U.S.S.G. §2D1.8

(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 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”).