AMENDMENT 727
Section 2D1.1(a) is amended by redesignating subdivision (3) as subdivision (5); and by inserting after subdivision (2) the following:
"(3) 30, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(E) or 21 U.S.C. § 960(b)(5), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a similar offense; or
(4) 26, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(E) or 21 U.S.C. § 960(b)(5), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance; or".
Section 2D1.1(c)(5) is amended by inserting "700,000 or more units of Schedule III Hydrocodone;" after the line referenced to "Schedule I or II Depressants".
Section 2D1.1(c)(6) is amended by inserting "At least 400,000 but less than 700,000 units of Schedule III Hydrocodone;" after the line referenced to "Schedule I or II Depressants".
Section 2D1.1(c)(7) is amended by inserting "At least 100,000 but less than 400,000 units of Schedule III Hydrocodone;" after the line referenced to "Schedule I or II Depressants".
Section 2D1.1(c)(8) is amended by inserting "At least 80,000 but less than 100,000 units of Schedule III Hydrocodone;" after the line referenced to "Schedule I or II Depressants".
Section 2D1.1(c)(9) is amended by inserting "At least 60,000 but less than 80,000 units of Schedule III Hydrocodone;" after the line referenced to "Schedule I or II Depressants".
Section 2D1.1(c)(10) is amended by inserting "At least 40,000 but less than 60,000 units of Schedule III Hydrocodone;" after the line referenced to "Schedule I or II Depressants"; and by inserting "or Hydrocodone" after "(except Ketamine".
Section 2D1.1(c)(11) is amended by inserting "At least 20,000 but less than 40,000 units of Schedule III Hydrocodone;" after the line referenced to "Schedule I or II Depressants"; and by inserting "or Hydrocodone" after "(except Ketamine".
Section 2D1.1(c)(12) is amended by inserting "At least 10,000 but less than 20,000 units of Schedule III Hydrocodone;" after the line referenced to "Schedule I or II Depressants"; and by inserting "or Hydrocodone" after "(except Ketamine".
Section 2D1.1(c)(13) is amended by inserting "At least 5,000 but less than 10,000 units of Schedule III Hydrocodone;" after the line referenced to "Schedule I or II Depressants"; and by inserting "or Hydrocodone" after "(except Ketamine".
Section 2D1.1(c)(14) is amended by inserting "At least 2,500 but less than 5,000 units of Schedule III Hydrocodone;" after the line referenced to "Schedule I or II Depressants"; and by inserting "or Hydrocodone" after "(except Ketamine".
Section 2D1.1(c)(15) is amended by inserting "At least 1,000 but less than 2,500 units of Schedule III Hydrocodone;" after the line referenced to "Schedule I or II Depressants"; and by inserting "or Hydrocodone" after "(except Ketamine".
Section 2D1.1(c)(16) is amended by inserting "At least 250 but less than 1,000 units of Schedule III Hydrocodone;" after the line referenced to "Schedule I or II Depressants"; and by inserting "or Hydrocodone" after "(except Ketamine".
Section 2D1.1(c)(17) is amended by inserting "Less than 250 units of Schedule III Hydrocodone;" after the line referenced to "Schedule I or II Depressants"; and by inserting "or Hydrocodone" after "(except Ketamine".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10(E) in the subdivision captioned "Schedule III Substances (except ketamine)" by inserting in the heading "and hydrocodone" after "(except ketamine"; and in the sentence that begins "***Provided" by inserting "(except ketamine and hydrocodone)" after "Schedule III substances".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10(E) by inserting after the subdivision captioned "Schedule III Substances (except ketamine)" the following subdivision:
"Schedule III Hydrocodone****
1 unit of Schedule III hydrocodone = 1 gm of marihuana
****Provided, that the combined equivalent weight of all Schedule III substances (except ketamine), Schedule IV substances (except flunitrazepam), and Schedule V substances shall not exceed 999.99 kilograms of marihuana.".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10(E) in the subdivision captioned "Schedule IV Substances (except flunitrazepam)" by inserting an additional asterisk after "****" each place it appears.
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10(E) in the subdivision captioned "Schedule V Substances" by inserting an additional asterisk after "*****" each place it appears.
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10(E) in the subdivision captioned "List I Chemicals (relating to the manufacture of amphetamine or methamphetamine)" by inserting an additional asterisk after "******" each place it appears.
Section 2D3.1 is amended in the heading by striking "Schedule I" and inserting "Scheduled".
Appendix A (Statutory Index) is amended by inserting after the line referenced to 21 U.S.C. § 841(g) the following:
"21 U.S.C. § 841(h) 2D1.1".
Reason for Amendment: This amendment responds to the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, Pub. L. 110–425 (the "Act").
The Act amended the Controlled Substances Act (21 U.S.C. § 801 et seq.) to create two new offenses involving controlled substances, increased the statutory maximum terms of imprisonment for all Schedule III and IV controlled substance offenses and for second and subsequent Schedule V controlled substance offenses, and added a sentencing enhancement for Schedule III controlled substance offenses in a case in which "death or serious bodily injury results from the use of such substance". The Act also included a directive to the Commission that states:
The United States Sentencing Commission, in determining whether to amend, or establish new, guidelines or policy statements, to conform the Federal sentencing guidelines and policy statements to this Act and the amendments made by this Act, should not construe any change in the maximum penalty for a violation involving a controlled substance in a particular schedule as being the sole reason to amend, or establish a new, guideline or policy statement.
First, the amendment addresses the sentencing enhancement added by the Act, which applies when the offense involved a Schedule III controlled substance and death or serious bodily injury resulted from the use of such substance. The statutory enhancement provides a maximum term of imprisonment of 15 years, or 30 years if the violation is committed after a prior conviction for a felony drug offense. See 21 U.S.C. §§ 841(b)(1)(E), 960(b)(5). The amendment addresses the statutory enhancement by amending §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to provide two new alternative base offense levels at subsections (a)(3) and (a)(4) for offenses involving Schedule III controlled substances in which death or injury results that are comparable to the alternative base offense levels at subsections (a)(1) and (a)(2) for offenses involving Schedule I and II controlled substances in which death or injury results. To reflect the harms involved in these offenses and the criminal histories of repeat drug offenders, the alternative base offense levels are set at level 30 if the defendant committed the offense after one or more prior convictions for a similar offense and level 26 otherwise.
Second, the amendment modifies the Drug Quantity Table in §2D1.1 to increase the maximum base offense level for offenses involving Schedule III hydrocodone from level 20 to level 30, without modifying any other offense level. The amendment extends the Drug Quantity Table for Schedule III hydrocodone offenses to level 30 using the existing marihuana equivalency (i.e., 1 pill of Schedule III hydrocodone = 1 gram of marihuana). The Commission determined that a maximum base offense level of 30 is appropriate for Schedule III hydrocodone offenses because of data and testimony indicating a relatively high prevalence of misuse (when compared to other, non-marihuana drugs of abuse), an increasing number of emergency room visits involving this drug, and the very large volume of hydrocodone pills illicitly distributed, either over the Internet or in specialized pain clinics.
Finally, the amendment addresses the two new offenses created by the Act. The first new offense, at 21 U.S.C. § 841(h), prohibits the delivery, distribution, or dispensing of controlled substances over the Internet without a valid prescription. The applicable statutory maximum term of imprisonment depends on the controlled substance involved. The amendment amends Appendix A (Statutory Index) to reference 21 U.S.C. § 841(h) to §2D1.1 because distribution of a controlled substance is an element of the offense. That guideline also is appropriate because it includes an enhancement at subsection (b)(6) that provides a two-level increase in a case in which "a person distributes a controlled substance through mass-marketing by means of an interactive computer service" (e.g., sale of a controlled substance by means of the Internet).
The second new offense, at 21 U.S.C. § 843(c)(2)(A), prohibits the use of the Internet to advertise for sale a controlled substance and has a statutory maximum term of imprisonment of four years. Offenses under 21 U.S.C. § 843(c) already are referenced in Appendix A (Statutory Index) to §2D3.1 (Regulatory Offenses Involving Registration Numbers; Unlawful Advertising Relating to Schedule I Substances; Attempt or Conspiracy). The amendment modifies the title of that guideline to indicate that it covers any scheduled controlled substance.
Effective Date: The effective date of this amendment is November 1, 2009.