[Federal Register Volume 82, Number 164 (Friday, August 25, 2017)]
[Notices]
[Pages 40648-40651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18077]


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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 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 Sec.  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 synthetic cathinones, tetrahydrocannabinol (THC), 
and synthetic cannabinoids. 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 October 
27, 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). 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, the Commission will consider possible approaches to 
simplify the determination of the most closely related substance under 
Application Note 6 of the Commentary to Sec.  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 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.
    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).
    As part of its continuing work on this priority, the Commission is 
publishing this third request for public comment. The request for 
public comment contains two parts (Part A and Part B). Part A focuses 
on issues related to synthetic cathinones. Part B focuses on issues 
related to tetrahydrocannabinol (THC) and synthetic cannabinoids.
    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 Sec.  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.
    The synthetic cathinones and synthetic cannabinoids included in the 
study are not specifically listed in either the Drug Quantity Table or 
the Drug

[[Page 40649]]

Equivalency Tables in Sec.  2D1.1. For this reason, in cases involving 
these substances, courts are required by Application Note 6 of the 
Commentary to Sec.  2D1.1 to ``determine the base offense level using 
the marihuana equivalency of the most closely related controlled 
substance referenced in [Sec.  2D1.1].'' Section 2D1.1 provides a 
three-step process for making this determination. See USSG Sec.  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 Sec.  2D1.1(c) to determine the base offense level that corresponds 
to that amount of marihuana.

(A) Synthetic Cathinones

    Synthetic Cathinones.--According to the National Institute on Drug 
Abuse, synthetic cathinones, also known as ``bath salts,'' are human-
made drugs 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. Khat is a shrub grown in East Africa and southern Arabia. Around 
1975, scientists identified cathinone as the active chemical in the 
khat plant and, once its molecular structure was discovered, synthetic 
cathinones began to be produced.
    According to the Drug Enforcement Administration and other sources, 
synthetic cathinones are typically purchased in powder or crystal form 
over the Internet from suppliers in China and are delivered to the 
United States by common carriers. See, e.g., European Monitoring Centre 
for Drugs and Drug Addiction, Synthetic Cathinones Drug Profile (2017), 
available at http://www.emcdda.europa.eu/publications/drug-profiles/synthetic-cathinones.
    The scientific literature and other sources suggest that the 
effects produced by a synthetic cathinone can vary compared to both 
natural cathinones and other synthetic cathinones. For example, the 
synthetic cathinones methylone (3,4-methylenedioxy-N-methylcathinone) 
and mephedrone (4-methylmethcathinone) have been reported to have 
hallucinogenic effects broadly similar to MDMA (3,4-methylenedioxy-
methamphetamine), also known as ``ecstasy.'' In contrast, studies have 
reported that MDPV (3,4-methylenedioxypyrovalerone) may produce a 
stimulant effect similar to, but more potent than, cocaine.
    Public comment on the Commission's priority, testimony at the April 
2017 hearing, and other sources indicate that (1) there are many 
different synthetic cathinones, and (2) new synthetic cathinones are 
regularly developed, displacing the existing ones that are trafficked 
illegally. Given this information, it would likely be difficult, if not 
impossible, for the Commission to provide individual marihuana 
equivalencies for each synthetic cathinone in the Guidelines Manual.

Issues for Comment

    1. The Commission invites general comment on synthetic cathinones, 
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 synthetic cathinones 
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 controlled substances such as 
marihuana, cocaine, heroin, methamphetamine, or MDMA/Ecstasy?
    2. The Commission invites general comment on whether and, if so, 
how the guidelines should be amended to account for synthetic 
cathinones. For example, should the Commission establish marihuana 
equivalencies for specific synthetic cathinones such as methylone, 
MDPV, and mephedrone? If so, what equivalencies should the Commission 
provide for methylone, MDPV, and mephedrone, and why? What factors 
should the Commission consider when deciding whether to account for 
these synthetic cathinones?
    3. As stated above, the Commission has received comment indicating 
that a large number of synthetic cathinones are currently available, 
and that new synthetic cathinones are regularly developed for illegal 
trafficking. Instead of providing marihuana equivalencies for 
individual synthetic cathinones, should the Commission consider 
establishing a single marihuana equivalency applicable to all synthetic 
cathinones? Are synthetic cathinones 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 synthetic cathinones as a class and why? What 
factors should the Commission account for if it considers adopting a 
broad class-based approach for synthetic cathinones? Should the 
Commission define ``synthetic cathinones'' for purposes of this broad 
class-based approach? If so, how? Are there any synthetic cathinones 
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 synthetic cathinones? If so, what equivalency 
should the Commission provide for each such synthetic cathinone, and 
why?
    What are the advantages and disadvantages of a broad class-based 
approach for synthetic cathinones? If the Commission were to provide a 
different approach to account for synthetic cathinones in the 
guidelines, what should that different approach be?

(B) Tetrahydrocannabinol (THC) and Synthetic Cannabinoids

    Tetrahydrocannabinol or THC.--Tetrahydrocannabinol, or THC, is the 
primary psychotropic substance in marihuana, the most commonly used 
controlled substance. Although marihuana is the most common method by 
which THC is consumed, THC can also be extracted from marihuana in 
concentrated resins, such as hash oil. Synthetic cannabinoids mimic the 
effects of THC.
    The Drug Equivalency Tables in the Commentary to Sec.  2D1.1 set 
forth the marihuana equivalency for two types of THC--organic THC and 
synthetic THC. The marihuana equivalencies for both types of THC have 
the same ratio: 1 gram of THC = 167 grams of marihuana. The marihuana 
equivalencies for both types of THC have remained unchanged since they 
were established in the first edition of the Guidelines Manual in 1987.
    Synthetic Cannabinoids.--According to the National Institute of 
Drug Abuse, synthetic cannabinoids are man-made mind-altering chemicals 
that are related to tetrahydrocannabinol (THC), the psychoactive 
chemical found in the marihuana plant. However, the available 
scientific literature on this subject strongly suggests that synthetic 
cannabinoids are substantially different than marihuana or organic THC. 
See National Institute of Drug Abuse,

[[Page 40650]]

DrugFacts: Synthetic Cannabinoids (Revised November 2015), available at 
https://www.drugabuse.gov/publications/drugfacts/synthetic-cannabinoids. The Commission has received comment suggesting that these 
substances are manufactured as a dry powder or crystal, mixed with a 
solvent, such as acetone, then sprayed on shredded plant material. 
After the solvent evaporates, the resulting dry mixture is packaged and 
sold as a ``legal'' alternative to marihuana. JWH-018 and AM-2201 are 
two examples of synthetic cannabinoids.
    Public comment on the Commission's priority and testimony at the 
April 2017 hearing indicated that (1) there are many different 
synthetic cannabinoids, and (2) new synthetic cannabinoids are 
regularly developed, displacing the existing ones that are trafficked 
illegally. Given this information, it would likely be difficult, if not 
impossible, for the Commission to provide individual marihuana 
equivalencies for each synthetic cannabinoid in the Guidelines Manual. 
Commission data indicates that the courts have typically identified THC 
as the most closely related controlled substance referenced in the 
guidelines in cases involving synthetic cannabinoids.
    Public comment on the Commission's priority and testimony at the 
April 2017 hearing suggested that applying the marihuana equivalency 
for THC to a synthetic cannabinoid, such as JWH-018 or AM-2201, is 
inappropriate because the equivalency for THC itself lacks any 
empirical support and is too severe. Some commenters also suggested 
that the current marihuana equivalency for THC may be too severe in 
cases involving a synthetic cannabinoid as a part of a mixture (i.e., 
mixed with a solvent or sprayed on a quantity of plant material) when 
compared to cases involving a synthetic cannabinoid in pure form (i.e., 
dry powder or crystals).

Issues for Comment

    1. The Commission invites general comment on organic and synthetic 
tetrahydrocannabinol (THC), particularly on its chemical structure, its 
pharmacological effects, potential for addiction and abuse, the 
patterns of abuse and harms associated with its abuse, and the patterns 
of trafficking and harms associated with its trafficking. How is THC 
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 controlled substances such as 
marihuana, cocaine, heroin, or methamphetamine?
    The Commission further seeks comment on whether, and if so how, the 
Commission should change how the guidelines account for THC. As stated 
above, the marihuana equivalencies of both types of THC, organic and 
synthetic, have the same ratio--1 gm of THC = 167 gm of marihuana. Is 
the 1:167 ratio in marihuana equivalency for both types of THC 
appropriate? Should the Commission establish a different ratio for both 
types of THC? If so, what ratio should the Commission establish and 
why? Should THC (organic) and THC (synthetic) have the same ratio in 
marihuana equivalency? Should the Commission instead establish one 
ratio for THC (organic) and a different ratio for THC (synthetic)? If 
so, what ratio should the Commission establish for each substance and 
why?
    2. The Commission invites general comment on synthetic 
cannabinoids, 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 synthetic cannabinoids 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 controlled 
substances such as marihuana, cocaine, heroin, or methamphetamine?
    3. As noted above, courts frequently identify tetrahydrocannabinol 
(THC) as the most closely related controlled substance referenced in 
the guidelines in cases involving synthetic cannabinoids. Under the 
current guidelines, including Application Note 6 to Sec.  2D1.1, is 
this determination appropriate? Is organic and synthetic THC the most 
closely related controlled substance to (1) JWH-018, (2) AM-2201, and 
(3) synthetic cannabinoids in general? If not, is there any controlled 
substance referenced in Sec.  2D1.1 that is most closely related to 
synthetic cannabinoids? If so, what substance?
    The Commission further seeks comment on whether and, if so, how the 
guidelines should be amended to account for synthetic cannabinoids. For 
example, should the Commission establish marihuana equivalencies for 
specific synthetic cannabinoids such as JWH-018 and AM-2201? If so, 
what equivalencies should the Commission provide for JWH-018 and AM-
2201, and why? What factors should the Commission consider when 
deciding whether to account for these synthetic cannabinoids?
    4. As stated above, the Commission has received comment indicating 
that a large number of synthetic cannabinoids are currently available, 
and that new synthetic cannabinoids are regularly developed for illegal 
trafficking. Instead of providing marihuana equivalencies for 
individual synthetic cannabinoids, should the Commission consider 
establishing a single marihuana equivalency applicable to all synthetic 
cannabinoids? Are synthetic cannabinoids 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 synthetic cannabinoids as a class and why? What 
factors should the Commission account for if it considers adopting a 
broad class-based approach for synthetic cannabinoids? Should the 
Commission define ``synthetic cannabinoids'' for purposes of this broad 
class-based approach? If so, how? Are there any synthetic cannabinoids 
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 synthetic cannabinoids? If so, what equivalency 
should the Commission provide for each such synthetic cannabinoid, and 
why?
    What are the advantages and disadvantages of a broad class-based 
approach for synthetic cannabinoids? If the Commission were to provide 
a different approach to account for synthetic cannabinoids in the 
guidelines, what should that different approach be?
    5. If the Commission was to establish a single marihuana 
equivalency applicable to all synthetic cannabinoids as a class, should 
this class-based equivalency also apply to synthetic 
tetrahydrocannabinol (THC)? Is synthetic THC sufficiently similar to 
other synthetic cannabinoids in chemical structure, pharmacological 
effects, potential for addiction and abuse, patterns of trafficking and 
abuse, and associated harms, to be included as part of a broad class-
based approach for synthetic cannabinoids? Should the Commission 
instead continue to provide a marihuana equivalency for synthetic THC 
separate from other synthetic cannabinoids?


[[Page 40651]]


    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. 2017-18077 Filed 8-24-17; 8:45 am]
 BILLING CODE 2210-40-P