AMENDMENT 751
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 8, in the first paragraph by adding at the end as the last sentence the following:
"Likewise, an adjustment under §3B1.3 ordinarily would apply in a case in which the defendant is convicted of a drug offense resulting from the authorization of the defendant to receive scheduled substances from an ultimate user or long-term care facility. See 21 U.S.C. § 822(g).".
Reason for Amendment: This amendment makes changes to the Commentary to §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) in response to the Secure and Responsible Drug Disposal Act of 2010, Pub. L. 111–273 (the "Act"). Section 3 of the Act amended 21 U.S.C. § 822 (Persons required to register) to authorize certain persons in possession of controlled substances (i.e., ultimate users and long-term care facilities) to deliver the controlled substances for the purpose of disposal. Section 4 of the Act contained a directive to the Commission to "review and, if appropriate, amend" the guidelines to ensure that the guidelines provide "an appropriate penalty increase of up to 2 offense levels above the sentence otherwise applicable in Part D of the Guidelines Manual if a person is convicted of a drug offense resulting from the authorization of that person to receive scheduled substances from an ultimate user or long-term care facility as set forth in the amendments made by section 3."
The amendment implements the directive by amending Application Note 8 to §2D1.1 to provide that an adjustment under §3B1.3 (Abuse of Position of Trust or Use of Special Skill) ordinarily would apply in a case in which the defendant is convicted of a drug offense resulting from the authorization of the defendant to receive scheduled substances from an ultimate user or long-term care facility. The amendment reflects the likelihood that in such a case the offender abused a position of trust (i.e., the authority provided by 21 U.S.C. § 822 to receive controlled substances for the purpose of disposal) to facilitate the commission or concealment of the offense.
Effective Date: The effective date of this amendment is November 1, 2011.