00-32578. Sentencing Guidelines for United States Courts

AGENCY:

United States Sentencing Commission.

ACTION:

Notice of promulgation of temporary, “emergency” guideline amendment increasing penalties for any offense relating to the manufacture, attempt to manufacture, or conspiracy to manufacture methamphetamine or amphetamine that involves a substantial risk of harm to human life or the environment.

SUMMARY:

Pursuant to section 102 of the Methamphetamine and Club Drug Anti-Proliferation Act of 2000, Pub. L. 106-310, the Commission is promulgating a temporary, emergency amendment to §§ 2D1.1 and 2D1.10 and accompanying commentary. This notice sets forth the emergency amendment and a synopsis of the issues addressed by the amendment.

DATES:

The Commission has specified an effective date of December 16, 2000, for the emergency amendment.

FOR FURTHER INFORMATION CONTACT:

Michael Courlander, Public Affairs Officer, Telephone: [phone].

SUPPLEMENTARY INFORMATION:

(1) The Methamphetamine and Anti-Proliferation Act of 2000 (The “Act”).—Section 102 of the Act directs the Commission to amend the federal sentencing guidelines with respect to any offense relating to the manufacture, attempt to manufacture, or conspiracy to manufacture amphetamine or methamphetamine in (A) the Controlled Substances Act (21 U.S.C. 801 et seq.); (B) the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.); or (C) the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.).

In carrying out this directive, the Act requires the Commission to provide a 3-level enhancement or a minimum offense level of level 27 if the offense created a substantial risk of harm to human life or the environment. If the offense created a substantial risk of harm to the life of a minor or incompetent, the Act requires a 6-level enhancement and a minimum offense level of level 30.

(2) Effective Date.—The Act requires the Commission to promulgate amendments under emergency amendment authority. Although the Act generally provides that the Commission shall promulgate various amendments “as soon as practicable,” the directive in section 102 of the Act specifically requires that the amendment implementing this specific directive shall apply “to any offense occurring on or after the date that is 60 days after the date of the enactment” of the Act (i.e., December 16, 2000). Accordingly, the effective date of this amendment is December 16, 2000.

(3) Website.—The temporary, emergency amendment set forth in this notice may also be accessed through the Commission's website at www.ussc.gov.

Authority: 28 U.S.C. 994(a), (o), (p).

Diana E. Murphy,

Chair.

Amendment: Substantial Risks Associated With Production of Methamphetamine and Amphetamine

1. Synopsis of Amendment: This amendment addresses the directive in section 102 (the “substantial risk directive”) of the Methamphetamine Anti-Proliferation Act of 2000 (the “Act”), Pub. L. 106-310.

The Act requires the Commission to promulgate amendments under emergency amendment authority. Although the Act generally provides that the Commission shall promulgate various amendments “as soon as practicable,” the substantial risk directive specifically requires that the amendment implementing the directive shall apply “to any offense occurring on or after the date that is 60 days after the date of the enactment” of the Act.

The directive instructs the Commission to amend the federal sentencing guidelines with respect to any offense relating to the manufacture, attempt to manufacture, or conspiracy to manufacture amphetamine or methamphetamine in (1) the Controlled Substances Act (21 U.S.C. 801 et seq.); (2) the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.); or (3) the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.).

The Act requires the Commission, in carrying out the substantial risk directive, to provide the following enhancements—

(A) if the offense created a substantial risk of harm to human life (other than a life described in subparagraph (B)) or the environment, increase the base offense level for the offense—

(i) by not less than 3 offense levels above the applicable level in effect on the date of the enactment of this Act; or

(ii) if the resulting base offense level after an increase under clause (i) would be less than level 27, to not less than level 27; or

(B) if the offense created a substantial risk of harm to the life of a minor or incompetent, increase the base offense level for the offense—

(i) by not less than 6 offense levels above the applicable level in effect on the date of the enactment of this Act; or

(ii) if the resulting base offense level after an increase under clause (i) would be less than level 30, to not less than level 30.

The pertinent aspects of this amendment are as follows:

(1) Guidelines Amended.—The amendment provides new enhancements in §§ 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking) and 2D1.10 (Endangering Human Life While Illegally Manufacturing a Controlled Substance) that also apply in the case of an attempt or a conspiracy to manufacture amphetamine or methamphetamine. The amendment does not amend § 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical) or § 2D1.12 (Unlawful Possession, Manufacture, Distribution, or Importation or Prohibited Flask or Equipment). Although offenses that involve the manufacture of amphetamine or methamphetamine also are referenced in Appendix A (Statutory Index) to §§ 2D1.11 and 2D1.12, the cross reference in these guidelines, which applies if the offense involved the manufacture of a controlled substance, will result in application of § 2D1.1 and accordingly, the new enhancements.

(2) Structure.—The basic structure of the amendment to §§ 2D1.1 and 2D1.10 tracks the structure of the directive. Accordingly, in § 2D1.1, the amendment provides a three-level increase and a minimum offense level of level 27 if the offense (A) involved the manufacture of amphetamine or methamphetamine; and (B) created a substantial risk of either harm to human life or the environment. For offenses that created a substantial risk of harm to the life of a minor or an incompetent, the amendment provides a six-level increase and a minimum offense level of 30.

However, the structure of the amendment in § 2D1.10 differs from that in § 2D1.1 with respect to the first prong of the enhancement (regarding substantial risk of harm to human life or to the environment). Specifically, the amendment provides a three-level increase and a minimum offense level of level 27 if the offense involved the manufacture of amphetamine or methamphetamine without making application of the enhancement dependent upon whether the offense also involved a substantial risk of either harm to human life or the environment. Consideration of whether the offense involved a substantial risk of harm to human life is unnecessary because § 2D1.10 applies only to convictions under 21 U.S.C. 858, and the creation of a substantial risk of harm to human life is an element of a § 858 offense. Therefore, the base offense level already takes into account the substantial risk of harm to human life. Consideration of whether the offense involved a substantial risk of harm to the environment is unnecessary because the directive predicated application of the enhancement on substantial risk of harm either to human life or to the environment, and the creation of a substantial risk of harm to human life is necessarily present because it is an element of the offense.

(3) Determining “Substantial Risk of Harm”.—Neither the directive nor any statutory provision defines “substantial risk of harm”. Based on an analysis of relevant case law that interpreted “substantial risk of harm”, the amendment provides commentary setting forth factors that may be relevant in determining whether a particular offense created a substantial risk of harm.

(4) Definitions.—The definition of “incompetent” is modeled after several state statutes, which proved useful for purposes of this amendment.

The definition of “minor” has the meaning given that term in Application Note 1 of the Commentary to § 2A3.1 (Criminal Sexual Abuse).

Amendment

Section 2D1.1(b)(5) is amended by striking the comma after “substance” and inserting a semicolon.

Section 2D1.1(b) is amended by redesignating subdivision (6) as subdivision (7); and by inserting after subdivision (5) the following:

“(6) (Apply the greater):

(A) If the offense (i) involved the manufacture of amphetamine or methamphetamine; and (ii) created a substantial risk of harm to (I) human life other than a life described in subsection (b)(6)(B); or (II) the environment, increase by 3 levels. If the resulting offense level is less than level 27, increase to level 27.

(B) If the offense (i) involved the manufacture of amphetamine or methamphetamine; and (ii) created a substantial risk of harm to the life of a minor or an incompetent, increase by 6 levels. If the resulting offense level is less than level 30, increase to level 30.”.

The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 20 by inserting “Hazardous or Toxic Substances.”” before “Subsection (b)(5)”.

The Commentary to § 2D1.1 captioned “Application Notes” is amended by adding at the end the following:

“21. Substantial Risk of Harm Associated with the Manufacture of Amphetamine and Methamphetamine.”

(A) Factors to Consider.”In determining, for purposes of subsection (b)(6), whether the offense created a substantial risk of harm to human life or the environment, the court may consider factors such as the following:

(i) The quantity of any chemicals or hazardous or toxic substances found at the laboratory, or the manner in which the chemicals or substances were stored.

(ii) The manner in which hazardous or toxic substances were disposed, or the likelihood of release into the environment of hazardous or toxic substances.

(iii) The duration of the offense, or the extent of the manufacturing operation.

(iv) The location of the amphetamine or methamphetamine laboratory (e.g., in a residential neighborhood or a remote area) and the number of human lives placed at substantial risk of harm.

(B) Definitions.—For purposes of subsection (b)(6)(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.

‘Minor’ has the meaning given that term in Application Note 1 of the Commentary to § 2A3.1 (Criminal Sexual Abuse).”.

The Commentary to § 2D1.1 captioned “Background” is amended by adding at the end the following:

“Subsection (b)(5) implements the instruction to the Commission in section 303 of Public Law 103-237.

Subsection (b)(6) implements the instruction to the Commission in section 102 of Public Law 106-878.”.

Section 2D1.10 is amended by inserting after subsection (a) the following:

“(b) Specific Offense Characteristic

(1) (Apply the greater):

(A) If the offense involved the manufacture of amphetamine or methamphetamine, increase by 3 levels. If the resulting offense level is less than level 27, increase to level 27.

(B) If the offense (i) involved the manufacture of amphetamine or methamphetamine; and (ii) created a substantial risk of harm to the life of a minor or an incompetent, increase by 6 levels. If the resulting offense level is less than level 30, increase to level 30.”.

The Commentary to § 2D1.10 is amended by adding at the end the following:

“Application Note:

1. Substantial Risk of Harm Associated with the Manufacture of Amphetamine and Methamphetamine.—

(A) Factors to Consider.—In determining, for purposes of subsection (b)(1)(B), whether the offense created a substantial risk of harm to the life of a minor or an incompetent, the court may consider factors such as the following:

(i) The quantity of any chemicals or hazardous or toxic substances found at the laboratory, or the manner in which the chemicals or substances were stored.

(ii) The manner in which hazardous or toxic substances were disposed, or the likelihood of release into the environment of hazardous or toxic substances.

(iii) The duration of the offense, or the extent of the manufacturing operation.

(iv) The location of the amphetamine or methamphetamine laboratory (e.g., in a residential neighborhood or a remote area) and the number of human lives placed at substantial risk of harm.

(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.

‘Minor’ has the meaning given that term in Application Note 1 of the Commentary to § 2A3.1 (Criminal Sexual Abuse).

Background: Subsection (b)(1) implements the instruction to the Commission in section 102 of Public Law 106-878.”.