AMENDMENT 448
Section 2D1.8 is amended by deleting subsections (a) and (b) as follows:
"(a) Base Offense Level: 16
(b) Specific Offense Characteristic
(1) If a firearm or other dangerous weapon was possessed, increase by 2 levels.",
and inserting in lieu thereof:
"(a) Base Offense Level:
(1) The offense level from §2D1.1 applicable to the underlying controlled substance offense, except as provided below.
(2) If the defendant had no participation in the underlying controlled substance offense other than allowing use of the premises, the offense level shall be 4 levels less than the offense level from §2D1.1 applicable to the underlying controlled substance offense, but not greater than level 16.
(b) Special Instruction
(1) If the offense level is determined under subsection (a)(2), do not apply an adjustment under §3B1.2 (Mitigating Role).".
The Commentary to §2D1.8 captioned "Application Note" is amended by deleting Note 1 as follows:
"1. Definitions of ‘firearm’ and ‘dangerous weapon’ are found in the Commentary to §1B1.1 (Application Instructions).",
and inserting in lieu thereof:
"1. Subsection (a)(2) does not apply unless the defendant had no participation in the underlying controlled substance offense other than allowing use of the premises. For example, subsection (a)(2) would not apply to a defendant who possessed a dangerous weapon in connection with the offense, a defendant who guarded the cache of controlled substances, a defendant who arranged for the use of the premises for the purpose of facilitating a drug transaction, a defendant who allowed the use of more than one premises, a defendant who made telephone calls to facilitate the underlying controlled substance offense, or a defendant who otherwise assisted in the commission of the underlying controlled substance offense. Furthermore, subsection (a)(2) does not apply unless the defendant initially leased, rented, purchased, or otherwise acquired a possessory interest in the premises for a legitimate purpose. Finally, subsection (a)(2) does not apply if the defendant had previously allowed any premises to be used as a drug establishment without regard to whether such prior misconduct resulted in a conviction.".
Reason for Amendment: This amendment is designed to reduce unwarranted disparity by requiring consideration in the guideline of the scale of the underlying controlled substance offense. The amendment parallels an amendment to §2D1.6 made in 1990 (amendment 320).
Effective Date: The effective date of this amendment is November 1, 1992.