by revising the language of
Subsection (b)(3) of the guideline of the Commentary to § 2L1.2 states that, § 2L1.2(b)(2) so that its applicability
provides for an increase in the under § 2L1.2, ‘‘[t]he length of the would turn on when the defendant
defendant’s offense level, if after the sentence imposed includes any term of ‘‘engaged in criminal conduct resulting
defendant was ordered deported or imprisonment given upon revocation of in’’ one or more of the covered
ordered removed from the United States probation, parole, or supervisory convictions, rather than when the
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![3878 Federal Register / Vol. 83, No. 18 / Friday, January 26, 2018 / Notices
defendant ‘‘sustained’’ that Title 54. It also deletes from the III offender’ have the meaning’’ by
‘‘conviction’’ or ‘‘convictions.’’ Commentary to § 2B1.5 the provision striking ‘‘42 U.S.C. 16911’’ and inserting
Should the Commission amend relating to the definition of ‘‘historic ‘‘34 U.S.C. 20911’’.
§ 2L1.2 to cover the situation where a resource,’’ as that term was omitted The Commentary to § 2B1.5 captioned
defendant engages in criminal conduct from Title 54. In addition, the proposed ‘‘Application Notes’’ is amended—
before a first order of removal or amendment makes a technical change to
deportation but does not sustain a in Note 1(A) by striking clause (ii) and
Appendix A (Statutory Index), to correct
conviction or convictions for the redesignating clauses (iii) through (vii)
an outdated reference to 16 U.S.C. 413
criminal conduct until after that order? as clauses (ii) through (vi), respectively;
by replacing it with the appropriate
How frequently does this situation reference to 18 U.S.C. 1865(c). in Note 1(A)(i) by striking ‘‘16 U.S.C.
occur? Does Part A of the proposed Second, the proposed amendment 470w(5)’’ and inserting ‘‘54 U.S.C.
amendment appropriately address this also makes technical changes to reflect 300308’’;
situation? Should the Commission the editorial reclassification of certain in Note 3(C) by striking ‘‘16 U.S.C.
address the situation differently? If so, sections in the United States Code. 470a(a)(1)(B)’’ and inserting ‘‘54 U.S.C.
how? Effective September 1, 2017, the Office 302102’’;
(B) Treatment of Revocations of of Law Revision Counsel transferred in Note 3(E) by striking ‘‘the Antiquities
Probation, Parole, or Supervised Release certain provisions bearing on crime Act of 1906 (16 U.S.C. 431)’’ and
control and law enforcement, previously inserting ‘‘54 U.S.C. 320301’’;
The Commentary to § 2L1.2 captioned scattered throughout various parts of the
‘‘Application Notes’’ is amended in United States Code, to a new Title 34. and in Note 3(F) by striking ‘‘16 U.S.C.
Note 2 in the paragraph that begins To reflect the new section numbers of 1c(a)’’ and inserting ‘‘54 U.S.C. 100501’’.
‘‘ ‘Sentence imposed’ has the meaning’’ the reclassified provisions, Part B of the The Commentary to § 2X5.2 captioned
by striking ‘‘term of imprisonment given proposed amendment makes changes ‘‘Statutory Provisions’’ is amended by
upon revocation of probation, parole, or to— striking ‘‘42 U.S.C. 14133’’ and inserting
supervised release’’ and inserting ‘‘term (1) The Commentary to § 2A3.5 ‘‘34 U.S.C. 12593’’.
of imprisonment given upon revocation (Failure to Register as a Sex Offender); Section 5B1.3(a)(10) is amended by
of probation, parole, or supervised (2) the Commentary to § 2X5.2 (Class striking ‘‘42 U.S.C. 14135a’’ and
release, regardless of when the A Misdemeanors (Not Covered by inserting ‘‘34 U.S.C. 40702’’.
revocation occurred’’. Another Specific Offense Guideline)); Section 5D1.3(a)(8) is amended by
3. Technical Amendment (3) subsection (a)(10) of § 5B1.3 striking ‘‘42 U.S.C. 14135a’’ and
Synopsis of the Proposed (Conditions of Probation); inserting ‘‘34 U.S.C. 40702’’.
Amendment: This proposed amendment (4) subsection (a)(8) of § 5D1.3 Section 8C2.1(a) is amended by
makes various technical changes to the (Conditions of Supervised Release); and striking ‘‘§§ 2C1.1, 2C1.2, 2C1.6;’’ and
Guidelines Manual. (5) Appendix A (Statutory Index), by inserting ‘‘§§ 2C1.1, 2C1.2;’’.
First, the proposed amendment makes updating references to certain sections Appendix A (Statutory Index) is
technical changes to provide updated in Title 42 to reflect their reclassified amended—
references to certain sections in the section numbers in the new Title 34.
Finally, the proposed amendment by striking the line referenced to 16
United States Code that were restated in U.S.C. 413;
legislation. As part of an Act to codify revises subsection (a) of § 8C2.1
(Applicability of Fine Guidelines) by by inserting after the line referenced to
existing law relating to the National 18 U.S.C. 1864 the following:
Park System, Congress repealed deleting an outdated reference to
numerous sections in Title 16 of the § 2C1.6, which was deleted by ‘‘18 U.S.C. 1865(c) 2B1.1’’;
United States Code, and restated them consolidation with § 2C1.2 (Offering, by inserting after the line referenced to
in Title 18 and a newly enacted Title 54. Giving, Soliciting, or Receiving a 33 U.S.C. 3851 the following:
See Public Law 113–287 (Dec. 19, 2014). Gratuity) effective November 1, 2004.
‘‘34 U.S.C. 10251 2B1.1
The proposed amendment amends the Proposed Amendment 34 U.S.C. 10271 2B1.1
Commentary to § 2B1.5 (Theft of, 34 U.S.C. 12593 2X5.2
Damage to, or Destruction of, Cultural The Commentary to § 2A3.5 captioned
‘‘Application Notes’’ is amended in 34 U.S.C. 20962 2H3.1
Heritage Resources or Paleontological
Note 1— 34 U.S.C. 20984 2H3.1’’;
Resources; Unlawful Sale, Purchase,
Exchange, Transportation, or Receipt of in the paragraph that begins ‘‘ ‘Sex and by striking the lines referenced to
Cultural Heritage Resources or offense’ has the meaning’’ by striking 42 U.S.C. 3791, 42 U.S.C. 3795, 42
Paleontological Resources) to correct ‘‘42 U.S.C. 16911(5)’’ and inserting ‘‘34 U.S.C. 14133, 42 U.S.C. 16962, and 42
outdated references to certain sections U.S.C. 20911(5)’’; U.S.C. 16984.
in Title 16 that were restated, with and in the paragraph that begins ‘‘ ‘Tier [FR Doc. 2018–01328 Filed 1–25–18; 8:45 am]
minor revisions, when Congress enacted I offender’, ‘Tier II offender’, and ‘Tier BILLING CODE 2210–40–P
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Document Created: 2018-10-26 10:02:56
Document Modified: 2018-10-26 10:02:56
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice of proposed amendments to sentencing guidelines, policy statements, and commentary. Request for public comment, including public comment regarding retroactive application of any of the proposed amendments. Notice of public hearing. | |
| Dates | (1) Written Public Comment.--Written public comment regarding the proposed amendments and issues for comment set forth in this notice, including public comment regarding retroactive application of any of the proposed amendments, should be received by the Commission not later than March 6, 2018. Written reply comments, which may only respond to issues raised during the original comment period, should be received by the Commission not later than March 28, 2018. Public comment regarding a proposed amendment received after the close of the comment period, and reply comment received on issues not raised during the original comment period, may not be considered. | |
| Contact | Christine Leonard, Director, Office of Legislative and Public Affairs, (202) 502-4500, [email protected] | |
| FR Citation | 83 FR 3869 |
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