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

1/05/2004 09:36 FAX 2023129874

B1001

MSTPCC CENTER

HUMAN SMUGGLING & TRAFFICKING CENTER Fax Unclassified: (202) 312-9874 Fax Classified: (202) 312-9875

FAX

HS1C To:

Susan Ginsburg

Office:

9/11 Commission

Date:

March 30.2004

From: Jim Chaparro Phone: (202)312-9685 Subject sentencing guideline issues

CLASSIFICATION:

D TOP SECRET D SECRET D CONFIDENTIAL

D SENSITIVE BUT UNCLASSIFIED (SBU) D UNCLASSIFIED • Comments:

IE! LIMITED OFFICIAL USE (LOU)

1^5/2004 09:36 FAI 2023129874 C.\l£.

MSTPCC CENTER

UJ-OO/tO

STAFF RECOMMENDATIONS? IMMIGRATION •Staff recommends thai the Commission defer any action on Ihese proposed amendments until a more comprehensive package addressing aJl immigration guidelines can be accomplished. Staff is concerned thai a piecemeal approach of amending only the §2L1 . 1 (Smuggling. Harboring, Transporting Illegal Aliens-) -and §2L2-2 (Document Fraud) guidelines may resttHn- • inconsistencies across Ihe breadth of immigration guidelines as v-'dl as frusu'ate guidelines users as the Commission most likely will be amending various immigration guidelines during The next amendment cycle. Additionally, the staff is concerned about the interplay between the operation of these guidelines and various "fast track" and early disposition programs that impact the sentences of the guidelines for which amendments were proposed as well as the other immigration guidelines not addressed by this amendment. The Commission may wish to gather more information regarding early disposition programs during the next amendment cycle to better understand their impact on sentencing practices relating to immigration offenses. Staff understands that the Commission may wish to act this amendment cycle to respond to specific concerns addressed in these proposed immigration amendments. As a result, the staff has come to a consensus on recommendations for all of the options found in the proposed amendment, and they arc outlined balow. Piirt 1: §21/1.1 (Smuggling, Harboring,, Transporting Illegal Aliens) Issue I: Entering the United States 10 Engage in Subversive Activity Staff favors ihe adoption of both options 1 and 3 to address the concerns over aliens who pose a risk involving national security. Option 1 requires an offense of convjctjon under 8 TJ.S.C. § 1.327, knowing thai the alien smuggled is inadmissible pursuant lo S U.S.C. § US2(a)(3). This would require the-:Govemrnenl lo prove the inadrmssibility pursuant to the statutory definitions in order to receive tt^is enhancement Additionally, staff advocates adopting the bracketed language presented in optiotf JL that limics the subsections of 8 U.S.C. § 1182(a)(3) TO be used to provide cite increased base? 'offense level. Adoption of the bracketed language will alleviate ihe potentially 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 attempting to uddress. «,

Staff also favors.retaining the upward departure language in application note 8(Q ro allow the court to upwardfyi'depun in cases without convictions under 8 U.S.C. § 1327 involving inadmissible alie^-as defined in 8 U.S.C. § 1182(aX3), bui where evidence is presenl thai the alien smuggled intended lo engage in terrorism related activities. •» Finally, staff rec§»jnmends a two level increase at (b)(4) for defendants knowingly smuggling illegal aliens entering the United States intending to engage in a crime of violence or controlled Substance offence! '"

1^1002 IS Oil2

5/2004 "

MSTPCC CENTER

FAX 2023129874

v* uj.ua / * o

Issue 2: Number of Illegal 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 year 2001 data shows that 57 of 1,843 cases computed under §2L1.1 received an increase of'nine levels --^because Sie-offense'inveived-T-nor-e-than 100-aJienfe-T-he Immigration Team-is-cyrFe^tiy-in-thsprocess of reviewing, these 57 cases as well as the ten cases involving upward departures in order to better-provide the Commission with a description of cases involving over 100 aliens. Should the Commission wish to adopt this amendment, staff recommends an increase of 11 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 offense levels should not mirror the three level increments present in the first Ihree subdivisions of this enhancement. Issue 3; Offences. Involving Pe^tfc Staff recommends the Communion adopt the ten level increase for offenses involving death in specific offense characteristic (b)(9). This Increase will ensure that defendants whose base offense level is determined under (a)(3) (base offense level 12) will have punishment equal to those defendants convicted of involuntary manslaughter (which provides a base offense level of 22 when the offense involves the feckless operation of u means of transportation)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 will be deTermJned using the applicable homicide guide] j-ne. This cross reference will apply only if the offense level determined under the appropriate homici Je guideline results in a greater offense level than that determined under §2L 1.1. Part 2: §2L2.2 (Document Fraud) Issue 1: Incfsasir>g,:fti&Bas6 Offense Lov
V>'

Staff is opposed-fa'any increase in the base offense level for this suideline. In 1997, the Commissionrec'fe'i&e"d;a.directive as well as emergency timendmenl uulhoriiy co increase the offense level for^IxLl (Trafficking in Fraudulent DwumcnijO as wall as §2L2.2. Prior to 1997. the base offcnse'fev.els were nine and six, respectively. To implement Hie directive, the Commission incj^'fj
UUJ

003

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

Issue 2: Increasing Offense Levels in

MSTPCC CENTER

SMUtiliUNti

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 and natural ization ollcnses. Staff does not feel there i& sufficient evidence to support an increase for these particular specific offense characteristics. Issue 3: Specific Offense Character! sties Addressing Security Risk Staff docs nol 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« criminal history guidelines, and information regarding foreign fugitive status may be difficult for guidelines users TO obtain. Should the Commission decide to include this specific offense characteristic as pan of the amendment package, staff feels an increase of two 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 include this specific offense characteristic us pitfl of this amendment package, staff recommends including the bracketed language LhallimiLs ihe potentially broad applicability of this specific offense characteristic. Staff also fuels thai an increase of four levels is appropriate. Issue 4: United Stales Passports Staff recommends adoption of the specific offense characreristic for defendants fraudulently obtaining or using United States passports. Staff recommends iin increase of four levels to address offenses involving the use of U.S. passports.

1^1 UU4

MSTPCC CENTER

5/2004 09:36 FAX 2023129874 ' t-vc. o j . o a / * o

1^1005

REVISED PROPOSED AMENDMENT: IMMIGRATION Synopsis of Proposed Amendment: This proposed amendment addresses issues involving, immigration offenses. Specifically, the proposed amendment makes change* io $$2U.J (Smuggling, Tnottpu rcing, or Harboring an Unhnvfitl Alien) and 2L2.2 (Fraudulently Acquiring Documents Relating trr Naturalization, Citizenship, or Legal Resident Staiu-s-for- Own Use; Ralxe Personation or FruuduleniMarriaQG by Alinn- • tu Evade Immigration Law; Fraudulently Acquiring nr Improperly Ijy'mK a United States Passport). Two issues far 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 effort to address the increased concern regarding aliens \vho pose a threat to the security of the United States, the proposed amendment provides mo options for cases in which the defendant knowingly smuggled, harbored or transposed an alien biadwissable under 8 U.S.C. § 1182(a)(3)(relaring to aliens ineligible to reeml\t« \>lxas and nnt*r into the United Scares due to security and related grounds). Currently. §2L1. 1 prmLJes a base offense level of level 23, ifihn defendant was convicted under S U.S.C. § 1327 of a violation involving un alien who previously was deponed after a conviction for an aggravated felony. Option 1 and 2 provide an alternative base vffense level of level ] 25] for offenses in which thit defendant knowingly Smuggled, harbored, or transported an alien who was inadmissible under S U.S.C- § J182(a)(3). Options 1 and 2 differ in thai Option 3 requires a Convictiaii under S f/.S.C jj 1327 for such conduct, "while, Option 2 applies regardless of whether the defendant was convicted of suck conduct. The commentary makes clear t)iat application (if the eiihtwemant requires only that i}\e defendani totow the alien is inadmissible, not thai the inadmlssibiliry was related la security issues. Option 3 ptwldes encouraged upward departure language jo address a case in which the defendant smuggled, transported, or harbored ai alien flaunting thai the) [and such} alien intended to enter tfie United Stales to engage in an offense mldiftl iv terrorism. The proposed amendment oho provides an enhanfcmeru ai $2f,J- J(b)(4) if Hie defendant smuggled, harbored or transported. qn_alien knowing that thr. alien intended to enter the Untied States 10 engage in a crime of violence or a controlled substance offense. (B)

•S • •.•'•'

'."•".• '••;• i

Midriber; of Illegal- Aliens '•''•-.• J s- i1.-' '

The 'proposed amendment provides additional vffense level increases to (he table in §2U.l(bj(?jt'relating to the nuniber'cf aliens involved in the offense. An increase offllj[22} levels w«>&Jij;fe& applicable under the! proposal if the offense. iuwlvedZOO to 299 aliens, and an increase ijf£J3-l$] levels would be applicable tfllie offense involved 300 or more aliens. The current uffi'^&pariure-prpvisiori'inAgpKcation Nme 4 has been modified io reflect

( C)

'"' .

.

.

'

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

¥•:?:•.•-'• ••• rjiV-^i-.

. = •••; •.'••••..• '.. .-'. -•. •• •

T^eti^endment proposes toyp significant changes to Ihc guideline in cases in which death occ?irr.e-fr. , Pirn, the prapbse&amendnieni removes the increase ofet^hi levels "if death ' ' '

1

i..'.1

''!

i 'si

i t ss

3 •tu

i

MSTPCC CENTER AL.IISJN

/2004 09:36 FAX 2023129874 r . 0 i > PAA

resulted"from the current specific offense characteristic in §21.1. J(b)(6) addressing bodily injury and places this increase in a. ffand alone specific offftnse characterimic in §2LJ.l(t>)({l). This new specific offense characteristic provides an Increase of[JOj levels. Second. Die. cross reference al §2L1, t(c) is expanded to cover dgadis mher than murdar, ifcha resulting offense level is greater than the offense level determined under §2U. I. (2)

Immigration Documentation Fraud The proposed amendment makes several clianges to JJ2L2.2 (Fraudulently Acquiring Documents Relating to Naturalization, Citizenship, or [*agal Resident Status far Own Use; False Persvnaiion or Fraudulent Marriage by Alien to Evadu Imtnigfarion Law; Fraudulently Acquiring or Improperly Using a United States Patspon). First, the proposed amendment increases the base offense level in §2L2.2(a)from level S w level [8-12]. Second, the proposed tunendmcra increases by wo levels ihe currem gnhnncementii in §§"2L2.2\b)(l) (regarding unlawful aliens h'/u> have been deponed on one or more occasions) and 2L2.2(b)(2) (regarding defendants who commit the instant offense after sustaining cr felony conviction for an immigration and naturalization offense). Ttib'd, Ikt prnpos«d amenrimera provides two specific offense characteristics far addressing the increased concern regarding aliens who pose a rhrtiai to tfie security oflh& United Sidles, Specific offense characteristic (h)(3) provides a [4-10j-level enhancement in §2L2.2(b){3) if the defendant was a fugitive wanted for u felony offense in the United Suites (or any oilier country}. Specific offense, characteristic (b)(4) provides a (4-10) level enhancement if, at the time of the offense, the defendant wax ifn inadmissable alien pursuant to S U.S.C. § U82(a)(3). Filially, tfie proposedcuneLnflmmitprovides an [2-&]«lsvil enhanceinem al $2L2.2(t>)(5) if the defendant fraudulently obtained or used a. United Status passport. Commentary vs added to make clear that '"use" includes casex involving an attempt to . renew a previously issued passport.

Proposed Amendment: $21x1.1.

Smuggling. Transporting, or Harboring tin Unlawful Alien (a)

[Option 1:

Base Offens& L-evei:

"*> .. i:. :issr-.;_,v:

,*

: >V

[Option 2: -•f^'-lK '. '.- '*

if the defendanL was convicltxJ undur S U.S.C. § 1327 of u violation lirvolvrng an alien who previously was deponed after u conviction for an .ggravated felony; or *;.-r<:- I •:^;.i-!V^^

12, otherwise.

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

JUDY IUUV

MSTPCC CENTER ALIEN SMUGGLING

* * *

(h)

Specific Offense Characteristics *

(2)

*

:!•-

If the offense involved the smuggling, transporting, or harboring of six. nr more unlawful aliens, increase as follows: Nuinber of Unlawfal Transported, or Harbored (A) (B) (C)

Increase In Level aild 3 add 6 add 9r a

6-24

25-99 mare * '*

iinoy/uig thattic H.licn'£fitended ne-'of;vii>ience: pr<'c;otitra.II«id levels.

If any person Jiid ot suscamed bodily injury, increase the offense lev&l according to the seriousness of ilic inj Berth oijDegree of Iciur>'

oi«y

Increase hi L&ve 1 add 1 levels add 4 levels add 6 levels: add B levd.v

^J^jSB^BBpP^J H u V m '^''tVIllul uuJu uiiutuMtanm ilml wn

a

2004 0 9 : 3 7 FAI 2023129874 Li: 04

TAA

£V£

DJ.OO/4O

1^1008

MSTPCC CENTER

ALiiBiN

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, lJ^ Fmjuuu.il" Juts not irrchrd?iJm * * *

Fat t/Lt. ^UJ^UJUA uf§3fil.J ihe nut Lwu-ldtii t:d yat ilLl^ujiti wdcis theymutmi}

IHIIU>IHJIILI. w in tin. Mm&gling, uu> inviting, vi

\jj L/£/4

--* l/l/ /tt"*jt

'LI.';..- ./ ..... /,,.fT. I.' ..........Vf/TC ;._

L* Kf (_f , tl/t* ( lj fc» t^/ Jt«.t/I^r LX/^

•.•fa

[ Opiion 1:

'

-

$JifyG$4'£^ '.^iiwlja3?tjViA.'Dn*.**1' *t*.i' .rii il^i. ~'i

r..«" »"i ^in"n»Ati*rf"i'ni ."•/ »'i

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

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

!(^#fe '

•a [Option 2: 2.

I

1^1009

MSTPCC CENTER

09:37 FAX 2023129874 zuz

AL.1KJN

•i.', s ata ti6lus9tfair*-Tfuoi the

gjjBSg^^^

offlbBSS^ -

•at

4r

f f iT. 11

fW_.

J'»LLI- t ^ i

of^lk^ct^^^f\^'miatkcr of unlawful ' 7 -ii?Ljf-nirf-i?-r-

-ii .1 tTi'.^ii nT/V] ^f Ti'-.

11>»

J 7. i

-uj

7 IP

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 10 -which r/u> fidfustmentfi-om subsection dpp$J!$ijty!!l&ics 'd&tvleyJa'rieTy of conducr (e. p... n-an$nartin$ persons in the trunk or engine compajtifent'ofa 'Ttioipryehicle, carrying subsianiidly more passengers titan the rated capacity of&rwtorythicle'oryesilel, or harboring persons In u erowdtul, dangerous, or inhiimand:c^i^l^^"ifsu\;>isciion (tiffiffifiapplies solely on flie biuis of conduct related TO flee fag froTFuXTldw. enforcement 'officer, donol appfy an adjusnneritjroni §3C1.2 (Reckless EndangermeirtiBunng Flight).; Addmonallyj do not apply rite adjusiment In subsection (bft$}ft (fihe only:^t^^\c^nduct.lh^icr.fatt!dasubs[arirl(il Hxk aj.dtaih orserivux bodily injury is condiictfq^'a^^ie'defe)w[agit.receiviidan enliancf.niunr imtlcr.tub-jtacrion "•" tj"~*

^

.-•5

0010 ]010

MSTPCC CENTER ALIEN SMUGGLING

^2004 09:37 FAX 2023129874 2/2004 17:34 FAX ZOZ 6185745

p(aVi^e^^&^

l>~e Wfvr

[Option 3:

§21,2.2,

Fraudulently Acquiring Documents Relating to Naturalization. Citizenship. or Lgffll Resident Status for Own IJse; False Pcrsonalioa or Fraudulent Marriage by Aliea to TT.vn^j- Tm-migtatioD Law; Fraudiileotlv Acquiring or Improperly Usiiig a United States

(a)

Base Offense Level:

(b)

Specific Offense Qiajacteristics (1)

If the defendant is an unla-wiul alien who has befcn dispoilttd (voluntarily or invol-unurily) on one or more occasions prior 10 ihe inscrtnl offense, increase by 3f4fJ levels.

(2)

If the defendant commlticd any part of (.he instanL offcase after sustaining (A) a conviction for a felony itnmigraUon aM naturalization offense, increase by 2[!^J levels; or (B) two for more) convictions for felony immigration and naturalization offenses, each such conviction arising oui of a. separate prosecution, increase by 4[fo} levels,

. .".:".•.. •

J72004 0 9 : 3 7 FAI 2023129874 f/2004 17:34 FAX 202 8186748

ilOll

MSTPCC CENTER

Anvlieano'n. Notes: I.

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

"Immigration and naturalization offense" means any offense covered by Chapter Two, Pan L. Pur ilk: i/n-t^os.. yfCJv&tai T7u*&T^i D tin

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.'&^A11-

•M®&s.

••'^^•''•v.i1-:.^ :^ff;('f:

MSTPCC CENTER

J04 09:37 FAI 2023129874

March 29,2004

MEMORANDUM

TO:

Commissioners

FROM:

Immigration Policy Team TCiista Rubin, Chair Kealin Cutbreath Timothy Drisko Jeanneine Gabriel Larry Kupers Rachel Pierce

RE:

April Meeting Materials

The Immigration Policy Team (the Team) has conlinued to review the proposed amendments regarding immigration offenses. This memorandum highlights the. changes to the proposed amendments regarding immigration offenses, and identifies specific policy issues for the Commission to address. The Team has received public commem from: Secretary of Stare Colin Powell, the Department of Justice, T!K Prooation Officers Advisory Group (1?OAG), TllC Federal Public Defenders (FPD), The Criminal Law GammUiee (CLC), and, from ihe District of Arizona, the Honorable Cindy K. Jorgenson and the H.£ytiorable John M. Roll. Comment specific io ihc proposed amendment options will be addressed in this memo under each pertinent section. Both the CLC au'd'thb^D advocate thai the Commission defer any action on this proposed amendment UfliilX'CCinprehensive package can be developed. The CLC notes that ihe Commission has mai|fi?ievisions to .§2L1.2 (Unlawfully Enltring or Remaining in ihe United Siat&s) in 2001, 2000and 2003. The CLC also suites, "since acis of terrorism can be separately charged by The goyerament, we support the delay in any revisions 10 the immigration guidelines until a compreheo^iVp'package can be developed." The FPD recoTnnneiidi,!r.hac"Lhe Commission delay until next cycle any panial amendments

."'-r

i

"i'i"i

•a

'

09:37 FAX 2023129874 2U2

dealing with the immigration guidelines . . . it would be more efficient and appropriate to submit an immigration package that incorporates both appropriate reductions as weJl as any increases that may be required.'" The FPD also suggest that tho Commission uolleci information regarding how early disposition departures are being applied in these CU*CK. However, the FPD have provided specific comment on the proposed amendment should the Commission wish to act ihis amendment cycle. Their spscific comments are addressed in ihis memo within each appropriate sec Lion. The Honorable John M- Roll and the Honorable Cindy K. Jorgenson provided «joint letter describinf cases in the district of Arizona involving \bt smuggling and transportation of minors. These judges request that the Commission provide enhancements under die smuggling guideline (§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 will need to revisit §2Ll.l next amendment cycle in order to address the end-angerm.cnt of minorsPart I: §2L1.1 Smuggling, Transporting, or Harboring an Unluwful Alien Entering the United Stales to Engage in Subversive Activity

;;.

In ail effort to address the increased concern regarding aliens who pone a threat to the security nf the United States, the proposed amendment provides three new options. These new options strive to address the following issues: 1) a desire expressed by the De-.partme.nl of Justice (before publication for public comment) to expand the. scope of the base offense level under this guideline to included all violations of S U.S.C. § 1327, and 2) concerns relating to national security, which, due to directives to the Commission, may preclude Lhe addition of a specific offense characteristic based on terrorism related conduct.

-i £ •$/ '|| $ '•£. jfs

Options 1 and 2 provide new base offense levels for cases in which lha defendant knowingly smuggled, harbofri'ji', or transported an alien inadmissible under S U.S.C. g I LS2(a)(3) (relating TO aliens inelj gible tov;receive visas and enter inWthe United States due to security and related grounds). Option/I provides an alternative base offense level (all 1) of level [25] if the defendant was convicted under 8 U.S.C. § 1327 of a violation involving an alien who was inadmissible undec-8 U.S.C. § 1182(a)(3). Option 2 provides another alternative base offense level (a)(l) of level [25) if the defendant knowingly smuggled, transported, or harbored an alien in-admissible under8 U.S.C. $ 1182(a){3), regardless of whether tlic Uefendanl was convicted of sjch conduct. Th'e'rcommentary makes clear that the application of the base offense level in

I 'fk 'M ' || ^ ?£ ;| ~ " '32 ';•'

option 2" requires.only that the defendant kno\ the alien is inadmissible, not that the inadmissability was related to security issues. The primary difference between these i wo options

'•% -S

is that option 1 is Based upon Lhe offense of conviction, t\nd optiuTi 2 is based on the knowing acis of the defendant, regardless of the offense of conviciion. Both options 1 and 2 provide bracketed language thai would limit the categoric* of inadmissible aliens considered under these base offense levels. Staff was concx-med that i

*: ',-

_, 09:38 FAX 2023129874 r/2004 17:35 FAX 202 6165748

MSTPCC CENTER ALIEN

subsections of 8 U.S.C. § 1182(a)(3) may be too broad. The bracketed language is targeted lo aliens who seeks to enter the United States to engage in auvivilies relating to: 1} espionage 2) opposition to the United States by force or violence, or 3} rcn-orism; or, if the defendant has an association with terrorise organizations. Additionally, specific offense characteristic (b)(4) provides a f2-6] level enhancement if the defendant knew that the alien that was smuggled, harbored, or transported intended to commit a crime of violence or a controlled substance offense. This specific offense characteristic would not apply if base offense level (a)(l) is applicable. Option 3 provides anew application note, 8(C), to address the case in which a defendant smuggled an alien who intended to enter the United States 10 engage in a terrorism offense. Originally presented to the Commission and published, for comment in Ihe form of a specific offense characteristic, due to potential problems with a terrorism directive contained In the PATRIOT Act, staff fell upward departure language was appropriate to address this specific concern. Public Conunenl The Department of Justice agrees with the underlying premise of the proposal, "that those who illegally smuggle people into this country should he punished differently depending upon the ajien's purpose." However, the Department advocates a different approach, Specifically, the Department advocates that smugglers who enable Terrorists Lo illegally enter this country undetected should not be able to escape increased liability simply because they did not "know" what speciiic illegal wcl the alien intended to commit. Therefore, they recommend u strict liability standard rather than imposing a knowledge requirement. The Department suggests a reworking of tho specific ofl'ense characteristics addressing this issue?. The Department would like to see an increase; of |2 - 6J levels based on the number of aliens smuggled that intended to engage in a crime of violence or controlled substance offense. Additionally, the Department suggests an increase of \ - 6] levels based on the number of aliens smuggled that arc inadmissible is defined in S U.S.C. §

POAG suggests that gathering the facts to warrant the proposed enhancements in (b)(4) may l>c difficult for the probation officer to obtain, They suggest the issue may be resolved if the language tracks the provisions found in 8 U.S.C'. § 1327 wherein the charging document *ould outline ihe specifics of ihe conduct. Number of Illegal Aliens The modifications addressing this issue remain unchanged from the version of the amendment published for public comment- Additional offense level increases to the table in §2Ll.l(b)(2) are • provided to address the number of aliens involved in thu offense. An increase of f 1 1-12] levels

JU14

„ _ . .J:38 FAI 2023129874

JV*

X / - Ji>

fAA.

AUA

U.L0I? f 90

would be applicable if The offense involved 200 co 299 aliens, and an increase of [13 -18] levels would be applicable if the offense involved 300 or more aliens. "Ilia current upward departure provision m Application Note 4 has 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 the offense involved more than 100 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 enhancement, as well as the 10 upward departure cases. A summary of the findings will be provided to the Commission at ihe April meeting. Public The Department of Justice supports this portion of the amendmcmr, and 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. The FPD recommend two level increments for this amendment. Overall, however, the PPD advise the Commission ro kct^ enhancements to a minimum, due lo "serious issues for obtaming evidence and preserving testimony of mutensil witnesacs" as & result of ihe usually quick deportation of witnesses in these cases. Offenses Involving Death The proposed amendment addresses the inadequacies of ihe cujrent guideline to provide sufficient punishment in smuggling cases involving death. This proposed amendment removes the increase of eight levels "if death resulted'' from the 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 tfifleJ^eHncrease for Ihis specific offense characteristic will ensure that defendants who receive the lowest base offense level al §2Ll.i (level 12) will receive punishment commensurate w.i^ ^defendants convicted of involuntary m«n.sUiughLer involving the reckless operation of a means of Transportation. 1

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 the offense level dctc'rmihcd under §2Ll ,1. The one change^riaele in this aren addresses multiple deuihs, The proposttl amendment provides , jiut'kopjing an upward departure if more than one cleuth occurred during the

Of ihe -1*84:3 eases, 100 cases were excluded duo 10 missing departure information. •'.•<' .

d

004 09:38 FAX 2023129874 / : J 3 TAA £V£ O J . O O / 4 O

MSTPCC CENTER

l&| UJ.O

AJ-.1JB.W

smuggling offense. Initially presented w the Commission as a special instruction ai tJ2Ll.l(d) s after review, the team concluded this structure would not work within the confines of relevant conduct as it operates in §2L1.1 offenses. The Team feels the bast approach would he to address ihis with upward departure language. Public Comment The Department of Justice supports the three amendments as prwsemcJ for public comment. The Department, referencing the floor offense level for offenses involving death, recommends the Commission provide, an increase commensurate toother guidelines where the underlying criminal conducl results 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 language Thai was published) woxild be the prefeued way to address this issue. The FPD suggest that the specific offense characieristic regarding, death would create serious due process problems, particularly us Lhe enhancement applies based on relevant conduct of others und is not limited to conduct for which (he defendant alone is responsible. FPD states dial in cases of chis nature, the government often indicts every person remotely connected to Che offense. Purl 2: §2L2-2 Fraudulently Acquiring Documents Relating to Naturalization, Citizenship, or Legal Resident Status for Own Use; False Personation or Fraudulent Marriage 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, and summarizes relevant comment. Attached lo Lhis memo are 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 following 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 purlieulur guideline, especially in light of national security concerns. The proposed amenrJme.ni provides the option for [he Commission to increase the 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, keeping rhc base

''S •ft

1004 09:38 FAX 2023129874 l.t-,39

TAA ZU2 01BJJY48

MSTPCC CENTER 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 Lo work with the Commission during next term to propose raising ihe sentences for crimes relating to Lhe 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. Guideline 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 the 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 the 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 who commiL the instant offense after sustaining a felony conviction(s) for immigration and 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 the defendant is an unlawful alien who previously was deponed. Fifteen defendants received an increase of two levels al specific offense characteristic (b)(2)(A) for committinfi the instant offense after sustaining a conviction for a felony immigrarion and 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') convictions for felony immigration and naturalization offenses. Public Comment The Department of Justice did not comment on these potential increases to the existing specific offense characteristics in §2L2.2(b)(J) and (b)(2). However, these increases would satisfy their concern regarding the overall severity of sentences received under §2L2.2. The Department of State recommends no increase lor §2L2.2(b)( 1) (addressing unlawful aliens who have previously been deported). However, ihu 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 two 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 naLuraJizalion offenses) from four to six

2004 09:38 FAI 2023129874 17J35 FAi ZU2 B1B5748

The FPD oppose any increases based on prior convjolkms, especially when those convictions are not subject to the criminal history rules in Chapter Four. Should the Commission wish to promulgate this amendment, FPD suggest subjecting these prior convictions to traditional criminal history limitations. Kef (prig1 ftnts Posing a Threat to the Security of lire United Slates The proposed amendment provides two options for addressing ihis particular concern. The first option, which was published for public comment, provides a [4-lOJ level enhancement in §2L2.2(b)(3) if the defendant was a fugitive wanted for a felony offense in the Hinted States [or any other country]. Option two, which was not presented in the proposed nmendmenl for public comment, provides an alternative to option 1. Option 2 provides a 1.4-10] level increase if, at the time of the offense, the defendant was inadmissible under1 8 U.S.C- § 1182(ii)(3). Should the Commission choose to adopt one of Ihe alternative base offense levels presented in §2Ll, 1, Option 2 -wil) help roamtain consistency between §2Ll,l and §2L2.2 in cases involving inadmissible aliens, Public Comtnenr The Department of Justice supports the addition of the specific offense characteristic addressing fugitive status. The Department recommends the enhancement be accompanied by an application note addressing (he type of evidence necessary to prove this status. The Du-paranent of Suit© recommends modifying the proponed specific offense characteristic regarding fugitive status 10 provide DTI eiyru level increase if the defendant is wanted for a ctirne of violence or conirolJed substance olTcnse, and an increase of four levels if the defendant is wanted for any other I'vlony offense. POAG opposes an enhancement in the case of u fugitive from another country. The group excesses concerns regarding: I) timely obtaining foreign criminal arrest mfonriai&n;:2>fugitives from foreign counrrtes who are escaping political or religious prosecution; and 3) potential conflict with Chapter Four of The Guidelines Manual POAG takes no position with regard lo fugili ve status from a 'United Stales jurisdiction. but notes, a potential conflict with Chapter .Four in ilia! mere tu-j-usts ctuinot be uonsidtred in dclerminmg »n upwtird depanuro in a defendant's criminal history category. The FPD-ioppose any enhancement for fugitives wanted in anoihtr counrry. The FPD suite that fugitive siaius in anoihw country should be excluded for The same reasons foreign csnviclions are excluded from criminal history u-uini.niunions under Chapter Fuur: "Fugitive -warrants may have been obtained without regard tu ihe most basic due process guarantees or may reflect political or religious prosecution, which would be very difficult for a defendant 10 prove.1'

I «

-.IS.

2004 09:38 FAX 2023129874

MSTPCC CENTER

Offenses Involving United States Passports Finally, the proposed amendment provides a [2-8] lave] enhancemcru ai §2L2.2(b)(4) if the defendant fraudulently used or obtained a Uniicd Stales passpon. Commentary is added to clarify that "use" includes eases involving attempts 10 renew previously issued passports. Public Comment Colin Powell, Secretary of Slate expressed his thanks to the Commission for considering this proposed amendment, wnd commented thai "mitititaining the integrity of U.S. passports and visas is a critical component of our globril effort to fight terrorism, in addition to ensuring that our immigration policies and laws arc enforced." Secretary Powell slated thai this amendment "will be u clear signal rhai incs United Slates Government recognizes the severity of pass port and visa fraud and the importance of maintaining our border security." Secretary Powell also cited a U.S. passport as the "gold standard" of all passports. The Department of State, concerned with the integrity of passports and visas ar ihe core of U.S, border security efforts, suggests modifying llite specific offense characteristic Lo read as follows: sTf the defendant used a counterfeit or forged passport or visa, increase by 4 levels; if the defendant fraudulently applied for a U.S. passport or visan 5ncrca.sc by 6 levels; if the defendanl used a fraudulently obtained U,S. passport or visa, increase by 8 levels.1" The Department of State also comments that someone convicted of a false statement before law enforcemeni or judicial officials would face a base offense level of 14 under §2JL2. The Department of Justice supports adoption of ihis proposed specific offense characteristic, but recommends n Slightly revised tiered enhancement. The Department proposes a four level increase if the defendant Iraudulenlly obtained or used a U.S. passpon, and an eight level increase if rhc defendant fraudulently obtained or used a U.S. passport intending to enter the U.S. to engage in terrorist activity. The Department believes this new specific offense characteristic properly distinguishes cases involving U.S. passports from cases involving visa fraud or foreign passports; and visas. The Department also supports the enhancement's fi/niied scope: that is, it applies only if the U.S. passport was fraudulently obtained or used. The Department believes that this specific offense characteristic should be accompanied by an application note staling that ''use" should be defined to include the attempted renewal of U.S. Passports as well. The PPD oppose any special treatment for obtaining or using passports. If the increase is based upon some speculative national sMwurily risk, thai issue may be addressed by application of the terrorism enhancement in §3A1.4-,

MSTPCC CENTER

>004 0 9 : 3 8 FAX 2023129874

AL.11SM

! J O rAA 2U2

§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) and one count of false claim to U.S, citizenship (18 U.S-C- § 911). Defendant attempted Lo enter Lhe Uni led States i n San Ysidro. Defendant has prior juvenile convictions for robbery and burglary. Defendant has prior adult convictions for assault, sale of cocaine base, attempted robbery and robbery. Defendant has an airesc warrant outstanding from a 1997 robbery. Defendant was previously deported from the United Stales. Case Number 559222

District Texas Western

Sentence Received 6 months

Criminal History

m

Defendant pled guilty to one count of fraud and misuse of documents (18 U.S.C. § 1546.(a)). Defendant is a 19 year old Mexican citizen who came to a border checkpoint and presented a false resident alien card that he purchased For $500 in Mexico. Defendant was born in Mexico, entered the U.S. illegally and worked in the U.S. Tor iwo years. He relumed to Mexico ui visit his ailing mother, and was can his way back lu Chicago to be \viiri his vvifc and Children when arrested. Defendant was previously deponed from the United States. Defendant has prior convictions for battery and possession ol a controlled substance. Ai the time of the instant offense, defendant \vaa on probation. Due 10 probation violations and a subsequent arrest, the defendant has an outstanding arresr wiirrfl.ru.

Case Number: £;•.,

District

541,521' '•-.'-. California Southern

Sentence Receded 1 1 montlisS

it-

'•!_ .V

Criminal History

n

Defendant, a Jamaican citizen, pled guilty to one count of false claim ru U.S. citizenship (IS 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. 10 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 has prior convictions for: false statements hi-application of a pas^pon, and illegal rixniry, Defendant has an outstanding bench warrant for'failure to appear in relation to felony drug charges.

In

.4-.

_ 2 0 0 4 0 9 : 3 9 FAX 2023129874 20U4 1T:3« JrAi 2UZ B1B5748

ALIEN

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

Case Number 541661

District Arizona

Sentence Received 36 months pruba.li.on

Criminal History

TV

Defendant pled guilty to one count of false statement in acquisition of a passport (18 U.S.C. § 1542). Defendant was a candidate for ihe Scottsdala, AZ city council and withdrew after questions regarding his identity arose. After further investigation defendant revealed he was a fugitive living under 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 guilty by jury of obstructing, impeding, and interfering with a firefighter and law enforcement officer. Defendant was participating in a protest demonstration on a college campus. Defendant was sentenced to 5 years. Defendant failed to appear for sentencing. In 1976. defendant obtained Identification documcnrs, including a U.S. passport under an assumed identity. The dcfeadant obtained two renewal passports under the same assumed identity in 19&2 and 1987- The instant offense of conviction is the result of the defendant's third renewal of ihe passport in 1997.

Case Examples Involving the Possession of United Stales and Foreign Passports Case Number

District

Sentence Received

Criminal History

;.H ?'

•}

541671

California Northern

46 months

V

Defendant is convicted of one count of illegal reentry following, deportation (8 U.S.C. § 1326) and one count of false statement in a passport application (IS U.S.C. 5 1546). Defendant arrested for driving while under the influence of alcohol. Defendant presented A U.S. as identification to the arresting officers. Dcfcnd:ifti obtained this pass-port using a birth certificate and sociyj security number under someone else'? name. Defendant is a native of Mexico. Defendant was previously deported following a corwiclion for sale of a controlled substance. Defendant also has a prior conviction for illegal reenxiy; arid again was deported after that conviction. Defendant's children and fiancee live in San 1'rancisco.

13

MSTPCC CENTER

F2004 09:39 FAX 2023129874

Case Number

District Virgin Islands

576054

JUZZ

AL.11SW

2U2

Criminal History

Sentence Received time served fapprox, 9 months)

n

Defendant pled guilty to one count of fraud and misuse of documents (18 U.S.C. § 1546(a)). Defendant a citizen of (he Dominican Republic, entered the Virgin Islands with a Duminican Republic passport. The passport stamp indicated, he wiis a lawful, permanent resident of ihe U.S.. The passport had been altered, had a false najne, and false biographical pages. 11993, the defendant was gonvicted for illegal entry, after which he was deponed. In 1999, the defendant was conviciecl of illegal reentry, after which he was again deported. Defendant reports thai he was entering the United Stmcs lo find work to financially assist his ill mother.

Case Number 576063

District Virgin Islands

Criminal History

Sentence Receiver! 2 months, with credit five lime served from 2/26/01 to 3/14/0 (

T

Defendant pled guilty to one count of fraud and misuse of documents CIS U.S.C. § 1546(a)). Defendant, a citizen of Guyana, presented himself tit the Virgin Islands airpon under a false name with a false Barbados passport. The passport hud a substituted photo and altered information. Defendant stated that he com mi lied the offense because h« wanted u,> yei political asylum from Guyana, which was experiencing race HOLS. Defendant has no prior arrests and no prior convictions.

Case Examples Involving Attempts to Obtain U.S. Passports Case Number 577023

District Texus Southern

Sentence Received 1 year probation

Criminal History

1

Defendant convicted by jury of one count of false staiemem in applicriiion for a U.S. passpon (18 U.S.C. § 1542). Defendant, born in Nigeria, had been gnmicd permanent residency status in the U.S. Defendant wanted lo go to Great Britain where her fiancee resides, but was denied visa by the British consulate. Defendant then usc<J Ihe Texas ID card and name ojf a former coworker to apply for an American passpon. Defendant has no prior arrests and no prior convictions.

MSTPCC CENTER

T2004 J./.00 09:39 TAA FAI £2023129874 U £ OJ.OO/4O

Case Number 562958

District Florida Southern

Criminal History

Sentence Received 2 years probation

T

Dafcndsmt pled guilty to onfc count of false statement in application for a U.S. passport (18 U.S.C. § 1542). Defendant, a Colombian citizen, used a fraudulent birth certificate and social security card to apply for a U.S. passport. At the time of the instant offense, defendant was in the country legally on a student visa. Defendant reports he purchased the fraudulent documents in order to further his goals of working und siudying in ihe U.S. Defendant hag no prior arrests and no prior convictions.

Case Number 561878

District Florida Southern

Sentence Received 143 days, wjih credit for time sevvud (amount unknown)

Criminal History

I

Defendant pied guilty to one 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

Criminal History

Sentence Received 2 years probation

1

Defendant pled guilty to one count of false statements in an application for a U.S. passport (IS U.S.C § 1542). Defendant, an Egyptian citizen, cs\mc lo the U.S. in i 990 with legal work permit In 1995, INS revoked hb work permit. Defendant wits never coniacted about deportation. Defendant purchased a.fatuUul&ntbirth certificate and social security card for himself and 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 prior convictions.

Case Number 563S73

District

Florida Southern

Criminal His 1017

Sentence Received

2 years probation

1

F2004 09:39 FAI 2023129874 -

Aid inn

O1OO/1O

Defendant pled guilty to one count of false statements in an application for a U.S. passport (18 U.S.C. § 1542), Defendant, an Egyptian citizen, came ro Ihc U.S. in 1991 with under valid circumstances. In 1995, TNS revoked her husband's work permit, Defendant's husband purchased a fraudulent birth certificate and social security card for himself and his wife 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 prior convictions.

Case Number 535930

District New York Southern

Sentence Received 3 years probation

Criminal History

I

Defendant pled guilty lo one count of fraud in relation lo identification documents (IS U.S. § 1028(a)(4)). Defendant applied for a U.S. passport with a fraudulent birth certificate. Defendant failed to appear for removal/deportation proceedings approximately 10 months prior to the commission of the instant offense. Defendant has no prior arrests and no prior convictions.

Case Number 579813

District Florida Northern .

Sentence Received 36 months

Criminal History VI

Defendant pled gxulty to one count of false statements in a application for a pussport f IS U.S.C. § 1542), Defendant, is a US. citizen with an cxlenfivc oriminul history (28 criminal history points). Defendant applied for a passport using another person's identity; he possessed a fraudulent birth certificate. Defendant stated that he committed ihc ofTense because he wanted to get a fresh start because he has had such difficulty finding employment given his criminal background.

Case Number 547067

District New York Southern

Sentence Received 1 year probation

Criminal History

I

pled guilty to one count of possession of false identification documents with the intent to defraud/the U.S. (18 U.S.C § 1028(a)(4)). Defendant auempted to obtain a U.S. passport to travcj'to Morocco to meet (for the first time) his fiance" of 2years. Defendant purchased a fraudulent birth certificate and social security number, applied I'or and received a drivers license using those documents. Defendant came to the U.S. in 198S with a visitor's visa; it has expired. Defendant has no prior arrests nnd no prior convictions.

>, :•",

MSTPCC CENTER '

2004 09:39 FAX 2023129874 oiDO'49

Csise Number 5639 LI

District 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 following a.nighi of drinking in El Paso, his wife drove across ihe 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 for possession of cocaine. Parents and siblings live in U.S. permanent resident status. Defendunt is married and htis one child. Case Example with Potential Security Risk

Case Number ' 575996

District Texas Northern

Criminal History

Sentence Received 3 years probation

J

Defendant pled guilty to one counc of false statements on TNS Fornii-9 (18 U.S.C.'§ Defendant entered the U.S. in 1998 in New Jersey. Defendant obtained social security card in Pennsylvania using his Kenyan passpon and INS 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 joined die U.S. Army in Feb. 2000. Defendant is ranked private first class. Defendant falsely represented himself as an immigrant alien in order ro enlist in the U.S. Army. Defendant lias no prior airesis and no prior convictions.

2004 09:39 FAX 2023129874 O.LOO/4O

COMMENTS SUBMITTED TO USSC REGRARDTNG 2L1.1 IMMIGRATION J. Alien Smtiggline We agree with the underlying premise of the proposal -i.e., that those, who illegally smuggle people into the country should be punished differently depending upon the alien's purpose. However, we believe it should go further if it is to have effect. A. Entering the United States to Engage in Certain Aciivitv The proposed new specific offense characteristic would require that the 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 the 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. We 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 the guidelines do not adequately address are the smugglers who 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, the 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 harbored an alien, who (A)

entered the United Stales A.

to engage in a crime of violence or controlled substance offense, increase by:

09:39 FAI 2023129874 2UZ

B.

(2)

i)

two 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,

to engage in terrorist activity, increase by [1 2] levels, but if the resulting offense is less than [32], increase to level [32].

was inadrnissable as defined in 8 U.S.C. jj 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 is particularly dangerous - as described in 26 U.S.C. § 5845(a) or 18 U.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 LI . l(b)(2). A person who smuggles six aliens barred from entry because they were designated terrorists should receive a substantially higher increase than just the 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 involving manslaughter 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

/ * u ui i I . V»f rfl-a. t-vc. uj.«i><"*o

while the third proposed amendment would also address incidents of multiple deaths. We 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), 2M6-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 of either 11 or 12, for the first set and either 13,15 or 18 for the second. We believe increases in offense levels of 12 and 15 for the two new groups would be an appropriate extension of the enhancements already assigned to the lower levels. This would result in increases of three, six, nine, 12, and 15 levels for the entire specific offense characteristic. Jt would 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

for example, §2D2.3(a)(l) (base offense level 26. if"death resulted from operating or directing the operation of a common carrier under the influence of alcohol or drugs).

MSTPCC CENTER

,72004 09:40 FAI 2023129874

ZUZ D1DO749

USSG, §2L1.1, 18U.S.C.A. UNITED STATES CODE ANNOTATED FEDERAL SENTENCING GUIDELINES CHAPTER TWO-OFFENSE CONDUCT

PART U-OFFENSES INVOLVING IMMIGRATION, NATURALIZATION, AND PASSPORTS 1. IMMIGRATION Copr. "> West Group 2003. No claim co Orig. U.S. Govt. Works. As 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 vIulaLiuii involving au aliuu wbu pic^luujl.y Wiiir tier/01 Li^l tiLiicr ti^cwpncoou icx
; Increase : in level

(A)<3-24

: Add 3.

(B) 25-99

:

Add 6.

(C) 100 vi mure- 199

:

Add 9.

(D) 200-299

: Add 12

(E) 300 or more...,-,.

:

Add IK

,72004 09:40 FAX 2023129874 ,/2UU4 17!37 FAA 202 B16574B

MSTPCC CENTER ALlIiM SMUGGLING

(3) Tftlie offense involved the smuggling, transporting, or harboring of Inadmissable aliens as defined in 8 USC Il82(a)(2)or (3);

Number of inadmissable or unregistered aliens, smuggled, transported, or liarbored

: Increase : in level

; Add 2 (A)2-S

; Add 4.

(B)6-20

: Add 6.

(C) 20 or more

: Add 8.

ift (4) Tf the defendant committed any part of the instant offense after sustaining (A) a conviction for a feloay immigration and namralizjition offense, increase by 2 levels; or (B) two (or more) convictions for felony immigration and naturalization pffenses, each suet) conviction arising out of a separate pxoseconon, increase by 4 levels. W (S) (Apply die greatest): (A) If a firearm was discharged, increase by 6 levels, but if die resulting offense level is less than level 22, increase to level 22. (B) If a dangerous weapon (including a firearm) vas brandished or otherwise used, increase by 4 levels, but if the resulting offense level Li less than 20, increase to level 20. (Q Tf a dangerous weapon (including a firearm) was possessed, increase by 2 lovely, but if the resulting offense level i* less than level 18, increase to level 18t5> (6) If die offense involved intsntiomily or recklessly creating a subsianrial risk of dcaih or serious bodily injury 10 another persou, inurfease by 2 levels, but if the resulting offense luvel is less titan level 18, muraass 10 level 18. f6) (7) If any person died or sustained bodily injury, increase die ofifensft level ueeordiug to the seriousness of the injury: Deafli or Degree of lujury (1) Bodfly tnjury : (2) Serious Bodily Ttuury (3) Permanent or Li re-Threatening Bodily Injury .. (4) Deadi

: Increase in Level : : •. :

add 2 levels add 4- levels a.dd 6 levels add S levels.

(8) If during the course of the offense an alien was {A) physically restrained, increase by 2 levels; or (B) if restrained or detained by coercion, implied tlireat, fear or deception, increase by 1 level. (c) Cross Reference If any person was killed under circumstances that would constitute murder under 18 U .B.C.- £ 1 111 Jia.d s killing taken place wirjiin the special maritime and territorial jurisdiction nt" the United States, apply die appropriate murder guideline from Chapter Two, Pun A. Subpurt 1.

,72004 09:40 FAX 2023129874 ./2004 17:37 FA1 202!' 6165748

MSTPCC CENTER ALlbM SMUUULiMU

31

U.S. Department of Justice Criminal Division

Dem«u<e Security Section

Vadiitigtoii. D C 2

April 2, 2004 MEMORANDUM To:

Jonathan Wroblewski Office of Policy and Legislation

From:

Teresa Mcriemy Chief, Domestic Security Section

SUBJECT:

Summary of Proposed Changes to U.S.S.G. 2Ll. 1

The Domestic Security Section, working with a number 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 defendant was convicted under 8 U.S.C g 1327

(.I/tU4.frI//1. t-fj WL

QtOtijt or This amendment to 2L1. l(a)(l) removes the distinction between a conviction under 8 U.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 treatment between those who are inadmissable because ihey have been ' 8 U.S.C. § 1327. Aiding Or assisting cercain aliens to enler Any person who knowingly aids or assists any alien \midmkslblii uMer section 1182(a)(2) (insofar as an alien inadmissible under such section has bean convicted of an aggravated T'elouy) or 1182(u)(3) (other rhau 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 alienTOenler the United SWKK, shall be tiiwd under Title 18, or imprisoned not more than 10 years, or both.

V2004 0 9 : 4 0 FAX 2023129874 Y;3Y l-'AA

MSTPCC CENTER

convicted of certain specified crimes and those who have been previously deported for thenconviction for those crimes. The CoTntnission has already recognized that those convicted of knowingly aiding or assisting the reentry of an aggravated felon who has been deponed should received a substantially higher sentence than those Convicted of the same conduct where the alien has no such prior record. The Domestic Security Section submits that the same increase should apply to those who knowingly aide or assist aliens to enter into the United States who have been determined to be inadmissable due to "Security or related grounds" or who have been convicted anywhere of certain serious crimes. 8 U.S.C, 8 '1327 is the result of Congressional recognition that certain aliens pose a heightened risk co the safety of the citizens of the United States and thai those who knowingly assist their illegal entry into this country should be punished distinctly from the provisions of 8 U.S.C. § 1324 which applies to all aliens who attempt to enter the country illegally. However, U.S.S.G. 2Ll.l(a)(l) only applies to a limited subgroup of those convicted under § 1327. The Domestic Security Section believes, for example, that those who knowingly assist aliens, who have engaged in terrorist activity or who have been convicted of murder in another country, to illegally enter the United States, should be subject to the same guideline same as someone who illegally assists the reentry of an alien who was deponed after a conviction for attempted burglary of a motor vehicle. 2 Proposal 2: (New subsection) 2LLl(a)(2)

J9

if the defendant was convicted wider 8 U.S.C. § J324(a)(2)(B)(i) or (U), or J324(a)(l)(A)(i)( in which the offense was done for the purpose of commercial advantage or private financial gain).

This proposal would add a new subsection to reflect die Congressional enactment that those convicted of violations of 8 U.S.C, § 1324(a)(2)(B)(i) or (ii) shall, for a first offense, be sentenced to not less than 3 years incarceration. The Domestic Security Section also believes that this new base offense level should apply to similar convictions under §1324(a)(l)(A)(i)( in which the offense was done for the purpose of commercial advantage or private financial gain). Proposal 3; (amendment of 2L1. l(a)(3) increasing base offense level) « 14, otherwise. " The Department proposes increasing the base offense level for most smuggling, transporting, or harboring illegal alien cases to level 14. Presently, the guidelines provide for a sentence of 10 to 16 months (assuming no acceptance of responsibility) for an individual

- See Untied States v. Re'moso.

F3d

, 2003 WL 22715589 (2d Cir, New. 17. 2003)

2

,/2004 09:40 FAX 2023129874 ./2004 17:37 FAX 202 8185748

MSTPCC CENTER ALIEN

l^J IfflU IfflUOO

convicted of transporting 5 unlawful aliens. Given the magnitude of the problem involving illegal aliens entering into this country and the national security concerns in having persons enter into the United States withour any idea of -who they arc, especially in light of the events of September 11, 2001, the Domestic Security Section suggests thai a base sentence of 15-21 months is appropriate.

Proposal 4: (amendment of 2L1.1 (b)(2)) "(2) If the offense involved the smuggling, transporting, or Imrhoiing of six or more unlawful aliens, increase as follows:

Number of unlawful aliens smuggled, transported, or harbor&fl

Increase in level

(A) 6-24

Add 3.

(B) 25-99

Add 6.

(Q 200trr-tnore-J99

Add 9,

(D) 200-299

Add 12

(E) 300 or more

.,•

AddlS

The Domestic Security Section recommends adding two new levels to the Specific Offense Characteristic dealing with the number of unlawful aliens who are "smuggled, transported, or harbored" so that punishment for these offenses continue to increase incrementally for the larger enterprises. Presently, the guidelines treat defendants who are found guilty of smuggling 100 or 500 aliens identically (absent an upward departure). In both cases, the current base 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 smuggling, transporting, or harboring at least 300 aliens would receive a more appropriate sentence of at least 97 months.

0/2004 09:40 FAX 2023129874 ^/2004 17:37 FAX 202 6165748

MSTPCC CENTER ALIEN SMUGGLING

Proposal 5: (New subsection) "(3) If the offense involved the smuggling, transporting, or harboring of triad missable aliens as defined in 8 USC U82(a)(2) or (5): Number ofinadmissahle. or unregistered aliens, smuggled, transported, or harbored

; :

Increase in le\>d

(A)l

:

(A) 2-5

;

Add 4.

(B)6-20

;

Add 6.

(C) 20 or more

-

Add 8."

2L1.1 currently treats defendants, convicted under § 1324 for the illegal smuggling of unlawful aliens, the same regardless of whether the alien is "unlawfully in this country" because he: 1) has been previously deported, 2) is barred from entry because of ties to terrorism or has a serious criminal record, or 3) because they have failed to have a proper visa. The Domestic Security Section recommends that a new Specific Offense Characteristic be added that would take into account certain aggravating factors i.e., whether the person is barred from entry pursuant to the provisions of 8 U.S.C. § 1182(a)(2) or 1182(a)(3). Under this new S.O.C., the threshold for increases would be much lower it' the unlawful aliens posed an enhanced threat to the security of the United States either because of their prior criminal record or because of their ties to terrorism.

Proposal 6t (New Subsection) "(8) If during the course of the offense an alien was (A) physically restrained, increase by 2 levels: or (B) if restrained or detained by coercion, implied threat, fear or deception, increase by 1 level." This new subsection would reflect a type of conduct that occurs relatively often in alien smuggling cases but is not taken into account by any guideline factor. § 3A1.3 (Restraint of Victim) states that "if a victim was physically restrained in the course of the offense, increase by 2 levels." A number of prosecutors have told us of cases where the unlawful aliens are coerced, without the use of physical force or even direct threats, into remaining in "safe houses" for long periods of time through coercion, implied threat or deception. This is done so that ihe smugglers can get more money from the families of the aliens or so they will

,5/2004 09:40 FAX 2023129874 1 Y : 3 Y rAA 2U2 0.1.00 Y 48

provide inexpensive labor.

MSTPCC CENTER

1^035