2017-21820. Sentencing Guidelines for United States Courts

AGENCY:

United States Sentencing Commission

ACTION:

Request for public comment.

SUMMARY:

In August 2017, the Commission indicated that one of its policy priorities would be the “[c]ontinuation of its multiyear study of offenses involving synthetic cathinones (such as methylone, MDPV, and mephedrone) and synthetic cannabinoids (such as JWH-018 and AM-2201), as well as tetrahydrocannabinol (THC), fentanyl, and fentanyl analogues, and consideration of appropriate guideline amendments, including simplifying the determination of the most closely related substance under Application Note 6 of the Commentary to § 2D1.1.” See 82 FR 39949 (Aug. 22, 2017). As part of its continuing work on this priority, the Commission is publishing this request for public comment on issues related to fentanyl and fentanyl analogues. The issues for comment are set forth in the SUPPLEMENTARY INFORMATION portion of this notice.

DATES:

Public comment regarding the issues for comment set forth in this notice should be received by the Commission not later than November 13, 2017.

ADDRESSES:

All written comment should be sent to the Commission by electronic mail or regular mail. The email address for public comment is [e-mail]. The regular mail address for public comment is United States Sentencing Commission, One Columbus Circle, NE., Suite 2-500, Washington, DC 20002-8002, Attention: Public Affairs.

FOR FURTHER INFORMATION CONTACT:

Christine Leonard, Director, Office of Legislative and Public Affairs, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and submits guideline amendments to the Congress not later than the first day of May each year pursuant to 28 U.S.C. 994(p).

In August 2016, the Commission indicated that one of its priorities would be the “[s]tudy of offenses involving MDMA/Ecstasy, synthetic cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone), and consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study.” See U.S. Sentencing Comm'n, “Notice of Final Priorities,” 81 FR 58004 (Aug. 24, 2016). On August 17, 2017, the Commission revised the priority to study offenses involving synthetic cathinones (such as methylone, MDPV, and mephedrone) and synthetic cannabinoids (such as JWH-018 and AM-2201), as well as tetrahydrocannabinol (THC), fentanyl, and fentanyl analogues. See U.S. Sentencing Comm'n, “Notice of Final Priorities,” 82 FR 39949 (Aug. 22, 2017). The Commission also stated that, as part of the study, it would consider possible approaches to simplify the determination of the most closely related substance under Application Note 6 of the Commentary to § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy). The Commission expects to solicit comment several times during the study period from experts and other members of the public.

On December 19, 2016, the Commission published a notice inviting general comment on synthetic cathinones (MDPV, methylone, and mephedrone) and synthetic cannabinoids (JWH-018 and AM-2201), as well as about the application of the factors the Commission traditionally considers when determining the marihuana equivalencies for specific controlled substances to the substances under study. See U.S. Sentencing Comm'n, “Request for Public Comment,” 81 FR 92021 (Dec. 19, 2016).

On April 18, 2017, the Commission held a public hearing related to this priority. The Commission received testimony from experts on the synthetic drugs related to the study, including testimony about their chemical structure, pharmacological effects, trafficking patterns, and community impact.

On June 21, 2017, the Commission published a second notice requesting public comment on issues specifically related to MDMA/ecstasy and methylone, one of the synthetic cathinones included in the Commission's study. See U.S. Sentencing Comm'n, “Request for Public Comment,” 82 FR 28382 (June 21, 2017).

On August 25, 2017, the Commission published a third notice requesting public comment on issues related to (1) synthetic cathinones and (2) tetrahydrocannabinol (THC) and synthetic cannabinoids. See U.S. Sentencing Comm'n, “Request for Public Comment,” 82 FR 40648 (Aug. 25, 2017).

As part of its continuing work on this priority, the Commission is publishing this fourth request for public comment focusing on issues related to fentanyl and fentanyl analogues. In addition to the substance-specific topics discussed below, the Commission anticipates that its work will continue to be guided by the factors the Commission traditionally considers when determining the marihuana equivalencies for specific controlled substances, including their chemical structure, pharmacological effects, legislative and scheduling history, potential for addiction and abuse, the patterns of abuse and harms associated with their abuse, and the patterns of trafficking and harms associated with their trafficking.

The Commission will also consider possible approaches to simplify the determination of the most closely related substance under Application Note 6 of the Commentary to § 2D1.1. The Commission has received comment from the public suggesting that questions regarding “the most closely related controlled substance” arise frequently in cases involving the substances included in the study, and that the Application Note 6 process requires courts to hold extensive hearings to receive expert testimony on behalf of the government and the defendant.

Fentanyl and Fentanyl Analogues.—According to the National Institute on Drug Abuse, fentanyl is a powerful synthetic opioid analgesic that is similar to morphine but 50 to 100 times more potent. See National Institute on Drug Abuse, DrugFacts: Fentanyl (June 2016), available at https://www.drugabuse.gov/​publications/​drugfacts/​fentanyl. Fentanyl is a prescription drug that can be diverted for illicit use. Non-pharmaceutical fentanyl and analogues of fentanyl are also produced in clandestine laboratories for illicit use. See, e.g., U.N. Office on Drugs & Crime, Fentanyl and Its Analogues—50 Years On, Global Smart Update 17 (March 2017), available at https://www.unodc.org/​documents/​scientific/​Global_​SMART_​Update_​17_​web.pdf. The clandestinely manufactured fentanyl and fentanyl analogues have frequently been identified as the substances associated with recent increases in drug overdose deaths. These substances are sold in the illicit drug market as powder, pills, absorbed on blotter paper, mixed with or substituted for heroin, or as tablets that may mimic the appearance of other opioids.

The Controlled Substances Act (21 U.S.C. 801 et seq.) classifies fentanyl as a Schedule II controlled substance, along with heroin and other opiates. While there is no other specific reference to the term “fentanyl” in Title 21, United States Code, a subsequent section establishes a mandatory minimum penalty for a substance identified as “N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propenamide.” 21 U.S.C. 841(b)(1)(A)(vi). A Department of Justice regulation explains that N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propenamide is the substance “commonly known as fentanyl.” 28 CFR 50.21(d)(4)(vii). The Controlled Substances Act prescribes a mandatory minimum penalty of five years for trafficking 40 or more grams of the substance, or ten or more grams of an analogue of the substance. 21 U.S.C. 841(b)(1)(A)(vi); (b)(1)(B)(vi).

The Drug Quantity Table in § 2D1.1 contains entries for both “fentanyl” and “fentanyl analogue,” at ratios equivalent to those established by statute. The Drug Equivalency Tables in the Commentary to § 2D1.1 clearly identify fentanyl with the specific substance associated with the statutory minimum penalty by providing a marihuana equivalency for 1 gm of “Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] Propenamide)” equal to 2.5 kg of marihuana (i.e., a 1:2,500 ratio). The Drug Equivalency Tables also sets forth the marihuana equivalencies for two other substances, Alpha-Methylfentanyl and 3-Methylfentanyl. Both substances have the same marihuana equivalency ratio, 1:10,000, as fentanyl analogue. Alpha-Methylfentanyl and 3-Methylfentanyl are pharmaceutical analogues of fentanyl that were developed in the 1960s or 1970s. See, e.g., T.J. Gillespie et al., Identification and Quantification of Alpha-Methylfentanyl in Post Mortem Specimens, 6(3) J. of Analytical Toxicology 139 (May-June 1982).

In cases involving a fentanyl analogue other than the two listed above, courts are required by Application Note 6 of the Commentary to § 2D1.1 to “determine the base offense level using the marihuana equivalency of the most closely related controlled substance referenced in [§ 2D1.1].” Section 2D1.1 provides a three-step process for making this determination. See USSG § 2D1.1, comment. (n.6, 8). First, a court determines the most closely related controlled substance by considering, to the extent practicable, the factors set forth in Application Note 6. Next, the court determines the appropriate quantity of marihuana equivalent of the most closely related controlled substance, using the Drug Equivalency Tables at Application Note 8(D). Finally, the court uses the Drug Quantity Table in § 2D1.1(c) to determine the base offense level that corresponds to that amount of marihuana.

Issues for Comment.—

1. The Commission invites general comment on fentanyl and fentanyl analogues, particularly on their chemical structures, their pharmacological effects, potential for addiction and abuse, the patterns of abuse and harms associated with their abuse, and the patterns of trafficking and harms associated with their trafficking. How are fentanyl and fentanyl analogues manufactured, distributed, possessed, and used? What are the characteristics of the offenders involved in these various activities? What harms are posed by these activities? How do these harms differ from those associated with other opioids such as heroin, morphine, hydrocodone, or oxycodone? How, if at all, do the harms associated with pharmaceutical fentanyl differ from the harms associated with non-pharmaceutical fentanyl? To the extent the harms posed by these substances are different, should the guidelines provide different penalties for pharmaceutical fentanyl and non-pharmaceutical fentanyl?

2. Fentanyl, when identified as N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propenamide, and analogues of that specific chemical, are subject to mandatory minimum penalties under current law, with analogues punished four times more harshly than fentanyl itself. Those penalties have shaped the guidelines provisions related to fentanyl since 1987. The Commission seeks comment on whether there are controlled substances that might commonly be regarded as “fentanyl analogues” that are not analogues of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propenamide and therefore do not meet the statutory definition of an “analogue.” If so, should the guidelines provide penalties for such controlled substances consistent with the mandatory minimum provisions applicable to fentanyl analogues that meet the statutory definition? Should the guidelines instead account for such substances in a different manner than substances to which the mandatory minimum penalty applies?

3. The Commission invites general comment on whether and, if so how, the guidelines should be amended to account for fentanyl and fentanyl analogues. How, if at all, should the guideline provisions related to fentanyl and the fentanyl analogues specifically listed in § 2D1.1 be amended? For example, should the Commission revise the marihuana equivalencies already provided for fentanyl, Alpha-Methylfentanyl, and 3-Methylfentanyl? If so, what equivalency should the Commission provide for each substance, and why?

Should the Commission amend § 2D1.1 to account for other unlisted fentanyl analogues? For example, should the Commission establish marihuana equivalencies for fentanyl analogues currently not listed in § 2D1.1? If so, what specific fentanyl analogues should the Commission include in the Drug Equivalency Tables and what equivalency should the Commission provide for each such substance? What factors should the Commission consider when deciding whether to account for these substances?

4. The Commission has received anecdotal information about the availability of several fentanyl analogues. How are these novel fentanyl analogues developed, manufactured and trafficked? To what extent are these substances legally manufactured for pharmaceutical purposes and then diverted for illicit trafficking and use, as opposed to having been manufactured illegally? How complex is the procedure to develop these substances and how frequently are they introduced into the illicit drug market?

Instead of providing marihuana equivalencies for individual fentanyl analogues, should the Commission consider establishing a single marihuana equivalency applicable to all fentanyl analogues? Are fentanyl analogues sufficiently similar to one another in chemical structure, pharmacological effects, potential for addiction and abuse, patterns of trafficking and abuse, and associated harms, to support the adoption of a broad class-based approach for sentencing purposes? If so, what marihuana equivalency should the Commission provide for fentanyl analogues as a class and why? What factors should the Commission account for if it considers adopting a broad class-based approach for fentanyl and its analogues? Should the Commission define “fentanyl analogues” for purposes of this broad class-based approach? If so, how? Are there any fentanyl analogues that should not be included as part of a broad class-based approach and for which the Commission should provide a marihuana equivalency separate from other fentanyl analogues? If so, what equivalency should the Commission provide for each such fentanyl analogue, and why?

What are the advantages and disadvantages of a broad class-based approach for fentanyl analogues? If the Commission were to provide a different approach to account for fentanyl analogues in the guidelines, what should that different approach be?

Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of Practice and Procedure 4.4.

William H. Pryor, Jr.,

Acting Chair.