AMENDMENT 763
Section 2D1.11 is amended in subsection (b) by adding at the end the following:
“(6) If the defendant meets the criteria set forth in subdivisions (1)–(5) of subsection (a) of §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases), decrease by 2 levels.”.
The Commentary to 2D1.11 captioned “Application Notes” is amended by adding at the end the following:
“9. Applicability of Subsection (b)(6).—The applicability of subsection (b)(6) shall be determined without regard to the offense of conviction. If subsection (b)(6) applies, §5C1.2(b) does not apply. See §5C1.2(b)(2)(requiring a minimum offense level of level 17 if the ‘statutorily required minimum sentence is at least five years’).”.
Reason for Amendment: This amendment adds a new specific offense characteristic at subsection (b)(6) of §2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy) that provides a 2-level decrease if the defendant meets the criteria set forth in subdivisions (1)–(5) of subsection (a) of §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases) (commonly referred to as the “safety valve” criteria). The new specific offense characteristic in §2D1.11 parallels the existing 2-level decrease at subsection (b)(16) of §2D1.1(Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy).
The Commission in 1995 created the 2-level reduction in §2D1.1 for offenders who meet the safety valve criteria in response to a directive in section 80001 of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103–322. Section 80001 provided an exception to otherwise applicable statutory minimum sentences for defendants convicted of specified drug offenses and who meet the criteria specified in 18 U.S.C. § 3553(f)(1)–(5), and directed the Commission to promulgate guidelines to carry out these purposes. The reduction in §2D1.1 initially was limited to defendants whose offense level was level 26 or greater, see USSG App. C, Amendment 515 (effective November 1, 1995), but was subsequently expanded to apply to offenders with an offense level lower than level 26 to address proportionality concerns. See USSG App. C, Amendment 624 (effective November 1, 2001). Specifically, the Commission determined that limiting the applicability of the reduction to defendants with an offense level of level 26 or greater “is inconsistent with the general principles underlying the two-level reduction . . . to provide lesser punishment for first time, nonviolent offenders.” Id.
For similar reasons of proportionality, this amendment expands application of the 2-level reduction to offenses involving list I and list II chemicals sentenced under §2D1.11. List I chemicals are important to the manufacture of a controlled substance and usually become part of the final product, while list II chemicals are generally used as solvents, catalysts, and reagents. See USSG §2D1.11, comment. (backg’d.). Section 2D1.11 is generally structured to provide base offense levels that are tied to, but less severe than, the base offense levels in §2D1.1 for offenses involving the final product. The Commission determined that adding the 2-level reduction for meeting the safety valve criteria in §2D1.11 would promote the proportionality the Commission has intended to achieve between §§2D1.1 and 2D1.11.
The amendment also adds new commentary relating to the “safety valve” reduction in §2D1.11 that is consistent with the commentary relating to the “safety valve” reduction in §2D1.1. See USSG §2D1.1, comment. (n. 21). The commentary makes clear that the new 2-level reduction in §2D1.11 applies regardless of the offense of conviction, and that the minimum offense level of 17 in subsection (b) of §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases) does not apply. Section 5C1.2(b) provides for an offense level not less than level 17 for defendants who meet the criteria of subdivisions (1) – (5) of section (a) in §5C1.2 and for whom the statutorily required minimum sentence is at least 5 years. See USSG App. C, Amendment 624 (effective November 1, 2001). Since none of the offenses referenced to §2D1.11 carries a statutory mandatory minimum, the minimum offense level of 17 at §5C1.2(b) does not affect application of the new 2-level reduction in §2D1.11.
Effective Date: The effective date of this amendment is November 1, 2012.