[Federal Register Volume 90, Number 21 (Monday, February 3, 2025)]
[Notices]
[Pages 8840-8841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-02128]
=======================================================================
-----------------------------------------------------------------------
UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Request for public comment.
-----------------------------------------------------------------------
SUMMARY: The United States Sentencing Commission intends to address
certain issues relating to offenses involving fentanyl, fentanyl
analogues, and other opioids. As part of its statutory authority and
responsibility to analyze sentencing issues, including operation of the
federal sentencing guidelines, the Commission is publishing these
issues for comment to inform the Commission's consideration of the
issues related to this topic. 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 May 1,
2025. Any public comment received after the close of the comment period
may not be considered.
ADDRESSES: There are two methods for submitting public comment.
Electronic Submission of Comments. Comments may be submitted
electronically via the Commission's Public Comment Submission Portal at
https://comment.ussc.gov. Follow the online instructions for submitting
comments.
Submission of Comments by Mail. Comments may be submitted by mail
to the following address: United States Sentencing Commission, One
Columbus Circle NE, Suite 2-500, Washington, DC 20002-8002, Attention:
Public Affairs--Fentanyl and Other Opioids.
FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs
Specialist, (202) 502-4597.
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).
Request for Comment on Offenses Involving Fentanyl, Fentanyl Analogues,
and Other Opioids
Fentanyl and fentanyl analogue cases have increased substantially
over the last several years. Since fiscal year 2019, fentanyl cases
have increased 244.7 percent, such that they comprised 16.3 percent of
all federal drug trafficking cases in fiscal year 2023. Today, fentanyl
represents the third most common drug type in federal drug trafficking
cases. Fentanyl analogue cases have increased 113.5 percent since
fiscal year 2019, but those cases occupy a much smaller portion of the
federal drug trafficking case load (1.4%).
Previous Commission Action
In response to rising numbers of fentanyl and fentanyl analogue
cases, the Commission previously undertook a multi-year study of
synthetic controlled substances. In 2018, following that study, the
Commission amended Sec. 2D1.1 (Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including Possession with Intent to Commit
Those Offenses); Attempt or Conspiracy) to add an enhancement specific
to fentanyl and fentanyl analogue cases. In particular, the Commission
added a new specific offense characteristic at subsection (b)(13)
providing a 4-level increase when the defendant knowingly
misrepresented or knowingly marketed as another substance a mixture or
substance containing fentanyl or a fentanyl analogue. See USSG, App. C.
amend. 807 (effective Nov. 1, 2018). In adding this new specific
offense characteristic, the Commission pointed to the harm attendant to
cases where a user does not know the substance they are using contains
fentanyl or fentanyl analogue. Id. As the Commission explained,
``[b]ecause of fentanyl's extreme potency, the risk of overdose death
is great, particularly when the user is inexperienced or unaware of
what substance he or she is using.'' Id. Thus, the Commission concluded
that ``it is appropriate for traffickers who knowingly misrepresent
fentanyl or a fentanyl analogue as another substance to receive
additional punishment.'' Id.
In 2023, the Commission amended Sec. 2D1.1(b)(13) based on the
continued increase in fentanyl and fentanyl analogue distribution. See
USSG, App. C. amend. 818 (effective Nov. 1, 2023). The amendment added
a new subparagraph (B) with an alternative 2-level enhancement for
offenses where the defendant represented or marketed as a legitimately
manufactured drug another mixture or substance containing fentanyl or a
fentanyl analogue, and acted with willful blindness or conscious
avoidance of knowledge that such mixture or substance was not the
legitimately manufactured drug. Id. As grounds for the amendment, the
Commission cited data from the Drug Enforcement Agency (``DEA'')
showing a substantial increase in the seizure of fake prescription
pills. Id. The DEA reported seizing over 50.6 million fake pills in
calendar year 2022, with 70
[[Page 8841]]
percent containing fentanyl. Id. Of those seized pills containing
fentanyl, six out of ten contained a potentially lethal dose of the
substance. Id. The Commission also pointed to the increase in drug
overdose deaths--most of which involved synthetic opioids, primarily
fentanyl. Id.
Feedback From Stakeholders
Since 2023, the Commission has continued to receive public comment
on whether the guidelines appropriately account for factors specific to
offenses involving fentanyl, fentanyl analogues, and other opioids. For
example, in a recent letter to the Commission, the Department of
Justice stated that, ``although the Commission added [a] new two-level
enhancement [at Sec. 2D1.1(b)(13)(B)] to address the harm associated
with imitation pills, the new two-level enhancement has proven not to
be very useful.'' Letter from Scott Meisler, Ex-Officio Member, U.S.
Sent'g Comm'n, to Hon. Carlton W. Reeves, Chair, U.S. Sent'g Comm'n
(July 15, 2024) at 5, available at https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/202407/89FR48029_public-comment_R.pdf [hereinafter ``DOJ Letter'']. Commission data shows that,
in fiscal year 2023, 2.1 percent of individuals sentenced for fentanyl
trafficking and 1.5 percent sentenced for fentanyl analogue trafficking
received the 4-level increase for knowingly misrepresenting or
knowingly marketing a mixture or substance containing fentanyl or a
fentanyl analogue as another substance. Because the enhancement at
Sec. 2D1.1(b)(13)(B) became effective November 1, 2023, only
preliminary 2024 data is available. Based on this preliminary data, 12
individuals sentenced for fentanyl trafficking and zero individuals
sentenced for fentanyl analogue trafficking received the 2-level
willful blindness enhancement.
To address the harm in cases involving fentanyl, fentanyl
analogues, and other opioids, the Department of Justice proposed
several amendments to Sec. 2D1.1 to enhance sentences when certain
circumstances are present. See DOJ Letter at 6-8. First, the Department
of Justice proposed creating an enhancement under Sec. 2D1.1 for
distribution of fentanyl, fentanyl analogues, and other opioids to
individuals under the age of 21. Id. at 6. According to the Department
of Justice, ``[m]embers of that age group have increasingly become
victims of drug overdoses.'' Id. Commission data reveals 37 cases in
fiscal year 2023 in which the offense involved distribution of fentanyl
or a fentanyl analogue to a person under 21 years old.
Second, the Department of Justice proposed creating an enhancement
under Sec. 2D1.1 for drug-trafficking offenses using ``the dark web or
other anonymizing technologies to avoid detection.'' DOJ Letter at 6.
The Department of Justice explains that individuals ``are increasingly
relying on anonymizing technologies to further their illicit activity,
posting advertisements for fentanyl pills on dark web marketplaces
where the seller is unknown to the buyer, the transaction involves an
exchange of cryptocurrency, and the product is shipped with misleading
tracking information.'' Id. Commission data reveals 60 cases in fiscal
year 2023 in which the offense involved the use of the dark web or
cryptocurrency to traffic fentanyl or a fentanyl analogue. Of these 60
cases, 39 cases involved the use of both the dark web and
cryptocurrency, 17 cases involved only the use of the dark web, and
four cases involved only the use of cryptocurrency.
Third, the Department of Justice asked the Commission to consider
an enhancement for drug trafficking offenses involving fentanyl or
another synthetic opioid adulterated with xylazine or medetomidine. DOJ
Letter at 6-7. According to the Department of Justice, individuals
engaged in drug trafficking ``are increasingly adulterating fentanyl
with these alpha-2-adrenergic agonists, which can extend a user's high
and also serve as a filler and binding agent.'' Id. The Department of
Justice notes that the effects of these substances ``have not yet been
fully studied'' but states that they ``are profoundly dangerous because
their effects cannot be reversed by life-saving medicines like naloxone
(Narcan).'' Id. at 7. Commission data reveals 94 cases in fiscal year
2023 in which the offense involved mixing fentanyl or a fentanyl
analogue with xylazine or medetomidine. Of these 94 cases, 90 cases
used xylazine as the mixing agent, and four cases used medetomidine as
the mixing agent.
Issues for Comment
1. The Commission seeks comment on whether it should consider
revising Sec. 2D1.1 to add an enhancement for distribution of
fentanyl, fentanyl analogues, and other opioids to individuals under
the age of 21. If so, should the enhancement be defendant-based or
offense-based? By how many levels should the enhancement increase base
offense levels, and what is the basis for such increase? Should the
Commission consider any other changes to Sec. 2D1.1 to address the
harm in these cases?
2. The Commission seeks comment on whether it should consider
revising Sec. 2D1.1 to add an enhancement for fentanyl, fentanyl
analogue, and opioid offenses involving the use of the dark web or
other anonymizing technologies. If so, how should the Commission define
or describe what technologies qualify for the enhancement? Should the
enhancement be defendant-based or offense-based? By how many levels
should the enhancement increase base offense levels, and what is the
basis for such increase? Should the Commission consider any other
changes to Sec. 2D1.1 to address the harm in these cases?
3. The Commission seeks comment on whether it should consider
revising Sec. 2D1.1 to add an enhancement for drug trafficking
offenses involving fentanyl, a fentanyl analogue, or another synthetic
opioid adulterated with xylazine or medetomidine. The Commission
invites comment on xylazine and medetomidine, particularly 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.
The Commission also invites comment on whether there are other
adulterants to fentanyl, fentanyl analogues, and other synthetic
opioids for which an enhancement should apply. If the Commission were
to add an enhancement to Sec. 2D1.1 for drug trafficking offenses
involving fentanyl, a fentanyl analogue, or another synthetic opioid
adulterated with xylazine, medetomidine, or another adulterant should
the enhancement be defendant-based or offense-based? By how many levels
should the enhancement increase base offense levels, and what is the
basis for such increase? Should the Commission consider any other
changes to Sec. 2D1.1 to address the harm in these cases?
Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of Practice
and Procedure 2.2, 4.3, 4.4.
Carlton W. Reeves,
Chair.
[FR Doc. 2025-02128 Filed 1-31-25; 8:45 am]
BILLING CODE 2210-40-P