[Federal Register Volume 82, Number 118 (Wednesday, June 21, 2017)]
[Notices]
[Pages 28382-28384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-12867]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Request for public comment.

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SUMMARY: In August 2016, the Commission indicated that one of its 
policy 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 
81 FR 58004 (Aug. 24, 2016). As part of its continuing work on this 
priority, the Commission is publishing this request for public comment 
on issues related to MDMA/Ecstasy and methylone, one of the synthetic 
cathinones included in the Commission's study. 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 August 
7, 2017.

ADDRESSES: All written comment should be sent to the Commission by 
electronic mail or regular mail. The email address for public comment 
is [email protected]. 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, (202) 502-4500, [email protected].

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). The 
Commission expects that this study will be conducted over a multi-year 
period, and may solicit comment several times during this period from 
experts and other members of the public.
    On December 19, 2016, the Commission published a request for 
comment 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 relating 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.
    As part of its continuing work on this priority, the Commission is 
publishing this second request for comment specifically focused on 
issues related to MDMA/Ecstasy and methylone, one of the synthetic 
cathinones included in the Commission's study. 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 marihuana equivalencies for 
specific controlled substances, including their chemical structure, 
pharmacological effects, legislative and scheduling history, potential 
for addiction and abuse, the pattern of abuse and harms associated with 
their abuse, and the patterns of trafficking and harms associated with 
their trafficking.
    MDMA.--MDMA (3,4-Methylenedioxy-methamphetamine) is a Schedule I 
controlled substance with a chemical structure similar to 
methamphetamine and the hallucinogen mescaline. See U.S. Sentencing 
Comm'n, Report to the Congress: MDMA Drug Offenses: Explanation of 
Recent Guideline Amendments 6-7 (May 2001) (``MDMA Report''), available 
at http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/drug-topics/200105_RtC_MDMA_Drug_Offenses.pdf. 
MDMA, also known as ``ecstasy'' or ``molly,'' was originally developed 
for therapeutic use, but became a drug of abuse by the late 1970s. Id. 
at 7. Its use results in enhanced feelings of pleasure, relaxation, and 
self-confidence, while accompanying physical symptoms may include 
increased heart rate and blood pressure and difficulty regulating body 
temperature. MDMA is typically marketed and consumed in pill form. Id.
    MDMA is not specifically listed in the Drug Quantity Table at Sec.  
2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy), but it is referenced in the Drug Equivalency Tables. See 
USSC Section 2D1.1,

[[Page 28383]]

comment. (n.8(D)). Prior to 2001, the marihuana equivalency of MDMA was 
1 gm of MDMA = 35 gm of marihuana. The Commission established the 
current marihuana equivalency and penalties for MDMA in 2001 in 
response to the Ecstasy Anti-Proliferation Act of 2000, Public Law 106-
310 (Oct. 17, 2000). The Act directed the Commission to examine whether 
the then-current penalties associated with MDMA were appropriate, adopt 
any appropriate amendments to the Guidelines Manual, and submit a 
report to Congress explaining its actions. Id. at 2. The Act also 
instructed the Commission to consider five distinct ``dangers'' 
associated with unlawful activity involving MDMA: (1) Rapid growth in 
its use; (2) a recent increase in its importation; (3) the young age at 
which usage began; (4) the marketing of the substance to youth; and (5) 
the large number of doses per gram of MDMA. Id. at 3.
    The Commission implemented the directive by adopting an amendment 
setting the marihuana equivalency for MDMA as 1 gm of MDMA = 500 gm of 
marihuana. See USSG App. C, amend. 609 (effective May 1, 2001). In 
response to the directive, the Commission also published its MDMA 
Report and submitted it to Congress. In the MDMA Report, the Commission 
explained that it had found evidence supporting all of Congress's 
concerns except for the fifth (the number of doses per gram). See id. 
at 11-16. The MDMA Report also explained that there was conflicting 
evidence about MDMA's potential long-term mental and physical harms and 
dangers relative to other controlled substances. See id. at 17-18. 
After considering all the evidence, the Commission chose a 500:1 ratio, 
which was less than an earlier 1,000:1 proposal, but would result in 
significant increases in the penalties for MDMA offenses. See id. at 6. 
The 500:1 ratio was intended to punish ``local distributors'' with 
sentences of approximately five years, and ``upper and middle level 
distributors'' with sentences of ten or more years. See id. at 18.
    The marihuana equivalency of MDMA remains 1 gm of MDMA = 500 gm of 
marihuana. Some public comment and judicial opinions have suggested 
that the current marihuana equivalency for MDMA may no longer be 
appropriate in light of scientific and practical developments that have 
occurred since 2001. Other stakeholders have suggested that the current 
ratio remains appropriate in light of the concerns expressed by 
Congress in 2000.
    Methylone and Other Synthetic Cathinones.--According to the 
National Institute on Drug Abuse, synthetic cathinones, also known as 
``bath salts,'' are human-made substances chemically related to 
cathinone, a stimulant found in the khat plant. See National Institute 
on Drug Abuse, DrugFacts: Synthetic Cathinones (``Bath Salts'') 
(January 2016) available at https://www.drugabuse.gov/publications/drugfacts/synthetic-cathinones-bath-salts. Methylone (3,4-
methylenedioxy-N-methylcathinone), also known as MDMC, is a synthetic 
cathinone that has been reported to have hallucinogenic effects broadly 
similar to those of MDMA. Like MDMA, methylone has been associated with 
use at dance parties or ``raves.'' According to the Drug Enforcement 
Agency, methylone is typically imported from abroad and consumed in 
capsule form. Drug Enforcement Agency, U.S. Dep't of Justice, Drugs of 
Abuse: A DEA Resource Guide 80 (2015).
    Unlike MDMA, methylone is not specifically listed in either the 
Drug Quantity Table or the Drug Equivalency Tables at Section 2D1.1. As 
with any drug trafficking offense that involves a controlled substance 
not specifically referenced in the guidelines, courts are required in 
cases involving methylone to ``determine the base offense level using 
the marihuana equivalency of the most closely related controlled 
substance referenced in [Section 2D1.1].'' See USSG Section 2D1.1, 
comment. (n.6). The guidelines establish a three-step process for 
making this determination. See USSG 2D1.1, comment. (n.6, 8). First, a 
court must determine the most closely related controlled substance by 
considering, to the extent practicable, the factors set forth in 
Application Note 6. Once the most closely related controlled substance 
is determined, the next step is to determine the appropriate quantity 
of marihuana equivalent, using the Drug Equivalency Tables at 
Application Note 8(D). The final step is to use the Drug Quantity Table 
at Section 2D1.1(c) to determine the base offense level that 
corresponds to that amount of marihuana.
    A preliminary review of Commission data regarding cases involving 
synthetic cathinones indicates that, in determining the most closely 
related controlled substance, courts recognize distinctions among types 
of synthetic cathinones. For example, in cases involving methylone, 
Commission data indicates that courts have almost always identified 
MDMA as the most closely related controlled substance to methylone, and 
have used either MDMA's marihuana equivalency of 500:1 or a reduced 
equivalency.
    Issues for Comment.--
    1. The Commission invites general comment on whether, and if so 
how, the guidelines for MDMA/Ecstasy trafficking should be changed. As 
stated above, the marihuana equivalency of MDMA is 1 gm of MDMA = 500 
gm of marihuana. Is the marihuana equivalency for MDMA appropriate? 
Should the Commission establish a different equivalency for MDMA? If 
so, what equivalency should the Commission provide and on what basis?
    The Commission further seeks comment on any relevant developments 
in the scientific literature on the health effects of MDMA use since 
the Commission published its MDMA Report and last amended the marihuana 
equivalency for MDMA in 2001. The Commission also seeks comment about 
whether there have been changes in MDMA distribution and usage 
patterns, such as marketing to or prevalence of use among youth, since 
2001. For example, how is MDMA typically manufactured, distributed, and 
marketed today? How does MDMA compare to other controlled substances 
referenced in Section 2D1.1 in terms of health effects (including 
addictiveness and abuse potential), marketing and trafficking patterns, 
and potency by dosage unit? How should the Commission assess the harms 
of MDMA relative to those of other controlled substances?
    Finally, the Commission seeks comment on whether since 2001 there 
have been any developments to suggest that the Commission, in addition 
to or instead of establishing a different equivalency for MDMA, should 
revise the ``typical weight per unit'' measure set forth in Application 
Note 9 to Section 2D1.1, which is currently set at 250 mg for MDMA. If 
so, what are those developments? How should the Commission revise the 
``typical weight per unit'' measure set forth for MDMA?
    2. As noted above, courts have typically identified MDMA as the 
most closely related controlled substance to methylone. Under the 
current guidelines, including Application Note 6 to Section 2D1.1, is 
this determination appropriate? If not, is there any controlled 
substance referenced in Section 2D1.1 that is most closely related to 
methylone? If so, what substance?
    The Commission seeks comment on whether the Commission should 
provide a marihuana equivalency for methylone. If so, and MDMA is 
determined to be the most closely related controlled substance to

[[Page 28384]]

methylone, should the Commission specify a marihuana equivalency for 
methylone at the same ratio as MDMA, regardless of whether the ratio 
for MDMA is changed from its current 500:1 level? Should the Commission 
establish a marihuana equivalency for methylone at a higher or lower 
ratio than the current MDMA equivalency? If so, what equivalency should 
the Commission provide and why? To the extent methylone has different 
characteristics than MDMA, how do those characteristics compare with 
other controlled substances referenced in Section 2D1.1 in terms of 
health effects (including addictiveness and abuse potential), marketing 
and trafficking patterns, and potency by dosage unit?
    If the Commission were to establish a marihuana equivalency for 
methylone, which is often marketed and consumed in capsule form, should 
the Commission establish a ``typical weight per unit'' for methylone in 
Application Note 9 to Section 2D1.1?
    3. The Commission seeks general comment on whether there are 
synthetic cathinones, other than methylone, that are substantially 
similar in their effects to MDMA. If so, what are those substances? How 
do those substances compare to MDMA in terms of health effects 
(including addictiveness and abuse potential), marketing and 
trafficking patterns, and potency by dosage unit? If the Commission 
were to include any such other synthetic cathinones in the Drug 
Equivalency Tables at Application Note 8(D) to Section 2D1.1, how 
should the Commission establish marihuana equivalencies for these other 
synthetic cathinones in relation to one another and to the other 
controlled substances referenced in Section 2D1.1?

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

William H. Pryor, Jr.,
Acting Chair.
[FR Doc. 2017-12867 Filed 6-20-17; 8:45 am]
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