U.S.S.G. §2D1.12

(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 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. “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.

2. 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), the Comprehensive Environmental

Response, Compensation, and Liability Act, 42 U.S.C. § 9603(b), and 49 U.S.C. § 5124 (relating

to violations of laws and regulations enforced by the Department of Transportation with respect

to the transportation of hazardous material). 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).

3. 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)).