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[Federal Register Volume 90, Number 21 (Monday, February 3, 2025)]
[Notices]
[Pages 8840-8841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-02128]

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UNITED STATES SENTENCING COMMISSION

Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Request for public comment.

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SUMMARY: The United States Sentencing Commission intends to address 
certain issues relating to offenses involving fentanyl, fentanyl 
analogues, and other opioids. As part of its statutory authority and 
responsibility to analyze sentencing issues, including operation of the 
federal sentencing guidelines, the Commission is publishing these 
issues for comment to inform the Commission's consideration of the 
issues related to this topic. The issues for comment are set forth in 
the Supplementary Information portion of this notice.

DATES: Public comment regarding the issues for comment set forth in 
this notice should be received by the Commission not later than May 1, 
2025. Any public comment received after the close of the comment period 
may not be considered.

ADDRESSES: There are two methods for submitting public comment.
    Electronic Submission of Comments. Comments may be submitted 
electronically via the Commission's Public Comment Submission Portal at 
https://comment.ussc.gov. Follow the online instructions for submitting 
comments.
    Submission of Comments by Mail. Comments may be submitted by mail 
to the following address: United States Sentencing Commission, One 
Columbus Circle NE, Suite 2-500, Washington, DC 20002-8002, Attention: 
Public Affairs--Fentanyl and Other Opioids.

FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs 
Specialist, (202) 502-4597.

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).

Request for Comment on Offenses Involving Fentanyl, Fentanyl Analogues, 
and Other Opioids

    Fentanyl and fentanyl analogue cases have increased substantially 
over the last several years. Since fiscal year 2019, fentanyl cases 
have increased 244.7 percent, such that they comprised 16.3 percent of 
all federal drug trafficking cases in fiscal year 2023. Today, fentanyl 
represents the third most common drug type in federal drug trafficking 
cases. Fentanyl analogue cases have increased 113.5 percent since 
fiscal year 2019, but those cases occupy a much smaller portion of the 
federal drug trafficking case load (1.4%).

Previous Commission Action

    In response to rising numbers of fentanyl and fentanyl analogue 
cases, the Commission previously undertook a multi-year study of 
synthetic controlled substances. In 2018, following that study, the 
Commission amended Sec.  2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking (Including Possession with Intent to Commit 
Those Offenses); Attempt or Conspiracy) to add an enhancement specific 
to fentanyl and fentanyl analogue cases. In particular, the Commission 
added a new specific offense characteristic at subsection (b)(13) 
providing a 4-level increase when the defendant knowingly 
misrepresented or knowingly marketed as another substance a mixture or 
substance containing fentanyl or a fentanyl analogue. See USSG, App. C. 
amend. 807 (effective Nov. 1, 2018). In adding this new specific 
offense characteristic, the Commission pointed to the harm attendant to 
cases where a user does not know the substance they are using contains 
fentanyl or fentanyl analogue. Id. As the Commission explained, 
``[b]ecause of fentanyl's extreme potency, the risk of overdose death 
is great, particularly when the user is inexperienced or unaware of 
what substance he or she is using.'' Id. Thus, the Commission concluded 
that ``it is appropriate for traffickers who knowingly misrepresent 
fentanyl or a fentanyl analogue as another substance to receive 
additional punishment.'' Id.
    In 2023, the Commission amended Sec.  2D1.1(b)(13) based on the 
continued increase in fentanyl and fentanyl analogue distribution. See 
USSG, App. C. amend. 818 (effective Nov. 1, 2023). The amendment added 
a new subparagraph (B) with an alternative 2-level enhancement for 
offenses where the defendant represented or marketed as a legitimately 
manufactured drug another mixture or substance containing fentanyl or a 
fentanyl analogue, and acted with willful blindness or conscious 
avoidance of knowledge that such mixture or substance was not the 
legitimately manufactured drug. Id. As grounds for the amendment, the 
Commission cited data from the Drug Enforcement Agency (``DEA'') 
showing a substantial increase in the seizure of fake prescription 
pills. Id. The DEA reported seizing over 50.6 million fake pills in 
calendar year 2022, with 70

[[Page 8841]]

percent containing fentanyl. Id. Of those seized pills containing 
fentanyl, six out of ten contained a potentially lethal dose of the 
substance. Id. The Commission also pointed to the increase in drug 
overdose deaths--most of which involved synthetic opioids, primarily 
fentanyl. Id.

Feedback From Stakeholders

    Since 2023, the Commission has continued to receive public comment 
on whether the guidelines appropriately account for factors specific to 
offenses involving fentanyl, fentanyl analogues, and other opioids. For 
example, in a recent letter to the Commission, the Department of 
Justice stated that, ``although the Commission added [a] new two-level 
enhancement [at Sec.  2D1.1(b)(13)(B)] to address the harm associated 
with imitation pills, the new two-level enhancement has proven not to 
be very useful.'' Letter from Scott Meisler, Ex-Officio Member, U.S. 
Sent'g Comm'n, to Hon. Carlton W. Reeves, Chair, U.S. Sent'g Comm'n 
(July 15, 2024) at 5, available at https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/202407/89FR48029_public-comment_R.pdf [hereinafter ``DOJ Letter'']. Commission data shows that, 
in fiscal year 2023, 2.1 percent of individuals sentenced for fentanyl 
trafficking and 1.5 percent sentenced for fentanyl analogue trafficking 
received the 4-level increase for knowingly misrepresenting or 
knowingly marketing a mixture or substance containing fentanyl or a 
fentanyl analogue as another substance. Because the enhancement at 
Sec.  2D1.1(b)(13)(B) became effective November 1, 2023, only 
preliminary 2024 data is available. Based on this preliminary data, 12 
individuals sentenced for fentanyl trafficking and zero individuals 
sentenced for fentanyl analogue trafficking received the 2-level 
willful blindness enhancement.
    To address the harm in cases involving fentanyl, fentanyl 
analogues, and other opioids, the Department of Justice proposed 
several amendments to Sec.  2D1.1 to enhance sentences when certain 
circumstances are present. See DOJ Letter at 6-8. First, the Department 
of Justice proposed creating an enhancement under Sec.  2D1.1 for 
distribution of fentanyl, fentanyl analogues, and other opioids to 
individuals under the age of 21. Id. at 6. According to the Department 
of Justice, ``[m]embers of that age group have increasingly become 
victims of drug overdoses.'' Id. Commission data reveals 37 cases in 
fiscal year 2023 in which the offense involved distribution of fentanyl 
or a fentanyl analogue to a person under 21 years old.
    Second, the Department of Justice proposed creating an enhancement 
under Sec.  2D1.1 for drug-trafficking offenses using ``the dark web or 
other anonymizing technologies to avoid detection.'' DOJ Letter at 6. 
The Department of Justice explains that individuals ``are increasingly 
relying on anonymizing technologies to further their illicit activity, 
posting advertisements for fentanyl pills on dark web marketplaces 
where the seller is unknown to the buyer, the transaction involves an 
exchange of cryptocurrency, and the product is shipped with misleading 
tracking information.'' Id. Commission data reveals 60 cases in fiscal 
year 2023 in which the offense involved the use of the dark web or 
cryptocurrency to traffic fentanyl or a fentanyl analogue. Of these 60 
cases, 39 cases involved the use of both the dark web and 
cryptocurrency, 17 cases involved only the use of the dark web, and 
four cases involved only the use of cryptocurrency.
    Third, the Department of Justice asked the Commission to consider 
an enhancement for drug trafficking offenses involving fentanyl or 
another synthetic opioid adulterated with xylazine or medetomidine. DOJ 
Letter at 6-7. According to the Department of Justice, individuals 
engaged in drug trafficking ``are increasingly adulterating fentanyl 
with these alpha-2-adrenergic agonists, which can extend a user's high 
and also serve as a filler and binding agent.'' Id. The Department of 
Justice notes that the effects of these substances ``have not yet been 
fully studied'' but states that they ``are profoundly dangerous because 
their effects cannot be reversed by life-saving medicines like naloxone 
(Narcan).'' Id. at 7. Commission data reveals 94 cases in fiscal year 
2023 in which the offense involved mixing fentanyl or a fentanyl 
analogue with xylazine or medetomidine. Of these 94 cases, 90 cases 
used xylazine as the mixing agent, and four cases used medetomidine as 
the mixing agent.
Issues for Comment
    1. The Commission seeks comment on whether it should consider 
revising Sec.  2D1.1 to add an enhancement for distribution of 
fentanyl, fentanyl analogues, and other opioids to individuals under 
the age of 21. If so, should the enhancement be defendant-based or 
offense-based? By how many levels should the enhancement increase base 
offense levels, and what is the basis for such increase? Should the 
Commission consider any other changes to Sec.  2D1.1 to address the 
harm in these cases?
    2. The Commission seeks comment on whether it should consider 
revising Sec.  2D1.1 to add an enhancement for fentanyl, fentanyl 
analogue, and opioid offenses involving the use of the dark web or 
other anonymizing technologies. If so, how should the Commission define 
or describe what technologies qualify for the enhancement? Should the 
enhancement be defendant-based or offense-based? By how many levels 
should the enhancement increase base offense levels, and what is the 
basis for such increase? Should the Commission consider any other 
changes to Sec.  2D1.1 to address the harm in these cases?
    3. The Commission seeks comment on whether it should consider 
revising Sec.  2D1.1 to add an enhancement for drug trafficking 
offenses involving fentanyl, a fentanyl analogue, or another synthetic 
opioid adulterated with xylazine or medetomidine. The Commission 
invites comment on xylazine and medetomidine, particularly their 
pharmacological effects, potential for addiction and abuse, the 
patterns of abuse and harms associated with their abuse, and the 
patterns of trafficking and harms associated with their trafficking. 
The Commission also invites comment on whether there are other 
adulterants to fentanyl, fentanyl analogues, and other synthetic 
opioids for which an enhancement should apply. If the Commission were 
to add an enhancement to Sec.  2D1.1 for drug trafficking offenses 
involving fentanyl, a fentanyl analogue, or another synthetic opioid 
adulterated with xylazine, medetomidine, or another adulterant should 
the enhancement be defendant-based or offense-based? By how many levels 
should the enhancement increase base offense levels, and what is the 
basis for such increase? Should the Commission consider any other 
changes to Sec.  2D1.1 to address the harm in these cases?
    Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of Practice 
and Procedure 2.2, 4.3, 4.4.

Carlton W. Reeves,
Chair.
[FR Doc. 2025-02128 Filed 1-31-25; 8:45 am]
BILLING CODE 2210-40-P
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