T5 B61 Recommendations Fdr- 3-30-04 Chapparro Fax Re Sentencing Guidelines Issues 203

8/14/2019 T5 B61 Recommendations Fdr- 3-30-04 Chapparro Fax Re Sentencing Guidelines Issues 203

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HUMAN SMUGGLING &TRAFFICKING CENTERFax Unclassified: (202)312-9874

Fax Classified:(202) 312-9875FAX

HS1CTo: Susan Ginsburg Office: 9/11 Commission

From: Jim Chaparro

Phone: (202)312-9685 Date: March30.2004

Subject sentencing guideline issues

CLASSIFICATION: DTOPSECRET D SECRETDCONFIDENTIAL

D SENSITIVE BUT UNCLASSIFIED (SBU) IE! LIMITED OFFICIAL USE(LOU)

D UNCLASSIFIED

• Comments:



1^5/2004 09:36 FAI 2023129874C.\l£. UJ-OO/tO

M S T P C C CENTER ISO i l2

STAFFRECOMMENDATIONS?IMMIGRATION

•Staff recommends thai the Commission defer any action on Ihese proposed am endments un t i l amore comprehensive package addressing aJ l immigrat ion guidelines can be accomplished.

Staff is concerned thai a piecemeal approach of am ending only the §2L1 . 1 (Smugg l ing .

Harboring, Transporting Illegal Aliens-) -and §2L2-2 (Document Fraud) gu ide l ines may resttHn-•inconsistencies across Ih e breadth of immigrat ion guidelines as v-'dl as frusu'ate guidel ines users

as the Commission most l ikely wil l be amending various immigration guidelines during The nextamendment cycle.

Additionally, th e staff is concerned about th e interplay between th e operation of these guidel ines

and var ious "fast track" and early disposition programs tha t impact the sentences of the

guidelines for which amendments were proposed as well as the other immigra t ion guidelines no t

addressed by this amendment. The Commission may wish to gather more information regarding

early disposition programs d uri ng th e next amendment cycle to better understand their impact onsentencing practices relating to immigration offenses.

Staff understands that th e Commission may wish to act th is amendment cycle to respond tospecific concerns addressed in these proposed immigration am endments. A s a result , the staff

has come to a consensus on recommendations fo r all of the options found in the proposed

amendment, and they a rc outl ined balow.

Piirt 1: §21/1.1 (Smuggling, Harboring,, Transporting Illegal Aliens)

Issue I: Entering the United States 10 Engage in Subversive Activi ty

Sta f f favors ihe adoption of both options 1 and 3 to address th e concerns over al iens w ho pose a

risk i nvo l v ing nat ional security. Option 1 requires an offense of convjctjon under 8 TJ.S.C.

§ 1.327, knowing thai th e alien smuggled is inadm issible pursuan t lo S U.S.C. § US2(a)(3). Thiswould require the-:Govemrnenl lo prove the inadrmssibi l i ty pursuant to the s ta tutory definit ions in

order to receive ttîs enhancement A dditionally, staff advocates adoptin g th e bracketed languagepresented in optiotf J L that l imics th e subsections of 8 U.S.C. § 1182(a)(3) T O be used to provide

cite increased base? offense level. Adoption of the bracketed language wi l l a l levia te ih e

potential ly broad, application of this option since some- provisions of 8 U.S.C, § 1182(a)(3) may

encompass more'tEaa the security risk rhis option is at tempting to uddress.

«,

Staff also favors retaining the upward departure language in application note 8(Q ro allow the

court toupwardfyi 'depun in cases without convictions under 8 U.S.C. § 1327 involving

inadmissible alie^-as defined in 8 U.S.C. § 1182(aX3), bu i where evidence is presenl th a i th ealien smuggled intended lo engage in terrorism related act ivi t ies.

• »Finally, staff rec§»jnmends a two level increase a t (b)(4) for defendants knowing ly s mu g g l ing

illegal aliens entering the United States intending to engage in a crime of vio lence or controlledSubstance offence! "



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MSTPCC CENTER 0 0 3

Issue 2: Number of I l legal Aliens

Staff does not recommend adoption of the new subsections Under (b)(2): the table providing an

increase for the number of unlawful aliens smuggled, harbored, or iransponed. Fiscal year2001

da ta shows that 57 of 1,843cases computed under §2L1.1 received an increase of ' n i ne levels

--^because Sie-offense'inveived-T-nor-e-than 100-aJienfe-T-he Immigration Team-is-cyrFe^tiy-in-ths-process of reviewing, these 57 cases as well as the ten cases involv ing upwarddepartures in order

to better-provide the Commission with a description of cases i nvo lv i ng over 100 aliens.

Should th e Commission wish to adopt this amendment, staff recommends an increase of 1 1

levels for offenses mvoJving200 to 299 aliens, and an increase of 13 levels for offeiises

involving 300 or more aliens. Because the slope of the numbers involved on the left aide of the

Lable decreaiies as the numbers increase, staff feels thai the increases in of fense levels should not

mirror th e three level increments present in the f irst Ihree subdiv is ions of this enhancement.

Issue 3; Offences. Involving Pe^tfc

Staff recommends th e Communion adopt the ten level increase for offenses involv ing death inspecific offense characteristic (b)(9). This Increase will ensure t ha t defendants whose base

offense level is determined under (a)(3) (base offense level 12) will have punishmentequal to

those defendants convicted of involuntary manslaughter (which provides a base offense level of

2 2 when th e offense involves th e feckless operation of u me a n s of t ransportat ion)-

Staff also recommends adoption of ths cross reference, as this will ensure chat if ihe offense

involved the death of an alien committed by means other that manslaughter, the appropriate

penalty wil l be deTermJned using the applicable homicide guide] j-ne. This cross reference will

apply only if the offense level determined under the appropriatehomici Je guidelineresults in a

greater offense level than that determined u n d e r §2L1.1.

Part 2: §2L2.2 (DocumentFraud)

Issue 1: Incfsasir>g,:fti&Bas6 Offense Lov<g^.(, ' ..'.-• . •«/*;v •

•f'i.': V>

Staff is opposed-fa 'any increase in the base offense level fo r this suideline. In 1997, th e

Commission ec'fe'i&e"d ;a. directive as well as emergency timendmenl uulhoriiy co increase the

offense level forÎxLl (Trafficking in Fraudulent Dwumcni jO as wal l as §2L2.2. Prior to 1997.the base offcnse'fev.els were nine an d six, respectively. To imp lemen t H ie directive, th e

Commission incj^'fj<irdie basS offense levels to 1 1 an d eight , respec t ively. T he rhree level

separation of the;|&$e.''offense:levels under 2L2.1 an d 2L2.2 is a l ong s t and i ng Commission

policy reprcsentiii^ê re!ativj?;severity and consequent ly the proport ionali ty between these two

offenses. A n y inc^fi^se inthe'base

offenseJcvel would

overturni,his

l imy s t and i ngpolicy.



/2004 09:36 FAX 2023129874A £ . \ ) t o o o / 4

MSTPCC CENTERSMUtiliUNti

Issue 2: Increasing Offense Levels in isting Stxscific Offense Ch

Staff is also opposed to any increase in the existing specific offense characteristics that address

previous deportations and prior convictions for immigration an d natural ization ollcnses. Staff

does no t feel there i & sufficient evidence to support an increase for these particular specific

offense characteristics.

Issue 3: Spec ific Offense Character! sties Add ressing Security Risk

Staff docs no l recommend adopting the specific offense characteristic addressing fugitive status,

especially if that slatus is from another foreign country. This specific ftffense characteristic

prese-nts potential conflict with th« cr iminal history guidelines, and information regarding foreignfugitive status m ay be difficult for g uidelines users TO obtain. Should the Commission decide to

include this specific offense characteristic as pan of the amendment package, staff feels anincrease of tw o levels is appropriate.

Staff does not recommend adoption of the specific offense characteristic (b)(4) thai consider the

defendant's status as an inadmissible alien pursuant lo 8 U.S.C. § 1182(a)(3). However, if the

Commission decides to inc lude this specific offense ch aracteristic us pitfl of this amendmentpackage, staff recommends including th e bracketed language LhallimiLs ih e potentially broadapplicability of this specific offense characteristic. Staff also fuels thai an increase of four levelsis appropriate.

Issue 4: United Stales Passports

Staff recommends adoption of the specific offense ch aracreristic for defendants fraudu lently

obtaining or using U nit ed States passports. Staff recommends iin increase of four levels toaddress offenses involving the use of U.S. passports.



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MSTPCC CENTER

REVISED PROPOSED AMENDMENT: IMMIGRATION

Synopsis of ProposedAmendment: This proposed amendment addresses issues involving, immigrationoffenses. Specifically, th e proposed amendment makes change* io $$2U.J (Smuggling, Tnottpu rcing, orHarboring an Unhnvfitl Alien) an d 2L2.2 (Fraudulently Acquiring Documents Relating tr r Naturalization,

Citizenship, or Legal Resident Staiu-s-for- O w n Use; Ralxe Personation or FruuduleniMarriaQG by Alinn- •tu Evade Immigration Law; Fraudulently Acquiring nr Improperly I j y ' m K a United States Passport). T w oissues fa r comment also are contained in //tit proposed amendment.

(1 ) §2LiJ (Smuggling, Transporting, or Harboring an Unla\vful Alien)

(A) Entering the United States to Engage in Subversive Activity

In an e f f o r t to address the increased concern regarding aliens \ vho pose a threat to thesecurity of th e United States , the proposed amendment provides mo options for cases in which

th e defendant knowingly smuggled, harbored or transposed an alien biadwissable under 8U.S.C. § 1182(a)(3)(relaring to aliens ineligible to reeml\t« \ > l x a s an d nnt*r into th e United Scaresdu e to security an d related grounds). Currently. §2L1. 1 prmLJes a base offense level of level 23 ,

i f ihn defendant w as convicted under S U.S.C. § 1327 of a violation involving un alien w hopreviously was deponed after a convict ion for an aggravated felony. Option 1 and 2 provide analternative base vffense level of level ] 25 ] fo r offenses in which thit defendant knowinglySmuggled, harbored, or transported an alien who was inadmissible under S U.S.C- § J182(a)(3).Options 1 and 2 d i f f e r in thai Option 3 requires a Convictiaii under S f/.S.C j j 1327 for such

conduct, "while, Option 2 applies regardless of whether th e defendant w as convicted of suck

conduct. T he commentary makes clear t)iat application ( if th e eiihtwemant requires only thati}\e defendani totow the alien is inadmissible, not thai th e inadmlssibiliry w as related la securityissues. Option 3 ptwldes encouraged upward departure language jo address a case in which

th e defendant smug gled, transported, or harbored ai alien f launting thai the) [and such} alienintended to enter tfie United Stales to engage in an offense mldiftl iv terrorism.

T he proposed amendment ohoprovides an enhanfcmeru ai $ 2 f , J - J(b)(4) if Hie defendant

smuggled, harbored or transported. qn_alien knowing that thr. alien intended to enter the UntiedStates 10 engage in a crime of violence or a controlled substance offense.

• S • • • . • ' • ' ' . " • " . • ' • • ; • i(B ) Midriber; of Illegal-Aliens ' • ' ' • - . • J s- i1.- ' '

Th e 'proposed amendment provides additional vffense level increases to (he table in§2U.l(bj(?jt'relating to the nuniber'cf aliens involved in th e offense. An increase offllj[22}levels w « >& J i j ; f e & applicable under the! proposal if th e offense. iuwlvedZOO to 299 aliens, and anincrease ijf£J3-l$] levels would be applicable tfllie offense involved 3 00 or more aliens. T h ecurrent u f f i '^&pariure-prpvis iori 'inAgpKcation Nme 4 has been modified io reflect

' " ' '. . .

( C) 'tijjq&itx'lnvolving- Death '. " < • '•\•':

•¥ • : ? : • . • - ' • - . = • • • ; . ' • ' . . . - ' . . - • • • •r j i V - ^ i - . • • • • • . . • .

Têtiêndment proposes toyp significant changes to Ihc guideline in cases in whichdeath o c c ? i r r . e - f r . , Pirn, th e prapbse&amendnieni removes th e increase ofet^hi levels "i f death

' ' '

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ss

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MSTPCC CENTERAL.IISJN

resulted"from the current specific offense characteristic in §21.1. J(b)(6) addressing bodilyinjury and places this increase in a . ffand alone specific o f f f t n s e characterimic in §2LJ.l(t>)({l).This new specific offense characteristic provides an Increase of[JOj levels. Second. D i e . crossreference al §2L 1, t(c) is expanded to cover dgadis mher than murdar, ifcha resulting offense

level is greater than the o f f e n s e level determined under §2U. I.

(2 ) Immigration Documentation Fraud

Th e proposed amendment makes several clianges to JJ2L2.2 (Fraudulently Acquiring Documents

Relating to Naturalization, Citizenship, or [*agal Resident Status far Own Use; FalsePersvnaiion or Fraudulent Marriage by Alien to Evadu Imtnigfarion La w ; FraudulentlyAcquiring or Improperly Using a United States Patspon). First, th e proposed amendmentincreases the base offense level in §2L 2.2( a)from level S w level [8-12]. Second, the proposedtunendmcra increases b y wo levels ihe currem gnhnncementii in §§"2L2.2\b)(l) (regardingunlawful aliens h'/u> have been deponed on one or more occasions) and 2L2.2(b) (2) (regardingdefendants who commit the instant offense after sustaining c r felony conviction for animmigration an d naturalization offense). Ttib'd, Ik t prnpos«d amenrimera provides tw o specificoffense characteristics far addressing th e increased concern regarding aliens who pose a rhrtiai

to tfie security oflh& United Sidles, Specific offense characteristic (h)(3) provides a [4-10j-levelenhancement in §2L2.2(b){3) if th e defendant was a fugitive wanted for u felony offense in the

United Suites (or any oilier country}. Specific o f f e n s e , characteristic (b)(4) provides a (4-10)level enhancement if, at the time of the offense, the defendant wax if n inadmissable alienpursuant to S U.S.C. § U82(a)(3) . Filially, t f i e prop osedcuneLnflmmitprovides an [2-& ]«lsvil

enhanceinem al $2L2.2(t>)(5) i f the defendant fraudulently obtained or used a . United Statuspassport. Commentary v s added to make clear that '"use" includes casex involving an attempt to .renew a previously issued p assport.

ProposedAmendment:

$21x1.1. Smuggling. Transporting, or Harboring tin Unlawful Alien

(a) Base Offens& L-evei:

[Option 1: .. i:. :issr-. ;_,v:

[Option 2:

"*>

-•f^'-lK '. '. - '*

,*: > V

*;.-r<:- I•: ;.i-!V^

if the defendanL was convicltxJ u n d u r S U.S.C. § 1327 of u violat ion

lirvolvrng an alien wh o previously was deponed after u convict ion for an

.ggravated felony; or

12, otherwise.



,5 2004 09:36 FAI 2023129874f2/2004 17:34 FAX 202 6165748

MSTPCC CENTERALIEN SMUGGLING I U U V

* * *

(h) Specific Offense Characteristics

* * :!•-

(2 ) If the offense involved th e s m u g g l i n g , t ransporting, or harbo ring of six.

nr more un lawfu l aliens, increase as follows:

Increase In Level

aild 3add 6

ad d 9r

a

Nuinber of UnlawfalTransported, or

Harbored

(A )

(B )(C)

6-24

25-99

mare* '*

iinoy/uig thattic H.licn'£fitended

ne-'of;vii>ience: pr<'c;otitra.II«id

levels.

If an y person Jiid ot suscamed bodily injury, increase the offense lev&l

according to the seriousness of ilic i n j

Berth oijDegree of Iciur>'

oi«y

Increase hi L&ve1

ad d 1 levelsad d 4 levels

ad d 6 levels:add B levd.v

J jSB BBpP J HuVm ' ^ ' ' t V I l l u l u u J u u i i u t u M t a n m i lm l wn

a



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Sialuiorv Provisions: ft U.S.C. §§ 1324(a). J327. For tuldilioncd xtaiutory provifion(s). gee Appendix A

(Statutory Index),

Annlicazian

1, Defiti&itiA^-r^-Fur purposes afihis $u}deline=t

yviltd, l J ^ Fmjuuu.il" Juts no t irrchrd?iJm

* * *Fat t / L t . ^ U J ^ U J U A uf§3fil.J ihe

nut Lwu-ldtii t:d yat ilLlûjiti wdcis theymutmi}

\jj L/£/4

I H I I U > I H J I I L I . w

in tin. Mm&gling , uu> inviting, vi

--* /l//tt"*jt

' L I . ' ; . . - ./ ..... / , , . fT . I.' .......... ;._* Kf (_f, tl/t*ljfc»t Jt«t/I LX /^ Vf/TC

[ Opiion 1:

[Option 2:

2.

' -$JifyG$4'£' . ^ i i w l j a 3 ? t j V i A . ' D n * . * * 1 ' * t * . i ' . rii ilî. ~ 'i r . . « " » " i ^ i n " n » A t i * r f " i ' n i ."•/ » 'i

fe^fet^?>:^^'|&4=it

l\'i^^,^:e'r^M&A'A'^y,tfi&}.^ti3*'!( #fe '

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09:37 FAX 2023129874- zuz

MSTPCC CENTER

AL.1KJN

4 r

gBSg^ • i . ' , sata t i 6 l u s 9 t f a i r * - T f u o i th e

offlbBSS^ of lk^ct ^ f\ 'miatkcr of unlawful- '• a t

f f iT . 1 1 f W _ . J ' » L L I - t ^ i 7 - i i ? L j f - n i r f - i ? - r - -ii .1 tTi'.îi n T / V ] ^f T i ' - . 1 1 > » J 7. i -u j 7 I P

canviciion(s) resulting in an

adjustment under subsection (b)(2) are also counted for purposes of determining criminal history

poims pursuant to Chapter Four, Pan A (Criminal llhioiy).

Backless conduct 1 0 -which r / u > fidfustmentfi-om subsection

dpp$J!$ijty!!l&ics 'd&tvleyJa'rieTy of conducr (e . p... n-an$nartin$ persons in th e trunk or

engine compajtifent'ofa 'Tt ioipryehicle, carrying subsianiidly more passengers titan the ratedcapacity of&rwtorythicle'oryesilel, or harboring persons In u erowdtul, dangerous, or

inhiimand:cî^l^^"ifsu\;>isciion (tiffiffifiapplies solely on flie biuis of conduct related T O

flee fa g f r o T F u X T l d w . enforcement ' o f f i c e r , donol a p p f y an adjusnneritjroni §3C1.2 (Reckless

EndangermeirtiBunng Flight).; Addmona lly j do not apply rite adjusiment In subsection (bft$}ft

(fihe only:^t^^\c^nduct.lhîcr.fatt!dasubs[arirl(il H xk aj.dtaih orserivux bodily injury iscondiictfq^'a^ ie'defe)w[agit.receiviidan enliancf.niunr imtlcr.tub-jtacrion "•" tj"~ *

^

. - • 5



^2004 09:37 FA X 20231298742 / 2 0 0 4 17:34 FAX Z O Z 6185745

M S T P C C CENTERALIEN S M U G G L I N G ]010

p(aVi e & l > ~ e W f v r

[Option 3:

§21,2.2, Fraudulently Acquiring Documents Relating to Naturalization. Citizenship. or

Lgff l l Resident Status for Own IJse; False Pcrsonalioa or Fraudulent Marriage by

Aliea to TT . v n ^ j - Tm-migtatioD Law; Fraudiileotlv Acquiring or Improperly Usiiig a

United States

(a ) Bas e O f f e n s e Level:

(b) Specific Offense Qiajacteristics

(1) If the defendant i s an unla-wiul alien who has befcn dispoilttd ( vo lun t ar i ly

or invol-unuri ly) on one or more occa s ions prior 10 ih e inscrtnl offense,

increase by 3 f 4 f J levels.

(2) If the defendant commlticd any part of (.he instanL offcase a f t e r

sustaining (A) a conviction for a felony i tnmigraUon aM naturalization

offense, increase by 2[!^J levels; or ( B ) two for more) convictions fo r

. .".:".•.. • felony immigration and naturalization offen se s , each s u c h conviction

arising oui of a. separate prosecution, increase by 4 [ f o } levels,



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MSTPCC CENTER ilOl

Anvlieano'n. Notes:

I. M£ffitn6ni&-±For purposes of this guideline-*:

"Immigration and naturalization offense" means an y offense covered by Chapter Two, Pan L.

Pur ilk: i/n-tôs.. yfCJv&tai T7u*&Tî D

t i n

feto/iv conviaion(s) resulting in an adjustment under

subsection (b)(2) are also counted for purposzs ofdeicnrtin'ing criminal History points pursuant

to Chapter Four, Pan A (Criminal Hisrory).

*'.&•&'.'•.;';/W.'&Â 11-• M ® & s .

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dealing with the immigration guidelines . . . it wouldbe more e f f i c i e n t and appropriate to s u b m i t

an immigration package that incorporates both appropriate r e d u c t i o n s as we J l as any increases

that may be required.'" The FPD also suggest that tho C o m m i s s i o n u o l l e c i information regarding

ho w early disposition departures ar e being applied in these C U * C K . However , the FPD have

provided specific comment on the proposed amendment s h o u l d the Commission wish to ac t ihisamendment cycle. Their spscific comments are addressed in ihis memo with in each appropriate

secLion.

The Honorable John M- Roll and the Honorable C i n d y K. Jorgenson provided « j o i n t letter

describinf cases in the district of Arizona involving \bt smugglingand transportation of minors.

These judges request that the Commission provide enhancements under die s m u g g l i n g g u i d e l i n e

(§21,1.1) co account for the risk, involved when small children are placed in the hands of

smugglers. Early In this amendment cycle, options regarding The endangermenl of minors were

presented lo the Commission. However, these options were not published for comment. The

Commission wil l need to revisit §2Ll.l next amendment cycle in order to address the

end-angerm.cnt of minors-

Part I: §2L1.1 Smuggling, Transporting, or Harboring an U n l u w f u l Alien

Entering the U n i t e d Stales to Engage in Subversive A c t i v i t y ;;.

In ail e f for t to address th e increased concern r e g a r d i n g a l i e n s w h o p o n e a threat to the security n f -i

the United States, the proposed amendment provides th ree new options. These new o p t i o n s £

strive to address the f o l l o w i n g issues: 1) a desire expressed by the De-.partme.nl of Justice (before •$/

publication for public comment) to expand the. scope of thebase of fense level under this '||

guideline to included all vio la t ions of S U.S.C. § 1327, and 2) concerns relating to national $

security,which, due to direct ives to th e Commission, may prec lude Lhe addi t ion o f a specific ' • £ .

of fense characteristic based on terrorism related conduct. j f s

IOptions 1 and 2 provide n e w base of fense levels for cases in wh ic h lha defendant knowingly 'f k

smuggled, harbofri'ji', or transported an alien inadmissible under S U.S.C. g I LS 2(a ) (3 ) (relating TO 'M

aliens ine l j gible tov;receive visas andenter inWthe United States due to security andrelated '|

grounds). Option/I provides an alternative base of fense level (all 1) of level [25] if the ^defendant was convicted under 8 U.S.C. § 1327 of a vio la t ion i n v o l v i n g an alien who was ?£

inadmissible undec-8 U.S.C. § 1182(a)(3). Option2provides another al te rnat ive base offense ;

level (a)(l) of level [25) if the defendant k n o w i n g l y smuggled, transported, or harbored an alien ~

in-admissible under8 U.S.C. $ 1182(a){3), regardless of w h e t h e r tlic U e f e n d a n l was convicted of " '3 2

sjch conduct. Th'e'rcommentary makes clear that the a p p l i c a t i o n of the base o f f e n s e level in ';•'

option 2 " r e q u i r e s . o n l y that t h e defendant kno\ t h e alien i s inadmissible, n ot that t h e '• %

inadmissability was related to security issues. The primary d i f f e r e n c e between these i wo options -S

is that option 1 is Based upon L he offense of c o n v i c t i o n , t \ n d o p t i u T i 2 is based on t h e knowing * :

acis of the defendant, regardless of the offense of c o n v i c i i o n . '-

Both options 1 and 2provide bracke ted language th a i w o u l d l imi t the categoric* of i n a d m i s s i b l ealiens considered under these base offense levels. Staff was concx-med that i





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would be applicable if The offense invo lved 200 co 299 aliens, and an increase of [13 -18] levelswould be applicable if th e offense involve d 300 or more aliens. "Ilia current upward departure

provision m Application Note 4 h as been modified to reflect ibis proposed change.

In riscal Year 2001, 1,843 cases had guideline compulations under §2L1.1. Of the 1,843 cases,

57 received an enhancement of nine levels because th e offense involved m ore than 10 0 aliens.Only len. of ihe 1,843 cases received an upward departure.1 The Team is cun'emly reviewing the

57 cases thai received this enhan cemen t, as well as th e 10 upward departure cases. A s u mma r yof the findings will be provided to the Commission at ihe April meeting.

Public

The Department of Justice supports this portion of th e amendmcmr, an d recommends an

increase of 12 for an offense involving200 to 299 aliens, and an increase of 15 for an

offense involving move than 300 aliens.

POAG found no application problems if :ha tahle fo.r Ihe number of aliens smuggled is

amended.

T he FPD recommend tw o level increments fo r this amendment. Overall , however, th ePPD advise th e Commission ro kct^ enhancements to a minimum, due lo "serious issues

for obtaming evidence and preserving testimony of mutensil witnesacs" as & result of ihe

usual ly quic k deportation of witnesses in these cases.

Offenses Involving Death

The proposed amendment addresses the inadequa cies of ihe cujrent guideline to providesufficient punishment in smuggling cases involving death. This proposed amendment removes

th e increase of eight levels "i f death resulted' ' from th e current specific offense characteristic in(b)(6) addressing, bodily injury and places ihis increase in a stand alone specific offense

characteristic in..$$l4',l(b)(8). This ne \ specific offense characteristic provides an increase of

[10] levels. A tfifleJêHncrease fo r Ihis specific offense characteristic wil l ensure that defendantswho receive the lowest base offense level al §2Ll.i (level 12) will receive pun ishmen t

commensurate w.i ^defendants convicted of involuntary m«n.sUiughLer involving th e reckless

operation of a means of Transportation.

Additionally, tilt-proposed amendment modifies the cross reference at §2Ll.l(c) to expand its

application to coyec deaths other than murder, if the resulting offense level is greater than th e

offense level dctc'rmihcd under §2Ll ,1 .

The one change^riaele in this aren addresses multiple deuihs, T he proposttl amendment provides, jiut'kopjing an upward departure if more than one cleuth occurred during th e

Of ih e -1*84:3 eases, 100 cases w ere excluded du o 10 missing depar ture informat ion .

• ' . • < ' . d

1



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.

smuggling offense. Initially presented w th e Commission as a special instruction ai tJ2Ll . l (d) s

after review, theteam concluded this structure would not work within the confines of relevant

conduct as it operates in §2L1.1 offenses. The Team feels th e bast approach would he to address

ihis with upward departure language.

Public Comment

The Department of Justice supports th e three amendments as prwsemcJ for pu blic

comment. The Department, referencing the floor offense level fo r offenses involving

death, recommends the Commission provide, an increase commensurate toother

guidelines where th e underlying criminal conducl resul ts in death .

POAG supports an enhancement for multiple deaths, especially in light of recent cases

involving the death of more than one alien. POAG suggests thai, an encouraged upward

departure (rather than the special instruction l anguage Thai was publ ished) woxild be the

prefeued way to address this issue.

The FPD suggest that the specific offense characieristic regarding, death would createserious du e process problems, particularly us L h e enhancement applies based on re levant

conduct of others und is not limited to cond u c t fo r which (h e defendant alone is

responsible. FPD states dial in cases of chis nature , th e g o v er n m en t often indicts every

person remotely connected to C h e offense.

Purl 2: §2L2-2 Fraudulently Acquiring Documents Relating to Naturalization, Citizenship,

orLegal Resident Status for Own Use; False Personation or Fraudulent M arriage by Alien

to Evade Immigration Law; Fraudulently Acquiring or Improperly Using a United States

Passport

This section of the memorandum seta forth die published options, highlights changes to the

published proposal, an d summarizes relevant comment. Attached lo L h i s memo ar e case

examples of offenses receiving sentences under JJ2L2.2. The Team hits reviewed 45 cases

receiving sentences under §2L2.2. The sample is not sufficiently large to be a representative

sample; it is meant to provide tne Commission with specific examples of die types of offenses

and offenders receiving sentences under this guideline. Please see the document immediately

fo l lowing This memo for the case examples,

Increased Base Offense Level

This portion oF the proposed amendment directly responds lu voiicums mised by the Depamuent

of Justice regarding in* adequacy of penalties under Lhis purl ieu lur guideline, especially in light

of national security concerns. The proposed amenrJme.ni provides the option for [he Commission

to increase th e base offense level in the range of [S -12].

Public Comment

The Department of'State a.dvocate,s,raisJng the base offense level m 9 , k eep i n g rhc base

''S• ft



: l.t-,39 TAA ZU2 01BJJY48

ALIEN 3MUWULJ.NU 10017

offense level two levels below §2L2.1 (Trafficking in Documents Relating ro

Naturalization. Citizenship, or Legal Resident Status, or a U.S. Passport). Francis Tuylur.

Ambassador also commented that the Department of State intends L o work with the

Commission during next term to propose raising ihe sentences fo r crimes relating to L h e

vendors of these documents.

The Department of Justice urges the Commission to incrcusu the base offense level to 12,

. which would bring §2L2.2 into parity with §2BJ.l. Gui de l i ne 1G1.l(b)(9XC)(T) provides

a floor offejxae level of 12 for die ''unauthorized transfer or use of any means of

identification to produce or obtain any other means of identification."

The FPD Strongly oppose any increase in the base offense level. Tha FPD state that this

proposal is "inconsistent with th e new compassion toward hardworking undocumented

aliens lhat the Administration has announced,7'

Increased Levels in Existing Specific Offense Characteristics

The proposed amendment increases by two levels th e current enhancements in §§2T-2.2(b)(l)(regarding unlawful aliens who have been deported on one or more occasions) and 2L2_2(b)(2.)

(regarding defendants w ho commiL the instant offense after sustaining a felony conviction(s) fo r

immigration an d naturalization offcnse(s)).

In Fiscal Year 2001,302 cases had §2L2.2 computations. Of the 802 cases, 224 received an

increase of two levels under (b)(l). Specific offense characteristic (b)(l) addresses cases in

which th e defendant is an unlawful alien who previously w as deponed. Fifteen defendants

received an increase of two levels al specific offense characteristic (b)(2)(A) for committinfi th e

instant offense after sustaining a conviction for a felony immigrar ionan d naturalization offence.

Two defendants received an increase of four levels ai specific offense characteristic fK)(2)(B) for

committing the instant offenst after sustaining, two for more') convic t ions fo r felony immigration

andnaturalization offenses.

Public Comment

The Department of Justice did not comment on these potential increases to th e existing

specific offense characteristics in §2L2.2(b)(J) an d (b)(2). However, these increases

would satisfy their concern regarding th e overall severity of sentences received under

§2L2.2.

The Department of State recomm ends no increase lo r §2L2.2(b)( 1) (addressing unlawful

aliens who have previously been deported). H ow eve r, ih u agency recommends increasing

the tnVijuicemenl at §2L2 (b)(2)(A) (where a defendant has a prior conviction for a

felony immigration or naturalization offense) from tw o to (our levels. The Department of

Stale also recommends increasing Lhe enhancement ai §2L2.2(b){2)(B) (where the

defendant has two or more prior convictions for felony I'mrmgrutinn und naL uraJizalion

offenses) from four to six







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§2L2,2 Case Examples

Case Examples Involving Defendants with Fugitive Status

Case Number

581617

IHstiict

California Southern

Sentence Received

27 months

Criminal History

V

Defendant pled guilty to one count of illegal entry (8 U.S.C. § J325) an d one count of false

claim to U.S, citizenship (18 U.S-C- § 911). Defendant attempted Lo enter Lhe Uni led States i nSan Ysidro. Defendant has prior juve nile convictions for robbery and burglary. D efend ant has

prior adult convictions for assault, sale of cocaine base, attempted robbery an d robbery.Defendant has an airesc warrant outstanding from a 1997 robbery. Defendant was previouslydeported from the United Stales.

Case Number

559222

District

Texas Western

Sentence Received

6 months

Criminal History

mDefendant pled guilty to one count of fraud and misuse of documents (1 8 U.S.C. § 1546.(a)).

Defendant is a 19 year old Mexican citizen who came to a border checkpoint and presented afalse resident alien card that he purchased For $500 in Mexico. Defendant was born inMexico, entered the U.S. illegally and worked in the U.S. Tor iw o years. He relumed toMexico ui visit his ailing mother, and was c a n his way back lu Chicago to be \viiri his vvifc andChildren wh en arrested. Defendant was previously deponed from the United States.

Defendant has prior convictions for battery and possession ol a controlled substance. Ai th e

time of the instant offense, defendant \vaa on probation. D ue 10 probation violations and asubsequent arrest, the defendant has an outstanding arresr wiirrfl.ru.

i t -' • ! _

.V

Case Number: £;•.,

541,521' '•-.'-.

District

California Southern

Sentence Receded

1 1 montlisS

Criminal History

n

Defendant, a Jamaican citizen, pled g uilty to one count of false claim r u U.S . citizenship ( I S

U.S.C. § 911). During a traffic stop, defendant declared to border patrol agents that he was a

citizen of Lhe U.SJ-Virgin Islands. Defcndunl had illegally en lured die U.S. 1 0 visit hi:,- ailing

mother in Florida:%T;i:fefendant was in possession of a fraudulent Alabama birth certificate, a

fraudulent Florida-identification card, and a fraudulent social security card. Defendant has

been deported frpmidie U.S. on cwo previous occasions. Defendant ha s prior convictions for:

false statements hi-application of a pas^pon, an d illegal rixniry, Defendant has an outs tandingbench warrant for'failure to appear in relation to felony drug charges.

In.4-.



_ 2 0 0 4 0 9 : 3 9 F A X 20231298742 0 U 4 1T:3« JrAi 2 U Z B1B574 8 A L IE N

CaseExample Involving Fugitive Status and Possession/Renewal of U.S. Passport

Case Number

541661

District

Arizona

Sentence Received

36 months pruba.li.on

Criminal History

T V

Defendant pled gui l t y to one count of false s ta tement in acquisi t ion of a passpor t (1 8 U.S.C. §

1542). Defendant was a candidate fo r ihe Scottsdala, A Z c i ty counc i l and withdrew af ter

questions regarding his identity arose. After further investigation defendant revealed he was a

fugitive l iving u nder art alias. Defendant is a U.S. citizen, college graduate who o\vns his own

businesses and is active in the local community . In 1970, defenduiii was found gui l ty by jury

of obstructing, impeding, and interfering with a firefighter and law enforcement officer.

Defendant w as participating in a protest dem onstration on a col lege campus. Defendant was

sentenced to 5 years. Defendant failed to appear for sentencing. In 1976. defendant obtained

Identification documcnrs, including aU.S.passport under an assumed identity. The dcfeadantobtained two renewal passports under the same assumed identity in 19&2 and 1987- The

instant offense of conviction is the result of the defen dant 's third renewal of ihe passport in1997.

Case Examples Involving the Possession of United Stales and Foreign Passports

Case Number

541671

District

C a l i f o r n i a N o r t h e r n

Sentence Received

46 m o n t h s

Crim in a l History

V

Defendant is convicted of one count of i l legal reentry following, deportation (8 U.S.C. § 1326)

and on e count of false s tatement in a passport application ( I S U .S.C. 5 1546). Defendan t

arrested fo r driving whi l e under th e influence of alcohol. Defendan t presented A U.S.as identification to th e arresting officers. Dcfcnd:ifti obt ained this pass-port us ing a birth

certificate and sociyj security number under someone else'? name . Defendan t is a native of

Mexico. Defendant was previously deported following a corwiclion fo r sale of a controlled

subs tance. Defendant also ha s a prior conviction fo r illegal reenxiy; arid again was deportedafter that conviction. D efenda nt 's children and fiancee live in San 1'rancisco.

;H

?

•}

1 3



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AL.11SW J U Z Z

Case Number

576054

District

Virgin Islands

SentenceReceived

t ime served fapprox,

9 months)

Criminal History

n

D e f e n d a n t pled guilty to one c o u n t of fraud and misuse of documen ts (1 8 U.S.C. § 1546(a)).

Defendant a ci t izen of (he Domin ican Republic, entered the Virgin Islands with a D u m i n i c a n

Republic passport. The passport stamp indicated, he wiis a l aw fu l , permanent resident of ihe

U.S.. The passport ha d been altered, had a false najne, and false biographical pages. 11993,

th e de fendan t was gonvicted for illegal en try , a f ter which he was deponed. In 1999, thedefendan t was conviciecl of illegal reentry, af ter which he was again deported. Defendan t

reports tha i he was entering th e United Stmcs lo find work to financially assist his ill mother.

Case Number

576063

District

Virgin Islands

Sentence Receiver!

2 months , w i t h cred i tf i v e l ime served from

2/26/01 to 3/14/0(

Criminal History

T

Defendant pled guilty to on e count of fraud and misuse of documents C I S U.S.C. § 1546(a)).

Defendan t , a citizen of Guyana , presented himself tit th e Virg in Islands a i rp on u n d e r a false

name wi th a false Barbados passport. T he passport hud a substituted photo and a l t e red

in forma t ion . De f endan t stated that he com mi lied th e of fense because h« w a n t e d u ,> ye i

political asylum from Guyana, which was experiencing race H O L S . D e f e n d a n t has no prior

arrests an d n o prior convictions.

Case Examples Involving Attempts to Obtain U.S. Passports

Case N u m b e r

577023

District

Texus Southern

Sentence Received

1 year p robat ion

C ri m i n al Hi s tory

1Defendan t convicted by jury of one count of false s t a iemem in applicriiion for a U.S. passpon

(1 8 U.S.C. § 1542). Defendan t , born in Nigeria, had been gnmicd permanen t residency s ta tus

in the U.S. D e f endan t w an ted lo go to Great Britain where her f iancee resides, but wa s denied

visa by the British consulate. Defendan t then usc<J Ih e Texas ID card and n a m e o jf a former co-

worker to apply for an Am erican passpon. D efend an t has no prior arres ts and n o priorconvic t ions .



: J./.00 TAA £U£ OJ.OO/4O

CaseNumber

562958

District

Florida Southern

Sentence Received

2 years probation

Criminal History

TDafcndsmt pled guilty to onfc count of false statement in application for a U.S. passport (1 8

U.S.C. § 1542). Defendant, a Colombian citizen, used a fraudulent birth certificate and socialsecurity card to ap ply for a U.S. passport. A t th e time of the instant offense, defend ant was in

the country legally on a student visa. Defendant reports he purchased the f raudulent

documents in order to further his goals of working un d siudying in ihe U.S. D efend ant hag no

prior arrests and no prior convictions.

Case Number

561878

District

Florida Southern

Sentence Received

1 4 3 days, wjih credit

for time sevvud

(amount u n k n o w n )

Criminal History

I

Defendant pied guilty to on e count of falsa statements in an application for a U.S. passport (18

U.S.C. § 1542), Defendant , a citizen of Guatemala, usud a fraudulent birth certificate,

Identification card and social security card to apply for a U.S. passport. Defendant came to the

U.S. illegally two years prior to the commission of the instant offense. The defendant was

employed as a laborer. Defendant has prior minor traffic violations.

Case Number

563872

District

Florida Southern

Sentence Received

2 years probation

Criminal History

1

Defendant pled guilty to one count of false statements in an application for a U.S. passport ( I SU.S.C § 1542). Defendant, an Egyptian citizen, cs\mc lo the U.S. in i 990 with legal work

permit In 1995, IN S revoked hb work permit. D efend ant wits never coniacted about

deportation. Defendant purchased a. fatuUul&nt birth certificate and social security card fo r

himself an d his wife (see case # 563873) to apply for a U.S. passport at a post office in Florida

after a similarly failed attempt in Connecticut, Defendant has no prior arrests and no priorconvictions.

CaseNumber

563S73

District

Florida Southern

Sentence Rec e iv ed

2 years probation

Cri mi n a l H is 1017

1





2004 09:39 FAX 2023129874oiDO'49

MSTPCC CENTER'

Csise Number

5639 L IDistrict

Texas Western

Sentence Received

3 years probation.

Criminal History

0

Defendant pled guilty to one count of false claim or U.S. iritizcnship (IS U.S.C- § 9J1 ) .

Defendant w»s in a car returning from Mexico and slated that ho was a U.S. citizen.Defendant states thnt fol lowing a.nighi of drinking in El Paso, his wife drove across ih e border

10 Mexico to pick up her sister while ihe defendant was asleep in The passenger seat.

Defendant statas that he had -no knowledge of crossing the border, nod also stares he does not

remember stating lhaL he was a U.S. ciciztn. Defendant is currently appealing a deportation

order follovi-ing a conviction fo r possession of cocaine. Parents an d siblings l ive in U.S.

permanent resident status. Defendunt is married and htis one child.

Case Example with Potential Security Risk

Case Number

' 575996District

Texas Northern

Sentence Received3 years probation

Criminal History

J

Defendant pled guilty to one counc of false statements on TN S Fornii-9 (18 U.S.C.'§

Defendant entered th e U.S. in 1998 in N ew Jersey. Defendant obtained social security card in

Pennsylvania using his Kenyan passpon an d IN S papers us identification. The social security

card the defendant received had a stamp indicating ho was not allowed to work without INS

authorization. Defendant scratched out the scamp and used tlie curd to obtain employment .

Defendant, an INS form T-9 stated he was aU.S. citizen. Defaiidapi j o ined die U.S. Army in

Feb. 2000. Defendant is ranked private first class. Defendant falsely represented himself as animmigrant alien in order roenlist in theU.S. Army. Defendant lias no prior airesis and no

prior convictions.



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C O M M E N T S S U B M I T T E D T O USSC R E G R A R D T N G 2 L 1 . 1

IMMIGRATION

J . Alien Smtiggline

We agree with the underlying premise of the proposal -i.e., tha t those, who illegally

smuggle people into the country should be punished differently depending upon th e alien's

purpose. However, we believe it should go further if it is to have effect.

A . Entering th e United States to Engage in Certain Aciivitv

The proposed new specific offense characteristic would require that th e defendant have

"knowledge" of the alien's intended unlawful activity within the United States at the time the

defendant assisted the alien to illegally enter the country. However, a defendant who "smuggled,

transported, or harbored" an alien knowing that th e alien intended to engage in terrorist activity

could also be charged as a co-conspirator in the underlying terrorist activity and thus already

would be subject to a substantial sentence. Significantly, this proposal docs not address the more

typical situation of smugglers who assist "all comers" and who are often deliberately ignorant of

the identity or motive of the person entering the country illegally.

W e believe this proposal is far too restrictive. Aliens who are inadmissible pose a serious

threat to the security of the United States. The guidelines and laws already address individuals,

who with direct knowledge, facilitate those entering illegally to commit acts of terrorism and

other specific crimes. What th e guidelines do not adequately address are the smugglers w ho are

used by terrorists and others to gain entry, but do so without fully revealing to the smugglers their

real identity or intent. The smugglers who enable terrorists to illegally enter this country

undetected should not be able to escape increased liability simply because they did not "know1'

what specific illegal act the alien intended to commit.

As such, we recommend that the guidelines impose a strict liability standard rather than

imposing a knowledge requirement. We believe that once a defendant has been convicted of the

underlying smuggling offense, th e offense level should be increased under a new specific offense

characteristic that would take into account the reason the alien was coming into the country (to

engage in terrorist activity, in a crime of violence or controlled substance offense) or why they

were barred from entry pursuant to 8 U.S.C. § 1182(a)(2) or (3). This could be accomplished by

changing proposed specific offense characteristic §2Ll.l(b)(4) ro read:

"(4) Jf the defendant smuggled, transported, or harboredan alien, who -

(A ) entered the United Stales

A. to engage in a crime of violence or controlled substance offense,

increase by:



: 2UZ

i) tw o levels, if only one such alien was smuggled, transported

or harbored;

ii) four levels, if two-five such aliens were smuggled,

transported or harbored; an d

iii) six levels, if six or more such if aliens were smuggled,

transported or harbored,

B. to engage in terrorist activity, increase by [1 2] levels, but if the

resulting offense is less than [32], increaseto level [32].

(2) was inadrnissable as defined in 8 U.S.C. j j 1 182(a)(2) or (3) increase

i) iwo levels, if only one such alien was smuggled, transported

or harbored;

ii) four levels, if two-five such aliens were smuggled,

transported or harbored; and

iii) six levels, if six or more such if aliens were smuggled,

transported or harbored."

This alternative is similar to the criteria used in §2K2. 1 (Unlawful Receipt,. Possession, or

Transportation of Firearms). An individual found guilty of illegally possessing a firearm faces a

base offense level of 12. However, if the weapon is one that isparticularly dangerous - as

described in 26 U.S.C. § 5845(a) or 18U.S.C. § 92l(a)(30) -then the offense level is increased

six levels to a level 18. It is not necessary that the defendant have knowledge of the restricted

nature of the weapon, Sec. &JL , United Slates v. Fry. 51 K3d 543 (5* Cir 1995).

This proposal would also increase the enhancement commensurate with tbe number of

dangerous aliens smuggled, in a manner similar to that used in §2 L I . l(b)(2). A person who

smuggles six aliens barred from entry because they were designated terrorists should receive a

substantially higher increase thanjust th e three levels under current §2L1 . l(b)(2)(A).

B. Offenses Involving Death

The published proposal suggests three changes thqt would impact the treatment of deaths

resulting from alien smuggling. The first removes the specific offense characteristic subcategoiy

from its present grouping with other injuries and creates a new specific category and suggests, in

the alternative, increases of eight (current), 10, or 12 levels. The second proposed change

expands a related cross-reference to include deaths involvingmanslaughter and not just murder,'

1A similar provision exists at §2K1.3(c)(l)(B); §2K2.1 (c)(l)(B); §2K2,5(c)(l)(B);

§2M5.3(c)(l); §2M6.1(c)(l); §2Q1.4(c)(l)



2004 09:40 FAX 2023129874/ *uui iI . V » f rfl-a. t-vc. u j . « i > < " * o

while the third proposed amendment would also address incidents of multiple deaths.

W e support the three amendments, The first change, separating the death enhancement

from the other injuries and providing a minimum offense level oF25, will have an impact on those

cases where the death results from, negligence rather than just intentional or reckless conduct.

Under the proposed §2L1.1(b)(8), alien smuggling resulting in a death due to negligence would

result in an offense level of at least 25 (57-71 months under Criminal History Category I) while

under exiting guidelines it would most likely result in a level 20 (33-41 months). We support

increasing the minimum offense level for these cases to any of the alternative minimum levels

between 25 to 30, but would suggest that they should be commensurate to other guidelines where

underlying criminal conduct results in death.7

We also support the amendment to treat multiple deaths occurring in a single incident as if

the case involved multiple counts. It would bring §2L1.1 in conformity with other similar

guidelineprovisions such as §§2D2.3(b)(l), 2G2,l(o)(l), 2 M 6 -I (d ) ( l ) , 2Nl.l(d)(l) and

2Q1.4(d)(l). Jn recent years, we have seen a number of alien smuggling cases involving multiple

deaths. This provision would, we believe., result in an appropriate increase in the sentence

imposed,

C. Number of Illegal Aliens

We support the Commission's proposal to expand the specific offense characteristic that

increases the offense levels depending upon the number of unlawful aliens smuggled, transported,

or harbored, adding groupings of "'200 to 299", and of "300 or more" with a corresponding

increase in levels o f either 11 o r 12, for the first set and either 13,15 o r 18 for the second.

W e believe increases in offense levels of 12 and 15 for the two new groups wouldbe an

appropriate extension of the enhancements already assigned to the lower levels. This would result

in increases o f three, six, nine, 12, an d 15 levels for the entire specific offense characteristic. Jtwould provide a six level enhancement for the first 99 aliens smuggled and then three level

increases for each additional 100 illegal aliens. Sentencing courts would still be able to depart

upward in those cases involving substantially more than 300 aliens, pursuant to Application Note

4,

JSee fo r example, §2D2.3(a)(l) (base offense level 26. i f"death resulted from operating o rdirecting th e operation o f a common carrier under th e inf luence o f alcohol o r drugs).



, 7 2 0 0 4 09:40 FAI 2023129874ZUZ D1DO749

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USSG, §2L1.1, 18U.S.C.A.

U N I T E D STATES CODE ANNOTATEDFEDERAL SENTENCING GUIDELINES

CHAPTER TWO-OFFENSECONDUCTP A RT U-OFFENSES INVOLVING IMMIGRATION, NATURALIZATION, AND PASSPORTS

1. I M M I G R A T I O N

Copr. " > West Group 2003. N o claim co Orig. U.S.Govt. Works.

A s amended ro 05-T4-03

§ 2L1.1. Smuggling, Transporting, or Harboring an Unlawful Alien

(a) Base Offense Level:

(1) 23, if die defendant was coiiviaed under 8 U.S.C. 8 1327uf a v I u l a L i u i i i n v o l v i n g au aliuu wb u p i c ^ l u u j l . yW i ii r tier/01 L i ^ l t i L i i c r ti^cwpncoou icx < u u c L j ^ t ^ r c i V c i t u u l^lo^y o r

( 2 ) 19, i / tf tc de fendan t was conv ic t ed u n d er 8 U.S . C § J 3 2 4 ( a ) ( 2 ) ( B ) ( i ) or ( i l ) , o r J 3 2 4 ( a ) ( J ) ( A . ) t t ) ( il l w h t ch

d ie o f f e n s e w as d o n e fo r t f ie purpose of c om m er c i a l advantage or private f inancial ga in ) .

( 3 )«1 4, otherwise.

(b) Specific Offense Characteristics

(1) If (A) the defendant commined die offense other than for profit, or the offense involved die smuggling,transporting, or harboring only of die defendant's spouse or child (or b o t h the defen dan t's spouse and child), and(B) the base offense level is determined under subsection (a) (2), decrease by 3

(2) If the offense involved die smuggling, transporting, or harborinjj of six or more u n l a w f u l aliens, increase asfollows;

Number of u n l a w f u l aliens smuggled,transported, or harbored

; Increase: in level

(A)<3-24

(B) 25-99

(C) 100 vi m u r e - 199

(D ) 200-299

( E ) 300 o r more...,-,.

: Add 3.

: Add 6.

: Add 9.

:Add12

: Add IK



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(3 ) Tftlie offense i nvo lved th e smuggl ing, transpor t ing, o r harbor ing o f Inadmissable al iens as defined in 8

U SC Il82(a)(2)or (3);

: Increase: in level

Number o f inadmissable or unregistered aliens,smuggled, transported, or liarbored

(A)2-S

(B)6-20

(C ) 20 or m o r e

; Ad d 2

; Add 4.

: A dd 6.

: Add 8.

if t (4) T f th e defendant committed an y part of the instant offense after sus ta ining (A) a conviction for a feloayimmigra t ion and namralizjition offense, increase by 2 levels; or (B ) two (or m ore) convictions f o r felonyimmigrat ion an d naturalization pffenses, each suet) conviction arising out of a separate pxoseconon, increase by 4

levels .

W (S) (Apply die greatest ):

(A ) If a f i rearm was d ischarged, increase by 6 levels , but i f die resul t ing o f f e n s e level is less than level 22 ,increase to level 2 2 .

(B ) If a dangerous weapon (including a f i rearm) vas brandished or otherwise u s e d , increase b y 4 levels, but i f theresulting offense level L i less than 20, increase to level 20.

(Q T f a da ngerous weap on (including a f irearm) was possessed, increase by 2 lovely, but if the resulting offenselevel i* less than level 18, increase to level 18 -

t5> (6) If die offense inv ol v ed intsntiomily or recklessly creating a s u b s i a n r i a l risk of dcaih or serious b o d i l yinjury 10 ano th er persou, i n u r f e a s e by 2 levels, but if the resul t ing o f f e n s e l u v e l is less titan l ev e l 18 , m u r a a s s 10level 18.

f6) (7 ) I f a n y person d i e d o r s u s t a i n ed b o d i l y i n j u r y , increase d ie ofifensft l e v e l u e e o r d i u g t o t h e seriousness o f t he

i n j u r y :

Deaf l i o r Degree o f l u j u r y

(1) B o d f l y tnjury :

(2) Serious Bodily T t u u r y

(3) Permanent or Li re-Threatening B o d i l y I n ju r y ..

(4) Deadi

: Increase inLevel

: a d d 2 l ev e l s: add 4 - l e v e l s

• . a.dd 6 l e v e l s

: add S l e v e l s .

( 8 ) If during the course of the o f f e n s e an alien w as { A ) physically restrained, in crease by 2 levels; or (B) ifrestrained or detained by coercion, implied tlireat, fear or deception, increase by 1 level.

(c) Cross Reference

If any person was killed u nder c ircumstances tha t would const i tu te m u r d e r under 1 8 U . B . C . - £ 1 1 1 1 Jia.d skilling taken place wirjiin th e special maritime an d territorial jur isdict ion n t" t h e United States , apply dieappropriate murder guideline from Chapter Tw o, P u n A . S u b p u r t 1 .



, ./2004 17:37 FA1 202!' 6165748

ALlbM SMUUULiMU 31

U.S. Department of Justice

Cr im ina l Division

D e m « u < e S e c u r i t y Sec t ion Vadiitigtoii. D C 2

April 2, 2004

MEMORANDUM

To: Jonathan WroblewskiOffice of Policy an d Legislation

From: Teresa Mcriemy

Chief, Dom estic Security Section

SUBJECT: Summ ary of Proposed C hanges to U.S.S.G. 2Ll. 1

The Domestic Security Section, working with a n umber of United States Attorney's

Offices and the Department of Homeland Security, has identified 6 changes to U.S .S.G . 2L1.1,

Smuggling, Transporting, or Harboring an Unlawful Alien that we believe should be considered

by the United States Sentencing Commission. A proposed revised 2L1.1 is attached. The

following is a brief explanation of each revision,

Proposal 1: (amendment of 2L1. l(a)(l))

"2LLl(a)(l) 23 , if the de fendant w as c onv ic t e d u n d e r 8 U.S.C g 1327 (.I/tU4.frI//1. t - f j WL

Q t O t i j t o r

This am endment to 2L1. l(a)(l) rem oves the distinction between a c onviction under 8U.S.C. § 13271 when the violation involved an alien "who previously was deported after a

conviction for an aggravated felony" and one when the violation involved an alien who is

inadmissable because of "Security or related grounds" as defined in 8 U.S.C. 1182(a)(3). It also

eliminates the disparate treatm ent between those who are inadm issable because ihey ha ve been

' 8 U.S.C. § 1327. Aiding Or assisting cercain aliens to enler

A n y person who knowingly aids or assists any a l ien \midmkslblii uMer section 1182(a)(2) (insofar as an alieninadmissible under such section has bean convicted of an aggravated T'elouy) or 1182(u)(3) (other r hau

subparagraph (E) thereof) of this title to enter tht United States, or who connives or eoaspires with any person or

persons to allow, procure, or permit any such alien TO enler the United SWKK, shall be tiiwd under Title 18, or

imprisoned not more than 10 years, or both.



Y ; 3 Y l-'AA

convicted of certain specified crimes and those w ho have been previously deported fo r then-conviction fo r those crimes.

T he CoTntnission has already recognized that those co nvic ted of knowingly aiding orassisting the reentry of an aggravated felon who has been deponed shou ld received asubstantially higher sentence than those Convicted of the same con duc t wh ere the alien has nosuch prior record. Th e Domestic Security Section subm its that th e same increase should applyto those w ho kn ow ingly aide or assist aliens to enter into the Uni ted States who have beendetermined to be inadmissable due to "Security or related grounds" or who have beenconvicted anywhere of certain serious crimes. 8 U . S . C , 8 1327 is the result of Congressionalrecognition that certain aliens pose a heightened risk c o the safety of the citizens of the UnitedStates and thai those w ho k now ingly assist their illegal e ntry into this country shou ld bepunished distinctly from the provisions of 8 U.S .C . § 1324 w hic h app lies to all aliens wh oattempt to enter the co un try illegally. However, U.S.S.G. 2Ll.l(a)(l) only applies to alimited subgroup of those convicted under § 1327. T he Do m estic Secu rity Section believes,fo r example, that those w ho knowingly assist aliens, w ho have engaged in te rror is t activity or

w ho have been convicted of murder in another cou ntry, to illegally enter the U nited States,should be subject to the same guideline same as someone w ho illegally assists the reentry of analien who was deponed after a conviction fo r attempted burglary of a motor vehicle.2

Proposal 2: (New subsection)

2LLl(a)(2) J9 if th e defendant w as convicted wi der 8 U.S.C. § J324(a)(2)(B)(i) or ( U ) ,

or J324(a)(l)(A)( i)( in which the offense w as done for the purpose of

commercial advantage or private f inancial gain) .

This proposal w ould add a new subsection to reflect die C ongressional enactmen t that

those convicted of violat ions of 8 U . S . C , § 1324(a)(2)(B)(i) or (ii) shall, for a first offense, besentenced to not less than 3 years incarceration. T he Domestic Security Section also believesthat this new base offense level sho uld apply to similar conv ictions under §1324(a)(l)(A)(i)( inwhich the offense was done for the purpose of commercial advantage or private financ ialgain).

Proposal 3; (amendment of 2L1. l(a)(3) increasing base offense level)

«14, otherwise. "

The Department proposes increasing the base offense level fo r most smuggling,

transp orting , or harb orin g illegal alien cases to level 14. P resen tly, the guidelines pro vid e fora sentence of 10 to 16 m onths (assuming no acceptance of respo nsibility) for an ind ividual

- SeeUntied States v. Re'moso. F3d , 2003 WL22715589 (2d Cir , New. 17. 2003)

2



, : ./2004 17:37 FAX 202 8185748

ALIEN I f f l Uf f lUOO

convicted of transporting 5 unlawf u l aliens. Given the magnitude of the problem involv ing

illegal aliens entering into this country and the national security concerns in having personsenter into th e United States withour any idea of -who they arc, especial ly in light of the eventsof September 11, 2001, the Domestic Security Section suggests thai a base sentence of 15-21months is appropriate.

Proposal 4: (amendment of 2L1.1 (b)(2))

"(2) I f th e offense involved the smuggling, transport ing, o r Imrho i i ng o f s ix or more unlawful

aliens, increaseas fo l l ows :

Number o f u n l a w f u l aliens smuggled,transported, or h a r b o r & f l

Increasei n level

( A ) 6-24

( B ) 25-99

(Q 200trr-tnore-J99

(D ) 200-299 . , •

(E ) 300 or more

A dd 3.

Add 6.

Add 9,

A dd 12

AddlS

The Domestic Security Section recommends adding two new levels to the SpecificOffense Characteristic dealing with thenumber of unlawf u l aliens who are "smuggled,

transported, or harbored" so that punishment fo r these offenses continue to increase incrementallyfor th e larger enterprises. Presently, th e guidelines treat defendants who are found guilty ofsmuggling 100 or 500 aliens identically (absent an upward departure). In both cases, the currentbase offense level of 12 is increased to an adjusted offense level of 21, or 37 to 46 months.

D.S.S. suggests that by adopting this proposal, individuals involved in sm uggling, transporting,or harboring at least 300 aliens wouldreceive a more appropriate sentence of at least 97 months.





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