Federal Register / Vol. 83, No. 18 / Friday, January 26, 2018 / Notices 3869 

18See 12 U.S.C. 1464(t)(5). 

19Subsidiaries engaged in activities not 

permissible for national banks are considered nonincludable subsidiaries. 

20A deduction from capital is only required to the 

extent that the savings association’s investment 

exceeds the generally applicable thresholds for 

deduction of investments in the capital of an 

unconsolidated financial institution. 

21See 12 U.S.C. 1464(t)(1)(A)(ii) and (t)(2)(B). 

22See 12 CFR 3.10(a)(6) (OCC); 12 CFR 

324.10(a)(6) (FDIC). The Board’s regulatory capital 

framework does not apply to savings associations 

and, therefore, does not include this requirement. 

23See 12 U.S.C. 1831o(c)(3); see also 12 CFR 6.4 

(OCC); 12 CFR 208.45 (Board); 12 CFR 324.403 

(FDIC). 

24 12 U.S.C. 1831o(h)(3)(A). 

25See 79 FR 24528 (May 1, 2014). 

26See 12 CFR 6.4(c)(1)(iv)(B) (OCC); 12 CFR 

208.43(b)(1)(iv)(B) (Board); 12 CFR 324.403(b)(1)(v) 

(FDIC). 

27See 80 FR 49082 (August 14, 2015). 

28See 12 CFR 6.4(c)(1)(iv)(B) (OCC); 12 CFR 

324.403(b)(1)(v) (FDIC). 

classified as loss, off-balance-sheet 

items classified as loss, any expenses 

that are necessary for the institution to 

record in order to replenish its general 

valuation allowances to an adequate 

level, and estimated losses on 

contingent liabilities. The Board and the 

OCC expect their supervised institutions 

to promptly recognize examineridentified losses, but the requirement is 

not explicit under their capital rules. 

Instead, the Board and the OCC apply 

their supervisory authorities to ensure 

that their supervised institutions charge 

off any identified losses. 

Subsidiaries of Savings Associations 

There are special statutory 

requirements for the agencies’ capital 

treatment of a savings association’s 

investment in or credit to its 

subsidiaries as compared with the 

capital treatment of such transactions 

between other types of institutions and 

their subsidiaries. Specifically, the 

Home Owners’ Loan Act (HOLA) 

distinguishes between subsidiaries of 

savings associations engaged in 

activities that are permissible for 

national banks and those engaged in 

activities that are not permissible for 

national banks.18 When subsidiaries of a 

savings association are engaged in 

activities that are not permissible for 

national banks,19 the parent savings 

association generally must deduct the 

parent’s investment in and extensions of 

credit to these subsidiaries from the 

capital of the parent savings association. 

If a subsidiary of a savings association 

engages solely in activities permissible 

for national banks, no deduction is 

required and investments in and loans 

to that organization may be assigned the 

risk weight appropriate for the 

activity.20 As the appropriate federal 

banking agencies for federal and state 

savings associations, respectively, the 

OCC and the FDIC apply this capital 

treatment to those types of institutions. 

The Board’s regulatory capital 

framework does not apply to savings 

associations and therefore does not 

include this requirement. 

Tangible Capital Requirement 

Federal statutory law subjects savings 

associations to a specific tangible capital 

requirement but does not similarly do so 

with respect to banks. Under section 

5(t)(2)(B) of HOLA, savings associations 

are required to maintain tangible capital 

in an amount not less than 1.5 percent 

of total assets.21 The capital rules of the 

OCC and the FDIC include a 

requirement that covered savings 

associations maintain a tangible capital 

ratio of 1.5 percent.22 This statutory 

requirement does not apply to banks 

and, thus, there is no comparable 

regulatory provision for banks. The 

distinction is of little practical 

consequence, however, because under 

the Prompt Corrective Action (PCA) 

framework, all institutions are 

considered critically undercapitalized if 

their tangible equity falls below 2 

percent of total assets.23 Generally 

speaking, the appropriate federal 

banking agency must appoint a receiver 

within 90 days after an institution 

becomes critically undercapitalized.24

Enhanced Supplementary Leverage 

Ratio 

The agencies adopted enhanced 

supplementary leverage ratio standards 

that take effect beginning on January 1, 

2018.25 These standards require certain 

bank holding companies to exceed a 5 

percent supplementary leverage ratio to 

avoid limitations on distributions and 

certain discretionary bonus payments 

and also require the subsidiary 

institutions of these bank holding 

companies to meet a 6 percent 

supplementary leverage ratio to be 

considered ‘‘well capitalized’’ under the 

PCA framework.26 The rule text 

establishing the scope of application for 

the enhanced supplementary leverage 

ratio differs among the agencies. 

However, the distinction is of little 

practical consequence at this time 

because the rules of each agency apply 

the enhanced supplementary leverage 

ratio to the same set of bank holding 

companies. The Board applies the 

enhanced supplementary leverage ratio 

standards to bank holding companies 

identified as global systemically 

important bank holding companies as 

defined in 12 CFR 217.2 and those bank 

holding companies’ Board-supervised, 

institution subsidiaries.27 The OCC and 

the FDIC apply enhanced 

supplementary leverage ratio standards 

to the institution subsidiaries under 

their supervisory jurisdiction of a toptier bank holding company that has 

more than $700 billion in total assets or 

more than $10 trillion in assets under 

custody.28

Dated: January 11, 2018. 

Grace E. Dailey, 

Senior Deputy Comptroller and Chief, 

National Bank Examiner, Office of the 

Comptroller of the Currency. 

By order of the Board of Governors of the 

Federal Reserve System, January 11, 2018. 

Ann E. Misback, 

Secretary of the Board. 

Dated at Washington, DC, this 19th day of 

January 2018. 

By order of the Board of Directors. 

Federal Deposit Insurance Corporation. 

Robert E. Feldman, 

Executive Secretary. 

[FR Doc. 2018–01434 Filed 1–25–18; 8:45 am] 

BILLING CODE 4810–33–P; 6210–01–P; 6714–01–P 

UNITED STATES SENTENCING 

COMMISSION 

Sentencing Guidelines for United 

States Courts 

AGENCY: United States Sentencing 

Commission. 

ACTION: Notice of proposed amendments 

to sentencing guidelines, policy 

statements, and commentary. Request 

for public comment, including public 

comment regarding retroactive 

application of any of the proposed 

amendments. Notice of public hearing. 

SUMMARY: Pursuant to section 994(a), 

(o), and (p) of title 28, United States 

Code, the United States Sentencing 

Commission is considering 

promulgating amendments to the 

sentencing guidelines, policy 

statements, and commentary. This 

notice sets forth the proposed 

amendments and, for each proposed 

amendment, a synopsis of the issues 

addressed by that amendment. This 

notice also sets forth several issues for 

comment, some of which are set forth 

together with the proposed 

amendments, and one of which 

(regarding retroactive application of 

proposed amendments) is set forth in 

the SUPPLEMENTARY INFORMATION section 

of this notice. 

DATES: (1) Written Public Comment.— 

Written public comment regarding the 

proposed amendments and issues for 

comment set forth in this notice, 


daltland on DSKBBV9HB2PROD with NOTICES
3870 Federal Register / Vol. 83, No. 18 / Friday, January 26, 2018 / Notices 

including public comment regarding 

retroactive application of any of the 

proposed amendments, should be 

received by the Commission not later 

than March 6, 2018. Written reply 

comments, which may only respond to 

issues raised during the original 

comment period, should be received by 

the Commission not later than March 

28, 2018. Public comment regarding a 

proposed amendment received after the 

close of the comment period, and reply 

comment received on issues not raised 

during the original comment period, 

may not be considered. 

(2) Public Hearing.—The Commission 

may hold a public hearing regarding the 

proposed amendments and issues for 

comment set forth in this notice. Further 

information regarding any public 

hearing that may be scheduled, 

including requirements for testifying 

and providing written testimony, as 

well as the date, time, location, and 

scope of the hearing, will be provided 

by the Commission on its website at 

www.ussc.gov. 

ADDRESSES: All written comment should 

be sent to the Commission by electronic 

mail or regular mail. The email address 

for public comment is Public_

Comment@ussc.gov. The regular mail 

address for public comment is United 

States Sentencing Commission, One 

Columbus Circle NE, Suite 2–500, 

Washington, DC 20002–8002, Attention: 

Public Affairs. 

FOR FURTHER INFORMATION CONTACT: 

Christine Leonard, Director, Office of 

Legislative and Public Affairs, (202) 

502–4500, pubaffairs@ussc.gov. 

SUPPLEMENTARY INFORMATION: The 

United States Sentencing Commission is 

an independent agency in the judicial 

branch of the United States 

Government. The Commission 

promulgates sentencing guidelines and 

policy statements for federal courts 

pursuant to 28 U.S.C. 994(a). The 

Commission also periodically reviews 

and revises previously promulgated 

guidelines pursuant to 28 U.S.C. 994(o) 

and submits guideline amendments to 

the Congress not later than the first day 

of May each year pursuant to 28 U.S.C. 

994(p). 

Publication of a proposed amendment 

requires the affirmative vote of at least 

three voting members of the 

Commission and is deemed to be a 

request for public comment on the 

proposed amendment. See USSC Rules 

of Practice and Procedure 2.2, 4.4. In 

contrast, the affirmative vote of at least 

four voting members is required to 

promulgate an amendment and submit 

it to Congress. See id. 2.2; 28 U.S.C. 

994(p). 

The proposed amendments in this 

notice are presented in one of two 

formats. First, some of the amendments 

are proposed as specific revisions to a 

guideline, policy statement, or 

commentary. Bracketed text within a 

proposed amendment indicates a 

heightened interest on the 

Commission’s part in comment and 

suggestions regarding alternative policy 

choices; for example, a proposed 

enhancement of [2][4][6] levels indicates 

that the Commission is considering, and 

invites comment on, alternative policy 

choices regarding the appropriate level 

of enhancement. Similarly, bracketed 

text within a specific offense 

characteristic or application note means 

that the Commission specifically invites 

comment on whether the proposed 

provision is appropriate. Second, the 

Commission has highlighted certain 

issues for comment and invites 

suggestions on how the Commission 

should respond to those issues. 

In summary, the proposed 

amendments and issues for comment set 

forth in this notice are as follows: 

(1) A multi-part proposed amendment 

to § 2D1.1 (Unlawful Manufacturing, 

Importing, Exporting, or Trafficking 

(Including Possession with Intent to 

Commit These Offenses); Attempt or 

Conspiracy), including (A) amending 

the Drug Equivalency Tables in § 2D1.1 

to (i) set forth a class-based marihuana 

equivalency applicable to synthetic 

cathinones (except Schedule III, IV, and 

V substances) of 1 gram = [200]/[380]/ 

[500] grams of marihuana, bracketing 

the possibility of making this classbased marihuana equivalency also 

applicable to methcathinone, and (ii) 

establish a minimum base offense level 

of [12] for cases involving synthetic 

cathinones (except Schedule III, IV, and 

V substances), and related issues for 

comment; (B) amending the Drug 

Equivalency Tables in § 2D1.1 to (i) set 

forth a class-based marihuana 

equivalency applicable to synthetic 

cannabinoids (except Schedule III, IV, 

and V substances) of 1 gram = [167]/

[334]/[500] grams of marihuana, (ii) 

provide a definition for the term 

‘‘synthetic cannabinoid,’’ and (iii) 

bracket the possibility of establishing a 

minimum base offense level of [12] for 

cases involving synthetic cannabinoids 

(except Schedule III, IV, and V 

substances), and related issues for 

comment; and (C) amending § 2D1.1 to 

(i) provide penalties for offenses 

involving fentanyl equivalent to the 

higher penalties currently provided for 

offenses involving fentanyl analogues, 

(ii) provide a definition for the term 

‘‘fentanyl analogue,’’ set forth a single 

marihuana equivalency applicable to 

any fentanyl analogue of 1 gram = 10 

kilograms of marihuana, and specify in 

the Drug Quantity Table that the 

penalties relating to ‘‘fentanyl’’ apply to 

the substance identified as ‘‘N-phenylN-[1-(2-phenylethyl)-4-piperidinyl] 

Propenamide,’’ and (iii) provide an 

enhancement in cases in which fentanyl 

or a fentanyl analogue is misrepresented 

or marketed as another substance, and 

related issues for comment; 

(2) a multi-part proposed amendment 

to § 2L1.2 (Unlawfully Entering or 

Remaining in the United States) to 

respond to miscellaneous guidelines 

application issues, including (A) 

amending § 2L1.2(b)(2) so that its 

applicability turns on whether the 

defendant ‘‘engaged in criminal 

conduct’’ before he or she was ordered 

deported or ordered removed from the 

United States for the first time, rather 

than whether the defendant sustained 

the resulting conviction or convictions 

before that event, and a related issue for 

comment; and (B) amending 

Application Note 2 of the Commentary 

to § 2L1.2 to clarify that, consistent with 

the meaning of ‘‘sentence of 

imprisonment’’ under § 4A1.2 

(Definitions and Instructions for 

Computing Criminal History), the 

phrase ‘‘sentence imposed’’ in § 2L1.2 

includes any term of imprisonment 

given upon revocation of probation, 

parole, or supervised release, regardless 

of when the revocation occurred; and 

(3) a proposed amendment to make 

various technical changes to the 

Guidelines Manual, including (A) 

technical changes to provide updated 

references to certain sections in Title 16, 

United States Code, that were restated, 

with minor revisions, when Congress 

enacted a new Title 54; (B) technical 

changes to reflect the editorial 

reclassification of certain provisions 

bearing on crime control and law 

enforcement, previously scattered 

throughout various parts of the United 

States Code, to a new Title 34; and (C) 

a clerical change to § 8C2.1 

(Applicability of Fine Guidelines) to 

delete an outdated reference to § 2C1.6, 

which was deleted by consolidation 

with § 2C1.2 (Offering, Giving, 

Soliciting, or Receiving a Gratuity) 

effective November 1, 2004. 

In addition, the Commission requests 

public comment regarding whether, 

pursuant to 18 U.S.C. 3582(c)(2) and 28 

U.S.C. 994(u), any proposed amendment 

published in this notice should be 

included in subsection (d) of § 1B1.10 

(Reduction in Term of Imprisonment as 

a Result of Amended Guideline Range 

(Policy Statement)) as an amendment 

that may be applied retroactively to 

previously sentenced defendants. The 


daltland on DSKBBV9HB2PROD with NOTICES
Federal Register / Vol. 83, No. 18 / Friday, January 26, 2018 / Notices 3871 

Commission lists in § 1B1.10(d) the 

specific guideline amendments that the 

court may apply retroactively under 18 

U.S.C. 3582(c)(2). The background 

commentary to § 1B1.10 lists the 

purpose of the amendment, the 

magnitude of the change in the 

guideline range made by the 

amendment, and the difficulty of 

applying the amendment retroactively 

to determine an amended guideline 

range under § 1B1.10(b) as among the 

factors the Commission considers in 

selecting the amendments included in 

§ 1B1.10(d). To the extent practicable, 

public comment should address each of 

these factors. 

The text of the proposed amendments 

and related issues for comment are set 

forth below. Additional information 

pertaining to the proposed amendments 

and issues for comment described in 

this notice may be accessed through the 

Commission’s website at www.ussc.gov. 

Authority: 28 U.S.C. 994(a), (o), (p), (x); 

USSC Rules of Practice and Procedure 2.2, 

4.3, 4.4. 

William H. Pryor, Jr., 

Acting Chair. 

Proposed Amendments to the 

Sentencing Guidelines, Policy 

Statements, and Official Commentary 

1. Synthetic Drugs 

Synopsis of Proposed Amendment: 

This proposed amendment is a result of 

the Commission’s multiyear study of 

offenses involving synthetic cathinones 

(such as methylone, MDPV, and 

mephedrone) and synthetic 

cannabinoids (such as JWH–018 and 

AM–2201), as well as 

tetrahydrocannabinol (THC), fentanyl, 

and fentanyl analogues, and 

consideration of appropriate guideline 

amendments, including simplifying the 

determination of the most closely 

related controlled substance under 

Application Note 6 of the Commentary 

to § 2D1.1. See U.S. Sentencing 

Comm’n, ‘‘Notice of Final Priorities,’’ 82 

FR 39949 (Aug. 22, 2017). The proposed 

amendment contains three parts (Parts 

A through C). The Commission is 

considering whether to promulgate any 

or all of these parts, as they are not 

mutually exclusive. 

Part A of the proposed amendment 

would amend the Drug Equivalency 

Tables in § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy) to adopt a classbased approach to account for synthetic 

cathinones. It sets forth a single 

marihuana equivalency applicable to 

synthetic cathinones (except Schedule 

III, IV, and V substances) of 1 gram = 

[200]/[380]/[500] grams of marihuana. 

Part A of the proposed amendment also 

brackets the possibility of making this 

class-based marihuana equivalency also 

applicable to methcathinone, by 

deleting the specific reference to this 

controlled substance in the Drug 

Equivalency Tables. Finally, Part A of 

the proposed amendment establishes a 

minimum base offense level of [12] for 

cases involving synthetic cathinones 

(except Schedule III, IV, and V 

substances). Issues for comment are also 

provided. 

Part B of the proposed amendment 

would amend the Drug Equivalency 

Tables in § 2D1.1 to adopt a class-based 

approach to account for synthetic 

cannabinoids. It sets forth a single 

marihuana equivalency applicable to 

synthetic cannabinoids (except 

Schedule III, IV, and V substances) of 1 

gram = [167]/[334]/[500] grams of 

marihuana. It also adds a provision 

defining the term ‘‘synthetic 

cannabinoid.’’ Finally, Part B of the 

proposed amendment brackets for 

comment a provision establishing a 

minimum base offense level of [12] for 

cases involving synthetic cannabinoids 

(except Schedule III, IV, and V 

substances). Issues for comment are also 

provided. 

Part C of the proposed amendment 

would amend § 2D1.1 in several ways to 

account for fentanyl and fentanyl 

analogues. First, it provides penalties 

for offenses involving fentanyl that are 

equivalent to the higher penalties 

currently provided for offenses 

involving fentanyl analogues. Second, 

the proposed amendment revises 

§ 2D1.1 to provide a definition of the 

term ‘‘fentanyl analogue,’’ set forth a 

single marihuana equivalency 

applicable to any fentanyl analogue of 1 

gram = 10 kilograms of marihuana, and 

specify in the Drug Quantity Table that 

the penalties relating to ‘‘fentanyl’’ 

apply to the substance identified as ‘‘Nphenyl-N-[1-(2-phenylethyl)-4- 

piperidinyl] propanamide.’’ Finally, 

Part C of the proposed amendment 

amends § 2D1.1 to provide an 

enhancement in cases in which fentanyl 

or a fentanyl analogue is misrepresented 

or marketed as another substance. Issues 

for comment are also provided. 

(A) Synthetic Cathinones 

Synopsis of the Proposed 

Amendment: Synthetic cathinones are 

human-made drugs chemically related 

to cathinone, a stimulant found in the 

khat plant. See National Institute on 

Drug Abuse, DrugFacts: Synthetic 

Cathinones (‘‘Bath Salts’’) (January 

2016), available at https://

www.drugabuse.gov/publications/ 

drugfacts/synthetic-cathinones-bathsalts. According to the National Institute 

on Drug Abuse, synthetic variants of 

cathinone can be much stronger than 

the natural cathinone and, in some 

cases, very dangerous. Id. Abuse of 

synthetic cathinones, sometimes 

referred to as ‘‘bath salts,’’ has become 

more prevalent over the last decade. 

Currently, § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy) specifically lists 

only one synthetic cathinone, 

Methcathinone. Because other synthetic 

cathinones are not specifically listed in 

either the Drug Quantity Table or the 

Drug Equivalency Tables in § 2D1.1, 

cases involving these substances require 

courts to use Application Note 6 of the 

Commentary to § 2D1.1 to ‘‘determine 

the base offense level using the 

marihuana equivalency of the most 

closely related controlled substance 

referenced in [§ 2D1.1].’’ The 

Commission has received comment 

suggesting that questions regarding ‘‘the 

most closely related controlled 

substance’’ arise frequently in cases 

involving synthetic cathinones, and that 

the Application Note 6 process requires 

courts to hold extensive hearings to 

receive expert testimony on behalf of 

the government and the defendant. 

The Commission has also received 

comment indicating that a large number 

of synthetic cathinones are currently 

available on the illicit drug market and 

that new varieties are regularly 

developed for illegal trafficking. Given 

this information, it would likely be 

difficult and impracticable for the 

Commission to provide individual 

marihuana equivalencies for each 

synthetic cathinone in the Guidelines 

Manual. Testimony received by the 

Commission indicates that whether a 

substance is properly classified as a 

synthetic cathinone is not generally 

subject to debate, as there appears to be 

broad agreement that the basic chemical 

structure of cathinone remains present 

throughout all synthetic cathinones. 

Part A of the proposed amendment 

would amend the Drug Equivalency 

Tables in § 2D1.1 to adopt a class-based 

approach to account for synthetic 

cathinones. It sets forth a single 

marihuana equivalency applicable to 

synthetic cathinones (except Schedule 

III, IV, and V substances) of 1 gram = 

[200]/[380]/[500] grams of marihuana. 

The proposed amendment also 

establishes a minimum base offense 

level of [12] for cases involving 

synthetic cathinones (except Schedule 

III, IV, and V substances). Finally, the 


daltland on DSKBBV9HB2PROD with NOTICES
3872 Federal Register / Vol. 83, No. 18 / Friday, January 26, 2018 / Notices 

proposed amendment brackets the 

possibility of making this class-based 

marihuana equivalency also applicable 

to methcathinone, by deleting the 

specific reference to this controlled 

substance in the Drug Equivalency 

Tables. 

Issues for comment are also provided. 

Proposed Amendment 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 8(D)— 

[in the table under the heading ‘‘Cocaine 

and Other Schedule I and II Stimulants 

(and their immediate precursors) *’’, by 

striking the following: 

‘‘1 gm of Methcathinone = 380 gm of 

marihuana’’; 

and] by inserting after the table under 

the heading ‘‘Cocaine and Other 

Schedule I and II Stimulants (and their 

immediate precursors) *’’ the following 

new table: 

‘‘Synthetic Cathinones (except Schedule 

III, IV, and V Substances) * 1 gm of 

a synthetic cathinone (except a 

Schedule III, IV, or V substance) = 

[200]/[380]/[500] gm of marihuana 

* Provided, that the minimum offense 

level from the Drug Quantity Table 

for any synthetic cathinone (except 

a Schedule III, IV, or V substance) 

individually, or in combination 

with another controlled substance, 

is level [12].’’. 

Issues for Comment 

1. Part A of the proposed amendment 

would amend the Drug Equivalency 

Tables in § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy) to adopt a classbased approach to account for synthetic 

cathinones. It sets forth a single 

marihuana equivalency applicable to 

synthetic cathinones (except Schedule 

III, IV, and V substances) of 1 gram = 

[200]/[380]/[500] grams of marihuana. 

The Commission seeks comment on 

how, if at all, the guidelines should be 

amended to account for synthetic 

cathinones. 

Should the Commission provide a 

class-based approach to account for 

synthetic cathinones? Are synthetic 

cathinones sufficiently similar to one 

another in chemical structure, 

pharmacological effects, potential for 

addiction and abuse, patterns of 

trafficking and abuse, and/or associated 

harms, to support the adoption of a 

class-based approach for sentencing 

purposes? Are there any synthetic 

cathinones that should not be included 

as part of a class-based approach and for 

which the Commission should provide 

a marihuana equivalency separate from 

other synthetic cathinones? If so, what 

equivalency should the Commission 

provide for each such synthetic 

cathinone, and why? If the Commission 

were to provide a different approach to 

account for synthetic cathinones in the 

guidelines, what should that different 

approach be? 

Which, if any, of the proposed 

[1:200]/[1:380]/[1:500] marihuana 

equivalency ratios is appropriate for 

synthetic cathinones (except Schedule 

III, IV, and V substances) as a class? 

Should the Commission establish a 

different equivalency applicable to such 

a class? If so, what equivalency should 

the Commission provide and on what 

basis? 

2. Part A of the proposed amendment 

brackets the possibility of making the 

marihuana equivalency applicable to 

synthetic cathinones also applicable to 

methcathinone by deleting the specific 

reference to this controlled substance in 

the Drug Equivalency Tables. Is 

methcathinone sufficiently similar to 

other synthetic cathinones in chemical 

structure, pharmacological effects, 

potential for addiction and abuse, 

patterns of trafficking and abuse, and/or 

associated harms to be included as part 

of a class-based approach for synthetic 

cathinones? Should the Commission 

instead continue to provide a marihuana 

equivalency for methcathinone separate 

from other synthetic cathinones? 

3. The Commission seeks comment 

whether it should amend the 

Commentary to § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy) to provide 

guidance on how to apply the new 

class-based marihuana equivalency for 

synthetic cathinones. What guidance, if 

any, should the Commission provide on 

the application of the proposed classbased marihuana equivalency? Should 

the Commission define the term 

‘‘synthetic cathinone’’ for purposes of 

this class-based approach? If so, what 

definition should the Commission 

provide for such term? What factors 

should the Commission account for if it 

considers providing a definition for 

‘‘synthetic cathinone’’? 

(B) Synthetic Cannabinoids 

Synopsis of the Proposed 

Amendment: Synthetic cannabinoids 

are human-made, mind-altering 

chemicals developed to mimic the 

effects of tetrahydrocannabinol (THC), 

the main psychoactive chemical found 

in the marihuana plant. Like THC, 

synthetic cannabinoids act as an agonist 

at a specific part of the central nervous 

system known as the cannabinoid 

receptors, binding to and activating 

these receptors to produce psychoactive 

effects. However, the available scientific 

literature on this subject suggests that 

some synthetic cannabinoids bind more 

strongly to cell receptors affected by 

THC, and may produce stronger effects. 

See National Institute of Drug Abuse, 

DrugFacts: Synthetic Cannabinoids 

(Revised November 2015) available at 

https://www.drugabuse.gov/ 

publications/drugfacts/syntheticcannabinoids. 

The Commission has received 

comment indicating that the synthetic 

cannabinoids encountered on the illicit 

market are predominantly potent 

cannabinoid agonists that are 

pharmacologically similar to THC, but 

may cause a more severe toxicity and 

more serious adverse effects than THC. 

According to commenters, THC is only 

a partial agonist at type 1 cannabinoid 

receptors (CB1 receptors) and produces 

30 to 50 percent (or less) of the highest 

possible response in receptor activation. 

Synthetic cannabinoids are full agonists 

at CB1 receptors that elicit close to 100 

percent response in receptor activation. 

Some commenters have argued that this 

high activation response may contribute 

to the increased toxicity and more 

severe adverse effects of synthetic 

cannabinoids when compared with 

THC. According to commenters, some of 

the adverse effects of synthetic 

cannabinoids are more prevalent or 

more severe than those produced by 

marihuana and THC, and may be 

produced at lower doses. The 

Commission was also informed by 

commenters that drug discrimination 

data is available on at least 26 different 

synthetic cannabinoids. JWH–018, one 

of the substances included in the 

Commission’s study, was shown in the 

drug discrimination assay to be 

approximately three times as potent as 

THC. Another substance included in the 

Commission’s study, AM–2201, was 

shown to be approximately five times as 

potent as THC using the same assay. 

Newer synthetic cannabinoids have 

been shown to be even more potent than 

these substances. According to the Drug 

Enforcement Administration, on rare 

occasions synthetic cannabinoids have 

been shown to be less potent than THC, 

as substances with a lower potency are 

often abandoned by manufacturers 

following negative user reports relating 

to their effects. 

Currently, § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy) specifically lists 


daltland on DSKBBV9HB2PROD with NOTICES
Federal Register / Vol. 83, No. 18 / Friday, January 26, 2018 / Notices 3873 

only one synthetic cannabinoid, 

synthetic THC. Synthetic THC has a 

marihuana equivalency of 1 gram = 167 

grams of marihuana. Because other 

synthetic cannabinoids are not 

specifically listed in either the Drug 

Quantity Table or the Drug Equivalency 

Tables in § 2D1.1, cases involving these 

substances require courts to use 

Application Note 6 of the Commentary 

to § 2D1.1 to ‘‘determine the base 

offense level using the marihuana 

equivalency of the most closely related 

controlled substance referenced in 

[§ 2D1.1].’’ Although courts often rely 

on the synthetic THC equivalency in 

cases involving synthetic cannabinoids, 

the Commission has received comment 

suggesting that questions regarding ‘‘the 

most closely related controlled 

substance’’ arise frequently in such 

cases, and that the Application Note 6 

process requires courts to hold 

extensive hearings to receive expert 

testimony on behalf of the government 

and the defendant. 

The Commission has also received 

comment suggesting that, like synthetic 

cathinones, a large number of synthetic 

cannabinoids are currently available on 

the illicit drug market and new varieties 

are regularly developed for illegal 

trafficking. Given this information, it 

would likely be difficult and 

impracticable for the Commission to 

provide individual marihuana 

equivalencies for each synthetic 

cannabinoid in the Guidelines Manual. 

Unlike synthetic cathinones, synthetic 

cannabinoids cannot be defined as a 

single class based on a common 

chemical structure. Synthetic 

cannabinoids regularly developed for 

illegal trafficking come from several 

different structural classes. However, 

the Commission received testimony 

from experts indicating that, while 

synthetic cannabinoids may differ in 

chemical structure, these substances all 

produce the same pharmacological 

effects: They act as an agonist at type 1 

cannabinoid receptors (CB1 receptors). 

Part B of the proposed amendment 

would amend the Drug Equivalency 

Tables in § 2D1.1 to adopt a class-based 

approach to account for synthetic 

cannabinoids. It sets forth a single 

marihuana equivalency applicable to 

synthetic cannabinoids (except 

Schedule III, IV, and V substances) of 1 

gram = [167]/[334]/[500] grams of 

marihuana. The proposed amendment 

would also add a provision defining 

‘‘synthetic cannabinoid’’ as ‘‘any 

synthetic substance (other than 

synthetic tetrahydrocannabinol) that 

[acts as an agonist at][binds to and 

activates] type 1 cannabinoid receptors 

(CB1 receptors).’’ 

Finally, Part B of the proposed 

amendment brackets for comment a 

provision establishing a minimum base 

offense level of [12] for cases involving 

synthetic cannabinoids (except 

Schedule III, IV, and V substances). 

Issues for comment are also provided. 

Proposed Amendment 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 8(D) by inserting after the table 

under the heading ‘‘Schedule I 

Marihuana’’ the following new table: 

‘‘Synthetic Cannabinoids (except 

Schedule III, IV, and V 

Substances)[*] 

1 gm of a synthetic cannabinoid 

(except a Schedule III, IV, or V 

substance) = [167]/[334]/[500] gm of 

marihuana 

[*Provided, that the minimum offense 

level from the Drug Quantity Table 

for any synthetic cannabinoid 

(except a Schedule III, IV, or V 

substance) individually, or in 

combination with another 

controlled substance, is level [12].] 

‘Synthetic cannabinoid,’ for purposes of 

this guideline, means any synthetic 

substance (other than synthetic 

tetrahydrocannabinol) that [acts as 

an agonist at][binds to and 

activates] type 1 cannabinoid 

receptors (CB1 receptors).’’. 

Issues for Comment 

1. Part B of the proposed amendment 

would amend the Drug Equivalency 

Tables in § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy) to adopt a classbased approach to account for synthetic 

cannabinoids. It sets forth a single 

marihuana equivalency applicable to 

synthetic cannabinoids (except 

Schedule III, IV, and V substances) of 1 

gram of such a synthetic cannabinoid = 

[167]/[334]/[500] grams of marihuana. 

The Commission seeks comment on 

how, if at all, the guidelines should be 

amended to account for synthetic 

cannabinoids. 

Should the Commission provide a 

class-based approach to account for 

synthetic cannabinoids? Are synthetic 

cannabinoids sufficiently similar to one 

another in chemical structure, 

pharmacological effects, potential for 

addiction and abuse, patterns of 

trafficking and abuse, and/or associated 

harms to support the adoption of a 

class-based approach for sentencing 

purposes? Are there any synthetic 

cannabinoids that should not be 

included as part of a class-based 

approach and for which the 

Commission should provide a 

marihuana equivalency separate from 

other synthetic cannabinoids? If so, 

what equivalency should the 

Commission provide for each such 

synthetic cannabinoid, and why? If the 

Commission were to provide a different 

approach to account for synthetic 

cannabinoids in the guidelines, what 

should that different approach be? 

Which, if any, of the proposed 

[1:167]/[1:334]/[1:500] marihuana 

equivalency ratios is appropriate for 

synthetic cannabinoids (except 

Schedule III, IV, and V substances) as a 

class? Should the Commission establish 

a different equivalency applicable to 

such a class? If so, what equivalency 

should the Commission provide and on 

what basis? 

2. The Commission seeks comment on 

whether the Commission should make a 

distinction between a synthetic 

cannabinoid in ‘‘actual’’ form (i.e., as a 

powder or crystalline substance) and a 

synthetic cannabinoid as part of a 

mixture (e.g., sprayed on or soaked into 

a plant or other base material, or 

otherwise mixed with other substances), 

by establishing a different marihuana 

equivalency for each of these forms in 

which synthetic cannabinoids are 

trafficked. If so, what equivalencies 

should the Commission provide and on 

what basis? Are there differences in 

terms of pharmacological effects, 

potential for addiction and abuse, 

patterns of trafficking and abuse, and/or 

associated harms between the various 

forms in which synthetic cannabinoids 

are trafficked that would support this 

distinction? Is the use of the term 

‘‘actual’’ appropriate in cases involving 

synthetic cannabinoids? If not, what 

term should the Commission use to refer 

to a synthetic cannabinoid as a powder 

or crystalline substance that has not 

been mixed with other substances (e.g., 

sprayed on or soaked into a plant or 

other base material)? 

3. Part B of the proposed amendment 

would include in the Commentary to 

§ 2D1.1 (Unlawful Manufacturing, 

Importing, Exporting, or Trafficking 

(Including Possession with Intent to 

Commit These Offenses); Attempt or 

Conspiracy) a provision defining the 

term ‘‘synthetic cannabinoid’’ as ‘‘any 

synthetic substance (other than 

synthetic tetrahydrocannabinol) that 

[acts as an agonist at][binds to and 

activates] type 1 cannabinoid receptors 

(CB1 receptors).’’ Is this definition 

appropriate? If not, what definition, if 

any, should the Commission provide? 

Are there any synthetic cannabinoids 

that would not be included under this 

definition but should be? Are there any 


daltland on DSKBBV9HB2PROD with NOTICES
3874 Federal Register / Vol. 83, No. 18 / Friday, January 26, 2018 / Notices 

substances that would be included in 

this definition but should not be? What 

factors should the Commission take into 

account in defining ‘‘synthetic 

cannabinoid’’? What additional 

guidance, if any, should the 

Commission provide on how to apply 

the proposed class-based marihuana 

equivalency for synthetic cannabinoids? 

4. Part B of the proposed amendment 

brackets the possibility of establishing a 

minimum base offense level of [12] for 

cases involving synthetic cannabinoids 

(except Schedule III, IV, and V 

substances) individually, or in 

combination with another substance. 

Should the Commission provide a 

minimum base offense level for such 

cases? What minimum base offense 

level, if any, should the Commission 

provide for cases involving synthetic 

cannabinoids, and under what 

circumstances should it apply? 

5. The Commission seeks comment on 

whether, if the Commission were to 

adopt a 1:167 equivalency ratio for 

synthetic cannabinoids, this class-based 

marihuana equivalency should also be 

applicable to synthetic 

tetrahydrocannabinol (THC). If so, 

should the Commission delete the 

specific reference to this controlled 

substance in the Drug Equivalency 

Tables and expand the proposed 

definition of ‘‘synthetic cannabinoid’’ to 

include ‘‘any synthetic substance that 

[acts as an agonist at][binds to and 

activates] type 1 cannabinoid receptors 

(CB1 receptors)’’? Is synthetic THC 

covered by this definition of ‘‘synthetic 

cannabinoid’’? Is synthetic THC 

sufficiently similar to other synthetic 

cannabinoids in chemical structure, 

pharmacological effects, potential for 

addiction and abuse, patterns of 

trafficking and abuse, and/or associated 

harms, to be included as part of a classbased approach for synthetic 

cannabinoids? Should the Commission 

instead continue to provide a marihuana 

equivalency for synthetic THC separate 

from other synthetic cannabinoids? 

(C) Fentanyl and Fentanyl Analogues 

Synopsis of Proposed Amendment: 

Fentanyl is a powerful synthetic opioid 

analgesic that is similar to morphine but 

50 to 100 times more potent. See 

National Institute on Drug Abuse, 

DrugFacts: Fentanyl (June 2016), 

available at https://www.drugabuse.gov/ 

publications/drugfacts/fentanyl. 

Fentanyl is a prescription drug that can 

be diverted for illicit use. Fentanyl and 

analogues of fentanyl are also produced 

in clandestine laboratories for illicit use. 

See, e.g., U.N. Office on Drugs & Crime, 

Fentanyl and Its Analogues—50 Years 

On, Global Smart Update 17 (March 

2017), available at https://

www.unodc.org/documents/scientific/ 

Global_SMART_Update_17_web.pdf. 

These substances are sold on the illicit 

drug market as powder, pills, absorbed 

on blotter paper, mixed with or 

substituted for heroin, or as tablets that 

may mimic the appearance of 

prescription opioids. While most 

fentanyl analogues are typically about as 

potent as fentanyl itself, some 

analogues, such as sufentanil and 

carfentanil, are reported to be many 

times more potent than fentanyl. 

The Statutory and Guidelines 

Framework 

The Controlled Substances Act (21 

U.S.C. 801 et seq.) classifies fentanyl as 

a Schedule II controlled substance, 

along with other opiates. While there is 

no other specific reference to the term 

‘‘fentanyl’’ in Title 21, United States 

Code, a subsequent section establishes a 

mandatory minimum penalty for a 

substance identified as ‘‘N-phenyl-N-[1- 

(2-phenylethyl)-4-piperidinyl] 

propanamide.’’ 21 U.S.C. 

841(b)(1)(A)(vi). A Department of Justice 

regulation explains that N-phenyl-N-[1- 

(2-phenylethyl)-4-piperidinyl] 

propanamide is the substance 

‘‘commonly known as fentanyl.’’ 28 CFR 

50.21(d)(4)(vii). The Controlled 

Substances Act prescribes a mandatory 

minimum penalty of five years for 

trafficking 40 or more grams of the 

substance, or ten or more grams of an 

analogue of the substance. 21 U.S.C. 

841(b)(1)(A)(vi); (b)(1)(B)(vi). 

The Drug Quantity Table in § 2D1.1 

(Unlawful Manufacturing, Importing, 

Exporting, or Trafficking (Including 

Possession with Intent to Commit These 

Offenses); Attempt or Conspiracy) 

contains entries for both ‘‘fentanyl’’ and 

‘‘fentanyl analogue,’’ at severity levels 

that reflect the mandatory minimum 

penalty structure. The Drug Equivalency 

Tables in the Commentary to § 2D1.1 

clearly identify fentanyl with the 

specific substance associated with the 

statutory minimum penalty by 

providing a marihuana equivalency for 

1 gm of ‘‘Fentanyl (N-phenyl-N-[1-(2- 

phenylethyl)-4-piperidinyl] 

Propanamide)’’ equal to 2.5 kg of 

marihuana (i.e., a 1:2,500 ratio). The 

Drug Equivalency Tables also set forth 

the marihuana equivalencies for two 

other substances, alpha-methylfentanyl 

and 3-methylfentanyl. Both substances 

have the same marihuana equivalency 

ratio, 1:10,000, which corresponds with 

the penalties for fentanyl analogues. 

Alpha-methylfentanyl and 3- 

methylfentanyl are pharmaceutical 

analogues of fentanyl that were 

developed in the 1960s or 1970s. See, 

e.g., T.J. Gillespie, et al., Identification 

and Quantification of AlphaMethylfentanyl in Post Mortem 

Specimens, 6(3) J. of Analytical 

Toxicology 139 (May–June 1982). 

Higher Penalties for Offenses Involving 

Fentanyl 

First, Part C of the proposed 

amendment would revise § 2D1.1 to 

increase penalties for offenses involving 

fentanyl. The Commission has received 

comment indicating that the 

proliferation and ease of availability of 

multiple varieties of fentanyl and 

fentanyl analogues has resulted in an 

increased number of deaths from 

overdoses. Commenters have argued 

that § 2D1.1 does not adequately reflect 

the serious dangers posed by fentanyl 

and its analogues, including their high 

potential for abuse and addiction. 

Public health data shows that the harms 

associated with abuse of fentanyl and 

fentanyl analogues far exceed those 

associated with other opioid analgesics. 

Part C of the proposed amendment 

would amend § 2D1.1 to provide 

penalties for fentanyl that are equivalent 

to the higher penalties currently 

provided for fentanyl analogues. The 

proposed amendment would 

accomplish this objective by changing 

the base offense levels for fentanyl in 

the Drug Quantity Table at § 2D1.1(c) to 

parallel the base offense levels 

established for fentanyl analogues. It 

would also amend the Drug Equivalency 

Tables in the Commentary to § 2D1.1 to 

change the marihuana equivalency ratio 

for fentanyl to the same ratio, 1:10,000, 

provided for fentanyl analogues. 

Issues Relating to ‘‘Fentanyl Analogues’’ 

Second, Part C of the proposed 

amendment would revise § 2D1.1 to 

address several issues relating to 

offenses involving fentanyl analogues. 

The Commission has received comment 

that the penalty for ‘‘fentanyl analogue’’ 

set forth in the guidelines interacts in a 

potentially confusing way with the 

guideline definition of the term 

‘‘analogue.’’ Although the term 

‘‘fentanyl analogue’’ is not defined by 

the guidelines, Application Note 6 states 

that, for purposes of § 2D1.1, ‘‘analogue’’ 

has the meaning given the term 

‘‘controlled substance analogue’’ in 21 

U.S.C. 802(32). Section 802(32) defines 

‘‘controlled substance analogue’’ to 

exclude ‘‘a controlled substance’’—that 

is, a substance that has been scheduled. 

Thus, once the Drug Enforcement 

Administration (or Congress) schedules 

a substance that is a ‘‘fentanyl 

analogue’’ in the scientific sense, that 

substance may not qualify as a ‘‘fentanyl 

analogue’’ for purposes of the Drug 


daltland on DSKBBV9HB2PROD with NOTICES
Federal Register / Vol. 83, No. 18 / Friday, January 26, 2018 / Notices 3875 

Quantity Table. Hence, in cases 

involving a scheduled ‘‘fentanyl 

analogue’’ other than the two fentanyl 

analogues listed by name in the Drug 

Equivalency Tables, courts would be 

required by Application Note 6 of the 

Commentary to § 2D1.1 to ‘‘determine 

the base offense level using the 

marihuana equivalency of the most 

closely related controlled substance 

referenced in [§ 2D1.1].’’ 

The Commission has received 

comment suggesting that the 

Application Note 6 process requires 

courts to hold extensive hearings to 

receive expert testimony on behalf of 

the government and the defendant. This 

process is likely to determine that 

fentanyl, rather than one of the two 

listed variants in the guideline, is the 

most closely related controlled 

substance to a scheduled ‘‘fentanyl 

analogue.’’ This will result in a 

substance that would scientifically be 

considered a fentanyl analogue being 

punished under the 1:2,500 fentanyl 

ratio, rather than the 1:10,000 ‘‘fentanyl 

analogue’’ ratio. 

Part C of the proposed amendment 

would address this situation by revising 

§ 2D1.1 to define ‘‘fentanyl analogue’’ as 

‘‘any substance (including any salt, 

isomer, or salt of isomer thereof), 

whether a controlled substance or not, 

that has a chemical structure that is 

[substantially] similar to fentanyl (Nphenyl-N-[1-(2-phenylethyl)-4- 

piperidinyl] propanamide).’’ It would 

also amend the Drug Equivalency Tables 

in § 2D1.1 to provide a single marihuana 

equivalency applicable to any fentanyl 

analogue of 1 gram = 10 kilograms of 

marihuana. The proposed amendment 

brackets the possibility of making this 

new marihuana equivalency also 

applicable to alpha-methylfentanyl and 

3-methylfentanyl by deleting the 

specific references to these controlled 

substances in the Drug Equivalency 

Tables. In addition, the proposed 

amendment would amend the Drug 

Quantity Table to specify that the 

penalties relating to ‘‘fentanyl’’ apply to 

the substance identified in the statute as 

‘‘N-phenyl-N-[1-(2-phenylethyl)-4- 

piperidinyl] propanamide.’’ 

Increased Penalties for Offenses 

Involving Fentanyl and Fentanyl 

Analogues Misrepresented as Another 

Substance 

Finally, Part C of the proposed 

amendment would amend § 2D1.1 to 

address cases involving fentanyl and 

fentanyl analogues misrepresented as 

another substance. The Commission has 

received comment that fentanyl and 

fentanyl analogues are being mixed 

with, and in some instances substituted 

for, other drugs, such as heroin and 

cocaine. According to commenters, 

fentanyl and fentanyl analogues are also 

being pressed into pills that resemble 

prescription opioids, such as oxycodone 

and hydrocodone. Commenters have 

also suggested that the harms associated 

with the use of fentanyl and fentanyl 

analogues are heightened by the fact 

that users may unknowingly consume 

fentanyl or fentanyl analogues in 

products misrepresented or sold as 

other substances, such as heroin or 

counterfeit prescription pills. Because 

such users may be unaware that what 

they believe to be a certain substance, 

such as heroin, is either fentanyl or has 

been laced with fentanyl, they may not 

mitigate against the added risks of use, 

including overdose. 

Part C of the proposed amendment 

would add a new specific offense 

characteristic at § 2D1.1(b)(13) 

providing an enhancement of [2][4] 

levels to address these cases. It provides 

two alternatives for such an 

enhancement. Under the first 

alternative, the enhancement would 

apply if the offense involved a mixture 

or substance containing a detectable 

amount of fentanyl (N-phenyl-N-[1-(2- 

phenylethyl)-4-piperidinyl] 

propanamide) or a fentanyl analogue 

that was misrepresented or marketed as 

another substance. Under the second 

alternative, the enhancement would 

apply if the offense involved a mixture 

or substance containing fentanyl (Nphenyl-N-[1-(2-phenylethyl)-4- 

piperidinyl] propanamide) or a fentanyl 

analogue and the defendant knowingly 

misrepresented or knowingly marketed 

that mixture or substance as another 

substance. 

Issues for comment are also provided. 

Proposed Amendment 

Section 2D1.1(b) is amended by 

redesignating paragraphs (13) through 

(17) as paragraphs (14) through (18), 

respectively, and by inserting the 

following new paragraph (13): 

‘‘(13) [If the offense involved a 

mixture or substance containing 

fentanyl (N-phenyl-N-[1-(2-phenylethyl)

-4-piperidinyl] propanamide) or a 

fentanyl analogue that was 

misrepresented or marketed as another 

substance][If the offense involved a 

mixture or substance containing 

fentanyl (N-phenyl-N-[1-(2-phenylethyl)

-4-piperidinyl] propanamide) or a 

fentanyl analogue and the defendant 

knowingly misrepresented or knowingly 

marketed that mixture or substance as 

another substance], increase by [2][4] 

levels.’’. 

Section 2D1.1(c)(1) is amended by 

striking ‘‘36 KG or more of Fentanyl;’’ 

and inserting the following: 

‘‘[9] KG or more of Fentanyl (N-phenyl

-N-[1-(2-phenylethyl)-4-piperidinyl] 

Propanamide);’’. 

Section 2D1.1(c)(2) is amended by 

striking ‘‘At least 12 KG but less than 36 

KG of Fentanyl;’’ and inserting the 

following: 

‘‘At least [3] KG but less than [9] KG of 

Fentanyl (N-phenyl-N-[1-(2- 

phenylethyl)-4-piperidinyl] 

Propanamide);’’. 

Section 2D1.1(c)(3) is amended by 

striking ‘‘At least 4 KG but less than 12 

KG of Fentanyl;’’ and inserting the 

following: 

‘‘At least [1] KG but less than [3] KG of 

Fentanyl (N-phenyl-N-[1-(2- 

phenylethyl)-4-piperidinyl] 

Propanamide);’’. 

Section 2D1.1(c)(4) is amended by 

striking ‘‘At least 1.2 KG but less than 

4 KG of Fentanyl;’’ and inserting the 

following: 

‘‘At least [300] G but less than [1] KG 

of Fentanyl (N-phenyl-N-[1-(2- 

phenylethyl)-4-piperidinyl] 

Propanamide);’’. 

Section 2D1.1(c)(5) is amended by 

striking ‘‘At least 400 G but less than 1.2 

KG of Fentanyl;’’ and inserting the 

following: 

‘‘At least [100] G but less than [300] G 

of Fentanyl (N-phenyl-N-[1-(2- 

phenylethyl)-4-piperidinyl] 

Propanamide);’’. 

Section 2D1.1(c)(6) is amended by 

striking ‘‘At least 280 G but less than 

400 G of Fentanyl;’’ and inserting the 

following: 

‘‘At least [70] G but less than [100] G of 

Fentanyl (N-phenyl-N-[1-(2- 

phenylethyl)-4-piperidinyl] 

Propanamide);’’. 

Section 2D1.1(c)(7) is amended by 

striking ‘‘At least 160 G but less than 

280 G of Fentanyl;’’ and inserting the 

following: 

‘‘At least [40] G but less than [70] G of 

Fentanyl ((N-phenyl-N-[1-(2- 

phenylethyl)-4-piperidinyl] 

Propanamide);’’. 

Section 2D1.1(c)(8) is amended by 

striking ‘‘At least 40 G but less than 160 

G of Fentanyl;’’ and inserting the 

following: 

‘‘At least [10] G but less than [40] G of 

Fentanyl (N-phenyl-N-[1-(2- 

phenylethyl)-4-piperidinyl] 

Propanamide);’’. 

Section 2D1.1(c)(9) is amended by 

striking ‘‘At least 32 G but less than 40 


daltland on DSKBBV9HB2PROD with NOTICES
3876 Federal Register / Vol. 83, No. 18 / Friday, January 26, 2018 / Notices 

G of Fentanyl;’’ and inserting the 

following: 

‘‘At least [8] G but less than [10] G of 

Fentanyl (N-phenyl-N-[1-(2- 

phenylethyl)-4-piperidinyl] 

Propanamide);’’. 

Section 2D1.1(c)(10) is amended by 

striking ‘‘At least 24 G but less than 32 

G of Fentanyl;’’ and inserting the 

following: 

‘‘At least [6] G but less than [8] G of 

Fentanyl (N-phenyl-N-[1-(2- 

phenylethyl)-4-piperidinyl] 

Propanamide);’’. 

Section 2D1.1(c)(11) is amended by 

striking ‘‘At least 16 G but less than 24 

G of Fentanyl;’’ and inserting the 

following: 

‘‘At least [4] G but less than [6] G of 

Fentanyl (N-phenyl-N-[1-(2-

phenylethyl)-4-piperidinyl] 

Propanamide);’’. 

Section 2D1.1(c)(12) is amended by 

striking ‘‘At least 8 G but less than 16 

G of Fentanyl;’’ and inserting the 

following: 

‘‘At least [2] G but less than [4] G of 

Fentanyl (N-phenyl-N-[1-(2-

phenylethyl)-4-piperidinyl] 

Propanamide);’’. 

Section 2D1.1(c)(13) is amended by 

striking ‘‘At least 4 G but less than 8 G 

of Fentanyl;’’ and inserting the 

following: 

‘‘At least [1] G but less than [2] G of 

Fentanyl (N-phenyl-N-[1-(2-

phenylethyl)-4-piperidinyl] 

Propanamide);’’. 

Section 2D1.1(c)(14) is amended by 

striking ‘‘Less than 4 G of Fentanyl;’’ 

and inserting the following: 

‘‘Less than [1] G of Fentanyl (N-phenylN-[1-(2-phenylethyl)-4-piperidinyl] 

Propanamide);’’. 

The annotation to § 2D1.1(c) 

captioned ‘‘Notes to Drug Quantity 

Table’’ is amended by inserting at the 

end the following new Note (J): 

‘‘(J) Fentanyl analogue, for the 

purposes of this guideline, means any 

substance (including any salt, isomer, or 

salt of isomer thereof), whether a 

controlled substance or not, that has a 

chemical structure that is [substantially] 

similar to fentanyl (N-phenyl-N-[1-(2-

phenylethyl)-4-piperidinyl] 

propanamide).’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended—in 

Note 6 by striking ‘‘Any reference to a 

particular controlled substance in these 

guidelines’’ and inserting ‘‘Except as 

otherwise provided, any reference to a 

particular controlled substance in these 

guidelines’’, and by striking ‘‘For 

purposes of this guideline ‘analogue’ 

has the meaning’’ and inserting ‘‘Unless 

otherwise specified, ‘analogue,’ for 

purposes of this guideline, has the 

meaning’’; 

and in note 8(D), in the table under the 

heading ‘‘Schedule I or II Opiates*’’— 

[by striking the following two lines: 

‘‘1 gm of Alpha-Methylfentanyl = 10 kg 

of marihuana’’ 

‘‘1 gm of 3-Methylfentanyl = 10 kg of 

marihuana’’ 

and] by inserting after the line 

referenced to Fentanyl (N-phenyl-N-[1- 

(2-phenylethyl)- 4-piperidinyl] 

Propanamide) the following: 

‘‘1 gm of a Fentanyl Analogue = [10] kg 

of marihuana’’. 

Issues for Comment 

1. Part C of the proposed amendment 

would amend the ‘‘Notes to Drug 

Quantity Table’’ in § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy) to include a 

provision defining ‘‘fentanyl analogue’’ 

as ‘‘any substance (including any salt, 

isomer, or salt of isomer thereof), 

whether a controlled substance or not, 

that has a chemical structure that is 

[substantially] similar to fentanyl (Nphenyl-N-[1-(2-phenylethyl)-4- 

piperidinyl] propanamide).’’ Is this 

definition appropriate? If not, what 

definition, if any, should the 

Commission provide? For example, 

should the Commission specify that to 

qualify as a ‘‘fentanyl analogue,’’ a 

substance, whether a controlled 

substance or not, must (A) have a 

chemical structure that is [substantially] 

similar to fentanyl (N-phenyl-N-[1-(2- 

phenylethyl)-4-piperidinyl] 

propanamide) and (B) either (i) have an 

effect on the central nervous system that 

is substantially similar to [or greater 

than] fentanyl (N-phenyl-N-[1-(2- 

phenylethyl)-4-piperidinyl] 

propanamide), or (ii) be represented or 

intended to have such an effect? 

2. The proposed amendment would 

amend § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy) to adopt a classbased approach to account for all 

fentanyl analogues, whether they are 

controlled substances or not. Are 

fentanyl analogues sufficiently similar 

to one another in chemical structure, 

pharmacological effects, potential for 

addiction and abuse, patterns of 

trafficking and abuse, and/or associated 

harms to support such class-based 

approach for sentencing purposes? If so, 

are the penalties set forth in the Drug 

Quantity Table and the proposed 

1:10,000 marihuana equivalency ratio 

appropriate for fentanyl analogues as a 

class? Should the Commission establish 

different penalties or a different 

equivalency applicable to such 

substances? If so, what penalties should 

the Commission provide and on what 

basis? Are there any fentanyl analogues 

that should not be included as part of 

a class-based approach and for which 

the Commission should provide 

penalties separate from other fentanyl 

analogues? If so, what penalties should 

the Commission provide for each such 

fentanyl analogue, and why? If the 

Commission were to provide a different 

approach to account for fentanyl 

analogues in the guidelines, what 

should that different approach be? 

The proposed amendment brackets 

the possibility of making the marihuana 

equivalency applicable to all fentanyl 

analogues that are commonly regarded 

as analogues of ‘‘Fentanyl (N-phenyl-N- 

[1-(2-phenylethyl)-4-piperidinyl] 

Propanamide’’ also applicable to alphamethylfentanyl and 3-methylfentanyl by 

deleting the specific references to these 

controlled substances in the Drug 

Equivalency Tables. Are alphamethylfentanyl and 3-methylfentanyl 

sufficiently similar to other fentanyl 

analogues in chemical structure, 

pharmacological effects, potential for 

addiction and abuse, patterns of 

trafficking and abuse, and/or associated 

harms, to be included as part of a classbased approach for fentanyl analogues? 

Should the Commission instead 

continue to provide marihuana 

equivalencies for alpha-methylfentanyl 

and 3-methylfentanyl separate from 

other fentanyl analogues? 

3. According to the Drug Enforcement 

Administration (DEA) and other 

sources, fentanyl and fentanyl analogues 

are typically manufactured in China and 

then shipped via freight forwarding 

companies or parcel post to the United 

States or to other places in the Western 

Hemisphere. Additionally, fentanyl and 

fentanyl analogues are available for 

purchase online through the ‘‘dark net’’ 

(commercial websites functioning as 

black markets) and regular websites, and 

commonly shipped into the United 

States. According to the DEA, the 

improper handling of fentanyl and 

fentanyl analogues presents grave 

danger to individuals who may 

inadvertently come into contact with 

such substances. Those at risk include 

law enforcement and emergency 

personnel who may unknowingly 

encounter these substances during 

arrests, searches, or emergency calls. 


daltland on DSKBBV9HB2PROD with NOTICES
Federal Register / Vol. 83, No. 18 / Friday, January 26, 2018 / Notices 3877 

The Commission seeks comment on 

whether the guidelines provide 

appropriate penalties for cases in which 

fentanyl or a fentanyl analogue may 

create a substantial threat to the public 

health or safety (including the health or 

safety of law enforcement and 

emergency personnel). If not, how 

should the Commission revise the 

guidelines to provide appropriate 

penalties in such cases? Should the 

Commission provide new 

enhancements, adjustments, or 

departure provisions to account for such 

cases? If the Commission were to 

provide such a provision, what specific 

offense conduct, harm, or other factor 

should be the basis for applying the 

provision? What penalty increase 

should be provided? 

2. Illegal Reentry Guideline 

Enhancements 

Synopsis of Proposed Amendment: 

This proposed amendment is a result of 

the Commission’s consideration of 

miscellaneous guidelines application 

issues. See U.S. Sentencing Comm’n, 

‘‘Notice of Final Priorities,’’ 82 FR 

39949 (Aug. 22, 2017). It responds to 

issues that have arisen regarding 

application of the illegal reentry 

guideline at § 2L1.2 (Unlawfully 

Entering or Remaining in the United 

States). The proposed amendment 

contains two parts (Part A and Part B). 

The Commission is considering whether 

to promulgate either or both of these 

parts, as they are not mutually 

exclusive. 

Part A of the proposed amendment 

responds to an issue brought to the 

Commission’s attention by the 

Department of Justice. See Annual 

Letter from the Department of Justice to 

the Commission (July 31, 2017), 

available at https://www.ussc.gov/sites/ 

default/files/pdf/amendment-process/ 

public-comment/20170731/DOJ.pdf. In 

its annual letter to the Commission, the 

Department suggested that the illegal 

reentry guideline’s enhancements for 

prior convictions (other than 

convictions for illegal reentry) contain a 

gap in coverage. Subsection (b)(2) of the 

guideline provides for an increase in the 

defendant’s offense level if, before the 

defendant was ordered deported or 

ordered removed from the United States 

for the first time, the defendant 

‘‘sustained . . . a conviction’’ for a felony 

offense (other than an illegal reentry 

offense) or ‘‘three or more convictions’’ 

for certain misdemeanor offenses. 

Subsection (b)(3) of the guideline 

provides for an increase in the 

defendant’s offense level, if after the 

defendant was ordered deported or 

ordered removed from the United States 

for the first time, the defendant 

‘‘engaged in criminal conduct resulting 

in’’ such a felony conviction or three or 

more such misdemeanor convictions. 

Neither subsection (b)(2) nor subsection 

(b)(3), however, provides for an increase 

in the defendant’s offense level in the 

situation where a defendant engaged in 

criminal conduct before being ordered 

deported or ordered removed from the 

United States for the first time but did 

not sustain a conviction or convictions 

for that criminal conduct until after he 

or she was first ordered deported or 

ordered removed. 

Part A of the proposed amendment 

would amend § 2L1.2 to cover this 

situation by revising subsection (b)(2) so 

that its applicability turns on whether 

the defendant ‘‘engaged in criminal 

conduct’’ before he or she was first 

ordered deported or order removed, 

rather than whether the defendant 

sustained the resulting conviction or 

convictions before that event. Part A 

would also make non-substantive, 

conforming changes to the language of 

subsection (b)(3). 

An issue for comment is also 

provided. 

Part B of the proposed amendment 

responds to an issue that has arisen in 

litigation concerning how § 2L1.2’s 

enhancements for prior convictions 

apply in the situation where a 

defendant’s prior conviction included a 

term of probation, parole, or supervised 

release that was subsequently revoked 

and an additional term of imprisonment 

imposed. 

As described above, subsections (b)(2) 

and (b)(3) of § 2L1.2 provide for 

increases in a defendant’s offense level 

for prior convictions (other than 

convictions for illegal reentry). The 

magnitude of the offense level increase 

that the subsections provide for a prior 

felony conviction varies depending on 

the length of the ‘‘sentence imposed.’’ 

Application Note 2 of the Commentary 

to § 2L1.2 states that ‘‘ ‘[s]entence 

imposed’ has the meaning given the 

term ‘sentence of imprisonment’ in 

Application Note 2 and subsection (b) of 

§ 4A1.2 (Definitions and Instructions for 

Computing Criminal History).’’ Under 

§ 4A1.2, the ‘‘sentence of 

imprisonment’’ includes not only the 

original term of imprisonment imposed 

but also any term of imprisonment 

imposed upon revocation of probation, 

parole, or supervised release. See USSG 

§ 4A1.2, comment. (n.11). Consistent 

with that approach, Application Note 2 

of the Commentary to § 2L1.2 states that, 

under § 2L1.2, ‘‘[t]he length of the 

sentence imposed includes any term of 

imprisonment given upon revocation of 

probation, parole, or supervisory 

release.’’ Two courts of appeals have 

held, however, that, under § 2L1.2(b)(2), 

the ‘‘sentence imposed’’ does not 

include a period of imprisonment 

imposed upon revocation of probation, 

parole, or supervisory release if that 

revocation occurred after the defendant 

was ordered deported or ordered 

removed from the United States for the 

first time. See United States v. Martinez, 

870 F.3d 1163 (9th Cir. 2017); United 

States v. Franco-Galvan, 846 F.3d 338 

(5th Cir. 2017). 

Part B of the proposed amendment 

would revise the definition of ‘‘sentence 

imposed’’ in Application Note 2 of the 

Commentary to § 2L1.2 to clarify that, 

consistent with the meaning of 

‘‘sentence of imprisonment’’ under 

§ 4A1.2, the phrase ‘‘sentence imposed’’ 

in § 2L1.2 includes any term of 

imprisonment given upon revocation of 

probation, parole, or supervised release, 

regardless of when the revocation 

occurred. 

Proposed Amendment 

(A) Closing the Coverage Gap 

Section 2L1.2(b)(2) is amended by 

striking ‘‘the defendant sustained’’ and 

inserting ‘‘the defendant engaged in 

criminal conduct that, at any time, 

resulted in’’. 

Section 2L1.2(b)(3) is amended by 

striking ‘‘If, at any time after the 

defendant was ordered deported or 

ordered removed from the United States 

for the first time, the defendant engaged 

in criminal conduct resulting in’’ and 

inserting ‘‘If, after the defendant was 

ordered deported or ordered removed 

from the United States for the first time, 

the defendant engaged in criminal 

conduct that, at any time, resulted in’’. 

Issue for Comment 

1. The Commission has received 

comments indicating that the 

enhancements for prior convictions 

(other than convictions for illegal 

reentry) in § 2L1.2 (Unlawfully Entering 

or Remaining in the United States) 

currently do not apply in the situation 

where a defendant engaged in criminal 

conduct before being ordered deported 

or ordered removed from the United 

States for the first time but did not 

sustain a conviction or convictions for 

that criminal conduct until after he or 

she was first ordered deported or 

ordered removed. Part A of the 

proposed amendment would address 

this situation by revising the language of 

§ 2L1.2(b)(2) so that its applicability 

would turn on when the defendant 

‘‘engaged in criminal conduct resulting 

in’’ one or more of the covered 

convictions, rather than when the 


daltland on DSKBBV9HB2PROD with NOTICES
3878 Federal Register / Vol. 83, No. 18 / Friday, January 26, 2018 / Notices 

defendant ‘‘sustained’’ that 

‘‘conviction’’ or ‘‘convictions.’’ 

Should the Commission amend 

§ 2L1.2 to cover the situation where a 

defendant engages in criminal conduct 

before a first order of removal or 

deportation but does not sustain a 

conviction or convictions for the 

criminal conduct until after that order? 

How frequently does this situation 

occur? Does Part A of the proposed 

amendment appropriately address this 

situation? Should the Commission 

address the situation differently? If so, 

how? 

(B) Treatment of Revocations of 

Probation, Parole, or Supervised Release 

The Commentary to § 2L1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 2 in the paragraph that begins 

‘‘ ‘Sentence imposed’ has the meaning’’ 

by striking ‘‘term of imprisonment given 

upon revocation of probation, parole, or 

supervised release’’ and inserting ‘‘term 

of imprisonment given upon revocation 

of probation, parole, or supervised 

release, regardless of when the 

revocation occurred’’. 

3. Technical Amendment 

Synopsis of the Proposed 

Amendment: This proposed amendment 

makes various technical changes to the 

Guidelines Manual. 

First, the proposed amendment makes 

technical changes to provide updated 

references to certain sections in the 

United States Code that were restated in 

legislation. As part of an Act to codify 

existing law relating to the National 

Park System, Congress repealed 

numerous sections in Title 16 of the 

United States Code, and restated them 

in Title 18 and a newly enacted Title 54. 

See Public Law 113–287 (Dec. 19, 2014). 

The proposed amendment amends the 

Commentary to § 2B1.5 (Theft of, 

Damage to, or Destruction of, Cultural 

Heritage Resources or Paleontological 

Resources; Unlawful Sale, Purchase, 

Exchange, Transportation, or Receipt of 

Cultural Heritage Resources or 

Paleontological Resources) to correct 

outdated references to certain sections 

in Title 16 that were restated, with 

minor revisions, when Congress enacted 

Title 54. It also deletes from the 

Commentary to § 2B1.5 the provision 

relating to the definition of ‘‘historic 

resource,’’ as that term was omitted 

from Title 54. In addition, the proposed 

amendment makes a technical change to 

Appendix A (Statutory Index), to correct 

an outdated reference to 16 U.S.C. 413 

by replacing it with the appropriate 

reference to 18 U.S.C. 1865(c). 

Second, the proposed amendment 

also makes technical changes to reflect 

the editorial reclassification of certain 

sections in the United States Code. 

Effective September 1, 2017, the Office 

of Law Revision Counsel transferred 

certain provisions bearing on crime 

control and law enforcement, previously 

scattered throughout various parts of the 

United States Code, to a new Title 34. 

To reflect the new section numbers of 

the reclassified provisions, Part B of the 

proposed amendment makes changes 

to— 

(1) The Commentary to § 2A3.5 

(Failure to Register as a Sex Offender); 

(2) the Commentary to § 2X5.2 (Class 

A Misdemeanors (Not Covered by 

Another Specific Offense Guideline)); 

(3) subsection (a)(10) of § 5B1.3 

(Conditions of Probation); 

(4) subsection (a)(8) of § 5D1.3 

(Conditions of Supervised Release); and 

(5) Appendix A (Statutory Index), by 

updating references to certain sections 

in Title 42 to reflect their reclassified 

section numbers in the new Title 34. 

Finally, the proposed amendment 

revises subsection (a) of § 8C2.1 

(Applicability of Fine Guidelines) by 

deleting an outdated reference to 

§ 2C1.6, which was deleted by 

consolidation with § 2C1.2 (Offering, 

Giving, Soliciting, or Receiving a 

Gratuity) effective November 1, 2004. 

Proposed Amendment 

The Commentary to § 2A3.5 captioned 

‘‘Application Notes’’ is amended in 

Note 1— 

in the paragraph that begins ‘‘ ‘Sex 

offense’ has the meaning’’ by striking 

‘‘42 U.S.C. 16911(5)’’ and inserting ‘‘34 

U.S.C. 20911(5)’’; 

and in the paragraph that begins ‘‘ ‘Tier 

I offender’, ‘Tier II offender’, and ‘Tier 

III offender’ have the meaning’’ by 

striking ‘‘42 U.S.C. 16911’’ and inserting 

‘‘34 U.S.C. 20911’’. 

The Commentary to § 2B1.5 captioned 

‘‘Application Notes’’ is amended— 

in Note 1(A) by striking clause (ii) and 

redesignating clauses (iii) through (vii) 

as clauses (ii) through (vi), respectively; 

in Note 1(A)(i) by striking ‘‘16 U.S.C. 

470w(5)’’ and inserting ‘‘54 U.S.C. 

300308’’; 

in Note 3(C) by striking ‘‘16 U.S.C. 

470a(a)(1)(B)’’ and inserting ‘‘54 U.S.C. 

302102’’; 

in Note 3(E) by striking ‘‘the Antiquities 

Act of 1906 (16 U.S.C. 431)’’ and 

inserting ‘‘54 U.S.C. 320301’’; 

and in Note 3(F) by striking ‘‘16 U.S.C. 

1c(a)’’ and inserting ‘‘54 U.S.C. 100501’’. 

The Commentary to § 2X5.2 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘42 U.S.C. 14133’’ and inserting 

‘‘34 U.S.C. 12593’’. 

Section 5B1.3(a)(10) is amended by 

striking ‘‘42 U.S.C. 14135a’’ and 

inserting ‘‘34 U.S.C. 40702’’. 

Section 5D1.3(a)(8) is amended by 

striking ‘‘42 U.S.C. 14135a’’ and 

inserting ‘‘34 U.S.C. 40702’’. 

Section 8C2.1(a) is amended by 

striking ‘‘§§ 2C1.1, 2C1.2, 2C1.6;’’ and 

inserting ‘‘§§ 2C1.1, 2C1.2;’’. 

Appendix A (Statutory Index) is 

amended— 

by striking the line referenced to 16 

U.S.C. 413; 

by inserting after the line referenced to 

18 U.S.C. 1864 the following: 

‘‘18 U.S.C. 1865(c) 2B1.1’’; 

by inserting after the line referenced to 

33 U.S.C. 3851 the following: 

‘‘34 U.S.C. 10251 2B1.1 

34 U.S.C. 10271 2B1.1 

34 U.S.C. 12593 2X5.2 

34 U.S.C. 20962 2H3.1 

34 U.S.C. 20984 2H3.1’’; 

and by striking the lines referenced to 

42 U.S.C. 3791, 42 U.S.C. 3795, 42 

U.S.C. 14133, 42 U.S.C. 16962, and 42 

U.S.C. 16984. 

[FR Doc. 2018–01328 Filed 1–25–18; 8:45 am] 

BILLING CODE 2210–40–P 


daltland on DSKBBV9HB2PROD with NOTICES