Renting or Managing a Drug Establishment; Attempt or Conspiracy

(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 sub- stance offense other than allowing use of the premises, the offense level shall be 4 levels less than the offense level from §2D1.1 applica- ble to the underlying controlled substance offense, but not greater than level 26. 178 ║ Guidelines Manual (November 1, 2024) (b) Special Instruction (1) If the offense level is determined under subsection (a)(2), do not apply an adjustment under §3B1.2 (Mitigating Role). §2D1.9 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, subsec- tion (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 ar- ranged 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 facili- tate 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 pos- sessory 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 con- trolling 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”). Historical Note Effective November 1, 1987. Amended effective November 1, 1991 (amendment 394); November 1, 1992 (amendments 447 and 448); November 1, 2002 (amendment 640).