United States Sentencing Commission Public Meeting Minutes

October 15, 2010

Chair William K Sessions III called the meeting to order at 3:03 p.m. in the Commissioners’

Conference Room.

The following Commissioners were present:

! Judge William K. Sessions III, Chair

! William B. Carr, Jr., Vice Chair

! Judge Ruben Castillo, Vice Chair 

! Ketanji B. Jackson, Vice Chair

! Dabney L. Friedrich, Commissioner

! Judge Ricardo H. Hinojosa, Commissioner 

! Beryl A. Howell, Commissioner

! Jonathan J. Wroblewski, Commissioner Ex Officio

The following Commissioner was not present:

! Isaac Fulwood, Jr., Commissioner Ex Officio

The following staff participated in the meeting:

! Judith Sheon, Staff Director

! Kenneth Cohen, General Counsel

The Chair called for a motion to adopt the September 16, 2010, public meeting minutes. Vice

Chair Castillo made a motion to adopt the minutes, with Commissioner Howell seconding. 

Hearing no discussion, the Chair called for a vote, and the motion was adopted by voice vote. 

Ms. Sheon reported that the Commission’s Annual National Training Seminar will be held on

May 18-20, 2011, at the Manchester Grand Hyatt Hotel in San Diego, CA. On-line registration

for the seminar will be available through the Commission’s webpage. She announced that the

Commission’s recently published 2010/2011 Guide to Publications & Resources is also

available on the Commission’s webpage. Ms. Sheon thanked staff for its work on the emergency

amendment concerning the Fair Sentencing Act of 2010, Pub. L. No. 111–220.

The Chair called on Mr. Cohen to inform the Commission on a possible vote to amend the

sentencing guidelines.

Mr. Cohen stated that the proposed amendment, attached hereto as Exhibit A, concerns the Fair

Sentencing Act of 2010 (the "Act"), which reduced statutory penalties for cocaine base (crack

cocaine) offenses and eliminated the mandatory minimum sentence for simple possession of

crack cocaine. The Act also contained directives to the Commission to review and amend the

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sentencing guidelines to account for specified aggravating and mitigating circumstances in

certain drug cases. The proposed amendment implements the emergency directive in section 8

of the Act, which requires the Commission to amend the Guidelines Manual in response to the

Act not later than November 1, 2010. 

First, the proposed amendment responds to section 2 of the Act, which reduced statutory

penalties for offenses involving manufacturing or trafficking in crack cocaine by raising the

quantity thresholds required to trigger a mandatory minimum term of imprisonment. The

quantity threshold required to trigger the 5-year mandatory minimum term of imprisonment was

raised from 5 grams to 28 grams, and the quantity threshold required to trigger the 10-year

mandatory minimum term of imprisonment was raised from 50 grams to 280 grams. The

proposed amendment conforms the guideline penalties for crack cocaine offenses to the

approach followed for other drugs in the Drug Quantity Table at §2D1.1 (Unlawful

Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to

Commit These Offenses); Attempt or Conspiracy), i.e., the base offense levels for crack cocaine

are set so that the statutory minimum penalties correspond to levels 26 and 32. Accordingly,

using the new drug quantities established by the Act, offenses involving 28 grams or more of

crack cocaine are assigned a base offense level of 26, offenses involving 280 grams or more of

crack cocaine are assigned a base offense level of 32.

Second, the proposed amendment responds to section 3 of the Act, which amended 21 U.S.C. §

844(a) to eliminate the 5-year mandatory minimum term of imprisonment (and 20-year statutory

maximum) for simple possession of more than 5 grams of crack cocaine. The proposed

amendment deletes the cross reference at §2D2.1(b)(1). Conforming changes to the commentary

are also made.

Third, the proposed amendment responds to sections 5, 6, and 7 of the Act, which contain

directives to the Commission to provide specified enhancements and adjustments for certain

drug offenses. The proposed amendment implements section 5 by amending §2D1.1 to establish

a new specific offense characteristic at subsection (b)(2) that provides an enhancement of 2

levels if the defendant used violence, made a credible threat to use violence, or directed the use

of violence. Application Note 3 is also revised to clarify how this new enhancement interacts

with the dangerous weapon enhancement in subsection (b)(1). In addition, a conforming change

is made to the commentary to §2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or

Explosive During or in Relation to Certain Crimes).

Section 6 of the Act directs the Commission to “ensure an additional increase of at least 2

offense levels” if (1) the defendant bribed, or attempted to bribe, a Federal, State, or local law

enforcement official in connection with a drug trafficking offense; (2) the defendant maintained

an establishment for the manufacture or distribution of a controlled substance; or (3)(A) the

defendant is an organizer, leader, manager, or supervisor of drug trafficking activity subject to an

aggravating role enhancement under the guidelines; and (B) the offense involved one or more

factors set out in the directive. 

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The proposed amendment implements section 6 by amending §2D1.1 to establish three new

enhancements at subsections (b)(11), (12), and (14). Subsection (b)(11) provides an

enhancement of 2 levels if the defendant bribed, or attempted to bribe, a law enforcement officer

to facilitate the commission of the offense. Subsection (b)(12) provides an enhancement of 2

levels if the defendant maintained a premises for the purpose of manufacturing or distributing a

controlled substance. Subsection (b)(14) provides an enhancement of 2 levels if the defendant

receives an adjustment under §3B1.1 (Aggravating Role) and the offense involved one or more

of the factors described in the directive. New application notes are also included to provide

guidance in applying these provisions.

Section 7(2) of the Act directs the Commission to “to ensure that . . . there is an additional

reduction of 2 offense levels” if the defendant receives a “minimal role adjustment under the

guidelines” and certain other factors were present. The proposed amendment implements section

7(2) by amending §2D1.1 to establish a new specific offense characteristic at subsection (b)(15)

that provides a downward adjustment of 2 levels if the defendant receives an adjustment under

subsection (a) of §3B1.2 (Mitigating Role) and the other factors described in the directive apply.

Fourth, the proposed amendment responds to section 7(1) of the Act, which contains a directive

to the Commission to “ensure that . . . if the defendant is subject to a minimal role adjustment

under the guidelines, the base offense level for the defendant based solely on drug quantity shall

not exceed level 32.” The proposed amendment implements section 7(1) by adding a new

sentence to the end of §2D1.1(a)(5) (the so-called "mitigating role cap") to reflect the "minimal

role cap" of level 32 required by the directive.

Finally, to reflect the renumbering of specific offense characteristics in §2D1.1(b) by the

proposed amendment, technical and conforming changes are made to the commentary to §2D1.1

and to §2D1.14 (Narco-Terrorism).

Mr. Cohen advised the commissioners that a motion to promulgate the proposed temporary

emergency amendment would be in order with an effective date of November 1, 2010, and with

staff being authorized to make technical and conforming changes if needed.

Chair Sessions called for a motion as suggested by Mr. Cohen. Vice Chair Carr made a motion

to adopt the proposed amendment, with Commissioner Howell seconding. The Chair called for

discussion on the motion. Vice Chair Castillo reminded the public that the Commission is

implementing the Act under emergency amendment authority, which requires the Commission to

make difficult decisions in a 90-day period. He recognized that the changes in the statutory

mandatory minimums are positive and commended his fellow commissioners and staff for their

good-faith efforts to implement the Act in the time given. He also thanked the public for its

comments on the proposed amendment. Vice Chair Castillo stated he is satisfied that the

Commission has implemented the Act’s enhancements in a way that is precise and faithful to the

Act and avoids unnecessary cumulative impacts and undue sentencing increases. 

Vice Chair Castillo stated that the proposed amendment has caused him to reflect during what is

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likely to be his last public meeting. He noted that during his eleven years on the Commission,

his record of voting in the majority is almost perfect, but in this case he will be in the minority. 

Vice Chair Castillo stated that he is a veteran of the war on drugs, having survived a murder

contract placed on him when he was a federal drug prosecutor in Chicago. He stated his belief

that no one feels stronger than he that a new strategy focusing on high-level drug dealers is

needed. However, having waited eleven years as a commissioner for Congress to act on federal

cocaine sentencing policy, Vice Chair Castillo said he finds himself forced to vote against the

proposed amendment.

Vice Chair Castillo reported that Commission data indicates that between 100 to 500 individuals

are expected to be sentenced from November 1, 2010, when the emergency amendment becomes

effective, to November 1, 2011, when the permanent amendment would become effective, who

will be unaffected by the proposed amendment because of the decision to set the base offense

levels at 26 and 32 to account for the new mandatory minimum gradations. He noted that the

legislation was intended to be remedial and once an offense level is set too high, it is very hard to

lower it.

Vice Chair Castillo stated that the Act does not contain any clear congressional intent that the

base offense levels be set at levels 26 and 32. Noting that other recently enacted legislation,

such as the Secured and Responsible Drug Disposal Act of 2010, Pub. L. No. 111–273, and the

Patient Protection and Affordable Care Act, Pub. L. No. 111–148, contain directives to the

Commission to implement two-, three-, and four-level increases for certain offenses that make

clear Congress’s intent to raise penalties. Vice Chair Castillo concluded from these examples

that Congress knows how to direct the Commission to increase offense levels. He added that the

Commission can assume that Congress was aware that in 2007 the Commission lowered the base

offense levels for crack offenders to levels 24 and 30.

Vice Castillo turned to the public comment from members of Congress. He observed that the

chairmen of the House of Representatives’s Committee on the Judiciary and the Subcommittee

on Crime, Terrorism and Homeland Security commented that setting the base offense levels at

26 and 32 was not consistent with the Act’s intent. Vice Chair Castillo stated that Senator

Richard Durbin, the bill’s sponsor, commented that the appropriate base offense level is 24 and

that there is no need for an increase. Instead, the Senator wrote that the Act is concerned only

with where to set the mandatory minimums and the relationship between the mandatory

minimum for crack cocaine relative to powder cocaine. Vice Chair Castillo concluded from

these comments that the Congress did not intend the Commission to change the base offense

levels to 26 and 32. He also noted that the Department of Justice (the “DOJ”), which is

represented on the Commission by an ex officio member, did not comment on the issue.

Vice Chair Castillo stated his belief that the Commission has an independent duty to set the

guideline ranges to where it deems appropriate. In this case, he stated, Congress allowed the

Commission to exercise this independent duty, and the Commission does not need to go above

the mandatory minimum. He stated it would be sufficient to honor congressional intent to set the

ranges so that they include the mandatory minimums, rather than above them. 

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Vice Chair Castillo dismissed as an independent justification for setting the base offense levels at

26 and 32 the effect the offense level has on cooperation rates because the rates have remained

steady since the two-level reduction in 2007. He asserted that mathematical consistency with an

18:1 crack/powder ratio is the only policy reason that could exist for increasing the base offense

levels to 26 and 32. Vice Chair Castillo suggested a better way to achieve mathematical

consistency would be an across the board two-level reduction for all drug offenses. He stated his

belief that such a reduction would be supported by the criminal justice system in light of the

proposed amendment’s new sentencing enhancements, which will be applicable across all drug

types. Vice Chair Castillo noted that the Commission’s recent survey of judges found that 60

percent of federal district judges support de-linkage of the guidelines from mandatory

minimums. 

Vice Chair Castillo expressed cautious optimism that his fellow commissioners will remedy the

issues he outlined when they consider a permanent amendment. He added taxpayers can ill

afford any over-incarceration of low-level drug offenders.

Commissioner Howell expressed that Vice Chair Castillo’s thoughtfulness and eloquence will be

missed by the Commission. While generally agreeing with many of his comments, she

addressed the matter of linkage between the guidelines and statutory mandatory minimums. 

Commissioner Howell stated that it is incumbent on the Commission to set guideline offense

levels in a manner that ensures linkage to mandatory minimums in order to give proper deference

to congressional policy determinations about the severity of sentences. It is also required, she

added, to be in compliance with the Commission’s legal duties under subsection 28 U.S.C. §

994(a) to promulgate guidelines and policy statements consistent with all pertinent provisions of

any federal statute, and under section 994(f) to ensure the guidelines provide fair proportional

punishment that reduces unwarranted disparity among defendants convicted of similar drug

crimes. 

Commissioner Howell observed that the Commission received very constructive public comment

about the emergency amendment, particularly on the issue of whether the base offense levels

should be at levels 24 and 30, or levels 26 and 32. Due to the legal and policy constraints that

must guide the Commission’s action, Commissioner Howell stated that she supports the

emergency amendment’s offense levels. 

Commissioner Howell concluded that the provisions of the Act and the congressional statements

that surround its passage reflect the sentencing policy judgments of Congress that crack offenses

generally should be punished eighteen times more severely than powder cocaine offenses based

upon drug quantity. Recognizing that factors other than drug quantity affect the culpability and

severity for drug offenders, she applauded Congress’s focus on other factors that the

Commission has implemented in the emergency amendment. In terms of using drug quantity to

set the base offense levels to the five- and ten-year mandatory minimums, however, it is

Commissioner Howell’s view that this is consistent with the congressional policy reflected in the

statute. 

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Commissioner Howell stated that setting the base offense levels in this manner will result in

lower sentences for about two-thirds of crack offenders, and that the reductions will be very

significant. At the same time, however, Commissioner Howell believes the Commission must

continuously review the guideline offense levels to ensure that they are sufficient, but not greater

than necessary, to comport with the purposes of sentencing set forth in of 18 U.S.C. § 3553(a). 

She agreed that the Federal Public Defenders (the “FPD”) and others have raised an important

issue of whether the policy underpinnings relied upon by the original Commission were flawed

when it set the base offense levels for first time offenders slightly higher than the mandatory

minimum level. She stated that the original Commission did so to promote downward

adjustments for defendants who plead guilty or cooperate with authorities. Commissioner

Howell expressed hope that the Commission will re-evaluate this issue during consideration of

the permanent amendment and in the context of Commission’s mandatory minimum report. 

Commissioner Howell observed that the DOJ was silent in its public comment regarding the

appropriate base offense levels and looks forward to constructive input from the DOJ about

where the mandatory minium quantities should be placed in the Drug Quantity Table.

Vice Chair Jackson thanked both Chair Sessions and Vice Chair Castillo for their service on the

Commission. She noted that the proposed amendment is a temporary emergency amendment

that seeks to adhere closely to congressional intent and that the Commission will have the

opportunity to consider the §2D1.1 guideline in the course of this amendment cycle.

Commissioner Wroblewski also thanked Chair Sessions and Vice Chair Castillo for their service

and dedication. He recounted how in the early 1990s, under the leadership of then Chair

William W. Wilkins, Jr., the Commission expanded its data collection efforts to include drug

type and demographic data, along with other information. Commissioner Wroblewski opined

that this decision was the reason why the Commission was voting on the proposed amendment

because the data revealed that 90 percent of offenders sentenced for crack cocaine offenses were

black, and they received much higher sentences than similarly situated offenders convicted of

powder cocaine offences. 

Commissioner Wroblewski recalled that when Congress learned of this result, it directed the

Commission to study the issue. In 1995, the Commission identified this issue as an unwarranted

sentencing disparity. Fifteen years later, the President signed the Act into law. Commissioner

Wroblewski believes that the delay was not for a lack of trying by the Commission because

under the leadership of Chair Sessions and former Chairs Hinojosa, Murphy, and Conaboy, the

Commission steadfastly and consistently took the position that it was an unwarranted sentencing

disparity that needed to be changed. 

Commissioner Wroblewski observed that the bipartisan leadership of Senators Durbin and

Sessions made this happen. He noted that the Commission is taking the first step to implement

the Act, and there will be another step taken in the spring with the promulgation of the

permanent amendment. Commissioner Wroblewski asserted that the Commission can reinforce

the Act’s bipartisan achievement by faithfully implementing the legislation, and the DOJ

believes the steps the Commission is taking are good ones and faithful to the intent of Congress.

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Commissioner Wroblewski acknowledged the previous discussion about what Congress intended

by the Act, but stressed an additional issue raised in the DOJ’s letter. Statements by Senator

Sessions and others indicate that one of the purposes of the Act is to move sentencing policy for

all drug offenders slightly away from the current quantity-based system to a system focused

more on case specific aggravating and mitigating factors. In other words, he explained, the

intent of the Act is to increase penalties on the worse drug offenders, high-level, violent

offenders, who prey on vulnerable people, and to lower penalties on low-level, mitigating,

offenders, and to do this across all drug types. 

Commissioner Wroblewski believes that between now and the end of the amendment cycle the

Commission should fully analyze how best to fully implement the intent of Congress with a

permanent amendment. He suggested that part of the analysis should be to study the affect the

enhancements promulgated today will have. He also suggested that the Commission should

review possible changes to the Drug Quantity Table along the lines outlined by Vice Chair

Castillo. Commissioner Wroblewski stated the Commission should then promulgate a

permanent amendment that will effectuate congressional intent, increase penalties on the worst

offenders, and reduce penalties for certain low-level offenders across all drug types. By doing

this, Commissioner Wroblewski concluded, the Commission will reinforce the bipartisan

achievement of Congress. 

Chair Sessions observed that it was a historic day. He recalled that when he and his fellow

commissioners were asked eleven years ago what they wanted to accomplish as new

commissioners, they all replied with the elimination of the unwarranted crack cocaine sentencing

disparity as their top priority. Chair Sessions recognized the importance of this day and thanked

the many people who worked to make the day possible. He noted that Senators Sessions and

Durbin, along with other members of Congress, have long advocated the changes brought about

by the Act, along with many organizations.

Chair Sessions acknowledged that the proposed emergency amendment is part of a multi-step

process. He remarked that today the Commission will take a first significant step, in May a

second significant step will take place, and there may be other steps along the way. 

Chair Sessions observed that the Commission’s responsibility is to interpret the intent of

Congress when it passed the Act and to implement that intent in a temporary emergency

amendment. He stated he supports the proposed amendment because Congress did discuss an

18:1 ratio between crack cocaine and powder cocaine offenses. Chair Sessions also stated his

belief that Congress fully understood that the changes made in the mandatory minimums would

be consistently applied in the guidelines. Chair Sessions concluded that the Commission must

accept and implement the judgment of Congress.

Commissioner Hinojosa thanked Chair Sessions and Vice Chair Castillo for being such good

colleagues. He noted how the Commission operates in a bipartisan, friendly, collegial fashion

and thanked both for proceeding in that manner during his service on the Commission.

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Commissioner Hinojosa agreed with the Chair that each commissioner has to decide what the

congressional intent was during the Act’s passage and that each commissioner has done so. He

agreed with Chair Sessions that it was good that the Act became law, and the Commission is

promulgating a temporary emergency amendment. Commissioner Hinojosa believes the

commissioners would be remiss if they did not thank Congress for giving them emergency

amendment authority to act.

Commissioner Hinojosa stated that he did not want anyone to be left with the impression that the

proposed emergency amendment will increase penalties for any crack cocaine offender.

Hearing no further discussion, the Chair called for a vote. The motion was adopted with the

Chair noting that at least four commissioners voted in favor of the motion. The motion was

adopted by a 6 to 1 vote with Chair Sessions, Vice Chairs Carr and Jackson, and Commissioners

Friedrich, Hinojosa and Howell voting in favor of the motion and Vice Chair Castillo voting

against the motion.

Chair Sessions asked if there was any further business before the Commission and hearing none,

asked if there was a motion to adjourn the meeting. Commissioner Hinojosa made a motion to

adjourn, with Vice Chair Jackson seconding. The Chair called for a vote on the motion, and the

motion was adopted by a voice vote. The meeting was adjourned at 3:45 p.m.

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EXHIBIT A

PROPOSED AMENDMENT: FAIR SENTENCING ACT OF 2010

Synopsis of Proposed Amendment: The Fair Sentencing Act of 2010, Pub. L. 111–220 (the "Act")

reduced statutory penalties for cocaine base (crack cocaine) offenses and eliminated the mandatory

minimum sentence for simple possession of crack cocaine. The Act also contained directives to the

Commission to review and amend the sentencing guidelines to account for certain aggravating and

mitigating circumstances in drug trafficking cases.

This proposed amendment implements the emergency directive in section 8 of the Act, which requires the

Commission to amend the Guidelines Manual in response to the Act not later than November 1, 2010. As

a temporary amendment promulgated under emergency authority, this proposed amendment will expire

not later than November 1, 2011. See section 21(a) of the Sentencing Act of 1987 (28 U.S.C. § 994 note);

28 U.S.C. § 994(p). The Commission will continue work on the issues raised by the Act during the

regular amendment cycle ending May 1, 2011, with a view to re-promulgating this temporary amendment

as a permanent amendment (in its original form, or with revisions) under 28 U.S.C. § 994(p). The

Commission does not have authority to give a temporary, emergency amendment retroactive effect.

As described more fully below, the proposed amendment makes substantive changes to the drug

trafficking guideline, §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including

Possession with Intent to Commit These Offenses); Attempt or Conspiracy) and the drug possession

guideline, §2D2.1 (Unlawful Possession; Attempt or Conspiracy). Conforming changes are also made to

commentary in §2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation

to Certain Crimes) and in certain Chapter Three guidelines, and a clerical change is made to §2D1.14

(Narco-Terrorism).

Changes to Statutory Terms of Imprisonment for Crack Cocaine

First, the proposed amendment responds to section 2 of the Act, which reduced statutory penalties for

offenses involving manufacturing or trafficking in crack cocaine by raising the quantity thresholds

required to trigger a mandatory minimum term of imprisonment. The quantity threshold required to

trigger the 5-year mandatory minimum term of imprisonment was raised from 5 grams to 28 grams, and

the quantity threshold required to trigger the 10-year mandatory minimum term of imprisonment was

raised from 50 grams to 280 grams. See 21 U.S.C. §§ 841(b)(1)(A), (B), (C), 960(b)(1), (2), (3).

The proposed amendment conforms crack cocaine to the approach generally followed in the Drug

Quantity Table, i.e., the base offense levels for crack cocaine are set so that the statutory minimum

penalties correspond to levels 26 and 32. See generally §2D1.1, comment. (backg'd.). Accordingly,

using the new drug quantities established by the Act, offenses involving 28 grams or more of crack

cocaine are assigned a base offense level of level 26, offenses involving 280 grams or more of crack

cocaine are assigned a base offense level of level 32, and other offense levels are established by

extrapolating upward and downward.

The proposed amendment also establishes a marijuana equivalency for crack cocaine under which 1

gram of crack cocaine is equivalent to 3,571 grams of marijuana.

Finally, in the commentary to §2D1.1, the proposed amendment makes a conforming change to the rules

for cases involving both crack cocaine and one or more other controlled substances. The proposed

amendment deletes as obsolete the special rules in Note 10(D) for cases involving both crack cocaine and

one or more other controlled substances, and revises Note 10(C) so that it provides an example of such a

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case.

Elimination of Mandatory Minimum for Simple Possession of Crack Cocaine

Second, the proposed amendment responds to section 3 of the Act, which amended 21 U.S.C. § 844(a) to

eliminate the 5-year mandatory minimum term of imprisonment (and 20-year statutory maximum) for

simple possession of more than 5 grams of crack cocaine (or, for certain repeat offenders, more than 1

gram of crack cocaine). Accordingly, the statutory penalty for simple possession of crack cocaine is now

the same as for simple possession of most other controlled substances: for a first offender, a maximum

term of imprisonment of one year; for repeat offenders, maximum terms of 2 years or 3 years, and

minimum terms of 15 days or 90 days, depending on the prior convictions. See 21 U.S.C. § 844(a).

Offenses under section 844(a) are referenced in Appendix A (Statutory Index) to §2D2.1. Section 2D2.1

contains a cross reference at subsection (b)(1) that was established by the Commission in 1989 to

address the statutory minimum in section 844(a). See USSG App. C, Amendment 304 (effective November

1, 1989). Under the cross reference, an offender who possessed more than 5 grams of crack cocaine is

sentenced under the drug trafficking guideline, §2D1.1. To reflect the elimination of this statutory

minimum, the proposed amendment deletes as obsolete the cross reference at §2D2.1(b)(1). Conforming

changes to the commentary are also made.

Enhancements and Adjustments

Third, the proposed amendment responds to sections 5, 6, and 7 of the Act, which contain directives to the

Commission to provide certain enhancements and adjustments for drug trafficking offenses.

Section 5 of the Act directs the Commission to "review and amend the Federal sentencing guidelines to

ensure that the guidelines provide an additional penalty increase of at least 2 offense levels if the

defendant used violence, made a credible threat to use violence, or directed the use of violence during a

drug trafficking offense."

The proposed amendment implements section 5 by amending §2D1.1 to provide a new specific offense

characteristic at subsection (b)(2) that provides an enhancement of 2 levels if the defendant used

violence, made a credible threat to use violence, or directed the use of violence. Application Note 3 is

also revised to clarify how this new enhancement interacts with the weapon enhancement in subsection

(b)(1). In addition, a conforming change is made to the commentary to §2K2.4 to addresses cases in

which the defendant is sentenced under both §2D1.1 (for a drug trafficking offense) and §2K2.4 (for an

offense under 18 U.S.C. § 924(c)). In such a case, the mandatory consecutive sentence under §2K2.4

accounts for any weapon enhancement; therefore, in determining the sentence under §2D1.1, the weapon

enhancement in §2D1.1(b)(1) does not apply. See §2K2.4, comment. (n. 4). The proposed amendment

amends this commentary to provide that the new violence enhancement under §2D1.1(b)(2) also is

accounted for by §2K2.4 and, therefore, also does not apply.

Section 6 of the Act directs the Commission to "review and amend the Federal sentencing guidelines to

ensure an additional increase of at least 2 offense levels if "—

(1) the defendant bribed, or attempted to bribe, a Federal, State, or

local law enforcement official in connection with a drug

trafficking offense;

(2) the defendant maintained an establishment for the manufacture

or distribution of a controlled substance, as generally described

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in section 416 of the Controlled Substances Act (21 U.S.C. 856);

or

(3)(A) the defendant is an organizer, leader, manager, or supervisor of

drug trafficking activity subject to an aggravating role

enhancement under the guidelines; and

(B) the offense involved 1 or more of the following superaggravating factors:

(i) The defendant--

(I) used another person to purchase, sell, transport,

or store controlled substances;

(II) used impulse, fear, friendship, affection, or some

combination thereof to involve such person in

the offense; and

(III) such person had a minimum knowledge of the

illegal enterprise and was to receive little or no

compensation from the illegal transaction.

(ii) The defendant--

(I) knowingly distributed a controlled substance to

a person under the age of 18 years, a person

over the age of 64 years, or a pregnant

individual;

(II) knowingly involved a person under the age of 18

years, a person over the age of 64 years, or a

pregnant individual in drug trafficking;

(III) knowingly distributed a controlled substance to

an individual who was unusually vulnerable due

to physical or mental condition, or who was

particularly susceptible to criminal conduct; or

(IV) knowingly involved an individual who was

unusually vulnerable due to physical or mental

condition, or who was particularly susceptible

to criminal conduct, in the offense.

(iii) The defendant was involved in the importation into the

United States of a controlled substance.

(iv) The defendant engaged in witness intimidation,

tampered with or destroyed evidence, or otherwise

obstructed justice in connection with the investigation or

prosecution of the offense.

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(v) The defendant committed the drug trafficking offense as

part of a pattern of criminal conduct engaged in as a

livelihood.

The proposed amendment implements section 6 by amending §2D1.1 to establish three new enhancements

at subsections (b)(11), (12), and (14). Subsection (b)(11) provides an enhancement of 2 levels if the

defendant bribed, or attempted to bribe, a law enforcement officer to facilitate the commission of the

offense. Subsection (b)(12) provides an enhancement of 2 levels if the defendant maintained a premises

for the purpose of manufacturing or distributing a controlled substance. Subsection (b)(14) provides an

enhancement of 2 levels if the defendant receives an adjustment under §3B1.1 and the offense involved

one or more of the factors described in the directive. New application notes are also included to provide

guidance in applying these provisions and to specify how these new enhancements interact with other

enhancements within §2D1.1. Additions are also made to commentary in §3B1.4 (Using a Minor To

Commit a Crime) and §3C1.1 (Obstructing or Impeding the Administration of Justice) to specify how

these new enhancements interact with those Chapter Three adjustments.

Section 7(2) of the Act directs the Commission to "review and amend the Federal sentencing guidelines

and policy statements to ensure that . . . there is an additional reduction of 2 offense levels if the

defendant--"

(A) otherwise qualifies for a minimal role adjustment under the

guidelines and had a minimum knowledge of the illegal

enterprise;

(B) was to receive no monetary compensation from the illegal

transaction; and

(C) was motivated by an intimate or familial relationship or by

threats or fear when the defendant was otherwise unlikely to

commit such an offense.

The proposed amendment implements section 7(2) by creating a new downward adjustment of 2 levels in

subsection (b)(15) of §2D1.1 if the defendant receives an adjustment under §3B1.2(a) and the other

factors described in the directive apply.

Maximum Base Offense Level for Minimal Role ("Minimal Role Cap")

Fourth, the proposed amendment responds to section 7(1) of the Act, which contains a directive to the

Commission to "review and amend the Federal sentencing guidelines and policy statements to ensure that

. . . if the defendant is subject to a minimal role adjustment under the guidelines, the base offense level for

the defendant based solely on drug quantity shall not exceed level 32."

The proposed amendment implements section 7(1) by adding a new sentence to the end of §2D1.1(a)(5)

(the so-called "mitigating role cap"), to reflect the "minimal role cap" of level 32 required by the

directive.

Technical and Conforming Changes

Finally, to reflect the renumbering of specific offense characteristics in §2D1.1(b) by the proposed

amendment, technical and conforming changes are made to the commentary to §2D1.1 and to §2D1.14.

-4-
Proposed Amendment:

§2D1.1. Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including

Possession with Intent to Commit These Offenses); Attempt or Conspiracy 

(a) Base Offense Level (Apply the greatest):

 (1) 43, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A),

(b)(1)(B), or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3), and

the offense of conviction establishes that death or serious bodily injury

resulted from the use of the substance and that the defendant committed

the offense after one or more prior convictions for a similar offense; or

(2) 38, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A),

(b)(1)(B), or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3), and

the offense of conviction establishes that death or serious bodily injury

resulted from the use of the substance; or 

(3) 30, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(E) or 21

U.S.C. § 960(b)(5), and the offense of conviction establishes that death

or serious bodily injury resulted from the use of the substance and that

the defendant committed the offense after one or more prior convictions

for a similar offense; or

(4) 26, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(E) or 21

U.S.C. § 960(b)(5), and the offense of conviction establishes that death

or serious bodily injury resulted from the use of the substance; or

(5) the offense level specified in the Drug Quantity Table set forth in

subsection (c), except that if (A) the defendant receives an adjustment

under §3B1.2 (Mitigating Role); and (B) the base offense level under

subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34 or level

36, decrease by 3 levels; or (iii) level 38, decrease by 4 levels. If the

resulting offense level is greater than level 32 and the defendant receives

the 4-level ("minimal participant") reduction in §3B1.2(a), decrease to

level 32.

(b) Specific Offense Characteristics

(1) If a dangerous weapon (including a firearm) was possessed, increase by 2

levels.

(2) If the defendant used violence, made a credible threat to use violence, or

directed the use of violence, increase by 2 levels.

(23) If the defendant unlawfully imported or exported a controlled substance

under circumstances in which (A) an aircraft other than a regularly

scheduled commercial air carrier was used to import or export the

controlled substance, (B) a submersible vessel or semi-submersible

vessel as described in 18 U.S.C. § 2285 was used, or (C) the defendant

acted as a pilot, copilot, captain, navigator, flight officer, or any other

-5-
operation officer aboard any craft or vessel carrying a controlled

substance, increase by 2 levels. If the resulting offense level is less than

level 26, increase to level 26.

(34) If the object of the offense was the distribution of a controlled substance

in a prison, correctional facility, or detention facility, increase by 2

levels.

(45) If (A) the offense involved the importation of amphetamine or

methamphetamine or the manufacture of amphetamine or

methamphetamine from listed chemicals that the defendant knew were 

imported unlawfully, and (B) the defendant is not subject to an

adjustment under §3B1.2 (Mitigating Role), increase by 2 levels.

(56) If the defendant is convicted under 21 U.S.C. § 865, increase by 2 levels.

(67) If the defendant, or a person for whose conduct the defendant is

accountable under §1B1.3 (Relevant Conduct), distributed a controlled

substance through mass-marketing by means of an interactive computer

service, increase by 2 levels.

(78) If the offense involved the distribution of an anabolic steroid and a

masking agent, increase by 2 levels.

(89) If the defendant distributed an anabolic steroid to an athlete, increase by

2 levels.

(910) If the defendant was convicted under 21 U.S.C. § 841(g)(1)(A), increase

by 2 levels.

(11) If the defendant bribed, or attempted to bribe, a law enforcement officer

to facilitate the commission of the offense, increase by 2 levels.

(12) If the defendant maintained a premises for the purpose of manufacturing

or distributing a controlled substance, increase by 2 levels.

(1013) (Apply the greatest):

(A) If the offense involved (i) an unlawful discharge, emission, or

release into the environment of a hazardous or toxic substance;

or (ii) the unlawful transportation, treatment, storage, or disposal

of a hazardous waste, increase by 2 levels.

(B) If the defendant was convicted under 21 U.S.C. § 860a of

distributing, or possessing with intent to distribute,

methamphetamine on premises where a minor is present or

resides, increase by 2 levels. If the resulting offense level is less

than level 14, increase to level 14. 

(C) If—

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(i) the defendant was convicted under 21 U.S.C. § 860a of

manufacturing, or possessing with intent to manufacture,

methamphetamine on premises where a minor is present

or resides; or 

(ii) the offense involved the manufacture of amphetamine or

methamphetamine and the offense created a substantial

risk of harm to (I) human life other than a life described

in subdivision (D); or (II) the environment,

increase by 3 levels. If the resulting offense level is less than

level 27, increase to level 27.

(D) If the offense (i) involved the manufacture of amphetamine or

methamphetamine; and (ii) created a substantial risk of harm to

the life of a minor or an incompetent, increase by 6 levels. If the

resulting offense level is less than level 30, increase to level 30.

(14) If the defendant receives an adjustment under §3B1.1 (Aggravating Role)

and the offense involved 1 or more of the following factors:

(A) (i) the defendant used fear, impulse, friendship, affection, or

some combination thereof to involve another individual in the

illegal purchase, sale, transport, or storage of controlled

substances, (ii) the individual received little or no compensation

from the illegal purchase, sale, transport, or storage of controlled

substances, and (iii) the individual had minimal knowledge of

the scope and structure of the enterprise;

(B) the defendant, knowing that an individual was (i) less than 18

years of age, (ii) 65 or more years of age, (iii) pregnant, or (iv)

unusually vulnerable due to physical or mental condition or

otherwise particularly susceptible to the criminal conduct,

distributed a controlled substance to that individual or involved

that individual in the offense;

(C) the defendant was directly involved in the importation of a

controlled substance;

(D) the defendant engaged in witness intimidation, tampered with or

destroyed evidence, or otherwise obstructed justice in connection

with the investigation or prosecution of the offense;

(E) the defendant committed the offense as part of a pattern of

criminal conduct engaged in as a livelihood;

increase by 2 levels.

(15) If the defendant receives the 4-level ("minimal participant") reduction in

§3B1.2(a) and the offense involved all of the following factors:

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(A) the defendant was motivated by an intimate or familial

relationship or by threats or fear to commit the offense and was

otherwise unlikely to commit such an offense;

(B) the defendant received no monetary compensation from the

illegal purchase, sale, transport, or storage of controlled

substances; and

(C) the defendant had minimal knowledge of the scope and structure

of the enterprise,

decrease by 2 levels.

(1116) If the defendant meets the criteria set forth in subdivisions (1)-(5) of subsection

(a) of §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in

Certain Cases), decrease by 2 levels.

[Subsection (c) (Drug Quantity Table) is set forth on the following pages.]

(d) Cross References

(1) If a victim was killed under circumstances that would constitute murder

under 18 U.S.C. § 1111 had such killing taken place within the territorial

or maritime jurisdiction of the United States, apply §2A1.1 (First Degree

Murder) or §2A1.2 (Second Degree Murder), as appropriate, if the

resulting offense level is greater than that determined under this

guideline.

(2) If the defendant was convicted under 21 U.S.C. § 841(b)(7) (of

distributing a controlled substance with intent to commit a crime of

violence), apply §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect

to the crime of violence that the defendant committed, or attempted or

intended to commit, if the resulting offense level is greater than that

determined above.

(e) Special Instruction

(1) If (A) subsection (d)(2) does not apply; and (B) the defendant committed,

or attempted to commit, a sexual offense against another individual by

distributing, with or without that individual’s knowledge, a controlled

substance to that individual, an adjustment under §3A1.1(b)(1) shall

apply.

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(c) DRUG QUANTITY TABLE

Controlled Substances and Quantity* Base Offense Level

(1) M 30 KG or more of Heroin;

M 150 KG or more of Cocaine;

M 4.58.4 KG or more of Cocaine Base;

M 30 KG or more of PCP, or 3 KG or more of PCP (actual);

M 15 KG or more of Methamphetamine, or 1.5 KG or more of 

 Methamphetamine (actual), or 1.5 KG or more of "Ice";

M 15 KG or more of Amphetamine, or 1.5 KG or more of Amphetamine (actual);

M 300 G or more of LSD;

M 12 KG or more of Fentanyl;

M 3 KG or more of a Fentanyl Analogue;

M 30,000 KG or more of Marihuana;

M 6,000 KG or more of Hashish;

M 600 KG or more of Hashish Oil;

M 30,000,000 units or more of Ketamine;

M 30,000,000 units or more of Schedule I or II Depressants;

M 1,875,000 units or more of Flunitrazepam.

Level 38

(2) M At least 10 KG but less than 30 KG of Heroin;

M At least 50 KG but less than 150 KG of Cocaine;

M At least 1.52.8 KG but less than 4.58.4 KG of Cocaine Base;

M At least 10 KG but less than 30 KG of PCP, or at least 1 KG but less than 3 

 KG of PCP (actual);

M At least 5 KG but less than 15 KG of Methamphetamine, or at least 500 G but 

 less than 1.5 KG of Methamphetamine (actual), or at least 500 G but less than 

 1.5 KG of "Ice";

M At least 5 KG but less than 15 KG of Amphetamine, or at least 500 G but less 

 than 1.5 KG of Amphetamine (actual); 

M At least 100 G but less than 300 G of LSD;

M At least 4 KG but less than 12 KG of Fentanyl;

M At least 1 KG but less than 3 KG of a Fentanyl Analogue;

M At least 10,000 KG but less than 30,000 KG of Marihuana;

M At least 2,000 KG but less than 6,000 KG of Hashish;

M At least 200 KG but less than 600 KG of Hashish Oil;

M At least 10,000,000 but less than 30,000,000 units of Ketamine;

M At least 10,000,000 but less than 30,000,000 units of Schedule I or II 

 Depressants;

M At least 625,000 but less than 1,875,000 units of Flunitrazepam.

Level 36

(3) M At least 3 KG but less than 10 KG of Heroin;

M At least 15 KG but less than 50 KG of Cocaine;

M At least 500840 G but less than 1.52.8 KG of Cocaine Base;

M At least 3 KG but less than 10 KG of PCP, or at least 300 G but less than 1 

 KG of PCP (actual);

M At least 1.5 KG but less than 5 KG of Methamphetamine, or at least 150 G but 

 less than 500 G of Methamphetamine (actual), or at least 150 G but less than 

 500 G of "Ice";

M At least 1.5 KG but less than 5 KG of Amphetamine, or at least 150 G but less 

 than 500 G of Amphetamine (actual);

M At least 30 G but less than 100 G of LSD;

Level 34

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M At least 1.2 KG but less than 4 KG of Fentanyl;

M At least 300 G but less than 1 KG of a Fentanyl Analogue;

M At least 3,000 KG but less than 10,000 KG of Marihuana;

M At least 600 KG but less than 2,000 KG of Hashish;

M At least 60 KG but less than 200 KG of Hashish Oil;

M At least 3,000,000 but less than 10,000,000 units of Ketamine;

M At least 3,000,000 but less than 10,000,000 units of Schedule I or II

Depressants;

M At least 187,500 but less than 625,000 units of Flunitrazepam.

(4) M At least 1 KG but less than 3 KG of Heroin;

M At least 5 KG but less than 15 KG of Cocaine;

M At least 150280 G but less than 500840 G of Cocaine Base;

M At least 1 KG but less than 3 KG of PCP, or at least 100 G but less than 300 G 

 of PCP (actual);

M At least 500 G but less than 1.5 KG of Methamphetamine, or at least 50 G but 

 less than 150 G of Methamphetamine (actual), or at least 50 G but less than 

 150 G of "Ice";

M At least 500 G but less than 1.5 KG of Amphetamine, or at least 50 G but less 

 than 150 G of Amphetamine (actual); 

M At least 10 G but less than 30 G of LSD;

M At least 400 G but less than 1.2 KG of Fentanyl;

M At least 100 G but less than 300 G of a Fentanyl Analogue;

M At least 1,000 KG but less than 3,000 KG of Marihuana;

M At least 200 KG but less than 600 KG of Hashish;

M At least 20 KG but less than 60 KG of Hashish Oil;

M At least 1,000,000 but less than 3,000,000 units of Ketamine;

M At least 1,000,000 but less than 3,000,000 units of Schedule I or II

Depressants;

M At least 62,500 but less than 187,500 units of Flunitrazepam.

Level 32

(5) M At least 700 G but less than 1 KG of Heroin;

M At least 3.5 KG but less than 5 KG of Cocaine;

M At least 50196 G but less than 150280 G of Cocaine Base;

M At least 700 G but less than 1 KG of PCP, or at least 70 G but less than 100 G 

 of PCP (actual);

M At least 350 G but less than 500 G of Methamphetamine, or at least 35 G but 

 less than 50 G of Methamphetamine (actual), or at least 35 G but less than 

 50 G of "Ice";

M At least 350 G but less than 500 G of Amphetamine, or at least 35 G but less 

 than 50 G of Amphetamine (actual); 

M At least 7 G but less than 10 G of LSD;

M At least 280 G but less than 400 G of Fentanyl;

M At least 70 G but less than 100 G of a Fentanyl Analogue;

M At least 700 KG but less than 1,000 KG of Marihuana;

M At least 140 KG but less than 200 KG of Hashish;

M At least 14 KG but less than 20 KG of Hashish Oil;

M At least 700,000 but less than 1,000,000 units of Ketamine;

M At least 700,000 but less than 1,000,000 units of Schedule I or II Depressants;

M 700,000 or more units of Schedule III Hydrocodone;

M At least 43,750 but less than 62,500 units of Flunitrazepam.

Level 30

(6) M At least 400 G but less than 700 G of Heroin; Level 28

-10-
M At least 2 KG but less than 3.5 KG of Cocaine;

M At least 35112 G but less than 50196 G of Cocaine Base;

M At least 400 G but less than 700 G of PCP, or at least 40 G but less than 70 G 

 of PCP (actual);

M At least 200 G but less than 350 G of Methamphetamine, or at least 20 G but 

 less than 35 G of Methamphetamine (actual), or at least 20 G but less than 

 35 G of "Ice";

M At least 200 G but less than 350 G of Amphetamine, or at least 20 G but less 

 than 35 G of Amphetamine (actual);

M At least 4 G but less than 7 G of LSD;

M At least 160 G but less than 280 G of Fentanyl; 

M At least 40 G but less than 70 G of a Fentanyl Analogue;

M At least 400 KG but less than 700 KG of Marihuana;

M At least 80 KG but less than 140 KG of Hashish;

M At least 8 KG but less than 14 KG of Hashish Oil;

M At least 400,000 but less than 700,000 units of Ketamine;

M At least 400,000 but less than 700,000 units of Schedule I or II Depressants;

M At least 400,000 but less than 700,000 units of Schedule III Hydrocodone;

M At least 25,000 but less than 43,750 units of Flunitrazepam.

(7) M At least 100 G but less than 400 G of Heroin;

M At least 500 G but less than 2 KG of Cocaine;

M At least 2028 G but less than 35112 G of Cocaine Base;

M At least 100 G but less than 400 G of PCP, or at least 10 G but less than 40 G 

 of PCP (actual);

M At least 50 G but less than 200 G of Methamphetamine, or at least 5 G but less 

 than 20 G of Methamphetamine (actual), or at least 5 G but less than 20 G of 

 "Ice";

M At least 50 G but less than 200 G of Amphetamine, or at least 5 G but less than 

 20 G of Amphetamine (actual);

M At least 1 G but less than 4 G of LSD;

M At least 40 G but less than 160 G of Fentanyl; 

M At least 10 G but less than 40 G of a Fentanyl Analogue;

M At least 100 KG but less than 400 KG of Marihuana;

M At least 20 KG but less than 80 KG of Hashish;

M At least 2 KG but less than 8 KG of Hashish Oil;

M At least 100,000 but less than 400,000 units of Ketamine;

M At least 100,000 but less than 400,000 units of Schedule I or II Depressants;

M At least 100,000 but less than 400,000 units of Schedule III Hydrocodone;

M At least 6,250 but less than 25,000 units of Flunitrazepam.

Level 26

(8)

M At least 80 G but less than 100 G of Heroin;

M At least 400 G but less than 500 G of Cocaine;

M At least 522.4 G but less than 2028 G of Cocaine Base;

M At least 80 G but less than 100 G of PCP, or at least 8 G but less than 10 G of 

 PCP (actual);

M At least 40 G but less than 50 G of Methamphetamine, or at least 4 G but less 

 than 5 G of Methamphetamine (actual), or at least 4 G but less than 5 G of 

 "Ice";

M At least 40 G but less than 50 G of Amphetamine, or at least 4 G but less than 

 5 G of Amphetamine (actual); 

M At least 800 MG but less than 1 G of LSD;

M At least 32 G but less than 40 G of Fentanyl; 

Level 24

-11-
M At least 8 G but less than 10 G of a Fentanyl Analogue;

M At least 80 KG but less than 100 KG of Marihuana;

M At least 16 KG but less than 20 KG of Hashish;

M At least 1.6 KG but less than 2 KG of Hashish Oil;

M At least 80,000 but less than 100,000 units of Ketamine;

M At least 80,000 but less than 100,000 units of Schedule I or II Depressants;

M At least 80,000 but less than 100,000 units of Schedule III Hydrocodone;

M At least 5,000 but less than 6,250 units of Flunitrazepam.

(9) M At least 60 G but less than 80 G of Heroin;

M At least 300 G but less than 400 G of Cocaine;

M At least 416.8 G but less than 522.4 G of Cocaine Base;

M At least 60 G but less than 80 G of PCP, or at least 6 G but less than 8 G of 

 PCP (actual);

M At least 30 G but less than 40 G of Methamphetamine, or at least 3 G but less 

 than 4 G of Methamphetamine (actual), or at least 3 G but less than 4 G of 

 "Ice";

M At least 30 G but less than 40 G of Amphetamine, or at least 3 G but less than 

 4 G of Amphetamine (actual); 

M At least 600 MG but less than 800 MG of LSD;

M At least 24 G but less than 32 G of Fentanyl; 

M At least 6 G but less than 8 G of a Fentanyl Analogue;

M At least 60 KG but less than 80 KG of Marihuana;

M At least 12 KG but less than 16 KG of Hashish;

M At least 1.2 KG but less than 1.6 KG of Hashish Oil;

M At least 60,000 but less than 80,000 units of Ketamine;

M At least 60,000 but less than 80,000 units of Schedule I or II Depressants;

M At least 60,000 but less than 80,000 units of Schedule III Hydrocodone;

M At least 3,750 but less than 5,000 units of Flunitrazepam.

Level 22

(10) M At least 40 G but less than 60 G of Heroin;

M At least 200 G but less than 300 G of Cocaine;

M At least 311.2 G but less than 416.8 G of Cocaine Base;

M At least 40 G but less than 60 G of PCP, or at least 4 G but less than 6 G of 

 PCP (actual);

M At least 20 G but less than 30 G of Methamphetamine, or at least 2 G but less 

 than 3 G of Methamphetamine (actual), or at least 2 G but less than 3 G of 

 "Ice";

M At least 20 G but less than 30 G of Amphetamine, or at least 2 G but less than 

 3 G of Amphetamine (actual);

M At least 400 MG but less than 600 MG of LSD;

M At least 16 G but less than 24 G of Fentanyl; 

M At least 4 G but less than 6 G of a Fentanyl Analogue;

M At least 40 KG but less than 60 KG of Marihuana;

M At least 8 KG but less than 12 KG of Hashish;

M At least 800 G but less than 1.2 KG of Hashish Oil;

M At least 40,000 but less than 60,000 units of Ketamine;

M At least 40,000 but less than 60,000 units of Schedule I or II Depressants;

M At least 40,000 but less than 60,000 units of Schedule III Hydrocodone;

M 40,000 or more units of Schedule III substances (except Ketamine or 

 Hydrocodone);

M At least 2,500 but less than 3,750 units of Flunitrazepam.

Level 20

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(11) M At least 20 G but less than 40 G of Heroin;

M At least 100 G but less than 200 G of Cocaine;

M At least 25.6 G but less than 311.2 G of Cocaine Base;

M At least 20 G but less than 40 G of PCP, or at least 2 G but less than 4 G of 

 PCP (actual);

M At least 10 G but less than 20 G of Methamphetamine, or at least 1 G but less 

 than 2 G of Methamphetamine (actual), or at least 1 G but less than 2 G of 

 "Ice";

M At least 10 G but less than 20 G of Amphetamine, or at least 1 G but less than 

 2 G of Amphetamine (actual);

M At least 200 MG but less than 400 MG of LSD;

M At least 8 G but less than 16 G of Fentanyl; 

M At least 2 G but less than 4 G of a Fentanyl Analogue;

M At least 20 KG but less than 40 KG of Marihuana;

M At least 5 KG but less than 8 KG of Hashish;

M At least 500 G but less than 800 G of Hashish Oil;

M At least 20,000 but less than 40,000 units of Ketamine;

M At least 20,000 but less than 40,000 units of Schedule I or II Depressants;

M At least 20,000 but less than 40,000 units of Schedule III Hydrocodone;

M At least 20,000 but less than 40,000 units of Schedule III substances (except 

 Ketamine or Hydrocodone);

M At least 1,250 but less than 2,500 units of Flunitrazepam.

Level 18

(12) M At least 10 G but less than 20 G of Heroin;

M At least 50 G but less than 100 G of Cocaine;

M At least 12.8 G but less than 25.6 G of Cocaine Base;

M At least 10 G but less than 20 G of PCP, or at least 1 G but less than 2 G of 

 PCP (actual);

M At least 5 G but less than 10 G of Methamphetamine, or at least 500 MG but 

 less than 1 G of Methamphetamine (actual), or at least 500 MG but less than 

 1 G of "Ice";

M At least 5 G but less than 10 G of Amphetamine, or at least 500 MG but less 

 than 1 G of Amphetamine (actual); 

M At least 100 MG but less than 200 MG of LSD;

M At least 4 G but less than 8 G of Fentanyl; 

M At least 1 G but less than 2 G of a Fentanyl Analogue;

M At least 10 KG but less than 20 KG of Marihuana;

M At least 2 KG but less than 5 KG of Hashish;

M At least 200 G but less than 500 G of Hashish Oil;

M At least 10,000 but less than 20,000 units of Ketamine; 

M At least 10,000 but less than 20,000 units of Schedule I or II Depressants;

M At least 10,000 but less than 20,000 units of Schedule III Hydrocodone;

M At least 10,000 but less than 20,000 units of Schedule III substances (except 

 Ketamine or Hydrocodone);

M At least 625 but less than 1,250 units of Flunitrazepam.

Level 16

(13) M At least 5 G but less than 10 G of Heroin;

M At least 25 G but less than 50 G of Cocaine;

M At least 500 MG1.4 G but less than 12.8 G of Cocaine Base;

M At least 5 G but less than 10 G of PCP, or at least 500 MG but less than 1 G of 

 PCP (actual);

M At least 2.5 G but less than 5 G of Methamphetamine, or at least 250 MG but 

 less than 500 MG of Methamphetamine (actual), or at least 250 MG but less 

Level 14

-13-
 than 500 MG of "Ice";

M At least 2.5 G but less than 5 G of Amphetamine, or at least 250 MG but less 

 than 500 MG of Amphetamine (actual);

M At least 50 MG but less than 100 MG of LSD;

M At least 2 G but less than 4 G of Fentanyl; 

M At least 500 MG but less than 1 G of a Fentanyl Analogue;

M At least 5 KG but less than 10 KG of Marihuana;

M At least 1 KG but less than 2 KG of Hashish;

M At least 100 G but less than 200 G of Hashish Oil;

M At least 5,000 but less than 10,000 units of Ketamine;

M At least 5,000 but less than 10,000 units of Schedule I or II Depressants;

M At least 5,000 but less than 10,000 units of Schedule III Hydrocodone;

M At least 5,000 but less than 10,000 units of Schedule III substances (except 

 Ketamine or Hydrocodone);

M At least 312 but less than 625 units of Flunitrazepam.

(14) M Less than 5 G of Heroin; 

M Less than 25 G of Cocaine;

M Less than 500 MG1.4 G of Cocaine Base;

M Less than 5 G of PCP, or less than 500 MG of PCP (actual);

M Less than 2.5 G of Methamphetamine, or less than 250 MG of 

 Methamphetamine (actual), or less than 250 MG of "Ice";

M Less than 2.5 G of Amphetamine, or less than 250 MG of Amphetamine 

 (actual); 

M Less than 50 MG of LSD;

M Less than 2 G of Fentanyl; 

M Less than 500 MG of a Fentanyl Analogue;

M At least 2.5 KG but less than 5 KG of Marihuana;

M At least 500 G but less than 1 KG of Hashish;

M At least 50 G but less than 100 G of Hashish Oil;

M At least 2,500 but less than 5,000 units of Ketamine;

M At least 2,500 but less than 5,000 units of Schedule I or II Depressants;

M At least 2,500 but less than 5,000 units of Schedule III Hydrocodone;

M At least 2,500 but less than 5,000 units of Schedule III substances (except 

 Ketamine or Hydrocodone);

M At least 156 but less than 312 units of Flunitrazepam;

M 40,000 or more units of Schedule IV substances (except Flunitrazepam).

Level 12

(15) M At least 1 KG but less than 2.5 KG of Marihuana; 

M At least 200 G but less than 500 G of Hashish;

M At least 20 G but less than 50 G of Hashish Oil;

M At least 1,000 but less than 2,500 units of Ketamine; 

M At least 1,000 but less than 2,500 units of Schedule I or II Depressants;

M At least 1,000 but less than 2,500 units of Schedule III Hydrocodone;

M At least 1,000 but less than 2,500 units of Schedule III substances (except 

 Ketamine or Hydrocodone);

M At least 62 but less than 156 units of Flunitrazepam;

M At least 16,000 but less than 40,000 units of Schedule IV substances (except 

 Flunitrazepam).

Level 10

(16) M At least 250 G but less than 1 KG of Marihuana; 

M At least 50 G but less than 200 G of Hashish;

M At least 5 G but less than 20 G of Hashish Oil;

Level 8

-14-
M At least 250 but less than 1,000 units of Ketamine;

M At least 250 but less than 1,000 units of Schedule I or II Depressants;

M At least 250 but less than 1,000 units of Schedule III Hydrocodone;

M At least 250 but less than 1,000 units of Schedule III substances (except 

 Ketamine or Hydrocodone);

M Less than 62 units of Flunitrazepam;

M At least 4,000 but less than 16,000 units of Schedule IV substances (except 

 Flunitrazepam);

M 40,000 or more units of Schedule V substances.

(17) M Less than 250 G of Marihuana; 

M Less than 50 G of Hashish;

M Less than 5 G of Hashish Oil;

M Less than 250 units of Ketamine;

M Less than 250 units of Schedule I or II Depressants;

M Less than 250 units of Schedule III Hydrocodone;

M Less than 250 units of Schedule III substances (except Ketamine or 

 Hydrocodone);

M Less than 4,000 units of Schedule IV substances (except Flunitrazepam);

M Less than 40,000 units of Schedule V substances.

Level 6

*Notes to Drug Quantity Table:

(A) Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the

entire weight of any mixture or substance containing a detectable amount of the controlled

substance. If a mixture or substance contains more than one controlled substance, the weight of

the entire mixture or substance is assigned to the controlled substance that results in the greater

offense level. 

(B) The terms "PCP (actual)", "Amphetamine (actual)", and "Methamphetamine (actual)" refer to the

weight of the controlled substance, itself, contained in the mixture or substance. For example, a

mixture weighing 10 grams containing PCP at 50% purity contains 5 grams of PCP (actual). In

the case of a mixture or substance containing PCP, amphetamine, or methamphetamine, use the

offense level determined by the entire weight of the mixture or substance, or the offense level

determined by the weight of the PCP (actual), amphetamine (actual), or methamphetamine

(actual), whichever is greater.

The term "Oxycodone (actual)" refers to the weight of the controlled substance, itself, contained

in the pill, capsule, or mixture.

(C) "Ice," for the purposes of this guideline, means a mixture or substance containing

d-methamphetamine hydrochloride of at least 80% purity.

(D) "Cocaine base," for the purposes of this guideline, means "crack." "Crack" is the street name for

a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium

bicarbonate, and usually appearing in a lumpy, rocklike form.

(E) In the case of an offense involving marihuana plants, treat each plant, regardless of sex, as

equivalent to 100 G of marihuana. Provided, however, that if the actual weight of the marihuana

is greater, use the actual weight of the marihuana.

(F) In the case of Schedule I or II Depressants (except gamma-hydroxybutyric acid), Schedule III

substances, Schedule IV substances, and Schedule V substances, one "unit" means one pill,

-15-
capsule, or tablet. If the substance (except gamma-hydroxybutyric acid) is in liquid form, one

"unit" means 0.5 ml. For an anabolic steroid that is not in a pill, capsule, tablet, or liquid form

(e.g., patch, topical cream, aerosol), the court shall determine the base offense level using a

reasonable estimate of the quantity of anabolic steroid involved in the offense. In making a

reasonable estimate, the court shall consider that each 25 mg of an anabolic steroid is one "unit".

(G) In the case of LSD on a carrier medium (e.g., a sheet of blotter paper), do not use the weight of

the LSD/carrier medium. Instead, treat each dose of LSD on the carrier medium as equal to 0.4

mg of LSD for the purposes of the Drug Quantity Table.

(H) Hashish, for the purposes of this guideline, means a resinous substance of cannabis that includes

(i) one or more of the tetrahydrocannabinols (as listed in 21 C.F.R. § 1308.11(d)(30)), (ii) at least

two of the following: cannabinol, cannabidiol, or cannabichromene, and (iii) fragments of plant

material (such as cystolith fibers).

(I) Hashish oil, for the purposes of this guideline, means a preparation of the soluble cannabinoids

derived from cannabis that includes (i) one or more of the tetrahydrocannabinols (as listed in 21 

C.F.R. § 1308.11(d)(30)), (ii) at least two of the following: cannabinol, cannabidiol, or

cannabichromene, and (iii) is essentially free of plant material (e.g., plant fragments). Typically,

hashish oil is a viscous, dark colored oil, but it can vary from a dry resin to a colorless liquid.

-16-
Commentary

Statutory Provisions: 21 U.S.C. §§ 841(a), (b)(1)-(3), (7), (g), 860a, 865, 960(a), (b); 49 U.S.C. §

46317(b). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1. "Mixture or substance" as used in this guideline has the same meaning as in 21 U.S.C. § 841,

except as expressly provided. Mixture or substance does not include materials that must be

separated from the controlled substance before the controlled substance can be used. Examples

of such materials include the fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in a

cocaine/beeswax statue, and waste water from an illicit laboratory used to manufacture a

controlled substance. If such material cannot readily be separated from the mixture or substance

that appropriately is counted in the Drug Quantity Table, the court may use any reasonable

method to approximate the weight of the mixture or substance to be counted.

An upward departure nonetheless may be warranted when the mixture or substance counted in

the Drug Quantity Table is combined with other, non-countable material in an unusually

sophisticated manner in order to avoid detection.

Similarly, in the case of marihuana having a moisture content that renders the marihuana

unsuitable for consumption without drying (this might occur, for example, with a bale of rainsoaked marihuana or freshly harvested marihuana that had not been dried), an approximation of

the weight of the marihuana without such excess moisture content is to be used.

2. The statute and guideline also apply to "counterfeit" substances, which are defined in 21 U.S.C.

§ 802 to mean controlled substances that are falsely labeled so as to appear to have been

legitimately manufactured or distributed.

3. Application of Subsections (b)(1) and (b)(2).—

(A) Application of Subsection (b)(1).—Definitions of "firearm" and "dangerous weapon" are

found in the Commentary to §1B1.1 (Application Instructions). The enhancement for

weapon possession in subsection (b)(1) reflects the increased danger of violence when

drug traffickers possess weapons. The adjustment enhancement should be applied if the

weapon was present, unless it is clearly improbable that the weapon was connected with

the offense. For example, the enhancement would not be applied if the defendant,

arrested at histhe defendant's residence, had an unloaded hunting rifle in the closet. The

enhancement also applies to offenses that are referenced to §2D1.1; see §§2D1.2(a)(1)

and (2), 2D1.5(a)(1), 2D1.6, 2D1.7(b)(1), 2D1.8, 2D1.11(c)(1), 2D1.12(c)(1), and

2D2.1(b)(1).

(B) Interaction of Subsections (b)(1) and (b)(2).—The enhancements in subsections (b)(1)

and (b)(2) may be applied cumulatively (added together), as is generally the case when

two or more specific offense characteristics each apply. See §1B1.1 (Application

Instructions), Application Note 4(A). However, in a case in which the defendant merely

possessed a dangerous weapon but did not use violence, make a credible threat to use

violence, or direct the use of violence, subsection (b)(2) would not apply.

4. Distribution of "a small amount of marihuana for no remuneration", 21 U.S.C. § 841(b)(4), is

treated as simple possession, to which §2D2.1 applies.

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5. Analogues and Controlled Substances Not Referenced in this Guideline.—Any reference to a

particular controlled substance in these guidelines includes all salts, isomers, all salts of isomers,

and, except as otherwise provided, any analogue of that controlled substance. Any reference to

cocaine includes ecgonine and coca leaves, except extracts of coca leaves from which cocaine

and ecgonine have been removed. For purposes of this guideline "analogue" has the meaning

given the term "controlled substance analogue" in 21 U.S.C. § 802(32). In determining the

appropriate sentence, the court also may consider whether the same quantity of analogue

produces a greater effect on the central nervous system than the controlled substance for which it

is an analogue.

In the case of a controlled substance that is not specifically referenced in this guideline,

determine the base offense level using the marihuana equivalency of the most closely related

controlled substance referenced in this guideline. In determining the most closely related

controlled substance, the court shall, to the extent practicable, consider the following:

(A) Whether the controlled substance not referenced in this guideline has a chemical

structure that is substantially similar to a controlled substance referenced in this

guideline.

(B) Whether the controlled substance not referenced in this guideline has a stimulant,

depressant, or hallucinogenic effect on the central nervous system that is substantially

similar to the stimulant, depressant, or hallucinogenic effect on the central nervous

system of a controlled substance referenced in this guideline.

(C) Whether a lesser or greater quantity of the controlled substance not referenced in this

guideline is needed to produce a substantially similar effect on the central nervous

system as a controlled substance referenced in this guideline.

6. Where there are multiple transactions or multiple drug types, the quantities of drugs are to be

added. Tables for making the necessary conversions are provided below.

7. Where a mandatory (statutory) minimum sentence applies, this mandatory minimum sentence

may be "waived" and a lower sentence imposed (including a downward departure), as provided

in 28 U.S.C. § 994(n), by reason of a defendant’s "substantial assistance in the investigation or

prosecution of another person who has committed an offense." See §5K1.1 (Substantial

Assistance to Authorities). In addition, 18 U.S.C. § 3553(f) provides an exception to the

applicability of mandatory minimum sentences in certain cases. See §5C1.2 (Limitation on

Applicability of Statutory Minimum Sentences in Certain Cases).

8. Interaction with §3B1.3.—A defendant who used special skills in the commission of the offense

may be subject to an adjustment under §3B1.3 (Abuse of Position of Trust or Use of Special

Skill). Certain professionals often occupy essential positions in drug trafficking schemes. These

professionals include doctors, pilots, boat captains, financiers, bankers, attorneys, chemists,

accountants, and others whose special skill, trade, profession, or position may be used to

significantly facilitate the commission of a drug offense. Additionally, an enhancement under

§3B1.3 ordinarily would apply in a case in which the defendant used his or her position as a

coach to influence an athlete to use an anabolic steroid.

Note, however, that if an adjustment from subsection (b)(23)(C) applies, do not apply §3B1.3

(Abuse of Position of Trust or Use of Special Skill).

9. Trafficking in controlled substances, compounds, or mixtures of unusually high purity may

-18-
warrant an upward departure, except in the case of PCP, amphetamine, methamphetamine, or

oxycodone for which the guideline itself provides for the consideration of purity (see the footnote

to the Drug Quantity Table). The purity of the controlled substance, particularly in the case of

heroin, may be relevant in the sentencing process because it is probative of the defendant’s role

or position in the chain of distribution. Since controlled substances are often diluted and

combined with other substances as they pass down the chain of distribution, the fact that a

defendant is in possession of unusually pure narcotics may indicate a prominent role in the

criminal enterprise and proximity to the source of the drugs. As large quantities are normally

associated with high purities, this factor is particularly relevant where smaller quantities are

involved. 

10. Use of Drug Equivalency Tables.— 

(A) Controlled Substances Not Referenced in Drug Quantity Table.—The Commission has

used the sentences provided in, and equivalences derived from, the statute (21 U.S.C. §

841(b)(1)), as the primary basis for the guideline sentences. The statute, however,

provides direction only for the more common controlled substances, i.e., heroin, cocaine,

PCP, methamphetamine, fentanyl, LSD and marihuana. In the case of a controlled

substance that is not specifically referenced in the Drug Quantity Table, determine the

base offense level as follows: 

(i) Use the Drug Equivalency Tables to convert the quantity of the controlled

substance involved in the offense to its equivalent quantity of marihuana. 

(ii) Find the equivalent quantity of marihuana in the Drug Quantity Table.

(iii) Use the offense level that corresponds to the equivalent quantity of marihuana as

the base offense level for the controlled substance involved in the offense. 

(See also Application Note 5.) For example, in the Drug Equivalency Tables set forth in

this Note, 1 gm of a substance containing oxymorphone, a Schedule I opiate, converts to

an equivalent quantity of 5 kg of marihuana. In a case involving 100 gm of

oxymorphone, the equivalent quantity of marihuana would be 500 kg, which corresponds

to a base offense level of 28 in the Drug Quantity Table.

(B) Combining Differing Controlled Substances (Except Cocaine Base).—The Drug

Equivalency Tables also provide a means for combining differing controlled substances

to obtain a single offense level. In each case, convert each of the drugs to its marihuana 

equivalent, add the quantities, and look up the total in the Drug Quantity Table to obtain

the combined offense level. To determine a single offense level in a case involving

cocaine base and other controlled substances, see subdivision (D) of this note.

For certain types of controlled substances, the marihuana equivalencies in the Drug

Equivalency Tables are "capped" at specified amounts (e.g., the combined equivalent

weight of all Schedule V controlled substances shall not exceed 999 grams of

marihuana). Where there are controlled substances from more than one schedule (e.g., a

quantity of a Schedule IV substance and a quantity of a Schedule V substance), determine

the marihuana equivalency for each schedule separately (subject to the cap, if any,

applicable to that schedule). Then add the marihuana equivalencies to determine the

combined marihuana equivalency (subject to the cap, if any, applicable to the combined

amounts).

Note: Because of the statutory equivalences, the ratios in the Drug Equivalency Tables

-19-
do not necessarily reflect dosages based on pharmacological equivalents.

(C) Examples for Combining Differing Controlled Substances (Except Cocaine Base).— 

(i) The defendant is convicted of selling 70 grams of a substance containing PCP

(Level 22) and 250 milligrams of a substance containing LSD (Level 18). The

PCP converts to 70 kilograms of marihuana; the LSD converts to 25 kilograms

of marihuana. The total is therefore equivalent to 95 kilograms of marihuana,

for which the Drug Quantity Table provides an offense level of 24.

(ii) The defendant is convicted of selling 500 grams of marihuana (Level 8) and five

kilograms of diazepam (Level 8). The diazepam, a Schedule IV drug, is

equivalent to 625 grams of marihuana. The total, 1.125 kilograms of marihuana,

has an offense level of 10 in the Drug Quantity Table.

(iii) The defendant is convicted of selling 80 grams of cocaine (Level 16) and five

kilograms of marihuana2 grams of cocaine base (Level 14). The cocaine is

equivalent to 16 kilograms of marihuana, and the cocaine base is equivalent to

7.142 kilograms of marihuana. The total is therefore equivalent to 2123.142

kilograms of marihuana, which has an offense level of 18 in the Drug Quantity

Table.

(iv) The defendant is convicted of selling 56,000 units of a Schedule III substance,

100,000 units of a Schedule IV substance, and 200,000 units of a Schedule V

substance. The marihuana equivalency for the Schedule III substance is 56

kilograms of marihuana (below the cap of 59.99 kilograms of marihuana set

forth as the maximum equivalent weight for Schedule III substances). The

marihuana equivalency for the Schedule IV substance is subject to a cap of 4.99

kilograms of marihuana set forth as the maximum equivalent weight for Schedule

IV substances (without the cap it would have been 6.25 kilograms). The

marihuana equivalency for the Schedule V substance is subject to the cap of 999

grams of marihuana set forth as the maximum equivalent weight for Schedule V

substances (without the cap it would have been 1.25 kilograms). The combined

equivalent weight, determined by adding together the above amounts, is subject

to the cap of 59.99 kilograms of marihuana set forth as the maximum combined

equivalent weight for Schedule III, IV, and V substances. Without the cap, the

combined equivalent weight would have been 61.99 (56 + 4.99 + .999)

kilograms.

(D) Determining Base Offense Level in Offenses Involving Cocaine Base and Other

Controlled Substances.—

(i) In General.—Except as provided in subdivision (ii), if the offense involves

cocaine base ("crack") and one or more other controlled substance, determine

the combined offense level as provided by subdivision (B) of this note, and

reduce the combined offense level by 2 levels.

(ii) Exceptions to 2-level Reduction.—The 2-level reduction provided in subdivision

(i) shall not apply in a case in which: 

(I) the offense involved 4.5 kg or more, or less than 250 mg, of cocaine

base; or 

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(II) the 2-level reduction results in a combined offense level that is less than

the combined offense level that would apply under subdivision (B) of this

note if the offense involved only the other controlled substance(s) (i.e.,

the controlled substance(s) other than cocaine base). 

(iii) Examples.—

(I) The case involves 20 gm of cocaine base, 1.5 kg of cocaine, and 10 kg of

marihuana. Under the Drug Equivalency Tables in subdivision (E) of

this note, 20 gm of cocaine base converts to 400 kg of marihuana (20 gm

x 20 kg = 400 kg), and 1.5 kg of cocaine converts to 300 kg of

marihuana (1.5 kg x 200 gm = 300 kg), which, when added to the 10 kg

of marihuana results in a combined equivalent quantity of 710 kg of

marihuana. Under the Drug Quantity Table, 710 kg of marihuana

corresponds to a combined offense level of 30, which is reduced by two

levels to level 28. For the cocaine and marihuana, their combined

equivalent quantity of 310 kg of marihuana corresponds to a combined

offense level of 26 under the Drug Quantity Table. Because the

combined offense level for all three drug types after the 2-level reduction

is not less than the combined base offense level for the cocaine and

marihuana, the combined offense level for all three drug types remains

level 28. 

(II) The case involves 5 gm of cocaine base and 6 kg of heroin. Under the

Drug Equivalency Tables in subdivision (E) of this note, 5 gm of cocaine

base converts to 100 kg of marihuana (5 gm x 20 kg = 100 kg), and 6 kg

of heroin converts to 6,000 kg of marihuana (6,000 gm x 1 kg = 6,000

kg), which, when added together results in a combined equivalent

quantity of 6,100 kg of marihuana. Under the Drug Quantity Table,

6,100 kg of marihuana corresponds to a combined offense level of 34,

which is reduced by two levels to 32. For the heroin, the 6,000 kg of

marihuana corresponds to an offense level 34 under the Drug Quantity

Table. Because the combined offense level for the two drug types after

the 2-level reduction is less than the offense level for the heroin, the

reduction does not apply and the combined offense level for the two

drugs remains level 34.

(ED) Drug Equivalency Tables.—

Schedule I or II Opiates*

1 gm of Heroin = 1 kg of marihuana

1 gm of Alpha-Methylfentanyl = 10 kg of marihuana

1 gm of Dextromoramide = 670 gm of marihuana

1 gm of Dipipanone = 250 gm of marihuana

1 gm of 3-Methylfentanyl = 10 kg of marihuana

1 gm of 1-Methyl-4-phenyl-4-propionoxypiperidine/MPPP = 700 gm of marihuana

1 gm of 1-(2-Phenylethyl)-4-phenyl-4-acetyloxypiperidine/

 PEPAP = 700 gm of marihuana

1 gm of Alphaprodine = 100 gm of marihuana

1 gm of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-

 piperidinyl] Propanamide) = 2.5 kg of marihuana

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1 gm of Hydromorphone/Dihydromorphinone = 2.5 kg of marihuana

1 gm of Levorphanol = 2.5 kg of marihuana

1 gm of Meperidine/Pethidine = 50 gm of marihuana

1 gm of Methadone = 500 gm of marihuana

1 gm of 6-Monoacetylmorphine = 1 kg of marihuana

1 gm of Morphine = 500 gm of marihuana

1 gm of Oxycodone (actual) = 6700 gm of marihuana

1 gm of Oxymorphone = 5 kg of marihuana

1 gm of Racemorphan = 800 gm of marihuana

1 gm of Codeine = 80 gm of marihuana

1 gm of Dextropropoxyphene/Propoxyphene-Bulk = 50 gm of marihuana

1 gm of Ethylmorphine = 165 gm of marihuana

1 gm of Hydrocodone/Dihydrocodeinone = 500 gm of marihuana

1 gm of Mixed Alkaloids of Opium/Papaveretum = 250 gm of marihuana

1 gm of Opium = 50 gm of marihuana

1 gm of Levo-alpha-acetylmethadol (LAAM)= 3 kg of marihuana

*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances

individually, or in combination with another controlled substance, is level 12.

Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)*

1 gm of Cocaine = 200 gm of marihuana

1 gm of N-Ethylamphetamine = 80 gm of marihuana

1 gm of Fenethylline = 40 gm of marihuana

1 gm of Amphetamine = 2 kg of marihuana

1 gm of Amphetamine (Actual) = 20 kg of marihuana

1 gm of Methamphetamine = 2 kg of marihuana

1 gm of Methamphetamine (Actual) = 20 kg of marihuana

1 gm of "Ice" = 20 kg of marihuana

1 gm of Khat = .01 gm of marihuana

1 gm of 4-Methylaminorex ("Euphoria")= 100 gm of marihuana

1 gm of Methylphenidate (Ritalin)= 100 gm of marihuana

1 gm of Phenmetrazine = 80 gm of marihuana

1 gm Phenylacetone/P2P (when possessed for the purpose

 of manufacturing methamphetamine) = 416 gm of marihuana

1 gm Phenylacetone/P2P (in any other case) = 75 gm of marihuana

1 gm Cocaine Base (‘Crack’) = 20 kg3,571 gm of marihuana

1 gm of Aminorex = 100 gm of marihuana

1 gm of Methcathinone = 380 gm of marihuana

1 gm of N-N-Dimethylamphetamine = 40 gm of marihuana

*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances

individually, or in combination with another controlled substance, is level 12.

LSD, PCP, and Other Schedule I and II Hallucinogens (and their immediate precursors)*

1 gm of Bufotenine = 70 gm of marihuana

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1 gm of D-Lysergic Acid Diethylamide/Lysergide/LSD = 100 kg of marihuana

1 gm of Diethyltryptamine/DET = 80 gm of marihuana

1 gm of Dimethyltryptamine/DMT = 100 gm of marihuana

1 gm of Mescaline = 10 gm of marihuana

1 gm of Mushrooms containing Psilocin and/or 

 Psilocybin (Dry) = 1 gm of marihuana

1 gm of Mushrooms containing Psilocin and/or 

 Psilocybin (Wet) = 0.1 gm of marihuana

1 gm of Peyote (Dry) = 0.5 gm of marihuana

1 gm of Peyote (Wet) = 0.05 gm of marihuana

1 gm of Phencyclidine/PCP = 1 kg of marihuana

1 gm of Phencyclidine (actual) /PCP (actual) = 10 kg of marihuana

1 gm of Psilocin = 500 gm of marihuana

1 gm of Psilocybin = 500 gm of marihuana

1 gm of Pyrrolidine Analog of Phencyclidine/PHP = 1 kg of marihuana

1 gm of Thiophene Analog of Phencyclidine/TCP = 1 kg of marihuana

1 gm of 4-Bromo-2,5-Dimethoxyamphetamine/DOB = 2.5 kg of marihuana

1 gm of 2,5-Dimethoxy-4-methylamphetamine/DOM = 1.67 kg of marihuana

1 gm of 3,4-Methylenedioxyamphetamine/MDA = 500 gm of marihuana

1 gm of 3,4-Methylenedioxymethamphetamine/MDMA = 500 gm of marihuana

1 gm of 3,4-Methylenedioxy-N-ethylamphetamine/MDEA= 500 gm of marihuana

1 gm of Paramethoxymethamphetamine/PMA = 500 gm of marihuana

1 gm of 1-Piperidinocyclohexanecarbonitrile/PCC = 680 gm of marihuana

1 gm of N-ethyl-1-phenylcyclohexylamine (PCE) = 1 kg of marihuana

*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances

individually, or in combination with another controlled substance, is level 12.

Schedule I Marihuana

1 gm of Marihuana/Cannabis, granulated, powdered, etc. = 1 gm of marihuana

1 gm of Hashish Oil = 50 gm of marihuana

1 gm of Cannabis Resin or Hashish = 5 gm of marihuana

1 gm of Tetrahydrocannabinol, Organic = 167 gm of marihuana

1 gm of Tetrahydrocannabinol, Synthetic = 167 gm of marihuana

Flunitrazepam ** 

1 unit of Flunitrazepam = 16 gm of marihuana

**Provided, that the minimum offense level from the Drug Quantity Table for flunitrazepam individually, or in

combination with any Schedule I or II depressants, Schedule III substances, Schedule IV substances, and

Schedule V substances is level 8.

Schedule I or II Depressants (except gamma-hydroxybutyric acid)

1 unit of a Schedule I or II Depressant 

(except gamma-hydroxybutyric acid) = 1 gm of marihuana

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Gamma-hydroxybutyric Acid

1 ml of gamma-hydroxybutyric acid = 8.8 gm of marihuana

Schedule III Substances (except ketamine and hydrocodone)***

1 unit of a Schedule III Substance = 1 gm of marihuana 

***Provided, that the combined equivalent weight of all Schedule III substances (except ketamine and

hydrocodone), Schedule IV substances (except flunitrazepam), and Schedule V substances shall not exceed

59.99 kilograms of marihuana.

Schedule III Hydrocodone 

1 unit of Schedule III hydrocodone = 1 gm of marihuana

** **Provided, that the combined equivalent weight of all Schedule III substances (except ketamine), Schedule

IV substances (except flunitrazepam), and Schedule V substances shall not exceed 999.99 kilograms of

marihuana.

Ketamine

1 unit of ketamine = 1 gm of marihuana

Schedule IV Substances (except flunitrazepam)*****

1 unit of a Schedule IV Substance 

(except Flunitrazepam)= 0.0625 gm of marihuana 

*****Provided, that the combined equivalent weight of all Schedule IV (except flunitrazepam) and V

substances shall not exceed 4.99 kilograms of marihuana.

Schedule V Substances******

1 unit of a Schedule V Substance = 0.00625 gm of marihuana

******Provided, that the combined equivalent weight of Schedule V substances shall not exceed 999 grams of

marihuana.

List I Chemicals (relating to the manufacture of amphetamine or methamphetamine)*******

1 gm of Ephedrine = 10 kg of marihuana

1 gm of Phenylpropanolamine = 10 kg of marihuana

1 gm of Pseudoephedrine = 10 kg of marihuana

*******Provided, that in a case involving ephedrine, pseudoephedrine, or phenylpropanolamine tablets, use the

weight of the ephedrine, pseudoephedrine, or phenylpropanolamine contained in the tablets, not the weight of

the entire tablets, in calculating the base offense level.

Date Rape Drugs (except flunitrazipam, GHB, or ketamine)

-24-
1 ml of 1,4-butanediol = 8.8 gm marihuana

1 ml of gamma butyrolactone = 8.8 gm marihuana

To facilitate conversions to drug equivalencies, the following table is provided:

 MEASUREMENT CONVERSION TABLE

1 oz = 28.35 gm

1 lb = 453.6 gm

1 lb = 0.4536 kg

1 gal = 3.785 liters

1 qt = 0.946 liters

1 gm = 1 ml (liquid)

1 liter = 1,000 ml

1 kg = 1,000 gm

1 gm = 1,000 mg

1 grain = 64.8 mg.

11. If the number of doses, pills, or capsules but not the weight of the controlled substance is known,

multiply the number of doses, pills, or capsules by the typical weight per dose in the table below

to estimate the total weight of the controlled substance (e.g., 100 doses of Mescaline at 500 mg

per dose = 50 gms of mescaline). The Typical Weight Per Unit Table, prepared from information

provided by the Drug Enforcement Administration, displays the typical weight per dose, pill, or

capsule for certain controlled substances. Do not use this table if any more reliable estimate of

the total weight is available from case-specific information.

TYPICAL WEIGHT PER UNIT (DOSE, PILL, OR CAPSULE) TABLE

Hallucinogens

MDA 250 mg

MDMA 250 mg

Mescaline 500 mg

PCP* 5 mg

Peyote (dry) 12 gm

Peyote (wet) 120 gm

Psilocin* 10 mg

Psilocybe mushrooms (dry) 5 gm

Psilocybe mushrooms (wet) 50 gm

Psilocybin* 10 mg

2,5-Dimethoxy-4-methylamphetamine (STP, DOM)* 3 mg

Marihuana

1 marihuana cigarette 0.5 gm

Stimulants

Amphetamine* 10 mg

-25-
Methamphetamine* 5 mg

Phenmetrazine (Preludin)* 75 mg

*For controlled substances marked with an asterisk, the weight per unit shown is the weight

of the actual controlled substance, and not generally the weight of the mixture or substance 

containing the controlled substance. Therefore, use of this table provides a very conservative

estimate of the total weight.

12. Types and quantities of drugs not specified in the count of conviction may be considered in

determining the offense level. See §1B1.3(a)(2) (Relevant Conduct). Where there is no drug

seizure or the amount seized does not reflect the scale of the offense, the court shall

approximate the quantity of the controlled substance. In making this determination, the court

may consider, for example, the price generally obtained for the controlled substance,

financial or other records, similar transactions in controlled substances by the defendant, and

the size or capability of any laboratory involved.

If the offense involved both a substantive drug offense and an attempt or conspiracy (e.g., sale

of five grams of heroin and an attempt to sell an additional ten grams of heroin), the total

quantity involved shall be aggregated to determine the scale of the offense. 

In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity

of the controlled substance shall be used to determine the offense level unless the sale is

completed and the amount delivered more accurately reflects the scale of the offense. For

example, a defendant agrees to sell 500 grams of cocaine, the transaction is completed by the

delivery of the controlled substance - actually 480 grams of cocaine, and no further delivery

is scheduled. In this example, the amount delivered more accurately reflects the scale of the

offense. In contrast, in a reverse sting, the agreed-upon quantity of the controlled substance

would more accurately reflect the scale of the offense because the amount actually delivered 

is controlled by the government, not by the defendant. If, however, the defendant establishes 

that the defendant did not intend to provide or purchase, or was not reasonably capable of

providing or purchasing, the agreed-upon quantity of the controlled substance, the court shall

exclude from the offense level determination the amount of controlled substance that the

defendant establishes that the defendant did not intend to provide or purchase or was not

reasonably capable of providing or purchasing.

13. Certain pharmaceutical preparations are classified as Schedule III, IV, or V controlled

substances by the Drug Enforcement Administration under 21 C.F.R. § 1308.13-15 even

though they contain a small amount of a Schedule I or II controlled substance. For example,

Tylenol 3 is classified as a Schedule III controlled substance even though it contains a small 

amount of codeine, a Schedule II opiate. For the purposes of the guidelines, the classification

of the controlled substance under 21 C.F.R. § 1308.13-15 is the appropriate classification.

14. If, in a reverse sting (an operation in which a government agent sells or negotiates to sell a

controlled substance to a defendant), the court finds that the government agent set a price for 

the controlled substance that was substantially below the market value of the controlled

substance, thereby leading to the defendant’s purchase of a significantly greater quantity of

the controlled substance than his available resources would have allowed him to purchase

except for the artificially low price set by the government agent, a downward departure may

be warranted. 

15. LSD on a blotter paper carrier medium typically is marked so that the number of doses

-26-
("hits") per sheet readily can be determined. When this is not the case, it is to be presumed

that each 1/4 inch by 1/4 inch section of the blotter paper is equal to one dose.

In the case of liquid LSD (LSD that has not been placed onto a carrier medium), using the

weight of the LSD alone to calculate the offense level may not adequately reflect the

seriousness of the offense. In such a case, an upward departure may be warranted.

16. In an extraordinary case, an upward departure above offense level 38 on the basis of drug

quantity may be warranted. For example, an upward departure may be warranted where the

quantity is at least ten times the minimum quantity required for level 38. Similarly, in the

case of a controlled substance for which the maximum offense level is less than level 38, an

upward departure may be warranted if the drug quantity substantially exceeds the quantity

for the highest offense level established for that particular controlled substance.

17. For purposes of the guidelines, a "plant" is an organism having leaves and a readily

observable root formation (e.g., a marihuana cutting having roots, a rootball, or root hairs is

a marihuana plant).

18. If the offense involved importation of amphetamine or methamphetamine, and an adjustment

from subsection (b)(23) applies, do not apply subsection (b)(45).

19. Hazardous or Toxic Substances.—Subsection (b)(1013)(A) applies if the conduct for which

the defendant is accountable under §1B1.3 (Relevant Conduct) involved any discharge,

emission, release, transportation, treatment, storage, or disposal violation covered by the

Resource Conservation and Recovery Act, 42 U.S.C. § 6928(d); the Federal Water Pollution

Control Act, 33 U.S.C. § 1319(c); the Comprehensive Environmental Response,

Compensation, and Liability Act, 42 U.S.C. § 9603(b); or 49 U.S.C. § 5124 (relating to

violations of laws and regulations enforced by the Department of Transportation with respect

to the transportation of hazardous material). In some cases, the enhancement under

subsection (b)(1013)(A) may not account adequately for the seriousness of the environmental

harm or other threat to public health or safety (including the health or safety of law

enforcement and cleanup personnel). In such cases, an upward departure may be warranted. 

Additionally, in determining the amount of restitution under §5E1.1 (Restitution) and in

fashioning appropriate conditions of probation and supervision under §§5B1.3 (Conditions of

Probation) and 5D1.3 (Conditions of Supervised Release), respectively, any costs of

environmental cleanup and harm to individuals or property shall be considered by the court

in cases involving the manufacture of amphetamine or methamphetamine and should be

considered by the court in cases involving the manufacture of a controlled substance other

than amphetamine or methamphetamine. See 21 U.S.C. § 853(q) (mandatory restitution for

cleanup costs relating to the manufacture of amphetamine and methamphetamine).

20. Substantial Risk of Harm Associated with the Manufacture of Amphetamine and

Methamphetamine.—

(A) Factors to Consider.—In determining, for purposes of subsection (b)(1013)(C)(ii) or

(D), whether the offense created a substantial risk of harm to human life or the

environment, the court shall include consideration of the following factors:

(i) The quantity of any chemicals or hazardous or toxic substances found at the

laboratory, and the manner in which the chemicals or substances were

stored. 

-27-
(ii) The manner in which hazardous or toxic substances were disposed, and the

likelihood of release into the environment of hazardous or toxic substances.

(iii) The duration of the offense, and the extent of the manufacturing operation.

(iv) The location of the laboratory (e.g., whether the laboratory is located in a

residential neighborhood or a remote area), and the number of human lives

placed at substantial risk of harm.

(B) Definitions.—For purposes of subsection (b)(1013)(D):

"Incompetent" means an individual who is incapable of taking care of the

individual’s self or property because of a mental or physical illness or disability,

mental retardation, or senility. 

"Minor" has the meaning given that term in Application Note 1 of the Commentary to

§2A3.1 (Criminal Sexual Abuse).

21. Applicability of Subsection (b)(1116).—The applicability of subsection (b)(1116) shall be

determined without regard to whether the defendant was convicted of an offense that subjects

the defendant to a mandatory minimum term of imprisonment. Section §5C1.2(b), which

provides a minimum offense level of level 17, is not pertinent to the determination of whether

subsection (b)(1116) applies.

22. Imposition of Consecutive Sentence for 21 U.S.C. § 860a or § 865.—Sections 860a and 865 of

title 21, United States Code, require the imposition of a mandatory consecutive term of

imprisonment of not more than 20 years and 15 years, respectively. In order to comply with

the relevant statute, the court should determine the appropriate "total punishment" and divide

the sentence on the judgment form between the sentence attributable to the underlying drug

offense and the sentence attributable to 21 U.S.C. § 860a or § 865, specifying the number of

months to be served consecutively for the conviction under 21 U.S.C. § 860a or § 865. For

example, if the applicable adjusted guideline range is 151-188 months and the court

determines a "total punishment" of 151 months is appropriate, a sentence of 130 months for

the underlying offense plus 21 months for the conduct covered by 21 U.S.C. § 860a or § 865

would achieve the "total punishment" in a manner that satisfies the statutory requirement of a

consecutive sentence.

23. Application of Subsection (b)(67).—For purposes of subsection (b)(67), "mass-marketing by

means of an interactive computer service" means the solicitation, by means of an interactive

computer service, of a large number of persons to induce those persons to purchase a

controlled substance. For example, subsection (b)(67) would apply to a defendant who

operated a web site to promote the sale of Gamma-hydroxybutyric Acid (GHB) but would not

apply to coconspirators who use an interactive computer service only to communicate with

one another in furtherance of the offense. "Interactive computer service", for purposes of

subsection (b)(67) and this note, has the meaning given that term in section 230(e)(2) of the

Communications Act of 1934 (47 U.S.C. § 230(f)(2)).

24. Application of Subsection (e)(1).—

(A) Definition.—For purposes of this guideline, "sexual offense" means a "sexual act" or

"sexual contact" as those terms are defined in 18 U.S.C. § 2246(2) and (3),

-28-
respectively. 

(B) Upward Departure Provision.—If the defendant committed a sexual offense against

more than one individual, an upward departure would be warranted.

25. Application of Subsection (b)(78).—For purposes of subsection (b)(78), "masking agent"

means a substance that, when taken before, after, or in conjunction with an anabolic steroid,

prevents the detection of the anabolic steroid in an individual’s body.

26. Application of Subsection (b)(89).—For purposes of subsection (b)(89), "athlete" means an

individual who participates in an athletic activity conducted by (i) an intercollegiate athletic

association or interscholastic athletic association; (ii) a professional athletic association; or

(iii) an amateur athletic organization. 

27. Application of Subsection (b)(11).—Subsection (b)(11) does not apply if the purpose of the

bribery was to obstruct or impede the investigation, prosecution, or sentencing of the

defendant. Such conduct is covered by §3C1.1 (Obstructing or Impeding the Administration

of Justice) and, if applicable, §2D1.1(b)(14)(D).

28. Application of Subsection (b)(12).—Subsection (b)(12) applies to a defendant who knowingly

maintains a premises (i.e., a "building, room, or enclosure," see §2D1.8, comment. (backg'd))

for the purpose of manufacturing or distributing a controlled substance.

Among the factors the court should consider in determining whether the defendant

"maintained" the premises are (A) whether the defendant held a possessory interest in (e.g.,

owned or rented) the premises and (B) the extent to which the defendant controlled access to,

or activities at, the premises.

Manufacturing or distributing a controlled substance at the premises need not be the sole

purpose for which the premises was maintained, but must be one of the defendant's primary

or principal uses for the premises, rather than one of the defendant's incidental or collateral

uses for the premises. In making this determination, the court should consider how frequently

the premises was used by the defendant for manufacturing or distributing a controlled

substance and how frequently the premises was used by the defendant for lawful purposes.

29. Application of Subsection (b)(14).—

(A) Distributing to a Specified Individual or Involving Such an Individual in the Offense

(Subsection (b)(14)(B)).—If the defendant distributes a controlled substance to an

individual or involves an individual in the offense, as specified in subsection

(b)(14)(B), the individual is not a "vulnerable victim" for purposes of §3A1.1(b).

(B) Directly Involved in the Importation of a Controlled Substance (Subsection

(b)(14)(C)).—Subsection (b)(14)(C) applies if the defendant is accountable for the

importation of a controlled substance under subsection (a)(1)(A) of §1B1.3 (Relevant

Conduct (Factors that Determine the Guideline Range)), i.e., the defendant

committed, aided, abetted, counseled, commanded, induced, procured, or willfully

caused the importation of a controlled substance.

If subsection (b)(3) or (b)(5) applies, do not apply subsection (b)(14)(C).

-29-
(C) Pattern of Criminal Conduct Engaged in as a Livelihood (Subsection

(b)(14)(E)).—For purposes of subsection (b)(14)(E), "pattern of criminal conduct"

and "engaged in as a livelihood" have the meaning given such terms in §4B1.3

(Criminal Livelihood).

Background: Offenses under 21 U.S.C. §§ 841 and 960 receive identical punishment based upon the

quantity of the controlled substance involved, the defendant’s criminal history, and whether death or

serious bodily injury resulted from the offense. 

The base offense levels in §2D1.1 are either provided directly by the Anti-Drug Abuse Act of

1986 or are proportional to the levels established by statute, and apply to all unlawful trafficking. 

Levels 32 and 26 in the Drug Quantity Table are the distinctions provided by the Anti-Drug Abuse

Act; however, further refinement of drug amounts is essential to provide a logical sentencing

structure for drug offenses. To determine these finer distinctions, the Commission consulted

numerous experts and practitioners, including authorities at the Drug Enforcement Administration,

chemists, attorneys, probation officers, and members of the Organized Crime Drug Enforcement Task

Forces, who also advocate the necessity of these distinctions. Where necessary, this scheme has been

modified in response to specific congressional directives to the Commission.

The base offense levels at levels 26 and 32 establish guideline ranges with a lower limit as

close to the statutory minimum as possible; e.g., level 32 ranges from 121 to 151 months, where the

statutory minimum is ten years or 120 months. 

For marihuana plants, the Commission has adopted an equivalency of 100 grams per plant,

or the actual weight of the usable marihuana, whichever is greater. The decision to treat each plant

as equal to 100 grams is premised on the fact that the average yield from a mature marihuana plant

equals 100 grams of marihuana. In controlled substance offenses, an attempt is assigned the same

offense level as the object of the attempt. Consequently, the Commission adopted the policy that each

plant is to be treated as the equivalent of an attempt to produce 100 grams of marihuana, except

where the actual weight of the usable marihuana is greater.

Subsection (b)(2) implements the directive to the Commission in section 5 of Public Law

111–220.

Specific Offense CharacteristicSubsection (b)(23) is derived from Section 6453 of the AntiDrug Abuse Act of 1988.

Frequently, a term of supervised release to follow imprisonment is required by statute for

offenses covered by this guideline. Guidelines for the imposition, duration, and conditions of

supervised release are set forth in Chapter Five, Part D (Supervised Release).

Because the weights of LSD carrier media vary widely and typically far exceed the weight of

the controlled substance itself, the Commission has determined that basing offense levels on the entire

weight of the LSD and carrier medium would produce unwarranted disparity among offenses

involving the same quantity of actual LSD (but different carrier weights), as well as sentences

disproportionate to those for other, more dangerous controlled substances, such as PCP. 

Consequently, in cases involving LSD contained in a carrier medium, the Commission has established

a weight per dose of 0.4 milligram for purposes of determining the base offense level.

The dosage weight of LSD selected exceeds the Drug Enforcement Administration’s standard

dosage unit for LSD of 0.05 milligram (i.e., the quantity of actual LSD per dose) in order to assign

-30-
some weight to the carrier medium. Because LSD typically is marketed and consumed orally on a

carrier medium, the inclusion of some weight attributable to the carrier medium recognizes (A) that

offense levels for most other controlled substances are based upon the weight of the mixture

containing the controlled substance without regard to purity, and (B) the decision in Chapman v.

United States, 111 S.Ct. 1919 (1991) (holding that the term "mixture or substance" in 21 U.S.C.

§ 841(b)(1) includes the carrier medium in which LSD is absorbed). At the same time, the weight per

dose selected is less than the weight per dose that would equate the offense level for LSD on a carrier

medium with that for the same number of doses of PCP, a controlled substance that comparative

assessments indicate is more likely to induce violent acts and ancillary crime than is LSD. (Treating

LSD on a carrier medium as weighing 0.5 milligram per dose would produce offense levels equivalent

to those for PCP.) Thus, the approach decided upon by the Commission will harmonize offense levels

for LSD offenses with those for other controlled substances and avoid an undue influence of varied

carrier weight on the applicable offense level. Nonetheless, this approach does not override the

applicability of "mixture or substance" for the purpose of applying any mandatory minimum sentence

(see Chapman; §5G1.1(b)). 

Subsection (b)(11) implements the directive to the Commission in section 6(1) of Public Law

111–220.

Subsection (b)(12) implements the directive to the Commission in section 6(2) of Public Law

111–220.

Subsection (b)(1013)(A) implements the instruction to the Commission in section 303 of

Public Law 103–237.

Subsections (b)(1013)(C)(ii) and (D) implement, in a broader form, the instruction to the

Commission in section 102 of Public Law 106–310.

Subsection (b)(14) implements the directive to the Commission in section 6(1) of Public Law

111–220.

Subsection (b)(15) implements the directive to the Commission in section 7(2) of Public Law

111–220.

* * *

§2D1.14. Narco-Terrorism

(a) Base Offense Level:

(1) The offense level from §2D1.1 (Unlawful Manufacturing, Importing,

Exporting, or Trafficking (Including Possession with Intent to

Commit These Offenses); Attempt or Conspiracy) applicable to the

underlying offense, except that §2D1.1(a)(5)(A), (a)(5)(B), and

(b)(1116) shall not apply.

(b) Specific Offense Characteristic

(1) If §3A1.4 (Terrorism) does not apply, increase by 6 levels.

-31-
Commentary

Statutory Provision: 21 U.S.C. § 960a.

* * *

§2D2.1. Unlawful Possession; Attempt or Conspiracy 

(a) Base Offense Level:

(1) 8, if the substance is heroin or any Schedule I or II opiate, an

analogue of these, or cocaine base; or 

(2) 6, if the substance is cocaine, flunitrazepam, LSD, or PCP; or 

(3) 4, if the substance is any other controlled substance or a list I

chemical. 

(b) Cross References

(1) If the defendant is convicted of possession of more than 5 grams of a

mixture or substance containing cocaine base, apply §2D1.1

(Unlawful Manufacturing, Importing, Exporting, or Trafficking) as if

the defendant had been convicted of possession of that mixture or

substance with intent to distribute.

(21) If the offense involved possession of a controlled substance in a

prison, correctional facility, or detention facility, apply §2P1.2

(Providing or Possessing Contraband in Prison).

Commentary

Statutory Provision: 21 U.S.C. § 844(a). For additional statutory provision(s), see Appendix A

(Statutory Index).

Application Note:

1. The typical case addressed by this guideline involves possession of a controlled substance by

the defendant for the defendant’s own consumption. Where the circumstances establish

intended consumption by a person other than the defendant, an upward departure may be

warranted.

Background: Mandatory (statutory) minimum penalties for several categories of cases, ranging from

fifteen days’ to fivethree years’ imprisonment, are set forth in 21 U.S.C. § 844(a). When a mandatory

minimum penalty exceeds the guideline range, the mandatory minimum becomes the guideline

sentence. See §5G1.1(b). Note, however, that 18 U.S.C. § 3553(f) provides an exception to the

applicability of mandatory minimum sentences in certain cases. See §5C1.2 (Limitation on

Applicability of Statutory Minimum Sentences in Certain Cases).

Section 2D2.1(b)(1) provides a cross reference to §2D1.1 for possession of more than five

-32-
grams of a mixture or substance containing cocaine base, an offense subject to an enhanced penalty

under 21 U.S.C. § 844(a). Other cases for which enhanced penalties are provided under 21 U.S.C. §

844(a)(e.g., for a person with one prior conviction, possession of more than three grams of a mixture

or substance containing cocaine base; for a person with two or more prior convictions, possession of

more than one gram of a mixture or substance containing cocaine base) are to be sentenced in

accordance with §5G1.1(b).

* * *

§2K2.4. Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in

Relation to Certain Crimes 

(a) If the defendant, whether or not convicted of another crime, was convicted of

violating section 844(h) of title 18, United States Code, the guideline

sentence is the term of imprisonment required by statute. Chapters Three

(Adjustments) and Four (Criminal History and Criminal Livelihood) shall not

apply to that count of conviction.

(b) Except as provided in subsection (c), if the defendant, whether or not

convicted of another crime, was convicted of violating section 924(c) or

section 929(a) of title 18, United States Code, the guideline sentence is the

minimum term of imprisonment required by statute. Chapters Three and

Four shall not apply to that count of conviction.

(c) If the defendant (1) was convicted of violating section 924(c) or section

929(a) of title 18, United States Code; and (2) as a result of that conviction

(alone or in addition to another offense of conviction), is determined to be a

career offender under §4B1.1 (Career Offender), the guideline sentence shall

be determined under §4B1.1(c). Except for §§3E1.1 (Acceptance of

Responsibility), 4B1.1, and 4B1.2 (Definitions of Terms Used in Section

4B1.1), Chapters Three and Four shall not apply to that count of conviction.

(d) Special Instructions for Fines

(1) Where there is a federal conviction for the underlying offense, the

fine guideline shall be the fine guideline that would have been

applicable had there only been a conviction for the underlying

offense. This guideline shall be used as a consolidated fine guideline

for both the underlying offense and the conviction underlying this

section.

Commentary

Statutory Provisions: 18 U.S.C. §§ 844(h), 924(c), 929(a).

Application Notes:

1. Application of Subsection (a).—Section 844(h) of title 18, United State Code, provides a

mandatory term of imprisonment of 10 years (or 20 years for the second or subsequent

offense). Accordingly, the guideline sentence for a defendant convicted under 18 U.S.C.

-33-
§ 844(h) is the term required by that statute. Section 844(h) of title 18, United State Code,

also requires a term of imprisonment imposed under this section to run consecutively to any

other term of imprisonment. 

2. Application of Subsection (b).—

(A) In General.—Sections 924(c) and 929(a) of title 18, United States Code, provide

mandatory minimum terms of imprisonment (e.g., not less than five years). Except as

provided in subsection (c), in a case in which the defendant is convicted under 18

U.S.C. § 924(c) or § 929(a), the guideline sentence is the minimum term required by

the relevant statute. Each of 18 U.S.C. §§ 924(c) and 929(a) also requires that a

term of imprisonment imposed under that section shall run consecutively to any other

term of imprisonment. 

(B) Upward Departure Provision.—In a case in which the guideline sentence is

determined under subsection (b), a sentence above the minimum term required by 18

U.S.C. § 924(c) or § 929(a) is an upward departure from the guideline sentence. A

departure may be warranted, for example, to reflect the seriousness of the

defendant’s criminal history in a case in which the defendant is convicted of an 18

U.S.C. § 924(c) or § 929(a) offense but is not determined to be a career offender

under §4B1.1.

3. Application of Subsection (c).—In a case in which the defendant (A) was convicted of

violating 18 U.S.C. § 924(c) or 18 U.S.C. § 929(a); and (B) as a result of that conviction

(alone or in addition to another offense of conviction), is determined to be a career offender

under §4B1.1 (Career Offender), the guideline sentence shall be determined under §4B1.1(c). 

In a case involving multiple counts, the sentence shall be imposed according to the rules in

subsection (e) of §5G1.2 (Sentencing on Multiple Counts of Conviction).

4. Weapon Enhancement.— If a sentence under this guideline is imposed in conjunction with a

sentence for an underlying offense, do not apply any specific offense characteristic for

possession, brandishing, use, or discharge of an explosive or firearm when determining the

sentence for the underlying offense. A sentence under this guideline accounts for any

explosive or weapon enhancement for the underlying offense of conviction, including any

such enhancement that would apply based on conduct for which the defendant is accountable

under §1B1.3 (Relevant Conduct). Do not apply any weapon enhancement in the guideline

for the underlying offense, for example, if (A) a co-defendant, as part of the jointly undertaken

criminal activity, possessed a firearm different from the one for which the defendant was

convicted under 18 U.S.C. § 924(c); or (B) in an ongoing drug trafficking offense, the

defendant possessed a firearm other than the one for which the defendant was convicted

under 18 U.S.C. § 924(c). However, if a defendant is convicted of two armed bank robberies,

but is convicted under 18 U.S.C. § 924(c) in connection with only one of the robberies, a

weapon enhancement would apply to the bank robbery which was not the basis for the 18

U.S.C. § 924(c) conviction.

A sentence under this guideline also accounts for conduct that would subject the defendant to

an enhancement under §2D1.1(b)(2) (pertaining to use of violence, credible threat to use

violence, or directing the use of violence). Do not apply that enhancement when determining

the sentence for the underlying offense.

If the explosive or weapon that was possessed, brandished, used, or discharged in the course

-34-
of the underlying offense also results in a conviction that would subject the defendant to an

enhancement under §2K1.3(b)(3) (pertaining to possession of explosive material in

connection with another felony offense) or §2K2.1(b)(6) (pertaining to possession of any

firearm or ammunition in connection with another felony offense), do not apply that

enhancement. A sentence under this guideline accounts for the conduct covered by these

enhancements because of the relatedness of that conduct to the conduct that forms the basis

for the conviction under 18 U.S.C. § 844(h), § 924(c) or § 929(a). For example, if in addition

to a conviction for an underlying offense of armed bank robbery, the defendant was convicted

of being a felon in possession under 18 U.S.C. § 922(g), the enhancement under §2K2.1(b)(6)

would not apply.

In a few cases in which the defendant is determined not to be a career offender, the offense

level for the underlying offense determined under the preceding paragraphs may result in a

guideline range that, when combined with the mandatory consecutive sentence under 18

U.S.C. § 844(h), § 924(c), or § 929(a), produces a total maximum penalty that is less than the

maximum of the guideline range that would have resulted had there not been a count of

conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a) (i.e., the guideline range that

would have resulted if the enhancements for possession, use, or discharge of a firearm had

been applied). In such a case, an upward departure may be warranted so that the conviction

under 18 U.S.C. § 844(h), § 924(c), or § 929(a) does not result in a decrease in the total

punishment. An upward departure under this paragraph shall not exceed the maximum of the

guideline range that would have resulted had there not been a count of conviction under 18

U.S.C. § 844(h), § 924(c), or § 929(a).

5. Chapters Three and Four.—Except for those cases covered by subsection (c), do not apply

Chapter Three (Adjustments) and Chapter Four (Criminal History and Criminal Livelihood)

to any offense sentenced under this guideline. Such offenses are excluded from application of

those chapters because the guideline sentence for each offense is determined only by the

relevant statute. See §§3D1.1 (Procedure for Determining Offense Level on Multiple Counts)

and 5G1.2. In determining the guideline sentence for those cases covered by subsection (c):

(A) the adjustment in §3E1.1 (Acceptance of Responsibility) may apply, as provided in

§4B1.1(c); and (B) no other adjustments in Chapter Three and no provisions of Chapter

Four, other than §§4B1.1 and 4B1.2, shall apply.

6. Terms of Supervised Release.— Imposition of a term of supervised release is governed by the

provisions of §5D1.1 (Imposition of a Term of Supervised Release).

7. Fines.— Subsection (d) sets forth special provisions concerning the imposition of fines. 

Where there is also a conviction for the underlying offense, a consolidated fine guideline is

determined by the offense level that would have applied to the underlying offense absent a

conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a). This is required because the

offense level for the underlying offense may be reduced when there is also a conviction under

18 U.S.C. § 844(h), § 924(c), or § 929(a) in that any specific offense characteristic for

possession, brandishing, use, or discharge of a firearm is not applied (see Application Note

4). The Commission has not established a fine guideline range for the unusual case in which

there is no conviction for the underlying offense, although a fine is authorized under 18

U.S.C. § 3571.

Background: Section 844(h) of title 18, United States Code, provides a mandatory term of

imprisonment. Sections 924(c) and 929(a) of title 18, United States Code, provide mandatory

-35-
minimum terms of imprisonment. A sentence imposed pursuant to any of these statutes must be

imposed to run consecutively to any other term of imprisonment. To avoid double counting, when a

sentence under this section is imposed in conjunction with a sentence for an underlying offense, any

specific offense characteristic for explosive or firearm discharge, use, brandishing, or possession is

not applied in respect to such underlying offense.

* * *

§3B1.4. Using a Minor To Commit a Crime

If the defendant used or attempted to use a person less than eighteen years of age to

commit the offense or assist in avoiding detection of, or apprehension for, the offense,

increase by 2 levels.

Commentary

Application Notes:

1. "Used or attempted to use" includes directing, commanding, encouraging, intimidating,

counseling, training, procuring, recruiting, or soliciting.

2. Do not apply this adjustment if the Chapter Two offense guideline incorporates this factor. 

For example, if the defendant receives an enhancement under §2D1.1(b)(14)(B) for involving

an individual less than 18 years of age in the offense, do not apply this adjustment.

3. If the defendant used or attempted to use more than one person less than eighteen years of

age, an upward departure may be warranted.

* * *

§3C1.1. Obstructing or Impeding the Administration of Justice

If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction, and (B) the obstructive conduct

related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a

closely related offense, increase the offense level by 2 levels.

Commentary

Application Notes:

1. In General.—This adjustment applies if the defendant’s obstructive conduct (A) occurred with

respect to the investigation, prosecution, or sentencing of the defendant’s instant offense of

conviction, and (B) related to (i) the defendant’s offense of conviction and any relevant

conduct; or (ii) an otherwise closely related case, such as that of a co-defendant.

Obstructive conduct that occurred prior to the start of the investigation of the instant offense

of conviction may be covered by this guideline if the conduct was purposefully calculated, and

likely, to thwart the investigation or prosecution of the offense of conviction.

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2. Limitations on Applicability of Adjustment.—This provision is not intended to punish a

defendant for the exercise of a constitutional right. A defendant’s denial of guilt (other than a

denial of guilt under oath that constitutes perjury), refusal to admit guilt or provide

information to a probation officer, or refusal to enter a plea of guilty is not a basis for

application of this provision. In applying this provision in respect to alleged false testimony

or statements by the defendant, the court should be cognizant that inaccurate testimony or

statements sometimes may result from confusion, mistake, or faulty memory and, thus, not all

inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice.

3. Covered Conduct Generally.—Obstructive conduct can vary widely in nature, degree of

planning, and seriousness. Application Note 4 sets forth examples of the types of conduct to

which this adjustment is intended to apply. Application Note 5 sets forth examples of less

serious forms of conduct to which this enhancement is not intended to apply, but that

ordinarily can appropriately be sanctioned by the determination of the particular sentence

within the otherwise applicable guideline range. Although the conduct to which this

adjustment applies is not subject to precise definition, comparison of the examples set forth in

Application Notes 4 and 5 should assist the court in determining whether application of this

adjustment is warranted in a particular case.

4. Examples of Covered Conduct.—The following is a non-exhaustive list of examples of the

types of conduct to which this adjustment applies:

(A) threatening, intimidating, or otherwise unlawfully influencing a co-defendant,

witness, or juror, directly or indirectly, or attempting to do so;

(B) committing, suborning, or attempting to suborn perjury, including during the course

of a civil proceeding if such perjury pertains to conduct that forms the basis of the

offense of conviction;

(C) producing or attempting to produce a false, altered, or counterfeit document or

record during an official investigation or judicial proceeding;

(D) destroying or concealing or directing or procuring another person to destroy or

conceal evidence that is material to an official investigation or judicial proceeding

(e.g., shredding a document or destroying ledgers upon learning that an official

investigation has commenced or is about to commence), or attempting to do so;

however, if such conduct occurred contemporaneously with arrest (e.g., attempting to

swallow or throw away a controlled substance), it shall not, standing alone, be

sufficient to warrant an adjustment for obstruction unless it resulted in a material

hindrance to the official investigation or prosecution of the instant offense or the

sentencing of the offender; 

(E) escaping or attempting to escape from custody before trial or sentencing; or willfully

failing to appear, as ordered, for a judicial proceeding; 

(F) providing materially false information to a judge or magistrate judge; 

(G) providing a materially false statement to a law enforcement officer that significantly

obstructed or impeded the official investigation or prosecution of the instant offense;

(H) providing materially false information to a probation officer in respect to a

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presentence or other investigation for the court;

(I) other conduct prohibited by obstruction of justice provisions under Title 18, United

States Code (e.g., 18 U.S.C. §§ 1510, 1511);

(J) failing to comply with a restraining order or injunction issued pursuant to 21 U.S.C.

§ 853(e) or with an order to repatriate property issued pursuant to 21 U.S.C. §

853(p);

(K) threatening the victim of the offense in an attempt to prevent the victim from

reporting the conduct constituting the offense of conviction.

This adjustment also applies to any other obstructive conduct in respect to the official

investigation, prosecution, or sentencing of the instant offense where there is a separate count

of conviction for such conduct.

5. Examples of Conduct Ordinarily Not Covered.—Some types of conduct ordinarily do not

warrant application of this adjustment but may warrant a greater sentence within the

otherwise applicable guideline range or affect the determination of whether other guideline

adjustments apply (e.g., §3E1.1 (Acceptance of Responsibility)). However, if the defendant is

convicted of a separate count for such conduct, this adjustment will apply and increase the

offense level for the underlying offense (i.e., the offense with respect to which the obstructive

conduct occurred). See Application Note 8, below. 

The following is a non-exhaustive list of examples of the types of conduct to which this

application note applies:

(A) providing a false name or identification document at arrest, except where such

conduct actually resulted in a significant hindrance to the investigation or

prosecution of the instant offense;

(B) making false statements, not under oath, to law enforcement officers, unless

Application Note 4(G) above applies;

(C) providing incomplete or misleading information, not amounting to a material

falsehood, in respect to a presentence investigation;

(D) avoiding or fleeing from arrest (see, however, §3C1.2 (Reckless Endangerment

During Flight));

(E) lying to a probation or pretrial services officer about defendant’s drug use while on

pre-trial release, although such conduct may be a factor in determining whether to

reduce the defendant’s sentence under §3E1.1 (Acceptance of Responsibility).

6. "Material" Evidence Defined.—"Material" evidence, fact, statement, or information, as used

in this section, means evidence, fact, statement, or information that, if believed, would tend to

influence or affect the issue under determination.

7. Inapplicability of Adjustment in Certain Circumstances.—If the defendant is convicted of an

offense covered by §2J1.1 (Contempt), §2J1.2 (Obstruction of Justice), §2J1.3 (Perjury or

Subornation of Perjury; Bribery of Witness), §2J1.5 (Failure to Appear by Material Witness),

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§2J1.6 (Failure to Appear by Defendant), §2J1.9 (Payment to Witness), §2X3.1 (Accessory

After the Fact), or §2X4.1 (Misprision of Felony), this adjustment is not to be applied to the

offense level for that offense except if a significant further obstruction occurred during the

investigation, prosecution, or sentencing of the obstruction offense itself (e.g., if the defendant

threatened a witness during the course of the prosecution for the obstruction offense).

Similarly, if the defendant receives an enhancement under §2D1.1(b)(14)(D), do not apply

this adjustment.

8. Grouping Under §3D1.2(c).—If the defendant is convicted both of an obstruction offense

(e.g., 18 U.S.C. § 3146 (Penalty for failure to appear); 18 U.S.C. § 1621 (Perjury generally))

and an underlying offense (the offense with respect to which the obstructive conduct

occurred), the count for the obstruction offense will be grouped with the count for the

underlying offense under subsection (c) of §3D1.2 (Groups of Closely Related Counts). The

offense level for that group of closely related counts will be the offense level for the

underlying offense increased by the 2-level adjustment specified by this section, or the offense

level for the obstruction offense, whichever is greater.

9. Accountability for §1B1.3(a)(1)(A) Conduct.—Under this section, the defendant is

accountable for the defendant’s own conduct and for conduct that the defendant aided or

abetted, counseled, commanded, induced, procured, or willfully caused.

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