AMENDMENT 783
Section 2D1.1(b) is amended by redesignating paragraphs (14) through (16) as paragraphs (15) through (17), respectively; and by inserting after paragraph (13) the following new paragraph (14):
“(14) If (A) the offense involved the cultivation of marihuana on state or federal land or while trespassing on tribal or private land; and (B) the defendant receives an adjustment under §3B1.1 (Aggravating Role), increase by 2 levels.”.
The Commentary to §2D1.1 captioned “Application Notes” is amended in Note 16 by striking “(b)(14)(D)” and inserting “(b)(15)(D)”; by redesignating Notes 19 through 26 as Notes 20 through 27, respectively; and by inserting after Note 18 the following new Note 19:
“19. Application of Subsection (b)(14).—Subsection (b)(14) applies to offenses that involve the cultivation of marihuana on state or federal land or while trespassing on tribal or private land. Such offenses interfere with the ability of others to safely access and use the area and also pose or risk a range of other harms, such as harms to the environment.
The enhancements in subsection (b)(13)(A) and (b)(14) may be applied cumulatively (added together), as is generally the case when two or more specific offense characteristics each apply. See §1B1.1 (Application Instructions), Application Note 4(A).”;
in the heading of Note 20 (as so redesignated) by striking “(b)(14)” and inserting “(b)(15)”;
in Note 20(A) (as so redesignated) by striking “(b)(14)(B)” both places such term appears and inserting “(b)(15)(B)”;
in Note 20(B) (as so redesignated) by striking “(b)(14)(C)” each place such term appears and inserting “(b)(15)(C)”;
in Note 20(C) (as so redesignated) by striking “(b)(14)(E)” both places such term appears and inserting “(b)(15)(E)”; and
in Note 21 (as so redesignated) by striking “(b)(16)” each place such term appears and inserting “(b)(17)”.
The Commentary to §2D1.1 captioned “Background” is amended by striking “(b)(14)” and inserting “(b)(15)”; and by striking “(b)(15)” and inserting “(b)(16)”.
Section 2D1.14(a)(1) is amended by striking “(b)(16)” and inserting “(b)(17)”.
The Commentary to §3B1.4 captioned “Application Notes” is amended in Note 2 by striking “(b)(14)(B)” and inserting “(b)(15)(B)”.
The Commentary to §3C1.1 captioned “Application Notes” is amended in Note 7 by striking “(b)(14)(D)” and inserting “(b)(15)(D)”.
Reason for Amendment: This amendment provides increased punishment for certain defendants involved in marihuana cultivation operations on state or federal land or while trespassing on tribal or private land. The amendment adds a new specific offense characteristic at subsection (b)(14) of §2D1.1 (Unlawful Manufacturing, Importing, Exporting or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy). The new specific offense characteristic provides an increase of two levels if the defendant receives an adjustment under §3B1.1 (Aggravating Role) and the offense involved the cultivation of marihuana on state or federal land or while trespassing on tribal or private land.
The amendment responds to concerns raised by federal and local elected officials, law enforcement groups, trade groups, environmental advocacy groups and others, especially in areas of the country where unlawful outdoor marihuana cultivation is occurring with increasing frequency. The concerns included the fact that such operations typically involve acts such as clearing existing vegetation, diverting natural water sources for irrigation, using potentially harmful chemicals, killing wild animals, and leaving trash and debris at the site. The concerns also included the risk to public safety of marihuana cultivation operations on federal or state land or while trespassing on tribal or private land. Additionally, when an operation is located on public land or on private land without the owner’s permission, the operation deprives the public or the owner of lawful access to and use of the land.
Accordingly, this amendment provides an increase of two levels when a marihuana cultivation operation is located on state or federal land or while trespassing on tribal or private land, but only applies to defendants who received an adjustment under §3B1.1 (Aggravating Role). These defendants are more culpable and have greater decision-making authority in the operation. The amendment also adds commentary in §2D1.1 at Application Note 19 clarifying that, consistent with ordinary guideline operation, the new increase may be applied cumulatively with the existing enhancement at subsection (b)(13)(A) of §2D1.1, which applies if an offense involved certain conduct relating to hazardous or toxic substances or waste.
Effective Date: The effective date of this amendment is November 1, 2014.