Ed. Note: The first of this month, the U.S. Sentencing Commission’s 2009 Amendments to the federal Sentencing Guidelines went into effect. This is our final post analyzing some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2009 amendments is available here.
As we discussed in this post in July, a new federal law directed at online pharmacies went into effect this April. The Ryan Haight Online Pharmacy Consumer Protection Act makes it illegal to distribute controlled substances that are prescription drugs over the Internet without a valid prescription, or to advertise for such distribution. In response to this Act, the United States Sentencing Commission made several amendments to the Sentencing Guidelines, including a new sentencing enhancement at §2D1.1, increasing the base offense levels for hydrocodone offenses, and assigning guidelines to the two new offenses created by the Act.
New Sentencing Enhancement at §2D1.1
The Commission added a new sentencing enhancement, which applies when the offense involved a Schedule III controlled substance and death or serious bodily injury resulted from the use of the drug. The enhancement provides a maximum of 15 years, or 30 years for second or subsequent offenses. Schedule III includes such drugs as anabolic steroids, morphine, hydrocodone, and ketamine.
The amendment adds two alternative base offense levels to §2D1.1 [Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy]. §2D1.1(a)(4) is added to provide a base offense level of 26 for a Schedule III conviction involving death or serious bodily injury resulting from the use of the drugs. §2D1.1(a)(3) now provides for a base offense level of 30 in such a case where the defendant has one or more prior convictions for similar offenses.
Increased Base Offense Levels for Hydrocodone
The amendments modify the Drug Quantity Table in §2D1.1 to specify the base offense levels for hydrocodone as follows:
Two New Offenses
Our previous post discussed the new offenses created by the Act. 21 U.S.C. § 841(h) prohibits the distribution, delivery, or dispensing of controlled substances over the Internet without a valid prescription. The Commission has referred this offense to §2D1.1. That Guideline already includes a two-level enhancement where a controlled substance is distributed “through mass-marketing by means of an interactive computer service” i.e., the Internet.
The second new offense at 21 U.S.C. § 843(c)(2)(A) prohibits use of the Internet to advertise the sale of controlled substances. § 843(c) is already referenced to §2D3.1, but the amendment changes the title of the Guideline to “Regulatory Offenses Involving Registration Numbers; Unlawful Advertising Relating to Scheduled Substances; Attempt or Conspiracy.”