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US Sentencing Guideline Amendments: sex, internet and analogs
In 2003, Congress enacted the PROTECT act, Pub. L. 108-21, which among other things directed the United States Sentencing Commission to review and consider amending the guidelines with respect to GHB to provide for stiffer penalties. The Sentencing Commission answered this call by modifying provisions of USSG 2D1.1, 2D1.11 and 2D1.12.
Modifications to USSG 2D1.1 include a 5 year penalty for possession of 3 gallons, and a 10 year penalty for possession of 30 gallons of GHB. The 3 gallon mark was considered by the DEA to be a quantity associated with a mid-level distributor, while 30 gallons is associated with an upper-level individual. Changes to USSG 2D1.11 increased the penalties for trafficking in GBL, a “precursor,” consistent with the 3 gallon/5 year, 30 gallon/10 year rule.
USSG 2D1.1, 2D1.11 and 2D1.12 are modified to include a 2-level enhancement for “mass marketing” a controlled substance through utilization of an “interactive computer service.” An example given of conduct warranting this enhancement includes operating a website to promote the sale of GHB. Conduct not warranting the enhancement would be utilization of email in furtherance of a conspiracy to distribute GHB.
The Sentencing Commission has commented hat the internet: ”enables drug traffickers to market their illegal products more efficiently and anonymously to a wider audience than through traditional drug trafficking means, while making it more difficult for law enforcement authorities to discover the offense and apprehend the offender.” May 10, 2004 Guideline Amendments, unofficial text, p. 86. Does utilization of a website really allow drug traffickers to “anonymously” market drugs, thereby making it more difficult for the police to “discover the offense and apprehend the offender”? It would seem that if a subject uses a website, he or she is much easier to apprehend. Obtaining a search warrant for the site operator’s information from an ISP would be a piece of cake. Better yet, the police can order drugs directly from the site. The police don’t need to use informants to catch someone selling GHB through a website. It may be true, however, that the internet permits sale of drugs to a wide audience, in fact, an international audience. However, by operating in such an “open and notorious” manner, the offender is inviting arrest and prosecution. This enhancement is really more of a “sophisticated means” provision then one justified by any supposed difficulties imposed upon law enforcement.
Amendments to 2D1.1(e) require application of the vulnerable victim adjustment (3A1.1(b)(1)) if the defendant commits or attempts to commit a “sexual offense” by distributing a controlled substance to an individual, with or without that individual’s knowledge. The Sentencing Commission’s view is that “a defendant who commits a drug-facilitated sexual assault should receive increased punishment whether or not the victim knowingly ingested the controlled substance distributed by the defendant.” However, the commission’s concern is narrower than the actual language of the guideline in that the guideline punishes persons who “attempt” to commit a sexual offense. What about the college kid who meets a girl at a rock concert and gives her an ecstasy pill, at her request, and they go off to his car to fool around? If he gives her the pill, at her request, and the pill will loosen her inhibitions, would his actions be considered an attempted “date rape”? This amendment is troubling if it is to be applied to “willing participants.”
Finally, application note 5 to USSG 2D1.1 was amended to specify that any reference to a controlled substance includes the analogs of that substance. The test for whether something is an analog is copied for 21 U.S.C. 802(32).
Many other guideline amendments are now in effect. These include modification to the level 30 cut-off for defendants who are minor participants. Defendants who are deemed minor participants in an offense will no longer fair so well. Thus, it will be important for counsel to make sure the correct guideline book is being utilized by the probation officer.
These amendments make it important for the practitioner to appropriately limit any Blakely-waiver contained in a plea agreement.