U.S.S.G. § 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 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)).Historical Note: Effective November 1, 1991 (amendment 371). Amended effective November 1, 1992 (amendment 447); November 1, 1995 (amendment 520); November 1, 1997 (amendment 558); November 1, 2000 (amendment 605); November 1, 2001 (amendment 626); November 1, 2004 (amendment 667); November 1, 2010 (amendment 746); November 1, 2025 (amendment 836).
Notes of Decisions
Cited in 16
cases (1 in the last 5 years), 1992–2022 · leading case: United States v. Robert Landmesser, 378 F.3d 308 (3rd Cir. 2004).
United States v. Robert Landmesser, 378 F.3d 308 (3rd Cir. 2004). “District Court Sentencing Ruling The District Court based its sentencing ruling on the presentence report, which calculated Landmesser’s offense level pursuant to the applicable offense guideline— U.S.S.G. § 2D1.12. Section 2D1.12 provides, in relevant part: (a) Base Offense…”
United States v. Anthony Richard Kinard, 472 F.3d 1294 (11th Cir. 2006). “2004) (holding that the application of U.S.S.G. § 2D1.12(b)(2), which is identical in all pertinent parts to the provision at issue here, required the district court to find a violation of one of the environmental statutes listed in the corresponding Application Note).”
United States v. Robert Nathan Alfaro, 336 F.3d 876 (9th Cir. 2003). “The probation officer recommended an upward departure pursuant to U.S.S.G. § 2D1.12, cmt. appl. n. 1, on the ground that Alfaro’s importation of iodine was “large-scale.”
United States v. James Lee Smertneck, 954 F.2d 264 (5th Cir. 1992). “Effective 1 November 1991, direction is found in U.S.S.G. § 2D1.12. Had the new guideline applied, the result may well have been the same as imposed by the trial judge in this instance.”
United States v. Clark, 114 F. App'x 239 (7th Cir. 2004). “” U.S.S.G. § 2D1.12. In this case, the district court concluded that Felix’s offense involved attempting to manufacture a controlled substance, and it accordingly applied the higher offense level contained in U.”
United States v. Charles Jason Coale, 144 F. App'x 770 (11th Cir. 2005). “U.S.S.G. § 2D1.12, cmt. n.2. Thus, the PSI applied the cross-reference to U.”
United States v. Landmesser (3rd Cir. 2004). “offense level pursuant to the applicable offense guideline – U.S.S.G. § 2D1.12. Section 2D1.12 provides, in relevant part: (b) Specific Offense Characteristics (a) Base Offense Level (Apply the greater): (1) I f t h e defendant (A) (1) 12, if the intended to defendant ma nuf a c…”
United States v. Holland, 88 F. App'x 176 (9th Cir. 2004). “” *178 The subsequent discussion of the similarity between a sentence based on the “significant amounts” of methamphetamine potentially at issue and a sentence based on an analogy to hydriodic acid was merely an after-the-fact observation and not a justification for the upward…”
United States v. Jeremy Donagal (9th Cir. 2022). “2 Both USSG §§ 2D1.12(a)(1) and (a)(2) refer to the manufacture of “controlled substances” and differ only with respect to a defendant’s mental state.”
United States v. Suthar, 221 F. App'x 199 (4th Cir. 2007). “Suthar first claims his sentence was unreasonable because in calculating his guidelines range, the district court followed the recommendation of the presentence investigation report (“PSR”) and applied the greater offense level under USSG § 2D1.”
United States v. Stoddard, 318 F. App'x 556 (9th Cir. 2009). “§ 922 (g)(1)), arguing that the district court erred in applying two upward adjustments under U.S.S.G. §§ 2D1.12(b)(2) and 2K2.1(b)(6).”
United States v. Stoddard, 318 F. App'x 556 (9th Cir. 2009). “§ 922 (g)(1)), arguing that the district court erred in applying two upward adjustments under U.S.S.G. §§ 2D1.12(b)(2) and 2K2.1(b)(6).”
— U.S.S.G. §2D1.12(a)(1) — 3 cases
United States v. Robert Landmesser, 378 F.3d 308 (3rd Cir. 2004). “District Court Sentencing Ruling The District Court based its sentencing ruling on the presentence report, which calculated Landmesser’s offense level pursuant to the applicable offense guideline— U.S.S.G. § 2D1.12. Section 2D1.12 provides, in relevant part: (a) Base Offense…”
United States v. Jeremy Donagal (9th Cir. 2022). “2 Both USSG §§ 2D1.12(a)(1) and (a)(2) refer to the manufacture of “controlled substances” and differ only with respect to a defendant’s mental state.”
United States v. Landmesser (3rd Cir. 2004). “offense level pursuant to the applicable offense guideline – U.S.S.G. § 2D1.12. Section 2D1.12 provides, in relevant part: (b) Specific Offense Characteristics (a) Base Offense Level (Apply the greater): (1) I f t h e defendant (A) (1) 12, if the intended to defendant ma nuf a c…”
— U.S.S.G. §2D1.12(a)(2) — 1 case
United States v. Charles Jason Coale, 144 F. App'x 770 (11th Cir. 2005). “U.S.S.G. § 2D1.12, cmt. n.2. Thus, the PSI applied the cross-reference to U.”
— U.S.S.G. §2D1.12(b)(2) — 6 cases
United States v. Robert Landmesser, 378 F.3d 308 (3rd Cir. 2004). “District Court Sentencing Ruling The District Court based its sentencing ruling on the presentence report, which calculated Landmesser’s offense level pursuant to the applicable offense guideline— U.S.S.G. § 2D1.12. Section 2D1.12 provides, in relevant part: (a) Base Offense…”
United States v. Anthony Richard Kinard, 472 F.3d 1294 (11th Cir. 2006). “2004) (holding that the application of U.S.S.G. § 2D1.12(b)(2), which is identical in all pertinent parts to the provision at issue here, required the district court to find a violation of one of the environmental statutes listed in the corresponding Application Note).”
United States v. Landmesser (3rd Cir. 2004). “offense level pursuant to the applicable offense guideline – U.S.S.G. § 2D1.12. Section 2D1.12 provides, in relevant part: (b) Specific Offense Characteristics (a) Base Offense Level (Apply the greater): (1) I f t h e defendant (A) (1) 12, if the intended to defendant ma nuf a c…”
United States v. Stoddard, 318 F. App'x 556 (9th Cir. 2009). “§ 922 (g)(1)), arguing that the district court erred in applying two upward adjustments under U.S.S.G. §§ 2D1.12(b)(2) and 2K2.1(b)(6).”
United States v. Stoddard, 318 F. App'x 556 (9th Cir. 2009). “§ 922 (g)(1)), arguing that the district court erred in applying two upward adjustments under U.S.S.G. §§ 2D1.12(b)(2) and 2K2.1(b)(6).”
— U.S.S.G. §2D1.12(b)(l) — 2 cases
United States v. Robert Landmesser, 378 F.3d 308 (3rd Cir. 2004). “District Court Sentencing Ruling The District Court based its sentencing ruling on the presentence report, which calculated Landmesser’s offense level pursuant to the applicable offense guideline— U.S.S.G. § 2D1.12. Section 2D1.12 provides, in relevant part: (a) Base Offense…”
United States v. Paczan, 229 F. App'x 100 (3rd Cir. 2007).
— U.S.S.G. §2D1.12(c) — 1 case
United States v. Charles Jason Coale, 144 F. App'x 770 (11th Cir. 2005). “U.S.S.G. § 2D1.12, cmt. n.2. Thus, the PSI applied the cross-reference to U.”
— U.S.S.G. §2D1.12(c)(1) — 1 case
United States v. Charles Jason Coale, 144 F. App'x 770 (11th Cir. 2005). “U.S.S.G. § 2D1.12, cmt. n.2. Thus, the PSI applied the cross-reference to U.”
— U.S.S.G. §2D1.12(c)(l) — 1 case
United States v. Charles Jason Coale, 144 F. App'x 770 (11th Cir. 2005). “U.S.S.G. § 2D1.12, cmt. n.2. Thus, the PSI applied the cross-reference to U.”
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