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Amended effective October 15, 1988 (see Appendix C, amendment 66); November 1, 1989 (see Appendix C, amendment 139); November 1, 1992 (see Appendix C, amendment 447). §2D1.5 GUIDELINES MANUAL November 1, 2005 – 156 – §2D1.6. Use of Communication Facility in Committing Drug Offense; Attempt or Conspiracy (a) Base Offense Level: the offense level applicable to the underlying offense. Commentary Statutory Provision: 21 U.S.C. § 843(b). Application Note: 1. Where the offense level for the underlying offense is to be determined by reference to §2D1.1, see Application Note 12 of the Commentary to §2D1.1 for guidance in determining the scale of the offense. Note that the Drug Quantity Table in §2D1.1 provides a minimum offense level of 12 where the offense involves heroin (or other Schedule I or II opiates), cocaine (or other Schedule I or II stimulants), cocaine base, PCP, methamphetamine, LSD (or other Schedule I or II hallucinogens), fentanyl, or fentanyl analogue (§2D1.1(c)(14)); and a minimum offense level of 6 otherwise (§2D1.1(c)(17)). Background: This section covers the use of a communication facility in committing a drug offense. A communication facility includes any public or private instrument used in the transmission of writing, signs, signals, pictures, and sound; e.g., telephone, wire, radio. Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 320); November 1, 1992 (see Appendix C, amendment 447); November 1, 1994 (see Appendix C, amendment 505). §2D1.7. Unlawful Sale or Transportation of Drug Paraphernalia; Attempt or Conspiracy (a) Base Offense Level: 12 (b) Cross Reference (1) If the offense involved a controlled substance, apply §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking) or §2D2.1 (Unlawful Possession), as appropriate, if the resulting offense level is greater than that determined above. Commentary Statutory Provision: 21 U.S.C. § 863 (formerly 21 U.S.C. § 857). Application Note: 1. The typical case addressed by this guideline involves small-scale trafficking in drug paraphernalia (generally from a retail establishment that also sells items that are not unlawful). In a case involving a large-scale dealer, distributor, or manufacturer, an upward November 1, 2005 GUIDELINES MANUAL §2D1.10 – 157 – departure may be warranted. Conversely, where the offense was not committed for pecuniary gain (e.g., transportation for the defendant’s personal use), a downward departure may be warranted. Historical Note: Effective November 1, 1987. Amended effective November 1, 1991 (see Appendix C, amendment 397); November 1, 1992 (see Appendix C, amendment 447). §2D1.8. Renting or Managing a Drug Establishment; Attempt or Conspiracy (a) Base Offense Level: (1) The offense level from §2D1.1 applicable to the underlying controlled substance offense, except as provided below. (2) If the defendant had no participation in the underlying controlled substance offense other than allowing use of the premises, the offense level shall be 4 levels less than the offense level from §2D1.1 applicable to the underlying controlled substance offense, but not greater than level 26. (b) Special Instruction (1) If the offense level is determined under subsection (a)(2), do not apply an adjustment under §3B1.2 (Mitigating Role). Commentary Statutory Provision: 21 U.S.C. § 856. Application Note: 1. Subsection (a)(2) does not apply unless the defendant had no participation in the underlying controlled substance offense other than allowing use of the premises. For example, subsection (a)(2) would not apply to a defendant who possessed a dangerous weapon in connection with the offense, a defendant who guarded the cache of controlled substances, a defendant who arranged for the use of the premises for the purpose of facilitating a drug transaction, a defendant who allowed the use of more than one premises, a defendant who made telephone calls to facilitate the underlying controlled substance offense, or a defendant who otherwise assisted in the commission of the underlying controlled substance offense. Furthermore, subsection (a)(2) does not apply unless the defendant initially leased, rented, purchased, or otherwise acquired a possessory interest in the premises for a legitimate purpose. Finally, subsection (a)(2) does not apply if the defendant had previously allowed any premises to be used as a drug establishment without regard to whether such prior misconduct resulted in a conviction. Background: This section covers the offense of knowingly opening, maintaining, managing, or §2D1.10 GUIDELINES MANUAL November 1, 2005 – 158 – controlling any building, room, or enclosure for the purpose of manufacturing, distributing, storing, or using a controlled substance contrary to law (e.g., a "crack house"). Historical Note: Effective November 1, 1987. Amended effective November 1, 1991 (see Appendix C, amendment 394); November 1, 1992 (see Appendix C, amendments 447 and 448); November 1, 2002 (see Appendix C, amendment 640). §2D1.9. Placing or Maintaining Dangerous Devices on Federal Property to Protect the Unlawful Production of Controlled Substances; Attempt or Conspiracy (a) Base Offense Level: 23 Commentary Statutory Provision: 21 U.S.C. § 841(d)(1). Background: This section covers the offense of assembling, placing, or causing to be placed, or maintaining a "booby-trap" on federal property where a controlled substance is being manufactured or distributed. Historical Note: Effective November 1, 1987. Amended effective November 1, 1992 (see Appendix C, amendment 447); November 1, 2002 (see Appendix C, amendment 646). §2D1.10. Endangering Human Life While Illegally Manufacturing a Controlled Substance; Attempt or Conspiracy (a) Base Offense Level (Apply the greater): (1) 3 plus the offense level from the Drug Quantity Table in §2D1.1; or (2) 20. (b) Specific Offense Characteristic (1) (Apply the greater): (A) If the offense involved the manufacture of amphetamine or methamphetamine, increase by 3 levels. If the resulting offense level is less than level 27, increase to level 27. (B) If the offense (i) involved the manufacture of amphetamine or methamphetamine; and (ii) created a substantial risk of harm to the life of a minor or an incompetent, increase by 6 levels. If the resulting offense level is less than level 30, increase to level 30. November 1, 2005 GUIDELINES MANUAL §2D1.11 – 159 – Commentary Statutory Provision: 21 U.S.C. § 858. Application Note: 1. Substantial Risk of Harm Associated with the Manufacture of Amphetamine and Methamphetamine.— (A) Factors to Consider.— In determining, for purposes of subsection (b)(1)(B), whether the offense created a substantial risk of harm to the life of a minor or an incompetent, the court shall include consideration of the following factors: (i) The quantity of any chemicals or hazardous or toxic substances found at the laboratory, and the manner in which the chemicals or substances were stored. (ii) The manner in which hazardous or toxic substances were disposed, and the likelihood of release into the environment of hazardous or toxic substances. (iii) The duration of the offense, and the extent of the manufacturing operation. (iv) The location of the laboratory (e.g., whether the laboratory is located in a residential neighborhood or a remote area), and the number of human lives placed at substantial risk of harm. (B) Definitions.—For purposes of subsection (b)(1)(B): "Incompetent" means an individual who is incapable of taking care of the individual’s self or property because of a mental or physical illness or disability, mental retardation, or senility. "Minor" has the meaning given that term in Application Note 1 of the Commentary to §2A3.1 (Criminal Sexual Abuse). Background: Subsection (b)(1) implements the instruction to the Commission in section 102 of Public Law 106–310. Historical Note: Effective November 1, 1989 (see Appendix C, amendment 140). Amended effective November 1, 1992 (see Appendix C, amendment 447); December 16, 2000 (see Appendix C, amendment 608); November 1, 2001 (see Appendix C, amendment 620). §2D1.11. Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy (a) Base Offense Level: The offense level from the Chemical Quantity Table set forth in subsection (d) or (e), as appropriate, except that if (A) the defendant receives an adjustment under §3B1.2 (Mitigating Role); and (B) the base offense §2D1.11 GUIDELINES MANUAL November 1, 2005 – 160 – level under subsection (e) is (i) level 32, decrease by 2 levels; (ii) level 34 or level 36, decrease by 3 levels; or (iii) level 38, decrease by 4 levels. (b) Specific Offense Characteristics (1) If a dangerous weapon (including a firearm) was possessed, increase by 2 levels. (2) If the defendant is convicted of violating 21 U.S.C. § 841(c)(2) or (f)(1), or § 960(d)(2), (d)(3), or (d)(4), decrease by 3 levels, unless the defendant knew or believed that the listed chemical was to be used to manufacture a controlled substance unlawfully. (3) If the offense involved (A) an unlawful discharge, emission, or release into the environment of a hazardous or toxic substance; or (B) the unlawful transportation, treatment, storage, or disposal of a hazardous waste, increase by 2 levels. (4) If the defendant, or a person for whose conduct the defendant is accountable under §1B1.3 (Relevant Conduct), distributed a listed chemical through mass-marketing by means of an interactive computer service, increase by 2 levels. (c) Cross Reference (1) If the offense involved unlawfully manufacturing a controlled substance, or attempting to manufacture a controlled substance unlawfully, apply §2D1.1 (Unlawful Manufacturing, Importing, Exporting, Trafficking) if the resulting offense level is greater than that determined above. November 1, 2005 GUIDELINES MANUAL §2D1.11 – 161 – (d) EPHEDRINE, PSEUDOEPHEDRINE, AND PHENYLPROPANOLAMINE QUANTITY TABLE* (Methamphetamine and Amphetamine Precursor Chemicals) Quantity Base Offense Level (1) 3 KG or more of Ephedrine; Level 38 3 KG or more of Phenylpropanolamine; 3 KG or More of Pseudoephedrine. (2) At least 1 KG but less than 3 KG of Ephedrine; Level 36 At least 1 KG but less than 3 KG of Phenylpropanolamine; At least 1 KG but less than 3 KG of Pseudoephedrine. (3) At least 300 G but less than 1 KG of Ephedrine; Level 34 At least 300 G but less than 1 KG of Phenylpropanolamine; At least 300 G but less than 1 KG of Pseudoephedrine. (4) At least 100 G but less than 300 G of Ephedrine; Level 32 At least 100 G but less than 300 G of Phenylpropanolamine; At least 100 G but less than 300 G of Pseudoephedrine. (5) At least 70 G but less than 100 G of Ephedrine; Level 30 At least 70 G but less than 100 G of Phenylpropanolamine; At least 70 G but less than 100 G of Pseuodoephedrine. (6) At least 40 G but less than 70 G of Ephedrine; Level 28 At least 40 G but less than 70 G of Phenylpropanolamine; At least 40 G but less than 70 G of Pseudoephedrine. (7) At least 10 G but less than 40 G of Ephedrine; Level 26 At least 10 G but less than 40 G of Phenylpropanolamine; At least 10 G but less than 40 G of Pseudoephedrine. (8) At least 8 G but less than 10 G of Ephedrine; Level 24 At least 8 G but less than 10 G of Phenylpropanolamine; At least 8 G but less than 10 G of Pseudoephedrine. (9) At least 6 G but less than 8 G of Ephedrine; Level 22 At least 6 G but less than 8 G of Phenylpropanolamine; At least 6 G but less than 8 G of Pseudoephedrine. (10) At least 4 G but less than 6 G of Ephedrine; Level 20 At least 4 G but less than 6 G of Phenylpropanolamine; At least 4 G but less than 6 G of Pseudoephedrine. §2D1.11 GUIDELINES MANUAL November 1, 2005 – 162 – (11) At least 2 G but less than 4 G of Ephedrine; Level 18 At least 2 G but less than 4 G of Phenylpropanolamine; At least 2 G but less than 4 G of Pseudoephedrine. (12) At least 1 G but less than 2 G of Ephedrine; Level 16 At least 1 G but less than 2 G of Phenylpropanolamine; At least 1 G but less than 2 G of Pseudoephedrine. (13) At least 500 MG but less than 1 G of Ephedrine; Level 14 At least 500 MG but less than 1 G of Phenylpropanolamine; At least 500 MG but less than 1 G of Pseudoephedrine. (14) Less than 500 MG of Ephedrine; Level 12 Less than 500 MG of Phenylpropanolamine; Less than 500 MG of Pseudoephedrine. (e) CHEMICAL QUANTITY TABLE* (All Other Precursor Chemicals) Listed Chemicals and Quantity Base Offense Level (1) List I Chemicals Level 30 890 G or more of Benzaldehyde; 20 KG or more of Benzyl Cyanide; 200 G or more of Ergonovine; 400 G or more of Ergotamine; 20 KG or more of Ethylamine; 2.2 KG or more of Hydriodic Acid; 320 KG or more of Isosafrole; 200 G or more of Methylamine; 500 KG or more of N-Methylephedrine; 500 KG or more of N-Methylpseudoephedrine; 625 G or more of Nitroethane; 10 KG or more of Norpseudoephedrine; 20 KG or more of Phenylacetic Acid; 10 KG or more of Piperidine; 320 KG or more of Piperonal; 1.6 KG or more of Propionic Anhydride; 320 KG or more of Safrole; 400 KG or more of 3, 4-Methylenedioxyphenyl-2-propanone; 1135.5 L or more of Gamma-butyrolactone; 714 G or more of Red Phosphorus, White Phosphorus, or Hypophosphorous Acid. November 1, 2005 GUIDELINES MANUAL §2D1.11 – 163 – (2) List I Chemicals Level 28 At least 267 G but less than 890 G of Benzaldehyde; At least 6 KG but less than 20 KG of Benzyl Cyanide; At least 60 G but less than 200 G of Ergonovine; At least 120 G but less than 400 G of Ergotamine; At least 6 KG but less than 20 KG of Ethylamine; At least 660 G but less than 2.2 KG of Hydriodic Acid; At least 96 KG but less than 320 KG of Isosafrole; At least 60 G but less than 200 G of Methylamine; At least 150 KG but less than 500 KG of N-Methylephedrine; At least 150 KG but less than 500 KG of N-Methylpseudoephedrine; At least 187.5 G but less than 625 G of Nitroethane; At least 3 KG but less than 10 KG of Norpseudoephedrine; At least 6 KG but less than 20 KG of Phenylacetic Acid; At least 3 KG but less than 10 KG of Piperidine; At least 96 KG but less than 320 KG of Piperonal; At least 480 G but less than 1.6 KG of Propionic Anhydride; At least 96 KG but less than 320 KG of Safrole; At least 120 KG but less than 400 KG of 3, 4-Methylenedioxyphenyl-2-propanone; At least 340.7 L but less than 1135.5 L of Gamma-butyrolactone; At least 214 G but less than 714 G of Red Phosphorus, White Phosphorus, or Hypophosphorous Acid; List II Chemicals 11 KG or more of Acetic Anhydride; 1175 KG or more of Acetone; 20 KG or more of Benzyl Chloride; 1075 KG or more of Ethyl Ether; 1200 KG or more of Methyl Ethyl Ketone; 10 KG or more of Potassium Permanganate; 1300 KG or more of Toluene; 376.2 G or more of Iodine. (3) List I Chemicals Level 26 At least 89 G but less than 267 G of Benzaldehyde; At least 2 KG but less than 6 KG of Benzyl Cyanide; At least 20 G but less than 60 G of Ergonovine; At least 40 G but less than 120 G of Ergotamine; At least 2 KG but less than 6 KG of Ethylamine; At least 220 G but less than 660 G of Hydriodic Acid; At least 32 KG but less than 96 KG of Isosafrole; At least 20 G but less than 60 G of Methylamine; At least 50 KG but less than 150 KG of N-Methylephedrine; At least 50 KG but less than 150 KG of N-Methylpseudoephedrine; At least 62.5 G but less than 187.5 G of Nitroethane; At least 1 KG but less than 3 KG of Norpseudoephedrine; At least 2 KG but less than 6 KG of Phenylacetic Acid; At least 1 KG but less than 3 KG of Piperidine; At least 32 KG but less than 96 KG of Piperonal; §2D1.11 GUIDELINES MANUAL November 1, 2005 – 164 – At least 160 G but less than 480 G of Propionic Anhydride; At least 32 KG but less than 96 KG of Safrole; At least 40 KG but less than 120 KG of 3, 4-Methylenedioxyphenyl-2-propanone; At least 113.6 L but less than 340.7 L of Gamma-butyrolactone; At least 71 G but less than 214 G of Red Phosphorus, White Phosphorus, or Hypophosphorous Acid; List II Chemicals At least 3.3 KG but less than 11 KG of Acetic Anhydride; At least 352.5 KG but less than 1175 KG of Acetone; At least 6 KG but less than 20 KG of Benzyl Chloride; At least 322.5 KG but less than 1075 KG of Ethyl Ether; At least 360 KG but less than 1200 KG of Methyl Ethyl Ketone; At least 3 KG but less than 10 KG of Potassium Permanganate; At least 390 KG but less than 1300 KG of Toluene; At least 125.4 G but less than 376.2 G of Iodine. (4) List I Chemicals Level 24 At least 62.3 G but less than 89 G of Benzaldehyde; At least 1.4 KG but less than 2 KG of Benzyl Cyanide; At least 14 G but less than 20 G of Ergonovine; At least 28 G but less than 40 G of Ergotamine; At least 1.4 KG but less than 2 KG of Ethylamine; At least 154 G but less than 220 G of Hydriodic Acid; At least 22.4 KG but less than 32 KG of Isosafrole; At least 14 G but less than 20 G of Methylamine; At least 35 KG but less than 50 KG of N-Methylephedrine; At least 35 KG but less than 50 KG of N-Methylpseudoephedrine; At least 43.8 G but less than 62.5 G of Nitroethane; At least 700 G but less than 1

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