[Federal Register Volume 83, Number 18 (Friday, January 26, 2018)]
[Notices]
[Pages 3869-3878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-01328]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of proposed amendments to sentencing guidelines, policy 
statements, and commentary. Request for public comment, including 
public comment regarding retroactive application of any of the proposed 
amendments. Notice of public hearing.

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SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United 
States Code, the United States Sentencing Commission is considering 
promulgating amendments to the sentencing guidelines, policy 
statements, and commentary. This notice sets forth the proposed 
amendments and, for each proposed amendment, a synopsis of the issues 
addressed by that amendment. This notice also sets forth several issues 
for comment, some of which are set forth together with the proposed 
amendments, and one of which (regarding retroactive application of 
proposed amendments) is set forth in the SUPPLEMENTARY INFORMATION 
section of this notice.

DATES: (1) Written Public Comment.--Written public comment regarding 
the proposed amendments and issues for comment set forth in this 
notice,

[[Page 3870]]

including public comment regarding retroactive application of any of 
the proposed amendments, should be received by the Commission not later 
than March 6, 2018. Written reply comments, which may only respond to 
issues raised during the original comment period, should be received by 
the Commission not later than March 28, 2018. Public comment regarding 
a proposed amendment received after the close of the comment period, 
and reply comment received on issues not raised during the original 
comment period, may not be considered.
    (2) Public Hearing.--The Commission may hold a public hearing 
regarding the proposed amendments and issues for comment set forth in 
this notice. Further information regarding any public hearing that may 
be scheduled, including requirements for testifying and providing 
written testimony, as well as the date, time, location, and scope of 
the hearing, will be provided by the Commission on its website at 
www.ussc.gov.

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).
    Publication of a proposed amendment requires the affirmative vote 
of at least three voting members of the Commission and is deemed to be 
a request for public comment on the proposed amendment. See USSC Rules 
of Practice and Procedure 2.2, 4.4. In contrast, the affirmative vote 
of at least four voting members is required to promulgate an amendment 
and submit it to Congress. See id. 2.2; 28 U.S.C. 994(p).
    The proposed amendments in this notice are presented in one of two 
formats. First, some of the amendments are proposed as specific 
revisions to a guideline, policy statement, or commentary. Bracketed 
text within a proposed amendment indicates a heightened interest on the 
Commission's part in comment and suggestions regarding alternative 
policy choices; for example, a proposed enhancement of [2][4][6] levels 
indicates that the Commission is considering, and invites comment on, 
alternative policy choices regarding the appropriate level of 
enhancement. Similarly, bracketed text within a specific offense 
characteristic or application note means that the Commission 
specifically invites comment on whether the proposed provision is 
appropriate. Second, the Commission has highlighted certain issues for 
comment and invites suggestions on how the Commission should respond to 
those issues.
    In summary, the proposed amendments and issues for comment set 
forth in this notice are as follows:
    (1) A multi-part proposed amendment to Sec.  2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking (Including 
Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy), including (A) amending the Drug Equivalency Tables in 
Sec.  2D1.1 to (i) set forth a class-based marihuana equivalency 
applicable to synthetic cathinones (except Schedule III, IV, and V 
substances) of 1 gram = [200]/[380]/[500] grams of marihuana, 
bracketing the possibility of making this class-based marihuana 
equivalency also applicable to methcathinone, and (ii) establish a 
minimum base offense level of [12] for cases involving synthetic 
cathinones (except Schedule III, IV, and V substances), and related 
issues for comment; (B) amending the Drug Equivalency Tables in Sec.  
2D1.1 to (i) set forth a class-based marihuana equivalency applicable 
to synthetic cannabinoids (except Schedule III, IV, and V substances) 
of 1 gram = [167]/[334]/[500] grams of marihuana, (ii) provide a 
definition for the term ``synthetic cannabinoid,'' and (iii) bracket 
the possibility of establishing a minimum base offense level of [12] 
for cases involving synthetic cannabinoids (except Schedule III, IV, 
and V substances), and related issues for comment; and (C) amending 
Sec.  2D1.1 to (i) provide penalties for offenses involving fentanyl 
equivalent to the higher penalties currently provided for offenses 
involving fentanyl analogues, (ii) provide a definition for the term 
``fentanyl analogue,'' set forth a single marihuana equivalency 
applicable to any fentanyl analogue of 1 gram = 10 kilograms of 
marihuana, and specify in the Drug Quantity Table that the penalties 
relating to ``fentanyl'' apply to the substance identified as ``N-
phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] Propenamide,'' and (iii) 
provide an enhancement in cases in which fentanyl or a fentanyl 
analogue is misrepresented or marketed as another substance, and 
related issues for comment;
    (2) a multi-part proposed amendment to Sec.  2L1.2 (Unlawfully 
Entering or Remaining in the United States) to respond to miscellaneous 
guidelines application issues, including (A) amending Sec.  2L1.2(b)(2) 
so that its applicability turns on whether the defendant ``engaged in 
criminal conduct'' before he or she was ordered deported or ordered 
removed from the United States for the first time, rather than whether 
the defendant sustained the resulting conviction or convictions before 
that event, and a related issue for comment; and (B) amending 
Application Note 2 of the Commentary to Sec.  2L1.2 to clarify that, 
consistent with the meaning of ``sentence of imprisonment'' under Sec.  
4A1.2 (Definitions and Instructions for Computing Criminal History), 
the phrase ``sentence imposed'' in Sec.  2L1.2 includes any term of 
imprisonment given upon revocation of probation, parole, or supervised 
release, regardless of when the revocation occurred; and
    (3) a proposed amendment to make various technical changes to the 
Guidelines Manual, including (A) technical changes to provide updated 
references to certain sections in Title 16, United States Code, that 
were restated, with minor revisions, when Congress enacted a new Title 
54; (B) technical changes to reflect the editorial reclassification of 
certain provisions bearing on crime control and law enforcement, 
previously scattered throughout various parts of the United States 
Code, to a new Title 34; and (C) a clerical change to Sec.  8C2.1 
(Applicability of Fine Guidelines) to delete an outdated reference to 
Sec.  2C1.6, which was deleted by consolidation with Sec.  2C1.2 
(Offering, Giving, Soliciting, or Receiving a Gratuity) effective 
November 1, 2004.
    In addition, the Commission requests public comment regarding 
whether, pursuant to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), any 
proposed amendment published in this notice should be included in 
subsection (d) of Sec.  1B1.10 (Reduction in Term of Imprisonment as a 
Result of Amended Guideline Range (Policy Statement)) as an amendment 
that may be applied retroactively to previously sentenced defendants. 
The

[[Page 3871]]

Commission lists in Sec.  1B1.10(d) the specific guideline amendments 
that the court may apply retroactively under 18 U.S.C. 3582(c)(2). The 
background commentary to Sec.  1B1.10 lists the purpose of the 
amendment, the magnitude of the change in the guideline range made by 
the amendment, and the difficulty of applying the amendment 
retroactively to determine an amended guideline range under Sec.  
1B1.10(b) as among the factors the Commission considers in selecting 
the amendments included in Sec.  1B1.10(d). To the extent practicable, 
public comment should address each of these factors.
    The text of the proposed amendments and related issues for comment 
are set forth below. Additional information pertaining to the proposed 
amendments and issues for comment described in this notice may be 
accessed through the Commission's website at www.ussc.gov.

    Authority:  28 U.S.C. 994(a), (o), (p), (x); USSC Rules of 
Practice and Procedure 2.2, 4.3, 4.4.

William H. Pryor, Jr.,
Acting Chair.

Proposed Amendments to the Sentencing Guidelines, Policy Statements, 
and Official Commentary

1. Synthetic Drugs

    Synopsis of Proposed Amendment: This proposed amendment is a result 
of the Commission's 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 controlled 
substance under Application Note 6 of the Commentary to Sec.  2D1.1. 
See U.S. Sentencing Comm'n, ``Notice of Final Priorities,'' 82 FR 39949 
(Aug. 22, 2017). The proposed amendment contains three parts (Parts A 
through C). The Commission is considering whether to promulgate any or 
all of these parts, as they are not mutually exclusive.
    Part A of the proposed amendment would amend the Drug Equivalency 
Tables in Sec.  2D1.1 (Unlawful Manufacturing, Importing, Exporting, or 
Trafficking (Including Possession with Intent to Commit These 
Offenses); Attempt or Conspiracy) to adopt a class-based approach to 
account for synthetic cathinones. It sets forth a single marihuana 
equivalency applicable to synthetic cathinones (except Schedule III, 
IV, and V substances) of 1 gram = [200]/[380]/[500] grams of marihuana. 
Part A of the proposed amendment also brackets the possibility of 
making this class-based marihuana equivalency also applicable to 
methcathinone, by deleting the specific reference to this controlled 
substance in the Drug Equivalency Tables. Finally, Part A of the 
proposed amendment establishes a minimum base offense level of [12] for 
cases involving synthetic cathinones (except Schedule III, IV, and V 
substances). Issues for comment are also provided.
    Part B of the proposed amendment would amend the Drug Equivalency 
Tables in Sec.  2D1.1 to adopt a class-based approach to account for 
synthetic cannabinoids. It sets forth a single marihuana equivalency 
applicable to synthetic cannabinoids (except Schedule III, IV, and V 
substances) of 1 gram = [167]/[334]/[500] grams of marihuana. It also 
adds a provision defining the term ``synthetic cannabinoid.'' Finally, 
Part B of the proposed amendment brackets for comment a provision 
establishing a minimum base offense level of [12] for cases involving 
synthetic cannabinoids (except Schedule III, IV, and V substances). 
Issues for comment are also provided.
    Part C of the proposed amendment would amend Sec.  2D1.1 in several 
ways to account for fentanyl and fentanyl analogues. First, it provides 
penalties for offenses involving fentanyl that are equivalent to the 
higher penalties currently provided for offenses involving fentanyl 
analogues. Second, the proposed amendment revises Sec.  2D1.1 to 
provide a definition of the term ``fentanyl analogue,'' set forth a 
single marihuana equivalency applicable to any fentanyl analogue of 1 
gram = 10 kilograms of marihuana, and specify in the Drug Quantity 
Table that the penalties relating to ``fentanyl'' apply to the 
substance identified as ``N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] 
propanamide.'' Finally, Part C of the proposed amendment amends Sec.  
2D1.1 to provide an enhancement in cases in which fentanyl or a 
fentanyl analogue is misrepresented or marketed as another substance. 
Issues for comment are also provided.

(A) Synthetic Cathinones

    Synopsis of the Proposed Amendment: Synthetic cathinones 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. According to the National Institute on Drug Abuse, synthetic 
variants of cathinone can be much stronger than the natural cathinone 
and, in some cases, very dangerous. Id. Abuse of synthetic cathinones, 
sometimes referred to as ``bath salts,'' has become more prevalent over 
the last decade.
    Currently, Sec.  2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking (Including Possession with Intent to Commit 
These Offenses); Attempt or Conspiracy) specifically lists only one 
synthetic cathinone, Methcathinone. Because other synthetic cathinones 
are not specifically listed in either the Drug Quantity Table or the 
Drug Equivalency Tables in Sec.  2D1.1, cases involving these 
substances require courts to use 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].'' The Commission has received comment 
suggesting that questions regarding ``the most closely related 
controlled substance'' arise frequently in cases involving synthetic 
cathinones, 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 Commission has also received comment indicating that a large 
number of synthetic cathinones are currently available on the illicit 
drug market and that new varieties are regularly developed for illegal 
trafficking. Given this information, it would likely be difficult and 
impracticable for the Commission to provide individual marihuana 
equivalencies for each synthetic cathinone in the Guidelines Manual. 
Testimony received by the Commission indicates that whether a substance 
is properly classified as a synthetic cathinone is not generally 
subject to debate, as there appears to be broad agreement that the 
basic chemical structure of cathinone remains present throughout all 
synthetic cathinones.
    Part A of the proposed amendment would amend the Drug Equivalency 
Tables in Sec.  2D1.1 to adopt a class-based approach to account for 
synthetic cathinones. It sets forth a single marihuana equivalency 
applicable to synthetic cathinones (except Schedule III, IV, and V 
substances) of 1 gram = [200]/[380]/[500] grams of marihuana. The 
proposed amendment also establishes a minimum base offense level of 
[12] for cases involving synthetic cathinones (except Schedule III, IV, 
and V substances). Finally, the

[[Page 3872]]

proposed amendment brackets the possibility of making this class-based 
marihuana equivalency also applicable to methcathinone, by deleting the 
specific reference to this controlled substance in the Drug Equivalency 
Tables.
    Issues for comment are also provided.
Proposed Amendment
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 8(D)--

[in the table under the heading ``Cocaine and Other Schedule I and II 
Stimulants (and their immediate precursors) *'', by striking the 
following:

``1 gm of Methcathinone = 380 gm of marihuana'';

and] by inserting after the table under the heading ``Cocaine and Other 
Schedule I and II Stimulants (and their immediate precursors) *'' the 
following new table:

``Synthetic Cathinones (except Schedule III, IV, and V Substances) * 1 
gm of a synthetic cathinone (except a Schedule III, IV, or V substance) 
= [200]/[380]/[500] gm of marihuana
* Provided, that the minimum offense level from the Drug Quantity Table 
for any synthetic cathinone (except a Schedule III, IV, or V substance) 
individually, or in combination with another controlled substance, is 
level [12].''.
Issues for Comment
    1. Part A of the proposed amendment would amend the Drug 
Equivalency Tables in Sec.  2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking (Including Possession with Intent to Commit 
These Offenses); Attempt or Conspiracy) to adopt a class-based approach 
to account for synthetic cathinones. It sets forth a single marihuana 
equivalency applicable to synthetic cathinones (except Schedule III, 
IV, and V substances) of 1 gram = [200]/[380]/[500] grams of marihuana. 
The Commission seeks comment on how, if at all, the guidelines should 
be amended to account for synthetic cathinones.
    Should the Commission provide a class-based approach to account for 
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/or 
associated harms, to support the adoption of a class-based approach for 
sentencing purposes? Are there any synthetic cathinones that should not 
be included as part of a 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? If the Commission 
were to provide a different approach to account for synthetic 
cathinones in the guidelines, what should that different approach be?
    Which, if any, of the proposed [1:200]/[1:380]/[1:500] marihuana 
equivalency ratios is appropriate for synthetic cathinones (except 
Schedule III, IV, and V substances) as a class? Should the Commission 
establish a different equivalency applicable to such a class? If so, 
what equivalency should the Commission provide and on what basis?
    2. Part A of the proposed amendment brackets the possibility of 
making the marihuana equivalency applicable to synthetic cathinones 
also applicable to methcathinone by deleting the specific reference to 
this controlled substance in the Drug Equivalency Tables. Is 
methcathinone sufficiently similar to other synthetic cathinones in 
chemical structure, pharmacological effects, potential for addiction 
and abuse, patterns of trafficking and abuse, and/or associated harms 
to be included as part of a class-based approach for synthetic 
cathinones? Should the Commission instead continue to provide a 
marihuana equivalency for methcathinone separate from other synthetic 
cathinones?
    3. The Commission seeks comment whether it should amend the 
Commentary to Sec.  2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking (Including Possession with Intent to Commit 
These Offenses); Attempt or Conspiracy) to provide guidance on how to 
apply the new class-based marihuana equivalency for synthetic 
cathinones. What guidance, if any, should the Commission provide on the 
application of the proposed class-based marihuana equivalency? Should 
the Commission define the term ``synthetic cathinone'' for purposes of 
this class-based approach? If so, what definition should the Commission 
provide for such term? What factors should the Commission account for 
if it considers providing a definition for ``synthetic cathinone''?

(B) Synthetic Cannabinoids

    Synopsis of the Proposed Amendment: Synthetic cannabinoids are 
human-made, mind-altering chemicals developed to mimic the effects of 
tetrahydrocannabinol (THC), the main psychoactive chemical found in the 
marihuana plant. Like THC, synthetic cannabinoids act as an agonist at 
a specific part of the central nervous system known as the cannabinoid 
receptors, binding to and activating these receptors to produce 
psychoactive effects. However, the available scientific literature on 
this subject suggests that some synthetic cannabinoids bind more 
strongly to cell receptors affected by THC, and may produce stronger 
effects. See National Institute of Drug Abuse, DrugFacts: Synthetic 
Cannabinoids (Revised November 2015) available at https://www.drugabuse.gov/publications/drugfacts/synthetic-cannabinoids.
    The Commission has received comment indicating that the synthetic 
cannabinoids encountered on the illicit market are predominantly potent 
cannabinoid agonists that are pharmacologically similar to THC, but may 
cause a more severe toxicity and more serious adverse effects than THC. 
According to commenters, THC is only a partial agonist at type 1 
cannabinoid receptors (CB1 receptors) and produces 30 to 50 
percent (or less) of the highest possible response in receptor 
activation. Synthetic cannabinoids are full agonists at CB1 
receptors that elicit close to 100 percent response in receptor 
activation. Some commenters have argued that this high activation 
response may contribute to the increased toxicity and more severe 
adverse effects of synthetic cannabinoids when compared with THC. 
According to commenters, some of the adverse effects of synthetic 
cannabinoids are more prevalent or more severe than those produced by 
marihuana and THC, and may be produced at lower doses. The Commission 
was also informed by commenters that drug discrimination data is 
available on at least 26 different synthetic cannabinoids. JWH-018, one 
of the substances included in the Commission's study, was shown in the 
drug discrimination assay to be approximately three times as potent as 
THC. Another substance included in the Commission's study, AM-2201, was 
shown to be approximately five times as potent as THC using the same 
assay. Newer synthetic cannabinoids have been shown to be even more 
potent than these substances. According to the Drug Enforcement 
Administration, on rare occasions synthetic cannabinoids have been 
shown to be less potent than THC, as substances with a lower potency 
are often abandoned by manufacturers following negative user reports 
relating to their effects.
    Currently, Sec.  2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking (Including Possession with Intent to Commit 
These Offenses); Attempt or Conspiracy) specifically lists

[[Page 3873]]

only one synthetic cannabinoid, synthetic THC. Synthetic THC has a 
marihuana equivalency of 1 gram = 167 grams of marihuana. Because other 
synthetic cannabinoids are not specifically listed in either the Drug 
Quantity Table or the Drug Equivalency Tables in Sec.  2D1.1, cases 
involving these substances require courts to use 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].'' Although courts often rely on 
the synthetic THC equivalency in cases involving synthetic 
cannabinoids, the Commission has received comment suggesting that 
questions regarding ``the most closely related controlled substance'' 
arise frequently in such cases, 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 Commission has also received comment suggesting that, like 
synthetic cathinones, a large number of synthetic cannabinoids are 
currently available on the illicit drug market and new varieties are 
regularly developed for illegal trafficking. Given this information, it 
would likely be difficult and impracticable for the Commission to 
provide individual marihuana equivalencies for each synthetic 
cannabinoid in the Guidelines Manual. Unlike synthetic cathinones, 
synthetic cannabinoids cannot be defined as a single class based on a 
common chemical structure. Synthetic cannabinoids regularly developed 
for illegal trafficking come from several different structural classes. 
However, the Commission received testimony from experts indicating 
that, while synthetic cannabinoids may differ in chemical structure, 
these substances all produce the same pharmacological effects: They act 
as an agonist at type 1 cannabinoid receptors (CB1 
receptors).
    Part B of the proposed amendment would amend the Drug Equivalency 
Tables in Sec.  2D1.1 to adopt a class-based approach to account for 
synthetic cannabinoids. It sets forth a single marihuana equivalency 
applicable to synthetic cannabinoids (except Schedule III, IV, and V 
substances) of 1 gram = [167]/[334]/[500] grams of marihuana. The 
proposed amendment would also add a provision defining ``synthetic 
cannabinoid'' as ``any synthetic substance (other than synthetic 
tetrahydrocannabinol) that [acts as an agonist at][binds to and 
activates] type 1 cannabinoid receptors (CB1 receptors).''
    Finally, Part B of the proposed amendment brackets for comment a 
provision establishing a minimum base offense level of [12] for cases 
involving synthetic cannabinoids (except Schedule III, IV, and V 
substances).
    Issues for comment are also provided.
Proposed Amendment
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 8(D) by inserting after the table under the heading 
``Schedule I Marihuana'' the following new table:

``Synthetic Cannabinoids (except Schedule III, IV, and V Substances)[*]

1 gm of a synthetic cannabinoid
    (except a Schedule III, IV, or V substance) = [167]/[334]/[500] gm 
of marihuana

[*Provided, that the minimum offense level from the Drug Quantity Table 
for any synthetic cannabinoid (except a Schedule III, IV, or V 
substance) individually, or in combination with another controlled 
substance, is level [12].]
`Synthetic cannabinoid,' for purposes of this guideline, means any 
synthetic substance (other than synthetic tetrahydrocannabinol) that 
[acts as an agonist at][binds to and activates] type 1 cannabinoid 
receptors (CB1 receptors).''.
Issues for Comment
    1. Part B of the proposed amendment would amend the Drug 
Equivalency Tables in Sec.  2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking (Including Possession with Intent to Commit 
These Offenses); Attempt or Conspiracy) to adopt a class-based approach 
to account for synthetic cannabinoids. It sets forth a single marihuana 
equivalency applicable to synthetic cannabinoids (except Schedule III, 
IV, and V substances) of 1 gram of such a synthetic cannabinoid = 
[167]/[334]/[500] grams of marihuana. The Commission seeks comment on 
how, if at all, the guidelines should be amended to account for 
synthetic cannabinoids.
    Should the Commission provide a class-based approach to account for 
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/or associated harms to support the adoption of a class-based 
approach for sentencing purposes? Are there any synthetic cannabinoids 
that should not be included as part of a 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? If the 
Commission were to provide a different approach to account for 
synthetic cannabinoids in the guidelines, what should that different 
approach be?
    Which, if any, of the proposed [1:167]/[1:334]/[1:500] marihuana 
equivalency ratios is appropriate for synthetic cannabinoids (except 
Schedule III, IV, and V substances) as a class? Should the Commission 
establish a different equivalency applicable to such a class? If so, 
what equivalency should the Commission provide and on what basis?
    2. The Commission seeks comment on whether the Commission should 
make a distinction between a synthetic cannabinoid in ``actual'' form 
(i.e., as a powder or crystalline substance) and a synthetic 
cannabinoid as part of a mixture (e.g., sprayed on or soaked into a 
plant or other base material, or otherwise mixed with other 
substances), by establishing a different marihuana equivalency for each 
of these forms in which synthetic cannabinoids are trafficked. If so, 
what equivalencies should the Commission provide and on what basis? Are 
there differences in terms of pharmacological effects, potential for 
addiction and abuse, patterns of trafficking and abuse, and/or 
associated harms between the various forms in which synthetic 
cannabinoids are trafficked that would support this distinction? Is the 
use of the term ``actual'' appropriate in cases involving synthetic 
cannabinoids? If not, what term should the Commission use to refer to a 
synthetic cannabinoid as a powder or crystalline substance that has not 
been mixed with other substances (e.g., sprayed on or soaked into a 
plant or other base material)?
    3. Part B of the proposed amendment would include in the Commentary 
to Sec.  2D1.1 (Unlawful Manufacturing, Importing, Exporting, or 
Trafficking (Including Possession with Intent to Commit These 
Offenses); Attempt or Conspiracy) a provision defining the term 
``synthetic cannabinoid'' as ``any synthetic substance (other than 
synthetic tetrahydrocannabinol) that [acts as an agonist at][binds to 
and activates] type 1 cannabinoid receptors (CB1 
receptors).'' Is this definition appropriate? If not, what definition, 
if any, should the Commission provide? Are there any synthetic 
cannabinoids that would not be included under this definition but 
should be? Are there any

[[Page 3874]]

substances that would be included in this definition but should not be? 
What factors should the Commission take into account in defining 
``synthetic cannabinoid''? What additional guidance, if any, should the 
Commission provide on how to apply the proposed class-based marihuana 
equivalency for synthetic cannabinoids?
    4. Part B of the proposed amendment brackets the possibility of 
establishing a minimum base offense level of [12] for cases involving 
synthetic cannabinoids (except Schedule III, IV, and V substances) 
individually, or in combination with another substance. Should the 
Commission provide a minimum base offense level for such cases? What 
minimum base offense level, if any, should the Commission provide for 
cases involving synthetic cannabinoids, and under what circumstances 
should it apply?
    5. The Commission seeks comment on whether, if the Commission were 
to adopt a 1:167 equivalency ratio for synthetic cannabinoids, this 
class-based marihuana equivalency should also be applicable to 
synthetic tetrahydrocannabinol (THC). If so, should the Commission 
delete the specific reference to this controlled substance in the Drug 
Equivalency Tables and expand the proposed definition of ``synthetic 
cannabinoid'' to include ``any synthetic substance that [acts as an 
agonist at][binds to and activates] type 1 cannabinoid receptors 
(CB1 receptors)''? Is synthetic THC covered by this 
definition of ``synthetic cannabinoid''? 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/or associated harms, to be included as part 
of a class-based approach for synthetic cannabinoids? Should the 
Commission instead continue to provide a marihuana equivalency for 
synthetic THC separate from other synthetic cannabinoids?

(C) Fentanyl and Fentanyl Analogues

    Synopsis of Proposed Amendment: 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. 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. These substances are sold on 
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 prescription opioids. While most fentanyl analogues are 
typically about as potent as fentanyl itself, some analogues, such as 
sufentanil and carfentanil, are reported to be many times more potent 
than fentanyl.
The Statutory and Guidelines Framework
    The Controlled Substances Act (21 U.S.C. 801 et seq.) classifies 
fentanyl as a Schedule II controlled substance, along with 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] propanamide.'' 21 U.S.C. 
841(b)(1)(A)(vi). A Department of Justice regulation explains that N-
phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide 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 Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy) contains entries for 
both ``fentanyl'' and ``fentanyl analogue,'' at severity levels that 
reflect the mandatory minimum penalty structure. The Drug Equivalency 
Tables in the Commentary to Sec.  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] Propanamide)'' equal to 2.5 kg of 
marihuana (i.e., a 1:2,500 ratio). The Drug Equivalency Tables also set 
forth the marihuana equivalencies for two other substances, alpha-
methylfentanyl and 3-methylfentanyl. Both substances have the same 
marihuana equivalency ratio, 1:10,000, which corresponds with the 
penalties for fentanyl analogues. 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).
Higher Penalties for Offenses Involving Fentanyl
    First, Part C of the proposed amendment would revise Sec.  2D1.1 to 
increase penalties for offenses involving fentanyl. The Commission has 
received comment indicating that the proliferation and ease of 
availability of multiple varieties of fentanyl and fentanyl analogues 
has resulted in an increased number of deaths from overdoses. 
Commenters have argued that Sec.  2D1.1 does not adequately reflect the 
serious dangers posed by fentanyl and its analogues, including their 
high potential for abuse and addiction. Public health data shows that 
the harms associated with abuse of fentanyl and fentanyl analogues far 
exceed those associated with other opioid analgesics.
    Part C of the proposed amendment would amend Sec.  2D1.1 to provide 
penalties for fentanyl that are equivalent to the higher penalties 
currently provided for fentanyl analogues. The proposed amendment would 
accomplish this objective by changing the base offense levels for 
fentanyl in the Drug Quantity Table at Sec.  2D1.1(c) to parallel the 
base offense levels established for fentanyl analogues. It would also 
amend the Drug Equivalency Tables in the Commentary to Sec.  2D1.1 to 
change the marihuana equivalency ratio for fentanyl to the same ratio, 
1:10,000, provided for fentanyl analogues.
Issues Relating to ``Fentanyl Analogues''
    Second, Part C of the proposed amendment would revise Sec.  2D1.1 
to address several issues relating to offenses involving fentanyl 
analogues. The Commission has received comment that the penalty for 
``fentanyl analogue'' set forth in the guidelines interacts in a 
potentially confusing way with the guideline definition of the term 
``analogue.'' Although the term ``fentanyl analogue'' is not defined by 
the guidelines, Application Note 6 states that, for purposes of Sec.  
2D1.1, ``analogue'' has the meaning given the term ``controlled 
substance analogue'' in 21 U.S.C. 802(32). Section 802(32) defines 
``controlled substance analogue'' to exclude ``a controlled 
substance''--that is, a substance that has been scheduled. Thus, once 
the Drug Enforcement Administration (or Congress) schedules a substance 
that is a ``fentanyl analogue'' in the scientific sense, that substance 
may not qualify as a ``fentanyl analogue'' for purposes of the Drug

[[Page 3875]]

Quantity Table. Hence, in cases involving a scheduled ``fentanyl 
analogue'' other than the two fentanyl analogues listed by name in the 
Drug Equivalency Tables, courts would be 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].''
    The Commission has received comment suggesting that the Application 
Note 6 process requires courts to hold extensive hearings to receive 
expert testimony on behalf of the government and the defendant. This 
process is likely to determine that fentanyl, rather than one of the 
two listed variants in the guideline, is the most closely related 
controlled substance to a scheduled ``fentanyl analogue.'' This will 
result in a substance that would scientifically be considered a 
fentanyl analogue being punished under the 1:2,500 fentanyl ratio, 
rather than the 1:10,000 ``fentanyl analogue'' ratio.
    Part C of the proposed amendment would address this situation by 
revising Sec.  2D1.1 to define ``fentanyl analogue'' as ``any substance 
(including any salt, isomer, or salt of isomer thereof), whether a 
controlled substance or not, that has a chemical structure that is 
[substantially] similar to fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide).'' It would also amend the Drug Equivalency 
Tables in Sec.  2D1.1 to provide a single marihuana equivalency 
applicable to any fentanyl analogue of 1 gram = 10 kilograms of 
marihuana. The proposed amendment brackets the possibility of making 
this new marihuana equivalency also applicable to alpha-methylfentanyl 
and 3-methylfentanyl by deleting the specific references to these 
controlled substances in the Drug Equivalency Tables. In addition, the 
proposed amendment would amend the Drug Quantity Table to specify that 
the penalties relating to ``fentanyl'' apply to the substance 
identified in the statute as ``N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide.''
Increased Penalties for Offenses Involving Fentanyl and Fentanyl 
Analogues Misrepresented as Another Substance
    Finally, Part C of the proposed amendment would amend Sec.  2D1.1 
to address cases involving fentanyl and fentanyl analogues 
misrepresented as another substance. The Commission has received 
comment that fentanyl and fentanyl analogues are being mixed with, and 
in some instances substituted for, other drugs, such as heroin and 
cocaine. According to commenters, fentanyl and fentanyl analogues are 
also being pressed into pills that resemble prescription opioids, such 
as oxycodone and hydrocodone. Commenters have also suggested that the 
harms associated with the use of fentanyl and fentanyl analogues are 
heightened by the fact that users may unknowingly consume fentanyl or 
fentanyl analogues in products misrepresented or sold as other 
substances, such as heroin or counterfeit prescription pills. Because 
such users may be unaware that what they believe to be a certain 
substance, such as heroin, is either fentanyl or has been laced with 
fentanyl, they may not mitigate against the added risks of use, 
including overdose.
    Part C of the proposed amendment would add a new specific offense 
characteristic at Sec.  2D1.1(b)(13) providing an enhancement of [2][4] 
levels to address these cases. It provides two alternatives for such an 
enhancement. Under the first alternative, the enhancement would apply 
if the offense involved a mixture or substance containing a detectable 
amount of fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] 
propanamide) or a fentanyl analogue that was misrepresented or marketed 
as another substance. Under the second alternative, the enhancement 
would apply if the offense involved a mixture or substance containing 
fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or 
a fentanyl analogue and the defendant knowingly misrepresented or 
knowingly marketed that mixture or substance as another substance.
    Issues for comment are also provided.
Proposed Amendment
    Section 2D1.1(b) is amended by redesignating paragraphs (13) 
through (17) as paragraphs (14) through (18), respectively, and by 
inserting the following new paragraph (13):
    ``(13) [If the offense involved a mixture or substance containing 
fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or 
a fentanyl analogue that was misrepresented or marketed as another 
substance][If the offense involved a mixture or substance containing 
fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or 
a fentanyl analogue and the defendant knowingly misrepresented or 
knowingly marketed that mixture or substance as another substance], 
increase by [2][4] levels.''.
    Section 2D1.1(c)(1) is amended by striking ``36 KG or more of 
Fentanyl;'' and inserting the following:

``[9] KG or more of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] Propanamide);''.

    Section 2D1.1(c)(2) is amended by striking ``At least 12 KG but 
less than 36 KG of Fentanyl;'' and inserting the following:

``At least [3] KG but less than [9] KG of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.

    Section 2D1.1(c)(3) is amended by striking ``At least 4 KG but less 
than 12 KG of Fentanyl;'' and inserting the following:

``At least [1] KG but less than [3] KG of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.

    Section 2D1.1(c)(4) is amended by striking ``At least 1.2 KG but 
less than 4 KG of Fentanyl;'' and inserting the following:

``At least [300] G but less than [1] KG of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.

    Section 2D1.1(c)(5) is amended by striking ``At least 400 G but 
less than 1.2 KG of Fentanyl;'' and inserting the following:

``At least [100] G but less than [300] G of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.

    Section 2D1.1(c)(6) is amended by striking ``At least 280 G but 
less than 400 G of Fentanyl;'' and inserting the following:

``At least [70] G but less than [100] G of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.

    Section 2D1.1(c)(7) is amended by striking ``At least 160 G but 
less than 280 G of Fentanyl;'' and inserting the following:

``At least [40] G but less than [70] G of Fentanyl ((N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.

    Section 2D1.1(c)(8) is amended by striking ``At least 40 G but less 
than 160 G of Fentanyl;'' and inserting the following:

``At least [10] G but less than [40] G of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.

    Section 2D1.1(c)(9) is amended by striking ``At least 32 G but less 
than 40

[[Page 3876]]

G of Fentanyl;'' and inserting the following:

``At least [8] G but less than [10] G of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.

    Section 2D1.1(c)(10) is amended by striking ``At least 24 G but 
less than 32 G of Fentanyl;'' and inserting the following:

``At least [6] G but less than [8] G of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.

    Section 2D1.1(c)(11) is amended by striking ``At least 16 G but 
less than 24 G of Fentanyl;'' and inserting the following:

``At least [4] G but less than [6] G of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.

    Section 2D1.1(c)(12) is amended by striking ``At least 8 G but less 
than 16 G of Fentanyl;'' and inserting the following:

``At least [2] G but less than [4] G of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.

    Section 2D1.1(c)(13) is amended by striking ``At least 4 G but less 
than 8 G of Fentanyl;'' and inserting the following:

``At least [1] G but less than [2] G of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.

    Section 2D1.1(c)(14) is amended by striking ``Less than 4 G of 
Fentanyl;'' and inserting the following:

``Less than [1] G of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] Propanamide);''.

    The annotation to Sec.  2D1.1(c) captioned ``Notes to Drug Quantity 
Table'' is amended by inserting at the end the following new Note (J):
    ``(J) Fentanyl analogue, for the purposes of this guideline, means 
any substance (including any salt, isomer, or salt of isomer thereof), 
whether a controlled substance or not, that has a chemical structure 
that is [substantially] similar to fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] propanamide).''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended--in Note 6 by striking ``Any reference to a particular 
controlled substance in these guidelines'' and inserting ``Except as 
otherwise provided, any reference to a particular controlled substance 
in these guidelines'', and by striking ``For purposes of this guideline 
`analogue' has the meaning'' and inserting ``Unless otherwise 
specified, `analogue,' for purposes of this guideline, has the 
meaning'';

and in note 8(D), in the table under the heading ``Schedule I or II 
Opiates*''--

[by striking the following two lines:

``1 gm of Alpha-Methylfentanyl = 10 kg of marihuana''
``1 gm of 3-Methylfentanyl = 10 kg of marihuana''

and] by inserting after the line referenced to Fentanyl (N-phenyl-N-[1-
(2-phenylethyl)- 4-piperidinyl] Propanamide) the following:

``1 gm of a Fentanyl Analogue = [10] kg of marihuana''.
Issues for Comment
    1. Part C of the proposed amendment would amend the ``Notes to Drug 
Quantity Table'' in Sec.  2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking (Including Possession with Intent to Commit 
These Offenses); Attempt or Conspiracy) to include a provision defining 
``fentanyl analogue'' as ``any substance (including any salt, isomer, 
or salt of isomer thereof), whether a controlled substance or not, that 
has a chemical structure that is [substantially] similar to fentanyl 
(N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide).'' Is this 
definition appropriate? If not, what definition, if any, should the 
Commission provide? For example, should the Commission specify that to 
qualify as a ``fentanyl analogue,'' a substance, whether a controlled 
substance or not, must (A) have a chemical structure that is 
[substantially] similar to fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide) and (B) either (i) have an effect on the 
central nervous system that is substantially similar to [or greater 
than] fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] 
propanamide), or (ii) be represented or intended to have such an 
effect?
    2. The proposed amendment would amend Sec.  2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking (Including 
Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) to adopt a class-based approach to account for all fentanyl 
analogues, whether they are controlled substances or not. Are fentanyl 
analogues sufficiently similar to one another in chemical structure, 
pharmacological effects, potential for addiction and abuse, patterns of 
trafficking and abuse, and/or associated harms to support such class-
based approach for sentencing purposes? If so, are the penalties set 
forth in the Drug Quantity Table and the proposed 1:10,000 marihuana 
equivalency ratio appropriate for fentanyl analogues as a class? Should 
the Commission establish different penalties or a different equivalency 
applicable to such substances? If so, what penalties should the 
Commission provide and on what basis? Are there any fentanyl analogues 
that should not be included as part of a class-based approach and for 
which the Commission should provide penalties separate from other 
fentanyl analogues? If so, what penalties should the Commission provide 
for each such fentanyl analogue, and why? If the Commission were to 
provide a different approach to account for fentanyl analogues in the 
guidelines, what should that different approach be?
    The proposed amendment brackets the possibility of making the 
marihuana equivalency applicable to all fentanyl analogues that are 
commonly regarded as analogues of ``Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide'' also applicable to alpha-
methylfentanyl and 3-methylfentanyl by deleting the specific references 
to these controlled substances in the Drug Equivalency Tables. Are 
alpha-methylfentanyl and 3-methylfentanyl sufficiently similar to other 
fentanyl analogues in chemical structure, pharmacological effects, 
potential for addiction and abuse, patterns of trafficking and abuse, 
and/or associated harms, to be included as part of a class-based 
approach for fentanyl analogues? Should the Commission instead continue 
to provide marihuana equivalencies for alpha-methylfentanyl and 3-
methylfentanyl separate from other fentanyl analogues?
    3. According to the Drug Enforcement Administration (DEA) and other 
sources, fentanyl and fentanyl analogues are typically manufactured in 
China and then shipped via freight forwarding companies or parcel post 
to the United States or to other places in the Western Hemisphere. 
Additionally, fentanyl and fentanyl analogues are available for 
purchase online through the ``dark net'' (commercial websites 
functioning as black markets) and regular websites, and commonly 
shipped into the United States. According to the DEA, the improper 
handling of fentanyl and fentanyl analogues presents grave danger to 
individuals who may inadvertently come into contact with such 
substances. Those at risk include law enforcement and emergency 
personnel who may unknowingly encounter these substances during 
arrests, searches, or emergency calls.

[[Page 3877]]

    The Commission seeks comment on whether the guidelines provide 
appropriate penalties for cases in which fentanyl or a fentanyl 
analogue may create a substantial threat to the public health or safety 
(including the health or safety of law enforcement and emergency 
personnel). If not, how should the Commission revise the guidelines to 
provide appropriate penalties in such cases? Should the Commission 
provide new enhancements, adjustments, or departure provisions to 
account for such cases? If the Commission were to provide such a 
provision, what specific offense conduct, harm, or other factor should 
be the basis for applying the provision? What penalty increase should 
be provided?
2. Illegal Reentry Guideline Enhancements
    Synopsis of Proposed Amendment: This proposed amendment is a result 
of the Commission's consideration of miscellaneous guidelines 
application issues. See U.S. Sentencing Comm'n, ``Notice of Final 
Priorities,'' 82 FR 39949 (Aug. 22, 2017). It responds to issues that 
have arisen regarding application of the illegal reentry guideline at 
Sec.  2L1.2 (Unlawfully Entering or Remaining in the United States). 
The proposed amendment contains two parts (Part A and Part B). The 
Commission is considering whether to promulgate either or both of these 
parts, as they are not mutually exclusive.
    Part A of the proposed amendment responds to an issue brought to 
the Commission's attention by the Department of Justice. See Annual 
Letter from the Department of Justice to the Commission (July 31, 
2017), available at https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/20170731/DOJ.pdf. In its annual letter 
to the Commission, the Department suggested that the illegal reentry 
guideline's enhancements for prior convictions (other than convictions 
for illegal reentry) contain a gap in coverage. Subsection (b)(2) of 
the guideline provides for an increase in the defendant's offense level 
if, before the defendant was ordered deported or ordered removed from 
the United States for the first time, the defendant ``sustained . . . a 
conviction'' for a felony offense (other than an illegal reentry 
offense) or ``three or more convictions'' for certain misdemeanor 
offenses. Subsection (b)(3) of the guideline provides for an increase 
in the defendant's offense level, if after the defendant was ordered 
deported or ordered removed from the United States for the first time, 
the defendant ``engaged in criminal conduct resulting in'' such a 
felony conviction or three or more such misdemeanor convictions. 
Neither subsection (b)(2) nor subsection (b)(3), however, provides for 
an increase in the defendant's offense level in the situation where a 
defendant engaged in criminal conduct before being ordered deported or 
ordered removed from the United States for the first time but did not 
sustain a conviction or convictions for that criminal conduct until 
after he or she was first ordered deported or ordered removed.
    Part A of the proposed amendment would amend Sec.  2L1.2 to cover 
this situation by revising subsection (b)(2) so that its applicability 
turns on whether the defendant ``engaged in criminal conduct'' before 
he or she was first ordered deported or order removed, rather than 
whether the defendant sustained the resulting conviction or convictions 
before that event. Part A would also make non-substantive, conforming 
changes to the language of subsection (b)(3).
    An issue for comment is also provided.
    Part B of the proposed amendment responds to an issue that has 
arisen in litigation concerning how Sec.  2L1.2's enhancements for 
prior convictions apply in the situation where a defendant's prior 
conviction included a term of probation, parole, or supervised release 
that was subsequently revoked and an additional term of imprisonment 
imposed.
    As described above, subsections (b)(2) and (b)(3) of Sec.  2L1.2 
provide for increases in a defendant's offense level for prior 
convictions (other than convictions for illegal reentry). The magnitude 
of the offense level increase that the subsections provide for a prior 
felony conviction varies depending on the length of the ``sentence 
imposed.'' Application Note 2 of the Commentary to Sec.  2L1.2 states 
that `` `[s]entence imposed' has the meaning given the term `sentence 
of imprisonment' in Application Note 2 and subsection (b) of Sec.  
4A1.2 (Definitions and Instructions for Computing Criminal History).'' 
Under Sec.  4A1.2, the ``sentence of imprisonment'' includes not only 
the original term of imprisonment imposed but also any term of 
imprisonment imposed upon revocation of probation, parole, or 
supervised release. See USSG Sec.  4A1.2, comment. (n.11). Consistent 
with that approach, Application Note 2 of the Commentary to Sec.  2L1.2 
states that, under Sec.  2L1.2, ``[t]he length of the sentence imposed 
includes any term of imprisonment given upon revocation of probation, 
parole, or supervisory release.'' Two courts of appeals have held, 
however, that, under Sec.  2L1.2(b)(2), the ``sentence imposed'' does 
not include a period of imprisonment imposed upon revocation of 
probation, parole, or supervisory release if that revocation occurred 
after the defendant was ordered deported or ordered removed from the 
United States for the first time. See United States v. Martinez, 870 
F.3d 1163 (9th Cir. 2017); United States v. Franco-Galvan, 846 F.3d 338 
(5th Cir. 2017).
    Part B of the proposed amendment would revise the definition of 
``sentence imposed'' in Application Note 2 of the Commentary to Sec.  
2L1.2 to clarify that, consistent with the meaning of ``sentence of 
imprisonment'' under Sec.  4A1.2, the phrase ``sentence imposed'' in 
Sec.  2L1.2 includes any term of imprisonment given upon revocation of 
probation, parole, or supervised release, regardless of when the 
revocation occurred.
Proposed Amendment

(A) Closing the Coverage Gap

    Section 2L1.2(b)(2) is amended by striking ``the defendant 
sustained'' and inserting ``the defendant engaged in criminal conduct 
that, at any time, resulted in''.
    Section 2L1.2(b)(3) is amended by striking ``If, at any time after 
the defendant was ordered deported or ordered removed from the United 
States for the first time, the defendant engaged in criminal conduct 
resulting in'' and inserting ``If, after the defendant was ordered 
deported or ordered removed from the United States for the first time, 
the defendant engaged in criminal conduct that, at any time, resulted 
in''.
Issue for Comment
    1. The Commission has received comments indicating that the 
enhancements for prior convictions (other than convictions for illegal 
reentry) in Sec.  2L1.2 (Unlawfully Entering or Remaining in the United 
States) currently do not apply in the situation where a defendant 
engaged in criminal conduct before being ordered deported or ordered 
removed from the United States for the first time but did not sustain a 
conviction or convictions for that criminal conduct until after he or 
she was first ordered deported or ordered removed. Part A of the 
proposed amendment would address this situation by revising the 
language of Sec.  2L1.2(b)(2) so that its applicability would turn on 
when the defendant ``engaged in criminal conduct resulting in'' one or 
more of the covered convictions, rather than when the

[[Page 3878]]

defendant ``sustained'' that ``conviction'' or ``convictions.''
    Should the Commission amend Sec.  2L1.2 to cover the situation 
where a defendant engages in criminal conduct before a first order of 
removal or deportation but does not sustain a conviction or convictions 
for the criminal conduct until after that order? How frequently does 
this situation occur? Does Part A of the proposed amendment 
appropriately address this situation? Should the Commission address the 
situation differently? If so, how?

(B) Treatment of Revocations of Probation, Parole, or Supervised 
Release

    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended in Note 2 in the paragraph that begins `` `Sentence imposed' 
has the meaning'' by striking ``term of imprisonment given upon 
revocation of probation, parole, or supervised release'' and inserting 
``term of imprisonment given upon revocation of probation, parole, or 
supervised release, regardless of when the revocation occurred''.
3. Technical Amendment
    Synopsis of the Proposed Amendment: This proposed amendment makes 
various technical changes to the Guidelines Manual.
    First, the proposed amendment makes technical changes to provide 
updated references to certain sections in the United States Code that 
were restated in legislation. As part of an Act to codify existing law 
relating to the National Park System, Congress repealed numerous 
sections in Title 16 of the United States Code, and restated them in 
Title 18 and a newly enacted Title 54. See Public Law 113-287 (Dec. 19, 
2014). The proposed amendment amends the Commentary to Sec.  2B1.5 
(Theft of, Damage to, or Destruction of, Cultural Heritage Resources or 
Paleontological Resources; Unlawful Sale, Purchase, Exchange, 
Transportation, or Receipt of Cultural Heritage Resources or 
Paleontological Resources) to correct outdated references to certain 
sections in Title 16 that were restated, with minor revisions, when 
Congress enacted Title 54. It also deletes from the Commentary to Sec.  
2B1.5 the provision relating to the definition of ``historic 
resource,'' as that term was omitted from Title 54. In addition, the 
proposed amendment makes a technical change to Appendix A (Statutory 
Index), to correct an outdated reference to 16 U.S.C. 413 by replacing 
it with the appropriate reference to 18 U.S.C. 1865(c).
    Second, the proposed amendment also makes technical changes to 
reflect the editorial reclassification of certain sections in the 
United States Code. Effective September 1, 2017, the Office of Law 
Revision Counsel transferred certain provisions bearing on crime 
control and law enforcement, previously scattered throughout various 
parts of the United States Code, to a new Title 34. To reflect the new 
section numbers of the reclassified provisions, Part B of the proposed 
amendment makes changes to--
    (1) The Commentary to Sec.  2A3.5 (Failure to Register as a Sex 
Offender);
    (2) the Commentary to Sec.  2X5.2 (Class A Misdemeanors (Not 
Covered by Another Specific Offense Guideline));
    (3) subsection (a)(10) of Sec.  5B1.3 (Conditions of Probation);
    (4) subsection (a)(8) of Sec.  5D1.3 (Conditions of Supervised 
Release); and
    (5) Appendix A (Statutory Index), by updating references to certain 
sections in Title 42 to reflect their reclassified section numbers in 
the new Title 34.
    Finally, the proposed amendment revises subsection (a) of Sec.  
8C2.1 (Applicability of Fine Guidelines) by deleting an outdated 
reference to Sec.  2C1.6, which was deleted by consolidation with Sec.  
2C1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity) effective 
November 1, 2004.
Proposed Amendment
    The Commentary to Sec.  2A3.5 captioned ``Application Notes'' is 
amended in Note 1--

in the paragraph that begins `` `Sex offense' has the meaning'' by 
striking ``42 U.S.C. 16911(5)'' and inserting ``34 U.S.C. 20911(5)'';

and in the paragraph that begins `` `Tier I offender', `Tier II 
offender', and `Tier III offender' have the meaning'' by striking ``42 
U.S.C. 16911'' and inserting ``34 U.S.C. 20911''.

    The Commentary to Sec.  2B1.5 captioned ``Application Notes'' is 
amended--

in Note 1(A) by striking clause (ii) and redesignating clauses (iii) 
through (vii) as clauses (ii) through (vi), respectively;

in Note 1(A)(i) by striking ``16 U.S.C. 470w(5)'' and inserting ``54 
U.S.C. 300308'';

in Note 3(C) by striking ``16 U.S.C. 470a(a)(1)(B)'' and inserting ``54 
U.S.C. 302102'';

in Note 3(E) by striking ``the Antiquities Act of 1906 (16 U.S.C. 
431)'' and inserting ``54 U.S.C. 320301'';

and in Note 3(F) by striking ``16 U.S.C. 1c(a)'' and inserting ``54 
U.S.C. 100501''.

    The Commentary to Sec.  2X5.2 captioned ``Statutory Provisions'' is 
amended by striking ``42 U.S.C. 14133'' and inserting ``34 U.S.C. 
12593''.
    Section 5B1.3(a)(10) is amended by striking ``42 U.S.C. 14135a'' 
and inserting ``34 U.S.C. 40702''.
    Section 5D1.3(a)(8) is amended by striking ``42 U.S.C. 14135a'' and 
inserting ``34 U.S.C. 40702''.
    Section 8C2.1(a) is amended by striking ``Sec. Sec.  2C1.1, 2C1.2, 
2C1.6;'' and inserting ``Sec. Sec.  2C1.1, 2C1.2;''.
    Appendix A (Statutory Index) is amended--

by striking the line referenced to 16 U.S.C. 413;
by inserting after the line referenced to 18 U.S.C. 1864 the following:

``18 U.S.C. 1865(c) 2B1.1'';

by inserting after the line referenced to 33 U.S.C. 3851 the following:

``34 U.S.C. 10251 2B1.1
34 U.S.C. 10271 2B1.1
34 U.S.C. 12593 2X5.2
34 U.S.C. 20962 2H3.1
34 U.S.C. 20984 2H3.1'';

and by striking the lines referenced to 42 U.S.C. 3791, 42 U.S.C. 3795, 
42 U.S.C. 14133, 42 U.S.C. 16962, and 42 U.S.C. 16984.

[FR Doc. 2018-01328 Filed 1-25-18; 8:45 am]
 BILLING CODE 2210-40-P