[Federal Register Volume 65, Number 246 (Thursday, December 21, 2000)]
[Notices]
[Pages 80474-80476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32578]


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UNITED STATES SENTENCING COMMISSION


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.

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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 Secs. 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: (202) 502-4590.

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

[[Page 80475]]

enhancements in Secs. 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 Sec. 2D1.11 (Unlawfully 
Distributing, Importing, Exporting or Possessing a Listed Chemical) or 
Sec. 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 Secs. 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 Sec. 2D1.1 and accordingly, the new enhancements.
    (2) Structure.--The basic structure of the amendment to Secs. 2D1.1 
and 2D1.10 tracks the structure of the directive. Accordingly, in 
Sec. 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 Sec. 2D1.10 differs from 
that in Sec. 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 
Sec. 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 
Sec. 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 Sec. 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 Sec. 2D1.1 captioned ``Application Notes'' is 
amended in Note 20 by inserting ``Hazardous or Toxic Substances.'''' 
before ``Subsection (b)(5)''.
    The Commentary to Sec. 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 Sec. 2A3.1 (Criminal Sexual Abuse).''.
    The Commentary to Sec. 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 Sec. 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

[[Page 80476]]

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 Sec. 2A3.1 (Criminal Sexual Abuse).
    Background: Subsection (b)(1) implements the instruction to the 
Commission in section 102 of Public Law 106-878.''.

[FR Doc. 00-32578 Filed 12-20-00; 8:45 am]
BILLING CODE 2210-01-P