Under federal law, in order to be convicted of possession with intent to distribute, all three of the following legal elements must be satisfied: Illegal drug Nonetheless, there may be cases in which the substance involved in the offense is a synthetic cannabinoid not combined with any other substance. 841, 960, 962, and 46 U.S.C. See also United States v. Hernandez, 476 F.3d 791, 798-800 (9th Cir. The converted drug weight for the Schedule V substance is subject to the cap of 2.49 kilograms set forth as the maximum converted weight for Schedule V substances (without the cap it would have been 3.75 kilograms). 10. (3) If the defendant, or a person for whose conduct the defendant is accountable under 1B1.3 (Relevant Conduct), distributed any prohibited flask, equipment, chemical, product, or material through mass-marketing by means of an interactive computer service, increase by 2 levels. Subsection (b)(2) applies if the conduct for which the defendant is accountable under 1B1.3 (Relevant Conduct) involved any discharge, emission, release, transportation, treatment, storage, or disposal violation covered by the Resource Conservation and Recovery Act, 42 U.S.C. At the same time, the weight per dose selected is less than the weight per dose that would equate the offense level for LSD on a carrier medium with that for the same number of doses of PCP, a controlled substance that comparative assessments indicate is more likely to induce violent acts and ancillary crime than is LSD. Drug Offenses Occurring Near Protected Locations or Involving Underage or Pregnant Individuals; Attempt or Conspiracy. Historical Note: Effective November 1, 1987. (4) If the object of the offense was the distribution of a controlled substance in a prison, correctional facility, or detention facility, increase by 2 levels. 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. Synthetic cannabinoid, for purposes of this guideline, means any synthetic substance (other than synthetic tetrahydrocannabinol) that binds to and activates type 1 cannabinoid receptors (CB1 receptors). 1308.1315 even though they contain a small amount of a Schedule I or II controlled substance. Background: Because a conviction under 21 U.S.C. This is a 100:1 quantity ratio. The USSC HelpLine assists practitioners in applying the guidelines. In making a reasonable estimate, the court shall consider that each 25 milligrams of an anabolic steroid is one unit. PWID is a Class A misdemeanor, if the substance was a Schedule V drug. 1. Historical Note: Effective November 1, 1987. (B) Definitions.For purposes of subsection (b)(1)(B): "Incompetent" means an individual who is incapable of taking care of the individual's self or property because of a mental or physical illness or disability, mental retardation, or senility. The latter category typically carries stiffer penalties upon conviction, compared to simple possession, as the goal is to punish and deter drug Statutory Provision: 21 U.S.C. 841(g)(1)(A), increase by 2 levels. Each year, the Commission reviews and refines these policies in light of congressional action, A grand jury indicted McDowell on one count of distribution of fentanyl resulting in death in December 2021. (10) If the defendant was convicted under 21 U.S.C. (5) If (A) the offense involved the importation of amphetamine or methamphetamine or the manufacture of amphetamine or methamphetamine from listed chemicals that the defendant knew were imported unlawfully, and (B) the defendant is not subject to an adjustment under 3B1.2 (Mitigating Role), increase by 2 levels. (C) Examples for Combining Differing Controlled Substances.. In the case of a controlled substance that is not specifically referenced in the Drug Quantity Table, determine the base offense level as follows: (i) Use the Drug Conversion Tables to find the converted drug weight of the controlled substance involved in the offense. (iii) The duration of the offense, and the extent of the manufacturing operation. Note, however, that 18 U.S.C. If the resulting offense level is less than level27, increase to level 27. 863 (formerly 21 U.S.C. [Defendant] is accused of possessing [controlled substance] on or about [date] intending to distribute it to someone else. The offense level for methylamine is determined by using 2D1.11. Interactive computer service, for purposes of subsection (b)(7) and this note, has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of the controlled substance shall be used to determine the offense level unless the sale is completed and the amount delivered more accurately reflects the scale of the offense. 845b). At least 30,000 KG but less than 90,000 KG of Converted Drug Weight. (a) Base Offense Level (Apply the greater): (1) 4 plus the offense level from 2D1.1 applicable to the underlying offense; or. (1) If the offense involved possession of a controlled substance in a prison, correctional facility, or detention facility, apply 2P1.2 (Providing or Possessing Contraband in Prison). 865, increase by 2 levels. For example, subsection (b)(7) would apply to a defendant who operated a web site to promote the sale of Gamma-hydroxybutyric Acid (GHB) but would not apply to coconspirators who use an interactive computer service only to communicate with one another in furtherance of the offense. The last sentence of subsection (a)(5) implements the directive to the Commission in section 7(1) of Public Law 111220. (Methamphetamine and Amphetamine Precursor Chemicals). (16) If the defendant receives an adjustment under 3B1.1 (Aggravating Role) and the offense involved 1 or more of the following factors: (A) (i) the defendant used fear, impulse, friendship, affection, or some combination thereof to involve another individual in the illegal purchase, sale, transport, or storage of controlled substances, (ii) the individual received little or no compensation from the illegal purchase, sale, transport, or storage of controlled substances, and (iii) the individual had minimal knowledge of the scope and structure of the enterprise; (B) the defendant, knowing that an individual was (i) less than 18years of age, (ii) 65 or more years of age, (iii) pregnant, or (iv)unusually vulnerable due to physical or mental condition or otherwise particularly susceptible to the criminal conduct, distributed a controlled substance to that individual or involved that individual in the offense; (C) the defendant was directly involved in the importation of a controlled substance; (D) the defendant engaged in witness intimidation, tampered with or destroyed evidence, or otherwise obstructed justice in connection with the investigation or prosecution of the offense; (E) the defendant committed the offense as part of a pattern of criminal conduct engaged in as a livelihood. (iii) The defendant is convicted of selling 80 grams of cocaine (Level 14) and 2grams of cocaine base (Level 12). For additional statutory provision(s), see Appendix A (Statutory Index). 1319(c), the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Possession with intent to distribute harder drugs like methamphetamines, heroin, cocaine, PCP, LSD, Fentanyl, or concentrated THC is a Class II felony. To facilitate conversions to converted drug weight, the following table is provided: 9. 841(c)(2) or (f)(1), or 960(d)(2), (d)(3), or (d)(4), decrease by 3 levels, unless the defendant knew or believed that the listed chemical was to be used to manufacture a controlled substance unlawfully. Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy. 860a or 865.Sections 860a and 865 of title 21, United States Code, require the imposition of a mandatory consecutive term of imprisonment of not more than 20 years and 15 years, respectively. Historical Note: Section 2D3.5 (Violation of Recordkeeping or Reporting Requirements for Listed Chemicals and Certain Machines; Attempt or Conspiracy), effective November 1, 1991 (amendment 371), amended effective November 1, 1992 (amendment 447), was deleted by consolidation with 2D3.2 effective November 1, 1993 (amendment 481). (iv) The location of the laboratory (e.g., whether the laboratory is located in a residential neighborhood or a remote area), and the number of human lives placed at substantial risk of harm. WebThis list includes all federal (not state) sentencing laws that require the judge to give the offender a mandatory minimum prison term. 865.Section 865 of title 21, United States Code, requires the imposition of a mandatory consecutive term of imprisonment of not more than 15 years. (1) If a victim was killed under circumstances that would constitute murder under 18 U.S.C. (2) 9, if the defendant had reasonable cause to believe the prohibited flask, equipment, chemical, product, or material was to be used to manufacture a controlled substance. Section 5C1.2(b), which provides a minimum offense level of level 17, is not pertinent to the determination of whether subsection(b)(18) applies. Classification of Controlled Substances.Certain pharmaceutical preparations are classified as Schedule III, IV, or V controlled substances by the Drug Enforcement Administration under 21 C.F.R. See 21 U.S.C. WebAny person who violates section 841 (a) (1) of this title or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, (2) If the defendant is convicted of violating 21 U.S.C. WebIf the charge is possession with the intent to distribute a Schedule I drug, like heroin, the maximum penalty is 30 years in prison or a fine of $75,000. The purity of the controlled substance, particularly in the case of heroin, may be relevant in the sentencing process because it is probative of the defendants role or position in the chain of distribution. Examples of such materials include the fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in a cocaine/beeswax statue, and waste water from an illicit laboratory used to manufacture a controlled substance. (3) 4, if the substance is any other controlled substance or a list I chemical. Amended effective January 15, 1988 (amendments 19, 20, and 21); November1, 1989 (amendments 123134, 302, and 303); November 1, 1990 (amendment 318); November1, 1991 (amendments 369371 and 394396); November 1, 1992 (amendments 446 and 447); November 1, 1993 (amendments479, 484488, and 499); September 23, 1994 (amendment 509); November 1, 1994 (amendment505); November 1, 1995 (amendments 514518); November 1, 1997 (amendments 555 and 556); November 1, 2000 (amendments 594 and 605); December 16, 2000 (amendment608); May 1, 2001 (amendments 609611); November 1, 2001 (amendments 620625); November1, 2002 (amendment 640); November 1, 2003 (amendment 657); November 1, 2004 (amendments667, 668, and 674); November 1, 2005 (amendment 679); March27, 2006 (amendment 681); November 1, 2006 (amendments 684 and 688); November 1, 2007 (amendments705, 706, and 711); May 1, 2008 (amendment 715); November 1, 2009 (amendments 727 and 728); November 1, 2010 (amendments 746 and 748); November 1, 2011 (amendments 750, 751, and 760); November 1, 2012 (amendments 762 and 770); November 1, 2013 (amendment 777); November 1, 2014 (amendments782 and 783); November 1, 2015 (amendments 793 and 797); November 1, 2018 (amendments 807 and 808). at least 1.5 KG but less than 4.5 KG of Amphetamine (actual); Regulatory Offenses Involving Controlled Substances or Listed Chemicals; Attempt or Conspiracy. 802 to mean controlled substances that are falsely labeled so as to appear to have been legitimately manufactured or distributed. The statutory penalties for distribution of more than 5 grams of methamphetamine and possession of methamphetamine with intent to distribute more than five grams of methamphetamine are not less than five years in prison and up to 40 years in prison, at least 4 years of supervised release, and up to a $5,000,000 fine. 3553(f) provides an exception to the applicability of mandatory minimum sentences in certain cases. The concentrated substance is then usually sprayed on or soaked into a plant or other base material, and trafficked as part of a mixture. If, however, the defendant establishes that the defendant did not intend to provide or purchase, or was not reasonably capable of providing or purchasing, the agreed-upon quantity of the controlled substance, the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that the defendant did not intend to provide or purchase or was not reasonably capable of providing or purchasing. Endangering Human Life While Illegally Manufacturing a Controlled Substance; Attempt or Conspiracy. (C) Whether a lesser or greater quantity of the controlled substance not referenced in this guideline is needed to produce a substantially similar effect on the central nervous system as a controlled substance referenced in this guideline. 4. Application of Subsection (b)(14).. (1) It is unlawful knowingly to engage in the. (E) Departures for Certain Cases involving Synthetic Cannabinoids.. (B) If the defendant was convicted under 21 U.S.C. 5124 (relating to violations of laws and regulations enforced by the Department of Transportation with respect to the transportation of hazardous material). At least 1,875,000 units but less than 5,625,000 units of Flunitrazepam; 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. Regulatory Offenses Involving Registration Numbers; Unlawful Advertising Relating to Scheduled Substances; Attempt or Conspiracy. Amended effective November 1, 1992 (amendment447); November 1, 1995 (amendment 519); May 1, 1997 (amendment 541); November 1, 1997 (amendment 557); November 1, 2000 (amendments 605 and 606); May 1, 2001 (amendment 611); November 1, 2001 (amendment 625); November 1, 2002 (amendment 646); November 1, 2003 (amendment 661); November 1, 2004 (amendments 667 and 668); November 1, 2005 (amendment 679); November 1, 2007 (amendments 705 and 707); November 1, 2010 (amendments 745 and 746); November 1, 2012 (amendments 763 and 770); November 1, 2014 (amendment 782); November 1, 2015 (amendment 796); November 1, 2018 (amendments 808 and 813). At least 30,000,000 units but less than 90,000,000 units of 2D1.9. 11. 15. 1. (8) If the offense involved the distribution of an anabolic steroid and a masking agent, increase by 2 levels. (a) Base Offense Level (Apply the greatest): (1) 2 plus the offense level from 2D1.1 applicable to the quantity of controlled substances directly involving a protected location or an underage or pregnant individual; or, (2) 1 plus the offense level from 2D1.1 applicable to the total quantity of controlled substances involved in the offense; or, (3) 26, if the offense involved a person less than eighteen years of age; or. Example: The defendant was in possession of 80 grams of ephedrine and 50 grams of phenylpropanolamine, an aggregate quantity of 130 grams of such chemicals. Web(c) A person commits the crime of unlawful possession with intent to distribute a controlled substance if, except as otherwise authorized by law, he or she knowingly possesses any of the following quantities of a controlled substance: (1) More than eight grams, but less than 28 grams, of cocaine or of any mixture containing cocaine. See 5C1.2(b)(2)(requiring a minimum offense level of level 17 if the "statutorily required minimum sentence is at least five years"). Determining Quantity of LSD.LSD on a blotter paper carrier medium typically is marked so that the number of doses (hits) per sheet readily can be determined. Title 21 U.S.C. (A) Definition.For purposes of this guideline, sexual offense means a sexual act or sexual contact as those terms are defined in 18 U.S.C. See 1B1.2(a). 1. Application of Subsection (b)(9).For purposes of subsection (b)(9), athlete means an individual who participates in an athletic activity conducted by (A) an intercollegiate athletic association or interscholastic athletic association; (B) a professional athletic association; or (C) an amateur athletic organization. Drug possession laws generally fall into one of two main categories: Simple possession (for personal use); and; Possession with intent to distribute. (2) A person who violates paragraph (1) of this. The enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. 853(q) (mandatory restitution for cleanup costs relating to the manufacture of amphetamine and methamphetamine). As explained on my Possession page, having any amount of Historical Note: Effective November 1, 1987. At least 30,000,000 units but less than 90,000,000 units of Ketamine; Structuring Chemical Transactions or Creating a Chemical Mixture to Evade Reporting or Recordkeeping Requirements; Presenting False or Fraudulent Identification to Obtain a Listed Chemical; Attempt or Conspiracy, (1) The offense level from 2D1.11 (Unlawfully Distributing, Importing, Exporting, or Possessing a Listed Chemical) if the defendant knew or believed that the chemical was to be used to manufacture a controlled substance unlawfully; or, (2) The offense level from 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical) reduced by 3 levels if the defendant had reason to believe that the chemical was to be used to manufacture a controlled substance unlawfully; or. (B) Combining Differing Controlled Substances.The Drug Conversion Tables also provide a means for combining differing controlled substances to obtain a single offense level. Subsection (b)(14)(A) implements the instruction to the Commission in section 303 of Public Law103237. The diazepam, a Schedule IV drug, converts to 625 grams of converted drug weight. Historical Note: Section 2D3.3 (Illegal Use of Registration Number to Distribute or Dispense a Controlled Substance to Another Registrant or Authorized Person; Attempt or Conspiracy), effective November 1, 1987, amended effective November 1, 1991 (amendment 421) and November 1, 1992 (amendment 447), was deleted by consolidation with 2D3.2 effective November1, 1993 (amendment 481). Without the cap, the combined converted weight would have been 88.48 (76 + 9.99 + 2.49) kilograms. Use of Communication Facility in Committing Drug Offense; Attempt or Conspiracy. Here, the judge must impose a sentence pursuant to the Federal Sentencing Guidelines Manual without regard to any statutory minimum sentence, if the court finds Historical Note: Effective November 1, 1989 (amendment 140). hbbd```b``uA$2r "80d6#HT M^WbOo]#| In the case of a synthetic cathinone that is not specifically referenced in this guideline, the converted drug weight for the class should be used to determine the appropriate offense level. Because LSD typically is marketed and consumed orally on a carrier medium, the inclusion of some weight attributable to the carrier medium recognizes (A) that offense levels for most other controlled substances are based upon the weight of the mixture containing the controlled substance without regard to purity, and (B) the decision in Chapman v. United States, 500U.S. 453 (1991) (holding that the term mixture or substance in 21 U.S.C. The federal statute sets a maximum penalty for each crime. 1. Historical Note: Section 2D1.3 (Distributing Controlled Substances to Individuals Younger than Twenty-One Years, to Pregnant Women, or Within 1000 Feet of a School or College), effective November 1, 1987, amended effective January15, 1988 (amendment 23), was deleted by consolidation with 2D1.2 effective November 1, 1989 (amendment 135). 4. 841 Prohibits the manufacture and distribution of, and possession with intent to distribute, controlled substances 21 U.S.C. Historical Note: Effective November 1, 1987. Web966. 70506)1 1st offense Substance Additionally, an enhancement under 3B1.3 ordinarily would apply in a case in which the defendant used his or her position as a coach to influence an athlete to use an anabolic steroid. "Interactive computer service", for purposes of subsection (b)(3) and this note, has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. 5. 865, specifying the number of months to be served consecutively for the conviction under 21 U.S.C. 1319(c), the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 2D1.7. Historical Note:Effective November 1, 2007 (amendment 700). If subsection (b)(3) or (b)(5) applies, do not apply subsection (b)(16)(C). Determine the offense level under each guideline separately. List II chemicals are generally used as solvents, catalysts, and reagents. Amended effective January 15, 1988 (amendment 25); November 1, 1989 (amendment 141). WebAny person who violates section 841(a)(1) of this title or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled The Commission establishes sentencing policies and practices for the federal courts. If the offense involved the large-scale manufacture, distribution, transportation, exportation, or importation of prohibited flasks, equipment, chemicals, products, or material, an upward departure may be warranted. However, there may be cases in which a substantially lesser or greater quantity of a synthetic cathinone is needed to produce an effect on the central nervous system similar to the effect produced by a typical synthetic cathinone in the class, such as methcathinone or alpha-PVP. Where the circumstances establish intended consumption by a person other than the defendant, an upward departure may be warranted. According to the defendants guilty plea and court documents, on May 2, 2022, law enforcement observed Levi Adams Westbrook, 30, meet with a suspected drug trafficker 3. See 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases). At least 8.4 KG but less than 25.2 KG of Cocaine Base; If the resulting offense level is less than level 27, increase to level 27. 1. ________________________ endstream endobj startxref As a result, the punishment can be harsher if the defendant pleads or is found guilty, particularly if the defendant was involved in gang activity or organized crime. Substantial Risk of Harm Associated with the Manufacture of Amphetamine and Methamphetamine.. In the case of a controlled substance that is not specifically referenced in this guideline, determine the base offense level using the converted drug weight of the most closely related controlled substance referenced in this guideline. 6. Amended effective November 1, 1992 (amendment 447); November 1, 1995 (amendment 520); November 1, 1997 (amendment 558); November 1, 2000 (amendment 605); November 1, 2001 (amendment 626); November 1, 2004 (amendment 667); November 1, 2010 (amendment 746). The amount of ephedrine directly affects the amount of methamphetamine produced. 1. Determining Quantity Based on Doses, Pills, or Capsules.If the number of doses, pills, or capsules but not the weight of the controlled substance is known, multiply the number of doses, pills, or capsules by the typical weight per dose in the table below to estimate the total weight of the controlled substance (e.g., 100 doses of Mescaline at 500milligrams per dose= 50 grams of mescaline). (B) Interaction of Subsections (b)(1) and (b)(2).The enhancements in subsections (b)(1) and (b)(2) may be applied cumulatively (added together), as is generally the case when two or more specific offense characteristics each apply. 4. Note: Because of the statutory equivalences, the ratios in the Drug Conversion Tables do not necessarily reflect dosages based on pharmacological equivalents. In this case, the base offense level would be level 36. (2) If the offense involved (A) an unlawful discharge, emission, or release into the environment of a hazardous or toxic substance; or (B) the unlawful transportation, treatment, storage, or disposal of a hazardous waste, increase by 2 levels. 14. WebPossession with Intent to Distribute is a more serious version of Possession of a Controlled Substance. (i) Factors to Consider.In determining, for purposes of subsection (b)(14)(C)(ii) or(D), whether the offense created a substantial risk of harm to human life or the environment, the court shall include consideration of the following factors: (I) The quantity of any chemicals or hazardous or toxic substances found at the laboratory, and the manner in which the chemicals or substances were stored. Subsection (b)(2) implements the directive to the Commission in section 5 of Public Law111220. 2246(2) and (3), respectively. Statutory Provision: 21 U.S.C. 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. Categories of Drug Possession Laws. (A) Except as provided in Note (B), to calculate the base offense level in an offense that involves two or more chemicals, use the quantity of the single chemical that results in the greatest offense level, regardless of whether the chemicals are set forth in different tables or in different categories (i.e., list I or list II) under subsection (d) or (e) of this guideline, as appropriate. hb```),,@( For example, if the defendant, as part of the same course of conduct or common scheme or plan, sold 5 grams of heroin near a protected location and 10 grams of heroin elsewhere, the offense level from subsection (a)(1) would be level 14 (2 plus the offense level for the sale of 5 grams of heroin, the amount sold near the protected location); the offense level from subsection (a)(2) would be level 15 (1 plus the offense level for the sale of 15 grams of heroin, the total amount of heroin involved in the offense). In making this determination, the court should consider how frequently the premises was used by the defendant for manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant for lawful purposes. Any person who violates this subsection (b) shall be guilty of a Class 3 felony, For example, if the applicable adjusted guideline range is 151-188 months and the court determines a "total punishment" of 151 months is appropriate, a sentence of 130 months for the underlying offense plus 21 months for the conduct covered by 21 U.S.C. Imposition of Consecutive Sentence for 21 U.S.C.