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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 §2D1.12 GUIDELINES MANUAL November 1, 2005 – 172 – methamphetamine, increase by 2 levels. (2) 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. (3) If the defendant, or a person for whose conduct the defendant is accountable under §1B1.3 (Relevant Conduct), distributed any prohibited flask, equipment, chemical, product, or material through mass-marketing by means of an interactive computer service, increase by 2 levels. (4) If the offense involved stealing anhydrous ammonia or transporting stolen anhydrous ammonia, increase by 6 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, or Trafficking) if the resulting offense level is greater than that determined above. Commentary Statutory Provisions: 21 U.S.C. §§ 843(a)(6), (7), 864. Application Notes: 1. If the offense involved the large-scale manufacture, distribution, transportation, exportation, or importation of prohibited flasks, equipment, chemicals, products, or material, an upward departure may be warranted. 2. "Offense involved unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully," as used in subsection (c)(1), means that the defendant, or a person for whose conduct the defendant is accountable under §1B1.3 (Relevant Conduct), completed the actions sufficient to constitute the offense of unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully. 3. Subsection (b)(2) applies if the conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct) involved any discharge, emission, release, transportation, treatment, storage, or disposal violation covered by the Resource Conservation and Recovery Act, 42 U.S.C. § 6928(d), the Federal Water Pollution Control Act, 33 U.S.C. § 1319(c), or the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 5124, 9603(b). In some cases, the enhancement under subsection (b)(2) may not adequately account for the seriousness of the environmental harm or other threat to public health or safety (including the health or safety of law enforcement and cleanup personnel). In such cases, an 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 November 1, 2005 GUIDELINES MANUAL §2D1.13 – 173 – 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). 4. Application of Subsection (b)(3).—For purposes of subsection (b)(3), "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)(3) would apply to a defendant who operated a web site to promote the sale of prohibited flasks 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)(3) 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)). 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 520); November 1, 1997 (see Appendix C, amendment 558); November 1, 2000 (see Appendix C, amendment 605); November 1, 2001 (see Appendix C, amendment 626); November 1, 2004 (see Appendix C, amendment 667). §2D1.13. Structuring Chemical Transactions or Creating a Chemical Mixture to Evade Reporting or Recordkeeping Requirements; Presenting False or Fraudulent Identification to Obtain a Listed Chemical; Attempt or Conspiracy (a) Base Offense Level (Apply the greatest): (1) The offense level from §2D1.11 (Unlawfully Distributing, Importing, Exporting, or Possessing a Listed Chemical) if the defendant knew or believed that the chemical was to be used to manufacture a controlled substance unlawfully; or (2) The offense level from §2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical) reduced by 3 levels if the defendant had reason to believe that the chemical was to be used to manufacture a controlled substance unlawfully; or (3) 6, otherwise. Commentary Statutory Provisions: 21 U.S.C. §§ 841(c)(3), (f)(1), 843(a)(4)(B), (a)(8). Application Note: 1. "The offense level from §2D1.11" includes the base offense level and any applicable specific offense characteristic or cross reference; see §1B1.5 (Interpretation of References to Other Offense Guidelines). Historical Note: Effective November 1, 1991 (see Appendix C, amendment 371). Amended effective November 1, 1992 (see Appendix C, amendment 447); November 1, 2002 (see Appendix C, amendment 646). §2D2.1 GUIDELINES MANUAL November 1, 2005 – 174 – * * * * * 2. UNLAWFUL POSSESSION §2D2.1. Unlawful Possession; Attempt or Conspiracy (a) Base Offense Level: (1) 8, if the substance is heroin or any Schedule I or II opiate, an analogue of these, or cocaine base; or (2) 6, if the substance is cocaine, flunitrazepam, LSD, or PCP; or (3) 4, if the substance is any other controlled substance or a list I chemical. (b) Cross References (1) If the defendant is convicted of possession of more than 5 grams of a mixture or substance containing cocaine base, apply §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking) as if the defendant had been convicted of possession of that mixture or substance with intent to distribute. (2) If the offense involved possession of a controlled substance in a prison, correctional facility, or detention facility, apply §2P1.2 (Providing or Possessing Contraband in Prison). Commentary Statutory Provision: 21 U.S.C. § 844(a). For additional statutory provision(s), see Appendix A (Statutory Index). Application Note: 1. The typical case addressed by this guideline involves possession of a controlled substance by the defendant for the defendant’s own consumption. Where the circumstances establish intended consumption by a person other than the defendant, an upward departure may be warranted. Background: Mandatory (statutory) minimum penalties for several categories of cases, ranging from fifteen days’ to five years’ imprisonment, are set forth in 21 U.S.C. § 844(a). When a mandatory minimum penalty exceeds the guideline range, the mandatory minimum becomes the guideline sentence. See §5G1.1(b). Note, however, that 18 U.S.C. § 3553(f) provides an exception to the applicability of mandatory minimum sentences in certain cases. See §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases). November 1, 2005 GUIDELINES MANUAL §2D2.3 – 175 – Section 2D2.1(b)(1) provides a cross reference to §2D1.1 for possession of more than five grams of a mixture or substance containing cocaine base, an offense subject to an enhanced penalty under Section 6371 of the Anti-Drug Abuse Act of 1988. Other cases for which enhanced penalties are provided under Section 6371 of the Anti-Drug Abuse Act of 1988 (e.g., for a person with one prior conviction, possession of more than three grams of a mixture or substance containing cocaine base; for a person with two or more prior convictions, possession of more than one gram of a mixture or substance containing cocaine base) are to be sentenced in accordance with §5G1.1(b). Historical Note: Effective November 1, 1987. Amended effective January 15, 1988 (see Appendix C, amendment 24); November 1, 1989 (see Appendix C, amendment 304); November 1, 1990 (see Appendix C, amendment 321); November 1, 1992 (see Appendix C, amendment 447); September 23, 1994 (see Appendix C, amendment 509); November 1, 1995 (see Appendix C, amendment 514); November 1, 1997 (see Appendix C, amendments 556 and 558). §2D2.2. Acquiring a Controlled Substance by Forgery, Fraud, Deception, or Subterfuge; Attempt or Conspiracy (a) Base Offense Level: 8 Commentary Statutory Provision: 21 U.S.C. § 843(a)(3). Historical Note: Effective November 1, 1987. Amended effective November 1, 1992 (see Appendix C, amendment 447). §2D2.3. Operating or Directing the Operation of a Common Carrier Under the Influence of Alcohol or Drugs (a) Base Offense Level (Apply the greatest): (1) 26, if death resulted; or (2) 21, if serious bodily injury resulted; or (3) 13, otherwise. (b) Special Instruction: (1) If the defendant is convicted of a single count involving the death or serious bodily injury of more than one person, apply Chapter Three, Part D (Multiple Counts) as if the defendant had been convicted of a separate count for each such victim. §2D2.3 GUIDELINES MANUAL November 1, 2005 – 176 – Commentary Statutory Provision: 18 U.S.C. § 342. Background: This section implements the direction to the Commission in Section 6482 of the Anti- Drug Abuse Act of 1988. Offenses covered by this guideline may vary widely with regard to harm and risk of harm. The offense levels assume that the offense involved the operation of a common carrier carrying a number of passengers, e.g., a bus. If no or only a few passengers were placed at risk, a downward departure may be warranted. If the offense resulted in the death or serious bodily injury of a large number of persons, such that the resulting offense level under subsection (b) would not adequately reflect the seriousness of the offense, an upward departure may be warranted. Historical Note: Effective November 1, 1987. Amended effective January 15, 1988 (see Appendix C, amendment 25); November 1, 1989 (see Appendix C, amendment 141). * * * * * 3. REGULATORY VIOLATIONS §2D3.1. Regulatory Offenses Involving Registration Numbers; Unlawful Advertising Relating to Schedule I Substances; Attempt or Conspiracy (a) Base Offense Level: 6 Commentary Statutory Provisions: 21 U.S.C. §§ 842(a)(1), 843(a)(1), (2). For additional statutory provision(s), see Appendix A (Statutory Index). Historical Note: Effective November 1, 1987. Amended effective November 1, 1991 (see Appendix C, amendment 421); November 1, 1992 (see Appendix C, amendment 447); November 1, 1995 (see Appendix C, amendment 534). §2D3.2. Regulatory Offenses Involving Controlled Substances or Listed Chemicals; Attempt or Conspiracy (a) Base Offense Level: 4 Commentary Statutory Provisions: 21 U.S.C. §§ 842(a)(2), (9), (10), (b), 954, 961. For additional statutory provision(s), see Appendix A (Statutory Index). Historical Note: Effective November 1, 1987. Amended effective November 1, 1991 (see Appendix C, amendment 421); November 1, 1992 (see Appendix C, amendment 447); November 1, 1993 (see Appendix C, amendment 481); November 1, 1995 (see Appendix C, amendment 534). November 1, 2005 GUIDELINES MANUAL §2D3.5 – 177 – §2D3.3. [Deleted] Historical Note: Section 2D3.3 (Illegal Use of Registration Number to Distribute or Dispense a Controlled Substance to Another Registrant or Authorized Person; Attempt or Conspiracy), effective November 1, 1987, amended effective November 1, 1991 (see Appendix C, amendment 421) and November 1, 1992 (see Appendix C, amendment 447), was deleted by consolidation with §2D3.2 effective November 1, 1993 (see Appendix C, amendment 481). §2D3.4. [Deleted] Historical Note: Section 2D3.4 (Illegal Transfer or Transshipment of a Controlled Substance; Attempt or Conspiracy), effective November 1, 1987, amended effective November 1, 1990 (see Appendix C, amendment 359) and November 1, 1992 (see Appendix C, amendment 447), was deleted by consolidation with §2D3.2 effective November 1, 1993 (see Appendix C, amendment 481). §2D3.5. [Deleted] Historical Note: Section 2D3.5 (Violation of Recordkeeping or Reporting Requirements for Listed Chemicals and Certain Machines; Attempt or Conspiracy), effective November 1, 1991 (see Appendix C, amendment 371), amended effective November 1, 1992 (see Appendix C, amendment 447), was deleted by consolidation with §2D3.2 effective November 1, 1993 (see Appendix C, amendment 481). §2E1.1 GUIDELINES MANUAL November 1, 2005 – 178 – PART E - OFFENSES INVOLVING CRIMINAL ENTERPRISES AND RACKETEERING 1. RACKETEERING Introductory Commentary Because of the jurisdictional nature of the offenses included, this subpart covers a wide variety of criminal conduct. The offense level usually will be determined by the offense level of the underlying conduct. Historical Note: Effective November 1, 1987. §2E1.1. Unlawful Conduct Relating to Racketeer Influenced and Corrupt Organizations (a) Base Offense Level (Apply the greater): (1) 19; or (2) the offense level applicable to the underlying racketeering activity. Commentary Statutory Provisions: 18 U.S.C. §§ 1962, 1963. Application Notes: 1. Where there is more than one underlying offense, treat each underlying offense as if contained in a separate count of conviction for the purposes of subsection (a)(2). To determine whether subsection (a)(1) or (a)(2) results in the greater offense level, apply Chapter Three, Parts A, B, C, and D to both (a)(1) and (a)(2). Use whichever subsection results in the greater offense level. 2. If the underlying conduct violates state law, the offense level corresponding to the most analogous federal offense is to be used. 3. If the offense level for the underlying racketeering activity is less than the alternative minimum level specified (i.e., 19), the alternative minimum base offense level is to be used. 4. Certain conduct may be charged in the count of conviction as part of a "pattern of racketeering activity" even though the defendant has previously been sentenced for that conduct. Where such previously imposed sentence resulted from a conviction prior to the last

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