Criminal Law

Unlawful Manufacturing, Importing, Exporting, Trafficking, or Possession; Continuing Criminal Enterprise - Offenses Involving Drugs

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November 1, 2005GUIDELINES MANUAL§2D1.12

upward departure may be warranted. Additionally, any costs of environmental cleanup and harm to persons or property should be considered by the court in determining the amount of restitution under §5E1.1 (Restitution) and in fashioning appropriate conditions of supervision under §§5B1.3 (Conditions of Probation) and 5D1.3 (Conditions of Supervised Release).

7. Application of Subsection (b)(4).—For purposes of subsection (b)(4), "mass-marketing by means of an interactive computer service" means the solicitation, by means of an interactive computer service, of a large number of persons to induce those persons to purchase a controlled substance. For example, subsection (b)(4) would apply to a defendant who operated a web site to promote the sale of Gamma-butyrolactone (GBL) but would not apply to coconspirators who use an interactive computer service only to communicate with one another in furtherance of the offense. "Interactive computer service", for purposes of subsection (b)(4) and this note, has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. § 230(f)(2)).

Background: Offenses covered by this guideline involve list I chemicals (including ephedrine, pseudoephedrine, and pheylpropanolamine) and list II chemicals. List I chemicals are important to the manufacture of a controlled substance and usually become part of the final product. For example, ephedrine reacts with other chemicals to form methamphetamine. The amount of ephedrine directly affects the amount of methamphetamine produced. List II chemicals are generally used as solvents, catalysts, and reagents.

Historical Note:: Effective November 1, 1991 (see Appendix C, amendment 371). Amended effective November 1, 1992 (see Appendix C, amendment 447); November 1, 1995 (see Appendix C, amendment 519); May 1, 1997 (see Appendix C, amendment 541); November 1, 1997 (see Appendix C, amendment 557); November 1, 2000 (see Appendix C, amendments 605 and 606); May 1, 2001 (see Appendix C, amendment 611); November 1, 2001 (see Appendix C, amendment 625); November 1, 2002 (see Appendix C, amendment 646); November 1, 2003 (see Appendix C, amendment 661); November 1, 2004 (see Appendix C, amendments 667 and 668); November 1, 2005 (see Appendix C, amendment 679).

§2D1.12. Unlawful Possession, Manufacture, Distribution, Transportation, Exportation, or Importation of Prohibited Flask, Equipment, Chemical, Product, or Material; Attempt or Conspiracy

(a) Base Offense Level (Apply the greater):

(1) 12, if the defendant intended to manufacture a controlled substance or knew or believed the prohibited flask, equipment, chemical, product, or material was to be used to manufacture a controlled substance; or

(2) 9, if the defendant had reasonable cause to believe the prohibited flask, equipment, chemical, product, or material was to be used to manufacture a controlled substance.

(b) Specific Offense Characteristics

(1) If the defendant (A) intended to manufacture methamphetamine, or (B) knew, believed, or had reasonable cause to believe that prohibited flask, equipment, chemical, product, or material was to be used to manufacture

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