Report to the Congress:

MDMA DRUG OFFENSES

Explanation of Recent Guideline Amendments

(as directed by section 3663(e) of the Ecstasy Anti-Proliferation Act of 2000, 

Public Law 106–310)

UNITED STATES SENTENCING COMMISSION

May 2001
Page 2

I. INTRODUCTION

A. Purpose of the Report

This report is submitted pursuant to section 3663(e) of the Ecstasy Anti-Proliferation Act

of 2000, Pub. L. No. 106–310 (the “Act”), which requires the United States Sentencing

Commission (the “Commission”) to:

1. prepare a report within sixty days of promulgating an amendment describing the

factors and information considered by the Commission in promulgating amendments

pursuant to this section; and

2. submit the report to (A) the Committee on the Judiciary, the Committee on Health,

Education, Labor, and Pensions, and the Committee on Appropriations of the

Senate; and (B) the Committee on the Judiciary, the Committee on Commerce, and

the Committee on Appropriations of the House of Representatives.

B. Statutory Directive

Section 3663(a) of the Act directed the Commission, pursuant to emergency authority under

section 3664 of the Act and the Commission’s authority under section 994(p) of title 28, United

States Code, to amend the Federal sentencing guidelines regarding any offense relating to the

manufacture, importation, or exportation of, or trafficking in 

(1) 3,4–methylenedioxymethamphetamine;

(2) 3,4–methylenedioxy amphetamine;

(3) 3,4–methylenedioxy-N-ethylamphetamine;

(4) paramethoxymethamphetamine (PMA); or

(5) any other controlled substance, as determined by the Commission in consultation

with the Attorney General, that is marketed as Ecstasy and that has either a

chemical structure that is substantially similar to that of

3,4–methylenedioxymethamphetamine or an effect on the central nervous system

substantially similar to or greater than that of

3,4–methylenedioxymethamphetamine,

including an attempt or conspiracy to commit such offenses, in violation of the Controlled

Substances Act (21 U.S.C. 801 et. seq.), the Controlled Substances Import and Export Act (21

U.S.C. 951 et. seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. 1901 et. seq.).

Section 3663(b) of the Act, setting forth the general requirements, directed the Commission

to (1) review and amend the Federal sentencing guidelines to provide for increased penalties such

that those penalties reflect the seriousness of these offenses and the need to deter them; and (2) take

any other action the Commission considered necessary for carrying out this section. The Act also

required the Commission to consider a number of factors:
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(1) the need for aggressive law enforcement action with respect to offenses involving the

controlled substances described in subsection (a); and

(2) the dangers associated with unlawful activity involving such substances, including – 

(A) the rapidly growing incidence of abuse of the controlled substances described

in subsection (a) and the threat to public safety that such abuse poses;

(B) the recent increase in the illegal importation of the controlled substances

described in subsection (a);

(C) the young age at which children are beginning to use the controlled substances

described in subsection (a);

(D) the fact that the controlled substances described in subsection (a) are frequently

marketed to youth;

(E) the large number of doses per gram of the controlled substances described in

subsection (s); and

(F) any other factor that the Commission determines to be appropriate.

C. Organization of the Report

Part II of this report provides a brief explanation of the guideline amendments promulgated

pursuant to the Act. The estimated impact of the amendments is discussed in Part III. Part IV

examines characteristics of MDMA including a brief history of the drug and associated health

hazards. Part V addresses the additional factors the Act directed the Commission to consider

when establishing the appropriate revised penalty for MDMA trafficking offenses. Part VI

provides concluding remarks.

II. EXPLANATION OF GUIDELINE AMENDMENTS PROMULGATED FOR DRUG

OFFENSES

A. Commission Decision-Making Process

The Commission looked to a number of sources to help inform its decision-making process as to

what should be the appropriate penalties for MDMA trafficking. Immediately upon enactment of

the Act, the Commission began reviewing the available scientific and popular literature on

MDMA, engaging the Department of Justice through its ex officio Commissioner and his staff, and

soliciting the input of interested agencies. The Commission invited representatives of the Drug

Enforcement Agency to describe to the Commission the trafficking pattern of MDMA and the

challenges faced by law enforcement. The Commission also invited representatives of the
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National Institute on Drug Abuse (NIDA) to describe the pharmacological effects and health

hazards associated with MDMA abuse.

The Commission also went to great lengths to solicit and properly consider public input. 

The Commission promulgated a temporary amendment pursuant to a special statutory grant of

emergency amendment authority, which exempts the agency from its usual notice and comment

requirements for purposes of the temporary amendment (although not for the subsequent permanent

amendment). Nevertheless, because the Commission values public input, the Commission

traditionally attempts to solicit public comment, even when not required to do so. Accordingly,

the Commission published a preliminary proposal with issues for comment in the Federal Register

on January 26, 2001. This preliminary proposal would have set the penalties for MDMA

trafficking equal to the penalties for heroin trafficking.

The Commission also agreed to a last minute request from the public, specifically the

National Association for Criminal Defense Lawyers, to delay voting on the emergency amendment

until after the Commission’s annual public hearing on March 19, 2001. At the public hearing, the

Commission heard testimony about MDMA from eight experts representing two-thirds of the total

number of witnesses at the hearing. This testimony was supplemented by a large number of written

submissions.

In response to the Commission’s outreach, the agency received literally hundreds of letters,

e-mails, and other written submissions that we considered from a diverse array of constituents,

including clinicians, physicians, psychologists, academic researchers, users, defense attorneys,

and other interest groups, in addition to the organizations and agencies that usually comment on

proposed guidelines, such as the Department of Justice and the Federal Public and Community

Defenders. In fact, the volume of public comment received on the proposed changes to the

guidelines for MDMA trafficking far exceeds that for any issue this Commission has addressed

since taking office in November 1999.

B. Emergency, Temporary Amendment

On March 20, 2001, pursuant to emergency amendment authority under section 3664 of the

Act, the Commission in a 7-0 vote, promulgated a temporary sentencing guideline amendment to

increase penalties for the manufacture, importation, exportation, or trafficking of MDMA. The

emergency amendment to USSG §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or

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

addressed the directive by amending the Drug Equivalency Tables in USSG §2D1.1, Application

Note 10, to increase the marijuana equivalencies for the specified controlled substances. This

action effectively increased substantially the penalties for offenses involving MDMA. The

Commission specified an effective date of May 1, 2001, for this amendment. 

After considering all of the input received from representatives of law enforcement, the

defense bar, academia, and private citizens, the Commission decided against promulgating the

published proposal to equate the penalties for MDMA trafficking with the penalties for heroin

trafficking. Instead, the Commission voted for a penalty structure that is, gram for gram, somewhat
1

In order to set penalties in cases involving multiple drugs with differing penalty levels, the Commission established the

concept of “marijuana equivalency.” The marijuana penalties are used as a common standard to which all other drugs are related

mathematically. For example, the five-year penalty for marijuana begins at 100,000 grams. The corresponding five-year penalty

for powder cocaine is 500 grams. The “marijuana equivalency” for powder cocaine is: one gram of powder cocaine equals 200

grams of marijuana. In the powder cocaine example, the 500 grams is multiplied by 200 for a result of 100,000 grams (identical

to the five-year marijuana quantity). This value (100,000 grams) can then be used to establish the penalty in the Drug Quantity

Table in USSG §2D1.1.

For example, a case involves 600 grams of powder cocaine and 300 grams of heroin. The marijuana equivalency for

powder cocaine is one gram = 200 grams marijuana. The equivalency for heroin is one gram heroin = 1,000 grams marijuana

(heroin penalties are more severe than penalties for powder cocaine, therefore, the marijuana equivalency for heroin is greater). 

The quantity for each drug, as presented, would result in an offense level of 26. However, combining the drugs using the

“marijuana equivalency” results in an equivalency score of 120,000 grams for the cocaine, 300,000 grams for the heroin, and a

total marijuana equivalency of 420,000 grams of marijuana.. This “marijuana equivalency” quantity raises the offense level to 28.

Page 5

more severe than for powder cocaine, but less severe than for heroin. Under the Drug Equivalency

Tables, one gram of powder cocaine has a marijuana equivalency of 200 grams and one gram of

heroin has a marijuana equivalency of 1000 grams. Under the emergency amendment, one gram of

MDMA has a marijuana equivalency of 500 grams.1

The Commission did not equate the penalties for MDMA trafficking to the penalties for

heroin trafficking because (1) there are many more heroin cases in the federal system than MDMA

cases, (2) heroin is more addictive than MDMA, (3) heroin has many more emergency room visits

and deaths associated with its use than MDMA because, unlike MDMA which generally is taken

orally, heroin is injected, (4) heroin has more violence associated with both its users and

distribution system than MDMA, in part because MDMA users typically do not resort to violence

to support their drug use, and (5) heroin causes greater secondary health effects, such as the spread

of HIV and hepatitis, because it is injected. The Commission chose a greater penalty structure for

MDMA trafficking than for powder cocaine trafficking because (1) unlike MDMA, powder

cocaine is not neurotoxic, (2) powder cocaine is not aggressively marketed to youth in the same

manner as MDMA, and (3) powder cocaine is only a stimulant, but MDMA acts as both a

stimulant and a hallucinogen.

The Commission believes a marijuana equivalency of 500 grams reflects the unique

pharmacological and physiological harms of ecstasy, the fact that the drug is aggressively marketed

to and used by our youth, and its importation and trafficking pattern.

C. Permanent Amendment 

On April 6, 2001, the Commission repromulgated as a permanent amendment, without

change, the emergency, temporary amendment that increased penalties for the manufacture,

importation, exportation, or trafficking of MDMA. There were a combination of reasons

supporting the Commission’s decision to substantially increase the penalties in response to the

congressional directive. Much of the evidence received by the Commission indicated that MDMA

has powerful pharmacological effects, the capacity to cause lasting physical harm, including brain

damage, and is being abused by increasing numbers of teenagers and young adults.
2For comparison purposes, the marijuana equivalency of methamphetamine mixture is 2,000 grams; heroin is 1,000

grams; cocaine is 200 grams; and mescaline is 10 grams. 

Page 6

Additionally, based on information regarding MDMA trafficking patterns, the penalty

levels chosen appropriately and sufficiently target serious and high-level traffickers by providing

appropriate punishment, deterrence, and incentives for cooperation. The penalty levels chosen for

MDMA offenses provide five-year sentences for serious traffickers – local distributors – (those

whose offense conduct involved approximately 800 pills) and ten-year sentences for high-level

traffickers – importers, upper- and middle-level distributors – (those whose offense conduct

involved approximately 8,000 pills). This permanent amendment was submitted to Congress and

will be effective on November 1, 2001, unless it is disapproved by Congress.

III. ESTIMATED IMPACT OF THE AMENDMENT

As explained supra, MDMA penalties under the sentencing guidelines are determined by

using the Drug Equivalency Tables in USSG §2D1.1. Prior to the emergency amendment, one gram

of MDMA was equivalent to 35 grams of marijuana.2 The amendment unanimously approved by

the Commission increased the marijuana equivalency penalty for one gram of MDMA to 500

grams.

To estimate the amendment’s impact with respect to sentences imposed and in turn, the

impact over time of more stringent sentences on the prison system, the Commission “re-sentenced”

those offenders sentenced under USSG §2D1.1 in fiscal year 2000 for trafficking in MDMA. 

According to the Commission’s prison impact model, the amendment will increase sentences for

the 169 FY2000 MDMA trafficking offenders 115 percent, from an average of 34 months

imprisonment to 73 months imprisonment. Based on this more than doubling of average sentence

length, the prison impact model estimates that a total of 372 prison beds will be required ten years

after implementation, with 270 prison beds required within five years. 

The Commission’s prison impact model likely understates the actual impact of the

amendment because the estimates solely reflect increases to sentences of an assumed constant

number of convicted offenders. In other words, no changes in law enforcement activity or

prevalence of use were factored into the impact analysis. 

IV. MDMA CHARACTERISTICS

A. Background

The German company E. Merck received a patent for the drug MDMA (3,4-

methylenedioxymethamphetamine) in 1914 as an aid in the development of other therapeutic
3

John Cloud, Ecstasy/Happiness is...a pill?/The Science, TIME, June 5, 2000, at 62, 66.

4Grob, Charles S., Deconstructing Ecstasy: The Politics of MDMA Research, 8 ADDICTION RESEARCH

549-583 (2000).

5Ethan Brown, Ecstasy: It’s not just for club kids anymore, NEW YORK, July 24, 2000, at 24, 26.

6Grob, supra note 4.

7National Institute on Drug Abuse (NIDA), National Institute of Health (NIH), NIDA Notes, Facts About MDMA

(Ecstasy), Pub. No. 99-3478, (November 1999) at 15.

8

Id. 

9

http://www.erowid.org/chemicals/mdma/mdma_effects.shtml. This site has generally favorable attitudes

toward substance use and provides information, with a mix of science, pseudo-science, and lore, on pharmacology, routes of

administration, dosages, and effects of use on a wide range of illicit intoxicants.

Page 7

agents.3 By the late 1970s, the drug’s potential for use in mental health treatment had been

recognized by some professionals and its recreational properties recognized by the youth culture.4

During this period, possession and use of the drug was legal, and it was not until 1985 that the

Drug Enforcement Administration (DEA) classified MDMA as a Schedule I drug “subject to

criminal penalties similar to those for cocaine and heroin.”5 The Schedule I status was achieved

when the Director of DEA overruled the finding of a DEA administrative law judge who had

placed the drug in Schedule III.6 

This drug generally is found in pill form, each of which weighs approximately 250-300 mg,

with MDMA accounting for approximately 75 to 125 mg of this weight. It has a chemical structure

similar to methamphetamine and the hallucinogen mescaline.7 Users of the drug report an enhanced

sense of pleasure and self-confidence, increased energy, feelings of peacefulness, acceptance,

empathy, closeness with others, and a desire to be touched.8 MDMA also causes increased heart

rate and blood pressure, restlessness, jaw clenching, changes in body temperature regulation,

increased body temperature, muscle tension, next day hangover, and a strong urge to repeat use

(although MDMA is not physically addictive).9

B. Health Hazards

A significant amount of research has been conducted on the patterns and consequences of 

MDMA use with much, although not all, of the research finding a range of physical and emotional

hazards associated with its use. In addition to the effects mentioned earlier, the National Institute

on Drug Abuse (NIDA) reports, in a brief summary of some of this work, that physical “problems

are similar to those experienced by amphetamine and cocaine users . . . [and] can include muscle

tension, involuntary teeth clenching, nausea, blurred vision, faintness, and chills or sweating.” 

Unwanted psychological effects include “confusion, depression, sleep problems, anxiety, and

paranoia during, and sometimes weeks after, taking the drug.” Fatalities associated with MDMA

use are generally associated with dehydration, hyperthermia, and heart or kidney failure arising
10NIDA, supra note 7.

11K. M. Hegadoren et al, 3,4-Methylenedioxy analogues of amphetamine: Defining the risks to humans,

23 NEUROSCIENCE AND BIOBEHAVIORAL REVIEWS 539-553, 540 (1999).

12Serotonin syndrome, a toxic hyperserotonic state, is a drug-related condition associated with the use of serotonin

releasing drugs and pharmaceuticals. A variety of symptoms are experienced in several organ structures including cardiovascular,

gastrointestinal, and motor, and can include changes in mental status (including confusion, agitation, and coma). Steve Nolan and

J. Allen Scoggin, Serotonin Syndrome: Recognition and Management, 23 U.S. PHARMACIST 87-94 (February

1998). http://www.uspharmacist.com/NewLook/DisplayArticle.cfm?item_num=94. 

13Hegadoren, supra note 11, at 543; Demirkian, Jankovic, and Dean describe a case study of a 19-year-old college

student who, after ingesting a single dose of MDMA, presented to a health center with clinical features similar to serotonin

syndrome. Meltem Demirkian et al, Ecstasy Intoxication: An Overlap Between Serotonin Syndrome and

Neuroleptic Malignant Syndrome, 19 CLINICAL NEUROPHARMACOLOGY, 157-164, 157 (1996).

14See, e.g., written statement of James P. O’Callaghan, PhD, Head, MOLECULAR NEUROTOXICOLOGY

LABORATORY, TOXICOLOGY AND MOLECULAR BIOLOGY BRANCH, THE CENTERS FOR DISEASE

CONTROL AND PREVENTION, Defining Neurotoxicity: Lessons from MDMA and Other Amphetamines,

submitted to the U. S. Sentencing Commission on March 21, 2001; O’Callaghan reported the absence of certain chemical

markers indicative of neurotoxicity. This finding along with other information indicates to the author that the research supporting

toxicity has not definitively demonstrated MDMA neurotoxicity.

15George Ricaurte, M.D. and colleagues have performed numerous studies of the toxic effects of MDMA use on

animals and humans. Their work was severely criticized by several medical/research professionals who publically commented to

the Commission during its review of the MDMA penalties. However, as was noted by at least one critic, Dr. Ricaurte’s work has

appeared in peer-reviewed scientific journals of excellent reputation. The method of peer review and dissemination lends

credence to this work. 

Page 8

from the disruption in the body’s ability to thermally regulate itself and the frequent use of the drug

in dance club settings in which the user dances for an extended period of time in hot and crowded

conditions.10 Dysphoric aftereffects linked to MDMA include general fatigue, difficulty

concentrating, depression, anxiety, irritability, and muscle aches.11

Of great concern are the effects of MDMA on serotonin sites within the brain. Serotonin is

a neurotransmitter in the brain that is important in memory and other functions. Chronic effects

reported from the use of MDMA have centered largely on the depletion of serotonin levels and

toxicity to serotonin neurons. A comprehensive review of the scientific literature reports findings

from multiple scientific studies describing symptoms of acute toxicity from MDMA use, including

mental status changes, hyperthermia, and other symptoms associated with serotonin syndrome.

12

These authors express concern that neither the amount of drug ingested nor the number of prior uses

successfully predict the severity of the symptoms or their clinical course.13 

The potential toxicity to serotonin neurons, however, has been the subject of some

disagreement.14 A leading researcher in MDMA toxicity studies, and the focus of some of the

controversy, has performed numerous studies on both animals and humans.15 Most recently, this

researcher reports that MDMA use results in lasting deficiencies in that portion of the serotonin
16George Ricaurte et al, (+ -) 3,4-methylenedioxymethamphetamine (‘Ecstasy’)-induced neurotoxicity:

studies in animals, 42 NEUROPSYCHOBIOLOGY 5-10 (2000). Regarding the risk of toxicity in humans, they write that

“unless some, as yet unidentified, factor renders humans uniquely insensitive to the toxic effects of MDMA, species differences are

not likely to be associated with protection from MDMA-induced brain 5-HT injury” (p. 8). 5-HT refers to 5-hydroxyindoleacetic

acid, a metabolite of brain serotonin. Metabolites are commonly used to measure biological activity involving the primary

substance from which it is derived. See also, D.L. Commins et al, Biochemical and histological evidence that

methylenedioxemethamphetamine (MDMA) is toxic to nuerons in the rat brain, 241 JOURNAL OF

PHARMACOLOGY AND EXPERIMENTAL THERAPEUTICS 338-345 (1987).

17Ricaurte, id. at 8. The “Principles of Interspecies Scaling” explain that different dosage levels between species

leading to toxicity is accounted for by known relationships between different body mass/surfaces and differences in their rates of

drug elimination from the body. These principals permit prediction of dosage levels between species based on these known

relationships. 

18Robert Mathias, NIDA Notes, “Ecstasy” Damages the Brain and Impairs Memory in Humans, Pub. No.

99-3478, (November 1999) at 10-11.

19Ricuarte, supra note 16; his review also cites several animal studies demonstrating axon (nerve ending) loss in

serotonin nerve cells due to MDMA exposure. 

20Mathias, NIDA Notes, supra note 18, at 11.

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nerve cell known as the axon – a consistent finding in all nonhuman species tested. Based on

these data, it is argued that MDMA related toxicity found across species provides support for a

toxicity risk in human users.16 This research team also provides a predictive model demonstrating

that dosage levels producing serotonin toxicity in animal studies are clearly within the range of

consumption reported by humans.17

The following summary, taken from an issue of NIDA Notes,

18 reports on recent research

involving positron emission tomography (PET) brain scans of 14 MDMA users. The brain scan

comparison of MDMA users with non-users indicated that users had a significantly reduced

number of serotonin transporters throughout the brain and that the magnitude of the loss was

associated with greater use of the drug. NIDA also reported findings from a study using an

MDMA-exposed baboon who demonstrated PET scan findings similar to those reported for human

MDMA users. Upon autopsy, the baboon demonstrated actual loss of serotonin nerve endings.19

Some have suggested that the brain’s elasticity and redundancy may mean that any

neurotoxicity caused by the drug may not be meaningful. Recognizing this, the researchers

compared the performance of human users with non-users on standardized memory tests. Users

demonstrated “significant impairments in visual and verbal memory.”20 These deficits were also

dose related; that is, greater impairment was associated with greater use. In a separate study of

human cognition after MDMA use, researchers in Germany investigated performance on a broad

series of memory and mental functioning tests comparing abstinent MDMA users with marijuana

users and non-users. They reported that, although all three groups performed within the normal

range, MDMA users performed more poorly than one or both comparison groups on certain

complex tests of attention. They concluded that MDMA use may impair a subsystem termed
21Euphrosyne Gouzoulis-Mayfrank et al, Impaired cognitive performance in drug free users of recreational

ecstasy (MDMA), 68 JOURNAL OF NEUROLOGY, NEUROSURGERY, PSYCHIATRY 719-725, 724 (2000). 

22George Battaglia et al, NIDA, MDMA-Induced Neurotoxicity: Parameters of Degeneration and

Recovery of Brain Serotonin Neurons, 29 PHARMACOLOGY, BIOCHEMISTRY, & BEHAVIOR 269-274, 269

(1988).

23G. Hatzidimitriou et al, Altered serotonin innervation patterns in the forebrain of monkeys treated with

(+/-)3,4 methylenedioxymethamphetamine seven years previously: factors influencing abnormal recovery. 191

JOURNAL OF NEUROSCIENCE 5096-5107 (1999). 

24Jerry Seper, Threat of ‘Ecstasy’ Reaching Cocaine, Heroin Proportions, THE WASHINGTON TIMES,

August 16, 2000, at A3. 

25Chitra Ragavan, Cracking Down on Ecstasy, U.S. NEWS & WORLD REPORT, February 5, 2001, at 14. 

26Del Quentin Wilber, Club drug becomes suburban sensation, BALTIMORE SUN, August 25, 2000, at A9. 

Page 10

“working memory,” and that this form of disturbance is “likely related to the well-recognized

neurotoxic potential of ecstasy.”21

Another point of controversy surrounding the MDMA research literature is whether loss of

these serotonin sites, and the corresponding impairment, is permanent. Complete neuronal

regeneration in rats 12 months after exposure to MDMA has been reported.22 However, a study

involving squirrel monkeys found that some damage to serotonin sites persisted at least seven

years after exposure to the drug.23 

V. ADDITIONAL REQUIREMENTS

In section 3663(c) of the Act, the Commission was directed to ensure that the Federal

sentencing guidelines for MDMA drug offenses reflected the need for aggressive law enforcement

and the dangers associated with the unlawful activity involving MDMA offenses. Specifically,

these dangers included:

(A)(i) the rapidly growing incidence of abuse of the controlled substances

MDMA is estimated to be the fastest growing abused drug in the United States. According

to the National Drug Intelligence Center (NDIC), a Department of Justice agency responsible for

collecting strategic domestic drug counterintelligence information, the production, availability, and

use of MDMA has increased at an alarming rate, making its potential threat equal to that of cocaine

and heroin.24 According to a University of Michigan survey conducted last year, 1.3 million of the

nation’s high school students have experimented with MDMA at least once, and 450,000 students

admit to current use.25 The steady supply of MDMA has made it much easier for the drug to move

beyond the club scene.26 Thus, while MDMA has been widespread in dance clubs and at “rave”

parties nationally, it also has been reported in other social settings, such as school areas and
27CEWG, NIH, NIDA, Epidemiologic Trends in Drug Abuse, I Proceedings of the Community Epidemiology

Working Group 76, June 2000. CEWG, sponsored by the National Institute on Drug Abuse, is tasked with monitoring trends in

drug use by combining data reported by various sources and anecdotal findings in selected U.S. cities. 

28OFFICE OF APPLIED STUDIES, SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES

ADMINISTRATION (SAMHSA), Club Drugs, The DAWN (Drug Abuse Warning Network) Report (December 2000) at 2. 

www.SAMHSA.GOV/OAS/DAWN/CLUBDRUG.HTM.

29CEWG, supra note 27, at 76,75.

30Id. at 75.

31Brown, supra note 5, at 30.

Page 11

shopping malls.27 

Consistent with this increase in prevalence, the number of federal MDMA trafficking cases

has risen dramatically in a short period. The number of federal convictions for ecstasy trafficking

reached 169 during fiscal year 2000, its highest level. Although ecstasy offenses still account for a

very small proportion of federal drug trafficking defendants sentenced in federal court –

approximately .05 percent of all federal drug trafficking cases – the rate of increase in ecstasy

offenses is substantial. The 2000 figure represents a 48 percent increase above the 1999 figure of

114 cases, and a dramatic 745 percent increase above the 1998 figure of 20 cases.

(A)(ii) the threat to public safety that such abuse poses

The most immediate threat involves harm to the user. As described supra in Part IV B,

users expose themselves to potential neuronal death of serotonin cells and impairment in thinking

and memory. Additionally, use of the drug has required emergency medical care and has

contributed to death in a small number of cases.

Nationally, MDMA-related hospital emergency department visits have skyrocketed in

recent years, increasing more than ten-fold, from 250 in 1994 to 2,850 in 1999.28 MDMA-related

calls to poison control centers have also recently increased in several Community Epidemiology

Work Group areas. In 1999 and 2000, nine deaths related to MDMA use were recorded in CEWG

areas.29 Deaths occurred in: Detroit/Wayne County (2); Miami (1); Philadelphia (3);

Minneapolis/St. Paul (1); and Chicago (2).30 Although increasing, emergency room admissions

and deaths attributed to use of these substances continue to be less frequent than with other drugs of

abuse. Instead, a more common experience is “Suicide Tuesday,” a brief, but deep depression

occurring after use.31

The threat to public safety may extend beyond deleterious consequences to the user. The

significant increases in the availability of MDMA, prevalence of use, and seizures by law

enforcement, may be a prelude to the experience in Great Britain during the 1990s. Charles S.
32Grob, supra note 4, at 555.

33The Threat Posed by the Illegal Importation, Trafficking, and Use of Ecstasy and Other “Club

Drugs”: Hearing Before the House Subcomm. on Crime of the Committee on the Judiciary, 106th Cong. (June 15,

2000) (statement of Lewis Rice, Jr., Special Agent in Charge of the New York Field Office).

http://www.usdoj.gov/dea/pubs/cngrtest/ct061500.html.

34Statement of Chuck Winwood, Acting Commissioner of U.S. Customs, before the U.S. Senate Caucus on

International Narcotics Control regarding America at Risk: The Ecstasy Threat, March 21, 2001, at 4. 

35Ecstasy seizures suggest drug’s flow becoming epidemic, CNN, U.S. NEWS & WORLD REPORT, April

3, 2000, at 2,1. http://www.cnn.com/2000/US/04/03/designer.drug.deluge.ap/index.html

36Statement by Donnie Marshall, Administrator, Drug Enforcement Administration, before the U.S. Senate Caucus on

International Narcotics Control regarding America at Risk: The Ecstasy Threat, on March 21, 2001, at 2.

37Winwood, supra note 34, at 1.

Page 12

Grob, in a comprehensive review of the history and science on MDMA, reports that prevalence of

MDMA use increased over 4,000 percent in the United Kingdom between 1990 and 1995. This

expansion and the opportunity for large profit resulted in “criminal gangs rapidly taking control of

the manufacturing and marketing of Ecstasy.”32

(B) the recent increase in the illegal importation of the controlled substances

DEA has testified that 90 percent of the world’s MDMA supply is manufactured in

clandestine laboratories in the Netherlands and Belgium. 33 Current MDMA trafficking has been

compared to cocaine trafficking in the 1980s, which grew from “ad hoc smuggling by small-time

dealers” into “organized trafficking by criminals.”34 DEA reports that Israeli and Russian

organized crime syndicates are responsible for the majority of the importation of MDMA into the

United States. The largest American gateway for MDMA shipments appears to be New York. 

Miami, Orlando, and Memphis are also considered other major entry points.35 Commission

sentencing data are consistent with this DEA finding. For the last three years, Florida has

experienced a greater number of federal ecstasy cases than any other state, with between 32

percent and 45 percent of all ecstasy cases in any given year. New York also has experienced a

large proportion of federal ecstasy trafficking cases (28 percent in fiscal year 2000).

The entry of organized crime forces into the MDMA trade in recent years has streamlined

smuggling and allowed dealers to meet growing demand. At a recent Congressional hearing, DEA

Administrator Donnie Marshall described as “alarming” the widespread growth of MDMA use

and reported that DEA seized over 3 million tablets of MDMA last year (compared to 1 million

tablets the previous year).36 At the same hearing, Acting Commissioner of the U.S. Customs

Service Chuck Winwood reported that Customs agents seized over 9 million tablets last year, an

almost three-fold increase from the 3.5 million seized in 1999 and an almost 2200 percent increase

from the approximately 400,000 seized in 1997.37 
38Marshall, supra note 36, at 5,4. 

39Chastity Pratt, Awash in Ecstasy: Club Drug from Overseas Increasingly Found in Local Schools,

NEWSDAY, January 14, 2001, A5. http://www.newsday.com.

40Trends in Lifetime Prevalence of Use of Various Drugs for Eighth, Tenth, and Twelfth Graders, 

Monitoring the Future Study 2000, THE UNIVERSITY OF MICHIGAN NEWS AND INFORMATION SERVICES, table 1. 

The Monitoring the Future study is a long-term, government-funded annual survey of students conducted by the University of

Michigan. These data are one of several barometers on self-reported drug use and attitudes toward drug use in the United States.

See also Johnston et al, National Results on Adolescent Drug Use, Overview of Key Findings, 2000, UNIVERSITY

OF MICHIGAN INSTITUTE FOR SOCIAL RESEARCH (2001).

Http://www.monitoringthefuture,org/data/00data.html#2000data-drugs.

41Lloyd Johnston et al, “Ecstasy” use rises sharply among teens in 2000; use of many other drugs steady

but significant declines are reported for some, UNIVERSITY OF MICHIGAN NEWS AND INFORMATION

SERVICES (released December 14, 2000) at 3. Http://www.monitoringthefuture.org.

42The National Household Survey on Drug Abuse (NHSDA) is an annual survey conducted by the Substance

Abuse and Mental Health Services Administration (SAMHSA). Copies of the latest survey (1999) are available from the

NATIONAL CLEARINGHOUSE FOR ALCOHOL AND DRUG INFORMATION at 1-800-729-6686, or at

Page 13

DEA Administrator Marshall anticipated that the large profit potential of MDMA would

attract other organizations based in Columbia, the Dominican Republic, Asia, and Mexico. Drug

trafficking organizations involved in MDMA distribution are brought together by the enormous

profits realized in these ventures. An MDMA pill costs $.50 to $1.00 to produce and is sold at

wholesale prices of $1.00 to $2.00. After reaching the United States, the first level of distributor

charges $6.00 to $8.00 per pill. The final retail price to the user is between $25.00 and $40.00

per pill.38 With the drug’s easy manufacture, relatively benign reputation, and huge markup, the

MDMA business has even proved irresistible to many not otherwise involved in drugs.39

Information on the age of drug traffickers collected by the Commission indicates that ecstasy

traffickers generally are younger than traffickers of other major drugs. Over one-third of the

federal offenders sentenced for ecstasy trafficking in fiscal year 2000 were between the ages of 21

and 25 years. The average age was 27 years. By comparison, the average age for federal

offenders sentenced for trafficking heroin and methamphetamine was 33 years. 

(C) the young age at which children are beginning to use the controlled substances

 Despite recent modest decreases in substance use rates, a substantial proportion of school

children have taken an illegal drug.40 During this period, sharp increases in MDMA use among all

grade levels, as well as young adults in their early 20s, has been noted.41 This finding of

increasing MDMA use, and the additional finding of increasing availability, has been consistently

reported by multiple sources following drug-taking behavior in the United States.

The National Household Survey on Drug Abuse (NHSDA) reports yearly on the nature and

extent of drug use by the American household population aged 12 and older.42 The 1998 survey,
www.samhsa.gov.

43Id. 1998.

44National Survey of American Attitudes on Substance Abuse VI: Teens, THE NATIONAL CENTER ON

ADDICTION AND SUBSTANCE ABUSE, Columbia University, The Robert Wood Johnson Foundation and SAMHSA

(sponsors), (February 2001).

45Trends in Annual Use of Illegal Drugs for 8th, 10th, and 12th Graders, Monitoring the Future Study

2000, THE UNIVERSITY OF MICHIGAN NEWS AND INFORMATION SERVICES (released December 14, 2000) at 3.

 See also Johnston et al, National Results on Adolescent Drug Use, Overview of Key Findings, 2000,

UNIVERSITY OF MICHIGAN INSTITUTE FOR SOCIAL RESEARCH (2001). www.monitoringthefuture.org. 

46Partnership Attitude Tracking Study, Spring 2000, Teens in Grades 7 through 12, PARTNERSHIP

FOR A DRUG-FREE AMERICA (released November 27, 2000) at 11; also see Partnership Attitude Tracking Study,

Teen Study 2000, Summary of Key Findings by Drug, at 2.

Page 14

the latest for data relating to MDMA use, found that an estimated 3.4 million Americans (1.5

percent) had used MDMA at least once during their lifetime, with the heaviest use (5 percent or

1.4 million people) occurring among 18 to 25 year olds.43 

The National Center on Addiction and Substance Abuse at Columbia University recently

conducted a national survey of teen attitudes toward substance abuse.44 They report that over a

quarter of American teens (28%) know a friend or classmate who has used MDMA, with 17

percent knowing more than one user. 

The studies by the University of Michigan Institute for Social Research found that the

popularity of MDMA is growing in each of the middle school and high school grades surveyed. 

Between 1999 and 2000, rates of MDMA use increased for eighth graders from 1.7 percent to 3.1

percent. Among tenth graders, MDMA use rose from 4.4 percent to 5.4 percent, and among twelfth

graders, from 5.6 percent to 8.2 percent.45 

The Partnership for a Drug Free America released findings from their national study 

reporting that teenage MDMA use has doubled since 1995 to 10.0 percent of teens. They also

discovered that 32 percent of teens reported having close friends who had used the drug (up from

26% in 1999 and 24% in 1998). Having close friends who use intoxicants historically has been

correlated with increased risk of drug use. The Partnership concludes that “because an increasing

number of adolescents are embracing Ecstasy, trial use of Ecstasy is now on par with teen trial

usage rates of cocaine, crack, and LSD.” With the recent increases taken into consideration, more

teens in the United States have experimented with Ecstasy than heroin.46

(D) the fact that the controlled substances are frequently marketed to youth

It was the sense of Congress that “‘Ecstasy’ traffickers are targeting the Nation’s youth and

the use of Ecstasy among youth in the United States is increasing even as other drug use among this
47Ecstasy Anti-Proliferation Act of 2000 Section 3663 (d)(2).

48Trends in Annual Use of Illegal Drugs for 8th, 10th, and 12th Graders, supra note 45, at 1.

49Statement by George J. Cazanevette, III, Special Agent in Charge, New Orleans Field Division, DEA, before the

Subcommittee on Criminal Justice, Drug Policy and Human Resources on May 30, 2000, at 3.

50Id. at 4.

51Johnston et al, supra note 41, at 5.

52Pratt, supra note 39.

53Cazanevette, supra note 49, at 3.

54Pratt, supra note 39.

55CEWG, supra note 27, at 79.

Page 15

population appears to be leveling off.”47 The appeal of MDMA to the youth in America may result

from its easy availability, perceived low risk of harm, reputation as a “feel good” drug, and its

“brand name” identification. 

There has been a dramatic increase in the perceived availability of MDMA in recent

years.48 “Club” and “Designer” drugs have become such an integral part of the “rave circuit” that

there no longer appears to be an attempt to conceal their use; instead, drugs are sold and used

openly at these parties.49 Additionally, the distributors and their “runners” are generally in their

teens because they are less likely to be suspected of drug trafficking and are subject to limited

prosecution because of their age.50 While in 1989 only 22 percent of twelfth graders said they

could get the drug fairly or very easily, that proportion rose to 40 percent by 1999, jumping

sharply again in 2000 to 51 percent.51 

Many adolescents, rarely hearing reports of deaths or serious overdoses from MDMA

alone, think the drug is harmless.52 Routinely, MDMA is marketed to teens as a “feel good” drug

and is widely known as the “hug drug.”53 “The young consumers of those pills know that MDMA

can make a user feel euphoric. Adolescents say they like it because it erases inhibitions. They

forget their zits, weight, self-consciousness or what others think of them. It makes a person want to

touch and be touched (hence the nickname "the hug drug”).”54 

The recent CEWG study (June, 2000) found that MDMA pills often are sold using brand

names imprinted on them that invoke successful business or wealth status. Other faddish aspects of

MDMA sales include the frequent changing of pill or capsule colors. Depending on geographic

locations, brand names such as “Mercedes-Benz,” “BMW,” “Teletubbies,” or “Smurfs” are

imprinted on the pills.55

(E) the large number of doses per gram of the controlled substances
56Pharmacology, Use, and Abuse of Ecstasy, statement by David V. Gauvin, DEA, before the U. S. Sentencing

Commission, regarding proposed Ecstasy amendment, on March 9, 2001.

57Rice, Jr., supra note 32, at 3; Winwood, supra note 34, at 3. 

58The Procedural Legislative History of the Ecstasy legislation follows: The Ecstasy Anti-Proliferation Act of 2000 was

enacted into law on October 17, 2000, as Subtitle C of Title XXXVI of the Children’s Health Services Act, Pub. L. No. 106-

310. With respect to the House of Representatives, on September 30, 1999, Representative Cannon (R-UT) introduced H.R.

2987, the Methamphetamine Anti-Proliferation Act of 1999, which did not contain provisions related to MDMA. On May 25,

2000, Representative Biggert (R-IL) introduced H.R. 4553, the Club Drug Anti-Proliferation Act of 2000, which, among other

things, would have required the Commission to increase MDMA (and other specified drugs) penalties so that they were

comparable to the base offense levels for drug offenses involving methamphetamine mixture. On June 15, 2000, the House

Crime Subcommittee held a hearing on the threat posed by the illegal importation, trafficking, and the use of Ecstasy and other

club-type drugs. On July 25, 2000, the House Judiciary Committee marked up H.R. 2987, relating to methamphetamine. At

Page 16

Although the Commission was required to consider the large dosage amount per gram of

MDMA, the Commission found this information to be inaccurate. Rather, MDMA is generally

found in pill form weighing approximately 250-300 mg, with MDMA accounting for

approximately 75 to 125 mg of this weight.56 Assuming one pill per dose, one gram of MDMA

would produce three to four doses. 

In determining an appropriate penalty, the Commission found more important and

persuasive the fact that, because the pills are quite small, large numbers of doses can be

transported and imported at one time. DEA reports that smuggling methods include: strapping

packages of the drug onto the body – capacity of carrying 10,000 to 20,000 pills; carrying pills in

special suitcases with false bottoms – capacity of carrying 20,000 to approximately 50,000 pills;

and use of large containers – capacity of holding 100,000 to 1,000,000 pills.57

(F) any other appropriate factors

In addition to the specified congressional factors, the Commission, in its determination of

appropriate penalties for Ecstasy drug trafficking offenses, considered relevant legislative history,

public comment, offender functional roles in the distribution network, and collateral consequences.

Legislative History: Recent Congressional activity indicated Congressional concern over

the dramatic surge in the use of MDMA and other club drugs. Congressional hearings were held at

which witnesses from the Commission, law enforcement agencies, researchers, and former

MDMA users testified. Additionally, legislation was emerging from both Houses of Congress that

would have required the Commission to increase MDMA penalties so that they would be

comparable to the base offense levels for drug offenses involving methamphetamine mixture. In

response to this emerging legislation, the Commission submitted to Congress a letter (and MDMA

data analysis) expressing its shared sentiment with Congress about the disturbing trend of

increasing availability and abuse of “club drugs” such as MDMA, but expressed concern about the

degree of specificity contained in the proposed directives. Subsequently, Congress enacted and,

the President signed into law, the MDMA provision providing general guidance to the Commission

during its deliberation of appropriate MDMA trafficking penalties.58 
Committee markup, an amendment in the nature of a substitute was offered to the text of H.R. 2987. This amendment, which was

subsequently adopted, included the Ecstasy provisions from H.R. 4553. H.R. 2987, as amended, was reported out of

Committee and placed on the House Union Calendar, Calendar No. 529. With respect to the Senate, on May 23, 2000,

Senators Graham, Grassley, Thomas, Biden, and Bayh introduced S. 2612, the Ecstasy Anti-Proliferation Act of 2000, which,

among other things, would have required the Commission to increase MDMA (and other specified drugs) penalties so that they

were comparable to the base offense levels for drug offenses involving methamphetamine mixture. On July 25, 2000, the Senate

Caucus on International Narcotics Control held a hearing on underestimating the threat of Ecstasy. On September 22, 2000, the

Senate Committee on Health, Education, Labor, and Pensions was discharged from further consideration of H.R. 4365, the

Children’s Health Services Act. Senator Lott then brought this bill in the nature of a substitute to the Senate floor, which then

contained the Ecstasy provisions. The Senate passed this bill by unanimous consent. The House passed H.R. 4365, as amended

by the Senate, on the suspension calendar. President Clinton signed the Act as Public Law 106-310. 

59See letter from Barry Boss, Co-chair, Practitioner’s Advisory Group, to the U. S. Sentencing Commission,

regarding proposed Ecstasy amendment (February 5, 2001); The Threat Posed by the Illegal Importation, Trafficking,

and Use of Ecstasy and Other “Club Drugs”: Hearing Before the House Subcomm. on Crime of the Committee

on the Judiciary, 106th Cong. (June 15, 2000) (written statement of Jonathan P. Caulkins, RAND, Drug Policy Research

Center); Gary Greenberg, Doctor X, ROLLING STONE, April 26, 2001, at 53-56,69; Ragavan, supra note 24; written

statement by Jon Sands, Assistant Federal Public Defender, to the U. S. Sentencing Commission, regarding proposed Ecstasy

amendment (February 6, 2001); statement by Charles R. Schuster, F.A.S. Drug Policy Project, before the U. S. Sentencing

Commission, regarding proposed Ecstasy amendment, on March 9, 2001; letter from Doug Shytle, University of South

Florida, Department of Psychiatry & Behavioral Medicine, to U. S. Sentencing Commission, regarding proposed Ecstasy

amendment (February 4, 2001).

60CEWG, NIH, NIDA, Epidemiologic Trends in Drug Abuse Advance Report, June 2000 15, Community

Epidemiology Working Group; statement of Senator Chuck Grassley, before the U.S. Senate Caucus on International Narcotics

Control regarding America at Risk: The Ecstasy Threat, March 21, 2001, at 1; Marshall, supra note 36, at 3,4; statement

Page 17

Public Comment: The Commission received extensive public comment on the appropriate

penalty for MDMA drug trafficking offenses. The comment was in response to an earlier proposal

to equate MDMA penalties with those for heroin but also requesting comment on where on a

sliding scale of guideline punishments, from that for mescaline to those for heroin, the specific

penalties for MDMA should be established. Respondents included clinicians, physicians,

psychologists, academic researchers, users, defense attorneys, and other interest groups, in

addition to the organizations and agencies that usually comment on proposed guideline

amendments, such as the Department of Justice, and the Federal Public and Community Defenders.

In reviewing the public comment and literature, and meeting with experts, the Commission

noted that there were conflicting views about the extent of the physical and mental harm caused by

MDMA. A number of researchers, clinicians, and other interest groups held the view that MDMA

was non-addictive, did not produce violent behavior, and did not produce, in their opinions, either

short-term or long-term harm to the human body.59

Other information presented indicated, however, that MDMA use speeds the heart rate,

increases blood pressure, dilates the pupils and bronchi, stimulates the brain to increase motor

activity, causes jaw clenching and grinding of the teeth, and enhances the senses with perceptual

changes. Additionally, the use of MDMA can disrupt the body’s ability to regulate its temperature,

contributing to overheating, dehydration, hyperthermia, heart or kidney failure, and even death.60
of Donald R. Vereen, Jr., M.D., before the U.S. Senate Caucus on International Narcotics Control regarding America at Risk:

The Ecstasy Threat, March 21, 2001, at 1,2.

61Karl L. R. Jansen, Ecstasy (MDMA) dependence, 53 Drug and Alcohol Dependence 121-124 (1999).

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Some expert testimony also suggested a likelihood of brain cell and brain function impairment. 

Also, contrary to much of the public comment submitted, the Commission received information

suggesting that MDMA is used compulsively by some and may produce dysphoria when use is

discontinued.61

 

Many experts also commented that, while posing some risks to the user, MDMA was

generally less dangerous than other drugs. Dr. David Nichols, a witness for the National

Association of Criminal Defense Attorneys, spoke of the risk of stroke and cardiac arrest,

tolerance as one uses the drug, and negative aftereffects such as depression.

Trafficking Pattern/Functional Role: The sentencing guidelines for other major drugs of

abuse – as well as statutory mandatory minimum penalties set by Congress – generally attempt to

distinguish between high level “kingpin” distributors and low level, local distributors. The

penalties for drug trafficking generally are structured so that “major traffickers” (traffickers

responsible for manufacturing or delivering large quantities) receive ten-year sentences, and

“serious traffickers” (managers of retail level traffic and those involved in substantial street

quantities) receive five-year sentences. 

DEA representatives describe the relationship between number of pills handled (at a single

point in time) and functional role in the distribution network as that listed in the table below:

Importers 50,000 to 100,000 pills

Upper- and middle-level distributors 5,000 to 10,000 pills

Local distributors 500 to 1,000 pills

Hand-to-hand dealers at a rave 50 to 100 pills

 This information suggested that the guideline sentences for offenders with 500 to 1,000 pills – the

local distributors – should be approximately five years, and the guideline sentences for offenders

with 5,000 to 10,000 pills – the upper and middle level distributors – should be approximately ten

years. As explained supra in Part II C, the penalty levels ultimately selected by the Commission

are consistent with this trafficking structure.

Collateral Consequences: In determining the appropriate penalty structure for any drug, the

Commission also weighs the collateral consequences associated with the drug’s use and

distribution, such as violence and environmental harm. The Commission has not discovered
62Donna Leinwand, Ecstasy drug trade turns violent, USA TODAY, May 16, 2001, at A1. 

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evidence to suggest that, at this time, MDMA causes the same degree of collateral consequences

caused by several other major drugs of abuse.

For example, unlike trafficking in other illicit substances, the Commission, to date, has not

found information suggesting that substantial violence is associated with the trafficking of MDMA. 

However, recent incidents of lethal violence against MDMA dealers has been reported62 The

lower presence of violence associated with MDMA offenses, compared to the violence associated

with trafficking of other drugs, is supported by Commission data. In fiscal year 1999, Commission

data indicated that federal offenders sentenced for MDMA trafficking received a sentencing

enhancement for weapon involvement in only 1.9 percent of cases, compared to 21.6 percent for

crack cocaine trafficking and 12.2 percent for drug trafficking overall. Furthermore, unlike users

of other drugs, users of MDMA rarely commit crimes to support their consumption pattern.

In addition, MDMA (because it generally is not injected) does not result in some of the

negative secondary health consequences found with other drug use, such as the increased incidence

of HIV and hepatitis resulting from the use of contaminated needles. Finally, because MDMA is

not currently produced in the United States, it does not pose the same risks to the environment as

methamphetamine and amphetamine production.

VI. CONCLUSION

The challenge for the Commission was to establish a penalty structure that was sufficiently

stringent to achieve the objectives set forth by Congress in the Ecstasy Anti-Proliferation Act and

shared by the Commission, but also allow the sentencing guidelines to draw adequate penalty

distinctions between drug offenders based on their functional role.

MDMA is a serious drug with unique properties that made setting the appropriate penalty

structure a challenge. The Commission shares Congress’s concern about the increase in 

trafficking and abuse, particularly by our youth, and the need for aggressive law enforcement to

combat the growing problem. Factors considered by the Commission include: the significant

increase in prevalence of use – particularly increases in use among young people; the growing

availability of the drug; evidence supporting both short- and long-term health consequences of use,

including brain damage; reports of compulsive use of the drug by some users; the current limited

evidence suggesting collateral consequences resulting from distribution of the drug; and

importation and trafficking patterns. 

The revised guideline penalties for MDMA offenses generally provide five-year sentences

for serious MDMA traffickers (those whose relevant conduct involved approximately 800 pills)

and ten-year sentences for high-level traffickers (those whose relevant conduct involved

approximately 8,000 pills). The Commission believes these guideline penalties are appropriately

and sufficiently severe to target serious and high-level MDMA traffickers and that these heightened
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penalties will provide appropriate punishment, deterrence, and incentives for cooperation.