T5 B8 Chapparro Human Smuggling Fdr- 3-30-04 Fax From Chapparro Re Sentencing Guidelines- Staff Recommendations- Comments- Us Code- Memo 697

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MSTPCC CENTER

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

FAX

HSTC To:

Susan Ginsburg

Office:

From: Jim Chaparro

Pages:

Phone: (202)312-9685

Date:

9/11 Commission

March 30,2004

Subject sentencing guideline issues

CLASSIFICATION:

Q TOP SECRET D SECRET Q CONFIDENTIAL

D SENSITIVE BUT UNCLASSIFIED (SBU) D UNCLASSIFIED Comments:

IE LIMITED OFFICIAL USE (LOU)

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STAFF RECOMMENDATIONS; IMMIGRATION •Staff recommends lhai the Commission defer any action on these proposed amendments until a more comprehensive package addressing all 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 resiilHn- inconsistencies acrosa Ihe breadth of immigration guidelines as *'dJ as frusvaie 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 thfi other immigration guidelines not addressed by this amendment. The Commission may wish to gather niore 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 ail of the options found in the proposed amendment, and they arc outlined below. Part 1; S2L1.1 (Smuggling, Harboring, Transporting Illegal Aliens) Issue I: Entering ihc United States 10 Engage in Subversive Activity Staff favors the 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 convjet]on under 8 TJ.S.C. § 1.327, knowing that the alien smuggledis inadmissible pursuant lo S U.S.C. § US2(a)(3). This would require the-=Govemment 10 prove the inadmissibility pursuant to the staiutory definitions in order to receive ttiis enhancement. Additionally, staff advocates adopting the bracketed language presented in optional that limics the subsections of 8 U.S.C. § 1182(a)(3) TO be used lo provide cfo.6 increased basef'offense level. Adoption of the bracketed language will alleviate the potentially broad, application of this option since some provisions of 8 U.S.C. § 1182(a)(3) may encompass moretriari the security risk This option is attempting to uddress. •i

Staff also favors retaining the upward departure language hi application note 8(Q to allow the court to upwardfy?depan in cases without convictions under S U.S.C. § 1327 involving inadmissible alicto^fcs defined in 8 U.S.C. § 1182(aX3), but where evidence is present thai the alien smuggled intended lo engage in terrorism related activities.

v?> Finally, staff rscjjjiHnends a two level increase at (b)(4) For defendants knowingly smuggling illegal aliens enfenng the United States intending to engage in a crime of violence or controlled substance offenste,!'

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fesue 2: Number of Illegal Aliens Staff does no: recommend adoption of Che 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 the-offenasinvelved-i-nore-than 100-aJienth-^The immigration Tearcvis-GUHe^tl-y-irHlVJ' process of reviewing these 57 cases as well as the ten cases involving upward departures in order to beccerprovide the Comroission with, a description of cases involving over 100 aliens. Should the Commission wish 10 adopt this amendment, staff recommends an increase of 11 levels for offenses involving 200 to 2P9 aliens, and au increase of 13 levels for offenses involving 300 or more aliens. Because the slope of the numbers involved on the left side of the Lable decreases as the numbers increase, staff feels thai Ihe increases in offense levels should not mirror the ihree level increments present in the first three subdivisions oj'this enhancement. jssue 3: Offenses. Involving £>eatb Staff recommends the Commission 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') wil] have punishment equal to those defendants convicted of involuntary manslaughter (which provides a hose offense level of 22 when the offense involves the reckless operation of u means of transportation). Staff also recommends adoption of the cross reference, as this will ensure chat if il\ offense involved the death of an alien committed by means other that manslaughter, the appropriate penalty will be determined using the applicable homicide guideline. This cross reference will apply only if the offense level determined under the appropriate homicide guideline results in a greater offense level than that determined under §2LL1. Part 2: §2L2.2 (Document Fraud) l% / -

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Issue 1: Increasi r>g.:ifhaBas& Offense Lcva| , .

Staff is opposed-&^!lany increas^in the base offense levd for this guideline. In 1997, the Commission recfei&i&'a directive as well as emergency amendment iiuihoriiy to increase the offense level for^2E2.1 (Trafficking in Fraudulent Dwumcnls) as \vcill as §2L2.2. Prior to 1997. the base offcnse';I:ev.6ls were nine and six, respectively. To implement, the directive, the Commission ino^fe'^ithe base" offense levels to 11 and eight, respectively. The rhree level separation of th^a$e'offens&ievels under 2L2.1 and 2L2.2 is a long slanding Commission policy representiH^jpie re!aiiv^.severity and consequently UK proportionality between these two offenses. Any irjc^^b in the'base offense level would overturn (.his long standing policy. •

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Issue 2: Increasing OffftnecJLevels in Existing Specific Offansa Characteristics Staff is also opposed to any increase in the existing specific Qff&nse characteristics that address previous deportations and prior convictions for immigration and naturalization offenses. Staff does not feel there is sufficient evidence to support an increase for these particular specific offense characteristics. Issue 3: Specific Offense Characteristics Addressing Security Risk Staff docs nol recommend adopting the specific offense characteristic addressing fugitive status, especially if that slaius is from another foreign country. This specific offense characteristic prese-nts potential conflict with the criminal hisiory 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 part 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) that considers the defendant's status as an inadmissible alien pursuant lo 8 U.S.C. § 1182(a>(3). Hcnvever, if die Commission decides to include this specific offense characteristic us pan of this amendment package, staff recommends including the bracketed language thai limits ihe potentially broad applicability of Ihis specific offense characteristic. Staff also Ibcls thai an increase of four levels is appropriate. Issue 4: United Stales Passports Staff" recommends adoption of the specific offense characteristic for defendants fraudulently obtaining or using United States passports. Slaff recommends an increase of four levels to address offenses involving the use of U.S. passports.

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REVISED PROPOSED AMENDMENT: IMMIGRATION Synopsis of Proposed Amendment: This proposed amendment addresses issues involving immigration offenses. Spaciftcalty, the proposed ame.ndme.nt makes changes io §§2L1.J (Smuggling Traitypitrting, or Harboring Qn Unlawful Alien) and 2L2.2 (Fraudulently Acquiring Document.'; Relating iff Naturalization, Cilizenshrp, -or Legal Resident Sia.ius.for- Own U$e; Kalxe Persoiiaium ar rn^duitini'MarHage byAUw- • tu Evade Immigration. Law; Fraudulently Acquiring or Improperly Using a United Stales Passport). Two issues far comment also are contained in IhLt proposed amendment. (1)

§2LJ.} (Smuggling, Transporting, or Harboring cm Unla\vful Alien) (A)

Entering the United States to Engage in Subversive AcriWty

In an effort to address the increased concern regarding aliens \vhv pose a threat to the security of the Untied Slates, the proposed amendment provides iwu options for cases in which the defendant knowingly smuggled, harbored or transported an alien aiadm'ssable under 8 U.S.C. § ll&2(a)(3)(relaring to aliens ineligible to reeulvt \>lxas and unter into the United States due to security and related grounds). Currently, §2L1.1 provide* a base offense level of level 23, if the defendant was convicted under $ U,S.C. § 1327 of a violation involving un alien who previously was deported after a conviction for an aggravated felony. Option 1 and 2 provide an alternative base vffense level of level 125) for offenses in which lha defendant knowingly smuggled, harbored, or transported an, alien who was inadruissible under 3 U.S.C- § ]182(a)(3). Options J and 2 differ in thai Option 3 requires a conviction under S U.S.C. $ 1327 for such conduct, "while, Option 2 applies regardless ofwhetlier the defendant was convicted of such conduct. The commentary makes clear t)iat application of the euhcmrerrusnt requires only that the defendant tanow the alien is inadmissible, not that the inadmissibiliiy was related to security issues. Option 3 provides encouraged upward departure Iruiguage jo address a case in which the defendant smuggled, transported, or harbored an alien fluwwing thai the} I and such} alien intended to enter tlie United Srtaex to engage in an off&as ntltaiftl lo terrorism. The proposed amendment aht> provides an enhanccmcm ai $2hl- I(b)(4) if the defendant smuggled,.harbored or transported] aji_alien knowing that the. alieit itaeiided TO enter the Untied States 1o engage in a crime of violence or a controlled substance offense-

(B)

Nianfev of-Illegal-Aliens'"'•••^jr?S

'

The'proposed amendment provides additional )(2)'r^lating to thenumtierofahens involved in the offense. An increase of[llj[22} Levels v/e>iifi|i& applicable under th& proposal ifihc offense, involved 200 lo 299 aliens, and an increase ErfJ.J.3-18] levels would be applicable If file offeree involved 300 or more aliens. The current ufyw^idepariure-proyinori'iitAjspKcation. Nme 4 lias been modified io reflect this

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Tij^etunendmentproposes tw% signififont changes ID Ihc guideline en cases in which dearh vccc?knfffi. first, the proposedtimSindmenf removes the iiirrseuti afelshi levels "if death

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resulted"from the current specific offense characi&risiic in 821.1.I(b)(6) addressing bodily injury and places this increase in a. fftind alone specific offense characteristic in §2L]J(b)(fi). 'rhis new specific offense characi&ristic provides an increase of'[10] levels. Second. I/re cross reference at §2L1, l(c) is expamled to caver deadis niher than, murder, if tits resulting offense level is greater than ihe offense level derenninetl under §2 U. I. (2)

IfHuiigracion Documentation Fraud Tfie proposed amendment makes several clianges to §2L3.2 (Fraudulently Acquiring Documents Relating LO Naturalization, Citizenship, or tegal Resident Status far Own Use; False Perscrnaiion or Fraudulent Marriage by Allen to Evadl Immigration Law; Fraudulently Acquiring or Improperly Using a United Stares Passport). First, ihe proposed amendment Increases the base offense level in §2L2,2(a)from level S iv I aval [8-12]. Second, ihe propos&d amendment increases by mo levels she current erJumrenvtnty in j)§2L2.2(b)(l) (regarding unlawful allenn wlio Imve been deponed on one or more occasions) /aid 2L2.2(b)(2) (regarding defendants who commit the instani offense after fitstaining a felony conv'sctionfor cut immigration and naturalization, offense). Tiib'tl, Ih-e propound amendment prcivides two specific offense characteristics for addressing the increased ccnccm regartllK$ aliens who pose a Threat w tiie security of the. United Sttttes, Specjfic offense characteristic (h)(3) provides a [4-lQJ-levei enhancement in §2L2.2(b)(3) if the defendant was a. fugitive wanted for u felony offense in the United Staces (or any other country). Specific offense, characteristic (b)(4) provides a (4-10) level enhancement if, at the rime of the offense, ihe defendant wax vn madmissable ah'en pursuant to S U.S.C. § Jl82(a)(3). Fatally, tlie proposed amendment provides an [2-3]-level cnhuncemem at §2L2.2(b)(5) Iflhs defendant fraudulently obtained or used a Untied Slaws passport. Commentary is added to make clear that "use" includes cases involving a» attempt to renew a previously issued passport.

Proposed Amendment: $21,1.1.

Smuggling. Transporting, or Harboring nn Unlawful Alien

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MSTPCC CENTER ALIEN SMUGGLING

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Specific Offense Characteristics (2)

If ehc offense involved die smuggling, transporting, or harboring of six. nr more unlawful aliens, increase as follows: Number qf Unla>vfaLAlleflS Smuggled Transported, or Harbored

(A) (B) (Q

Increasa In Leval

mid 3 add(J add 9:

6-24 25^99 100

i;tlo|$hoi|ippty,, and'the .defendant &nuggied. iis'eb-.L2-6! levels.

If any person JLvl ut suscamed bodily injury, increase the offense leval according CO the seriousness of tin- injury: Increase in udd 2 levels add 4 levels -• Pemarieiif'br-Eif e-rhreacen i n g Bodily Injury •

add 6 levels: add C kvalA.

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§21,2.2,

Fraudulently Acnuiriug Documents Relating to Naturalization. Citizenship, or Legal Resident Status for Own Use; False PctsonaUoa or Fraudtdcnt Marriage bv Alien to Evndc ImmigratioD Law: Fraudulently Acquiring or Improperly Using a United States j

(a)

Base Offense Level:

(b)

Specific Offense Characteristics (1)

If the defendant is an unlawful alien who has been dtoponttd (voluntarily or involuntarily) on one or more occusjgns prior \o ihe insiftnl offense, increase by 3[4j levels. If the defendant committed any part of the instant offense after sustaining (A) a conviction tor a felony immigration aiitl naturalization offense, iacrease by 2[^t] levels; or (R) two for mure) convictions for feloay immigration and naiuralizaricm offenses, each such conviction arising oui of a. separate prosecution, increase by 4L^J levels.

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ALiBIV

March 29,2004

MEMORANDUM TO:

Commissioners

FROM:

Immigration Policy Team TCrista Rubin, Chair Kealin Cuibreath Timothy Drisko Jeanneine Gabriel Larry Kupsrs Rache] Pierce

RE:

April Meeting Materials

The Immigration Policy Team (the Team) has continued to review the proposal 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 comment from: Secrewry of Stare Colin Powell,, the Department of Justice, the Probation Officers Advisory Group (POAG), The .Federal Public Defenders (FPD), The Criminal Law Gommtnce (CLC), and, from the District of Arizona, the Honorable Cindy K. Jorgenson and the Horicirable John M. Roll. Cornmenr specific to the proposed amendment Options will be addressed in ihis memo under each pertinent section. Both the CLC an'd'th&FPD advocate thai the Commission defer any action on this proposed amendment Ufliil.k-wjEnprehensive package can be developed. The CLC notes that the Commission has rna|tfrevisions to £2L1.2 (Unlawfully Entering or Remaining in (he "United Slates) in 2001, 200s&and 2003. The CLC also slates, "since acis of terrorism can be .separately chargad by the government, we support the delay in any revisions 10 the immigration guidelines until a comprehenstvVpackage can be developed." The FPD recomn3eridff.hat "the Commission delay until next cycle; any psinial amendments

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1^1013 1^1013

dealing with ihe immigration guideline . . . iL would be more efficient and appropriate to submit an immigration package (hat incorporates both appropriate reductions as wejl as any increases that may be required." TheFPD also suggest dim tho Commission collect information regarding how early disposition departures are being applied in These cases. However, the FPD have provided specific comment un the proposed amendment should the Commission wjsh to ?ici this amendment cycle. Their specific commence are addressed jn ihis memo within each appropriate six lion. The Honorable John M- Roll and the Honorable Cindy K. )orgenson provided o joint letter describing cases in Che district of Arizona involving the smuggling and transportation of minors. These judges request that the Commission provide enhancements under the smuggling guideline (§2L1.1) to 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 ihe Commission. However, these options were not published for comment. The Commission will need LO revisit §2LI.l next amendment cycle in order u> address the endan germ.cn t of minors. Part I: §2L1.1 Smuggling, Transporting, or Harboring an Unlawful Alien Enteringihs United Stales to Engage in Subversive Activity In an effort to address the increased concern regarding aliens who pone ti threat co the security of the United Slates, the proposed amendment provides three nc\ options. These new options strive to address ihe following issues: 1) a desire expressed by the Dc-partm&nt 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. Options 1 and 2 provide new base offense levels for cases in which the defendant knowingly smuggled, harbdre'ji, or transported an alien inadmissible under t> U.S.C. g I LS2(ii)(3) (relating TO aliens ineligible ro'ieceivft visas and enter into"theTJniTcd States due to security and related grounds). Option"! 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 aJien 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 inadmissible under8 U.S.C. § 1182(a)(3). regardless of whether the defendant was convicied of such conduct. Th"e'rcomrnentary maVes clear that the application of the base offense lcvc-1 in option 2'requires.only that the defendant kno\ the alien is inadmixxible, not that The inadmissability was related to security issues. The primary difference between these iwo options is Ihtkt option 1 is based upon the offense of conviction, t\nd option 2 is haxcd on the knowing acts of the defendant regardless of the offense of conviciion. Both options 1 and 2 provide bracketed languuge thai would limit the categories of inadmissible aliens considered under these base offense levels. Staff was concx-med that particular

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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 activities renting lo: 1} espionage, 2) opposition to the United States by force or violence, or 3) rcrrorisTn; or, if the defendant has an association with terrorist organizations. Additionally, specific offense characteristic (b)(4) provides, a [2-6] level enhnnccment if the defendant knew that the alien that was smuggled, harbored, or transported intended co 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 wilh a terrorism directive contained In the PATRIOT Act, staff felt upward departure language was appropriate to address this specific concern. Public Conunenl The Department of Justice agrees wilh ihe underlying premise of the proposal, "thai those who illegally smuggle people into this country should he punished differently depending upon the alien'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 Jiability simply bewauss they did not "know" what specific illegal wcl ihe alien intended to commit. Therefore, they recommend u strict liability standard ruihcr than imposing a knowledge requirement. The Department suggests a reworking of Lha specific olTense characteristics addressing this issue. The Department would like to see an increase of 12 - 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 suggcsls an increase of [2 - 6] Jcvels based on the number of aliens smuggled thai are inadmissible as defined in S U.S.C. § ll82(a)(2)andUX3). POAG suggests thai gathering the facts to warrant Lhe proposed enhancements in (b)(4) may l>c difficult for the probation officer lo obtain, They suggest the issue may be resolved if the language cracks the provisions found in 8 U.S.C'. !j 1327 wherein the charging document ^ould outline (ha specifics of ihe conduct. Number of Illegal Aliens The modifications' addressing ihis issue remain unchanged from the version of the amendment published for public comment. Additional offense level increases ro the table in §2Ll.l(b)(2) are ' provided to address the number of aliens involved in the off&nae. An increase of f 11-12] levels

I-0!3-1!?!/,4.

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. The current upward depute tore provision iu Application Note 4 has been modified to reflect this proposed change. In Fiscal Year 2001, 1,843 cases had guideline compulations under §2Ll.l. Of the 1,543 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 currently 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 the April meeting. Public Connnem The Department of Justice supports this portion of rho amwidmcnr, and recommends an increase of 12 for an offense involving 200 to 299 aliens, and an increase of 15 for an offense involving move than 300 aliens. POAG found no application problems if The tahle J'oj (lie number of aliens smuggled is amended. The FPD recommend two level increments for this amendment. Overall, however, the PPD advise the Commission ro keep enhancements to a minimum, due lo "serious issues for obtaining evidence and preserving testimony of malemtJ wittiesacs" as a. result of the usually quick deportation of witnesses in these cases.

-./ ;

Offenses Involving Death

ii. :;.

The proposed amendment addresses the inadequacies of the. current 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

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(b)(6) addressing bodily injury and places this increase in a stand alone specific offense

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characteristic in...|3LX',l(b)(8). This new specific offense characteristic provides an increase of [10] levels. A tfirleJveVincreaiie for Ihis specific offense characteristic will ensure that defendants who receive the lowest base offense level at §2L1.1 (level 12) will receive punishment commensurate w.i$ ^defendants convicted of involuntary manslaughter involving the reckless operation of a means of iransporuition. • Additionally, tlieproposed amendment modifies t)ie cross reference at §2L1. i (c) to expand its application to coVec'deaths other than murder, if ihe resulting offense level is greater than the offense level de tc'rmihcd under §2L 1.1. .'•'*!.'

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The one change^iade "m this area addresses multiple dewths, The propose*! iimendment provides

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commentary authorizing un upward departure if more than one death occurred during the

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Of the -Ij843 eases, 100 cases were excluded due 10 missing departure informuiion. V

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smuggling offense. Initially presented to the Commission as a special instruction ai $2Ll.l(d) ( aflcr review, the team concluded this structure would not work within the confines of relevant conduct as it operates in S2L1.1 offenses. The Team feels the best approach would he to address this with upward departure language. Public Comment The Department of Justice supports the three amendmanw as presented for public comment. The Department, referencing the- floor offense level for offenses involving death, recommends the Commission provide an increase commensurate to other guiddin&s where the underlying criminal conduct results in dftaih. POAG supports an enhancement for multiple deaths, especially in light of recent cases involving The death of more than one alien. POAG suggesis thai an encouraged upward dtparture (rather than the special instruction language rhoT wns published) would t>B ch£5 preferred way to address this issue. The FPD suggest thai the specific offense characrerisiic regarding, death would create serious due process problems, particularly us ihe cnruma-jnem applias baaed on relevant conduct of others and is not limited to conduct for \whidi (he defendant alone is responsible. FPD states that in cases of chis nature, the government often indicts every person remotely connected to che offense. Part 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 Lawj Fraudulently Acquiring or Improperly U.s'mg a United States Passport This section of the memorandum sets forth the published options, highlights changes to the published proposal, ai\ summarizes relevant comment. Attached lo Lhis memo are case examples of offenses receiving sentences under JJ2L2.2. The Team has reviewed 45 cases receiving sentences under §21.2.2. The sample is not sufficiently large to be a representative

sample; it is meant to provide The Commission with specific examples of rile types of offenses and offenders receiving sentences under this guideline. Please see the documfsnt immediately following rhis memo for the case examples. Increased Base Offense l^evel This portion of the proposed amendment directly responds lu concerns raised by the Department of Justice regarding ih* adequacy of penalties under this purlieu lur guideline, especially in light of national security concerns. The proposed amendment provides ibc option for [he Commission to increase Ihe base offense level in the range of [S -12]. Public Comment The Department of'State iidvocate,s,rai,sin£The base offense level u> 9, keeping rhc base 5

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offense level two levels below §2L2.1 (Trafficking in Documents Relating reNaturalization. Citizenship, or Legal Resident Status, or a U.S. Passport). Francis Taylor. Ambassador also commented that tha Department of Slats intends lo work with the Commission during next terra to propose raising ihe sentences for crimes relating to the vendors of these documents. Tile Department of Justice urges the Commission 10 incrousu Uie base offense level to 12, which would bring §2L2.2into parity with §2BJ.l. Guideline 2Bl.l(b)(9)(C)(T) provides a floor offense level of 12 for the "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 oflcnse lave.1. Tha FPD staic that this proposal is "inconsistent with the new compassion toward hardworking undocumented aliens lhat the Administration has announced.'' Increas&d 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 commit the instant offense after sustaining a felony convictjon(s) for immigration and naturalization offensc(s)). In Fiscal Year 2001, 802 cases had §2L2.2 compulations. Of tine 802 cases, 224 received an increase of two levels under (b)(l). Specific offense characteristic (b)( I) addresses cases in which the defendant is an unlawful alien who previously was deponed. Fifteen defendants received an increase of two levels at specific offense characteristic (b)(2)(A) for cnmmitlinfi the instant offense after sustaining a conviction for a felony immigration and naturalization offense;. Two defendants received an increases of four levels ai specific offense characteristic (b)(2)(B) Tor committing the instant offenst after sustaining two (or 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). Mowever, ihu ayoncy recommends increasing thefcnViiuicemenlat §2L2.2(b)(2)(A) (where a defendant has a prior conviction for a felony immigration or naturalization offense) from two to four levels. The Department of Stale also recommends increasing the enhuncement at §2L2.2(b){2)(B) (where the defendant has c\vo or more prior convictions Tor folony immigration and naturalization offenses) from four to atx levaJs.

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The FPD oppose any increases based on prior convictions, especially when those convictions are not subject to th* criminal history rules in Chapter Four. Should the Commission wish to promulgate this amendment, FPD suggest subjecting these prior convjcrjons to traditional criminal history limitations. Posi

;i Threat to the Security of ihe United Stales

The proposed amendment provides two options for addressing this particular conccrr. 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 LJiuced States [or any orher country]. Option two, which was not presented in the proposed amendment for public comment, provides an alternative to option 1. Option 2 provides a 1.4-10] level increase if, at the lime of the offense, the defendant was inadmissible under1 S U.S.C. § 1182(a)(3). Should the Commission choose to adopt one of the aUermitivo base offense levels presented ill §2Ll.J, Option 2 will help maintain consistency between §2Ll.i anil §2L2.2 in cases involving inadmissible aliens. Public Commeru The Department of Justice supports the addition of ihe specific offense characteristic addressing fugitive status. The Department recommends ihe enhancement be accompanied by an application note addressing the type of evidence necessary to prove this status. The Department of Suite recommends modifying the proposed specific offense characteristic regarding fugitive status to provide on eight level increase if the defendant is wanted fora crime of violence or controlled substance offense, and an increase of four levels if the defendant is wanted for any other iV-lony ryffcn.se, POAG opposes an enhancement in the case of n fugitive from another country. The group exjslrftsses concerns regarding: 1) timely obtaining foreign criminal arrest mformaiK)n;:2)-fugitives from foreign countries who are escaping political or religious prosecution; and 3) potential conflict with Chapter Four of The GuMali/ins Manual. POAG takes no position with regard to fugitive status from & "United States jurisdiction, but notes, a potcniiid conflict with Chapter Four in Unit mere limits cannot be uonsidtred in determining »n upward departure in a defendant's criminal history category. The FPD-ioppose any enhancement for fugitives wanted in another country. The FPD state that fugitive status in another country should b* excluded for The same reasons foreign convictions are excluded from criminal history u-uUiixiUilions under Chupier Fuur: "Fugitive warrants may have been obtained without regard tu the most basic due process guarantees or may reflect political or religious prosecution, which would be very difficult for a defendant 10 prove,1'

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Offenses Involving

MSTPCC CENTER

States Passports

Finally, the proposed amendment provides a [2-8] laveJ enhancement at §2L2.2(b)(4) if the defendant fraudulently used or obtained a Uniicd Slates passport. Commentary is added to clarify that "use" includes cases involving attempts to renew previously issued passports. Public Comment Colin Powell, Secretary of State expressed his thanks to the Commission for considering this proposed amendment, wnd commented thai "maintaining. Hie integrity of U.S. passports and visas is a critical component of our global effort 10 fight terrorism, in addition to ensuring that our immigration policies und laws arc enforced." Secretary Powell slated thai ihis amendment "will be u clear signal ihal the United Slates Government recognize the severity of pass port and visa fraud und the importance of maintaining our border security." Secretary Powell also cited a XJ.S. passport as the "gold standard" of all passports. The Department of Stace, concerned with the inreariiy of passports and visas at ihe core of U.S. bonier security efforts, suggests modifying Ihte specific offense chflraereristii; Lo read as follows: !Tf the defendaru us*d a counterfeit or forged passport or visa, increase by 4 levels; if the defendant fraudulently applied for a U.S. passport or visa-, 5ncrca.sc by 6 levels; if the defendant used a fraudulently obtained U,S. passport or visa, increase by 8 levels/' The Department of State also comments that someone convicted of a false statement before Jaw enforcement or judicial officials would fa.cc a base offense level of 14 under §2J1.2. The Department of Justice supports adoption of this proposed specific offense characteristic, but recommends a slightly revised tiered enhancement. The Department proposes a four level increase if the defendant fraudulently obtained or used a U.S. passpon. and an eight level increase if rhc defendant fraudulently obtained or used a U.S. passport intending lo enter the U.S. to engage in iciTorisi activity. The Department bdicvcs this new specific offense characteristic properly distinguishes cases involving U.S. passports from casas involving visa fraud or foreign passports and visas. The Departmcni also supports the enhancement's Itroiied scope; that is. it applies only if the U.S. passport was fraudulently obtained or used. The Peptirtmem believes that this specific offense characteristic should be uccompanieiJ by an application note staling that "use" should be defined to include the attempted renews! of U.S. Passports as well. The FPD oppose any special treatment for obtaining or using passports. If the increase is based upon some speculative rational security risk, that issue may be addressed by application of the terrorism enhancement in $3A 1 .4,

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004 09:38 FAI 2023129874 zuz

§2L2.2 Case Examples Case Examples Involving Defendants with Fugitive Status Case Number 581617

District 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 toU.S, citizenship (18U-S.C. § 911). Defendant attempted Lo enter the United States in San Ysidro. Defendant has prior juvenile convictions for robbery and burglary. Defendant has prior adult convictions for assault, sale of cocaine base, attempted robbexy and robbery. Defendant has an arrest warrant outstanding from a 1997 robb&ry. Defendant was previously deponed from the United Stales. Case Number 559222

District Texas Western

Sentence Received (5 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 prcscnTad a false resident alien card that he purchased for $500 in Mexico. Defendant was born in Mexico, entered the U.S. illegally nnd worked in the U.S. for two years. He relumed to Mexico u> visit his ailing mother, und was on his way back to Chicago to be with his wife and children when arrested. Defendant was previously deponed from the United States. Defendant has prior convictions for banery ant) possession ol u conU'oJlcd substance.. Ax the time of ihe instant offense, defendant was on probation. Due 10 probation violations and n subsequent arrest, the defendant has an outstanding arresr warrant.

Case Number;: *;;-..

District

541521" --•-. California Southern

Sentence Received 1 1 months

Criminal History

n

Defendant, a Jamaican citizen, pled guilty to one count of false, claim to U.S. citizenship (IS U.S.C. § 911). During a traffic stop, defendant declared to border pam>[ agents that he was A citizen of the U.S.:-_Virgin Islands. De-fcrvdanl had illegally entered die U.S. to visit his ailing mother in Florid^..75biefendant was in possession of a fraudulent Alabama birth certificate, a fraudulent Florida>it%ttificfltion card, and a fraudulent social security cwd. Defendant has been deported frprntriie U.S. on two previous occasions. Defcnd:mi has prior convictions for: false statements hi-application of apas*pon, and illegal nxniry, Defendant has an outstanding bench warrant for "failure to appear in relation to feloTiy drug charges.

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Ca&e Example Involving Fugitive Status and Possession/Renewal of U.S. Passport

Case Number 541661

District Arizona

Criminal History

Sentence Received 36 months prubulion

TV

Defendant pled guilty to one count of false statement in acquisition ol' a pnssporc (18 U.S.C. § 1542). Defendant was a candidate for ihe Scottsdale, A2 city council and withdrew after questions regarding his identiiy arose. After ftmher investigation, defendant revealed he vvas a fugitive living under art alias. Defendant is a U.S. citizen, college graduate who owns his own businesses and is active in ihe local community. In 1970, defendant, was found guilty by jury of obstructing, impeding, and interfering with a firefighter and law enforcement officer. Defendant was participating in & protest demonstration on a college campus. Defendant was sentenced to 5 years. Defendant failed to appear far sentencing, tn 1976. defendant obtained identification documents, including a U.S. passport under an assumed identity. The defendant 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 IK 1997.

Case Examples Involving the Possession of United Slates and Foreign Passports Case Number 541671

District

California Northern

Sentence Received 46 months

Criminal History

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 (J.R U.S.C. 5 1546). Defendant arrested for driving while under the influence of alcohol. DeferKtoiiT presented a U.S. as identification to the arresting officers. Dcfcndiiftt obtained this purport using n bjrth certificate and sociaJ security number under someone else'? name. Defendant is a native of Mexico. Defendant was previously d&ported following a conviction for sale o1' a controlled substance. Defendant also has a prior conviction for illegal reentry; arid again was deported after that conviction. Defendant's children and fiancee live in San Francisco. '

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004 09:39 FAI 2023129874 ir;oQ rAA zuz 0100749

Case Number

AJL11SW

District Virgin Islands

576054

Criminal History

Sentence Received

time served (approx, 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 the Dominbaii Republic, entered the Virgin Islands wjch a Dominican Republic passport. The passport stamp indicated he wns a lawful, permanent resident of the U.S.. The passport had been altered, had a false name, and false biographical pages. 11993, the defendant was convicted for illegal entry, after which he was deported. In 1999, ihe defendant was convjcied of UJegal reentry, after which he was agi'iin deported. Defendant reports that he was entering che United Smcslo find work to financially assiei his ill mother.

Case Number 576063

District Virgin Islands

Sentbnce Receiver! 2 months, with credit for lime served from 2/26/01 to 3/ WO I

Criminal History

T

Defendant pled guilty 10 one counl of fraud and misuse of documents CIS U.S.C. § Defendant, a citizen of Guyana, presented himself !it the Virgin Islands airport under a false name with a false Barbados passport. The passport had a substituted plioio and altered information. Defendant stated that he committed the offense hecauRt; he wanted u.> yet political asylum from Guyana, which was experiencing race riots. DcCendant has no prior arrest a and no prior convictions.

Case Examples Involving Attempts to Obtain U.S. Passports Case Number 5*77023

District

Texas Southern

Sentence Receiver! 1 year probation

Criminal History 1

Defendant convicted by jury of one count of false scai&mem in application for a U.S. passport (18 U.S.C. § 1542). Defendant, born in Nigeria, had been grunted permanent residency status in the U.S. Defendant wanted to go to Great Britain where her I'iancee resides, but was dunied visa by the British consulate. Defendant then used Ihe Texas £D card and name of a former coworker to apply for an American passport. Defendant has no prior arrests and no prior convictions.

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1^004 J./.OD 09:39 CAA FAI £V£ 2023129874 DI.DOI4O

Case Number 562958

District Florida Southern

Sentence Received 2 years probation

Criminal History T

Defendant pled guilty to one 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 ihc country legally on a student visa. Defendant reports he purchased the fraudulent documents in order to further his goals of working iind siudymg in ihe U.S. Dofcndanl hag no prior arrests and no prior convictions. __

Case Number 561878

District Florida Southern

Sentence Received 143 days, wilh credit for time seivud (amount unknown)

Criminal History

I

Defendant pled guilty to one count of false gUitemenls 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 lo apply for a U-S. pmpon. Defendant came to the U.S. illegally two years prior to the comraisaon of ihe instaol offense. The dtfaidailE 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 (IS U.S.C § 1542). Defendant, an Egyptian citizen, c«mc lo the U.S. in 1090 wilh legal work permit In 1995, INS revoked his work permit. Defendant wiix never contacted about deportation. Defendant purchasad a fraudulent birth ccrLifictile and socittl security card for himself and his wife (see case # 563873) lo app]y for a U.S. passport, at a post office in Florida after EI similarly failed attempt in Connecticut, Defendant has no prior arrests and no prior convictions.

Case Number 563873

District

Florida Southern

Sentence Received 2 years probation

Criminal History

1

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Defendant pled guilty to one count of false statements in an applicuiion for a U.S. passport (18 U.S.C. § 1542), Defendant, an Egyptian citizen, came ro 1hc U.S. in 1991 with under valid circumstances. In 1995, INS revoked her husband's work permit, Defendant's husband purchased a fraudulent birth certificate and social security card Cor himself and his wife to apply for a U.S. passport at a post office in Florida after a similarly faiJed attempt in Connecticut. Defendant hag no prior arrests tind no prior convictions.

CasD 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-C. § 102S(a)(4)). Defendant applied for a U.S. passpyrt with a fraudulent birth certificate. Defendant failed to appear for removal/deportation pr<>ceccHn|3 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 guilty to one count of false statements in a applk'mion for a pussport f IS U.S.C. § 1542), Defendant, is a US, citizen with an extensive criminal history (28 criminal history points). Defendant applied for a passport using another person's identity; he possessed a fraudulent birth certificate. Defendant stated thut he committed ihc offense 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

Defendant pled guilty to one count of possession of falsa identification documents with the intent to defraud/the U.S. (18 U.S.C. § I028(a)(4)). Defendant attempted to obtain a U.S. passport to crave}1 to Morocco to meet (for the first time) his fiance' of 2years. Defendant purchased a Fraudulent birth certificate and social security number, applied for and received a dri vers license using those documents. Defendant came to the U.S. in 198S with a visitor's visa; it has expired. Defendant has no prior arresis and no prior convictions.

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004 09:39 FAI 2023129874 _Lf:oo rAA ^uz 0.100 f 49

Case Number 5639 11

SMIIGULINU

District Texas Western

Criminal His Lory

Sentence Received 3 years probation

u

Defendant pled guilty to one count of false claim or U.S. triiizcnship (IS U.S.C. § 9J I). Defendant w;is in a car returning from Mexico and siaiccl thai he was a U.S. citizen. Defendant stares thnt following a night of drinking in El Paso, his wife drove across ihe border to Mexico to pick up her sister while ihe defendant was asleep in the passenger seat. Defendant stat&s that he had no knowledge of crossing the border, find also starss he does not remember stating Lhai he was a U.S, citizftn. Defendant is currently appealing a deportation order following a conviction for possession of cocaine. ParcnLs and siblings live in U.S. permanent resident status. Defendant is manied and has one child. Case Example \viih Potential Security Risk

Case Number ' 575996

District Texas Northern

Criminal History

Sentence Received 3 yeiirs probation

J

Defendant pled guiltyto one counc of false statements on INS Fflrmi-0 (18 U.S.C.'§ E>11). Defendant entered the U.S. in 1998 in New Jersey. Defendant obtained social security card in Pennsylvania using his Kenyan passport and INS papers us identification. The social security card the defendant received had a stamp indicating his \vas not allowed to work -without INS authorization. Defendant scratched out the scamp and used rlie curd to obtain employment,. Defendant, an INS form 1-9 stated be was aU.S. citizen. Defendapi joined die U.S. Army in Feb. 2000. Defendant is ranked private first class. Defendant falsely represented himself as an immigrant alien in order to enlist in the U.S. Army. Defendant lias no prior arrests and no prior convictions.

004 09:39 FAX 2023129874 O.LD3/4O

COMMENTS SUBMITTED TO USSC REGRARDTNG 2L1.1 IMMIGRATION 1. Alien Smuggling We agree with the underlying premise of the pi'oposal - 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 Activity 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 does 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 arc 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 thai 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) to read; "(4) If the defendant smuggled, transported, or harbored an alien, who (A)

entered the United States A.

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

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i)

ii)

two levels, if only one such alien was smuggled, transported or harbored; four levels, if two-five such aliens were smuggled, transported or harbored; and

iii) B.

(2)

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 inadmissable as defined in 8 U.S.C § 1 182(a)(2) or (3) increase i)

ii)

two levels, if only one such alien was smuggled, transported Or harbored; 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. § 92|(a)(30) - then the offense level is increased six levels to a level 18. It is not necessary that the defendant have knowledge of die restricted nature of the weapon, See, e.^ United States V. Fry. 51 F.3d 543 (5* Cir 1995). This proposal would also increase the enhancement commensurate with the number of dangerous aliens smuggled, in arnanner similar to that used in §2LI . 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 subcategory 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 Eind not just murder,1 'A 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)

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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- I(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 1) 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.1 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 guideline provisions such as §§2D2.3(b)(l), 2G2.1(o)(l), 2M6.!(d)(l), 2NM(d)(I) 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. It 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.

*See 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).

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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. 0 West Group 2003. No claim to Orig. U.S. Govt. Works. As amendedTO05-14-03 § 2L1.1. Smuggling, Transporting, or Harboring an Unlawful Alien (a) Base Offense Level; (1) 23, if the defendant was convicted under 8 U.S.C. § 1327of d nukiiun ijnulvliig aualiui whu picuiuujilji WfUTUil)GlDiu d_LiCX' Lr^WPMLlltjIl IQ£ till fl^l^rtiV^tCO JtClOJjy Of

(2)19, if tfie defendant was convicted under 8 U.S.C. § J324(a)(2)(B)Q) or (it), OrJ324(a)(J)(A)fl)(iliwlltch lite offense was done for the purpose of commercial advantage or private financial gain).

& (3) « 14, otherwise. (b) Specific Offense Characteristic (1) If (A) (he defendant conuniued the offense oflicr than for profit, or (he offense involved the smuggling, transporting, or harboring only of die defendant's spouse or child (or both die defendant's spouse and child), and (B) 'die base offense level is determined under subsection (a) (2). decrease by 3 levels.

(2) It" the offense involved the smuggling, transporting, or harboring oTsix or more unlawful aliens, increase as follows; Number of unlawful aliens smuggled, transported, or harbored

: Increase : In level

(A) 6-24

: Add 3.

(B) 25-99

: Add(5.

(Q lOOonrorc- 199

: Add 9.

(D) 200-299

: Add 12

(E) 300 or more...,.

; Add IK

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(3) 7jf die offense involved die smuggling, transporting, or harboring of inadmissabls aliens as defined in 8 USC ll&2(a)(2) or (3)i Number of inadmissable or unregistered aliens, smuggled^ transported, or harbored

: Increase : In level

(A)J

.-

(A) 2-5

: Add4.

(B)6-20

: Add 6.

(Q 20 or more

.- Add 8.

<3)- (4) Tf the defendant committed any part of the instant offense after sustaining (A) a conviction for a felony immigration and naturalization offense, increase by 2 levels; or (B) two (or more) convictions for felony immigration and naturalization pffenses, each such conviction arisiuj: out of a separate pro.secnnon, increase by 4 levels.

t*) (5) (Appry me greatest): (A) Jf a. firearm was discharged, increase by 6 levels, but if the resulting offense level is less than level 22, increase to level 22. (B) If a dangerous weapon (including a firearm) was brandished or otherwise used, increase by 4 levels, but if die resulting offense level Ls less than 20, increase to level 20. (Q Tf a dangerous weapon (including a firearm) was possessed, increase by 2 levels, but if the resulting offense level is less than level 18, increase to level 18. f5} (6) If the offense involved intentionally or recklessly creating a substantial risk of dauh or serious bodily injury co another person, inurease by 2 levels, but if the resulting offense level is less than level 18, muraase to level 18. f6) (7) If any person died or sustained bodily injury, increase che offense level according to the seriousness of the injury: Death or Degree of Injury (1)fiodflyInjury : (2.) Serious Bodily Injury (3) Permanent or Lifc-TliroaceiuaB Bodily Injury .. (4) Deadi

: Increase in Level : add 2 levels : add 4-levels : add 6 levuls : addS 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 threat, fear or deception, increase by 1 level. (c) Cross Reference If any person was killed under circumstances that would cousiitutc murder under 18 U.S.C. g 1111 Jiad killing taken place wiiiuji the special maritime and territorial jurisdiction nt" die United States, apply the appropriate murder guideline from Chapter Two, Part A. Subpm 1.

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ItJ V O X

IgJUOJ.

U.S. Department of Justice Criminal Division

Dwutlc Security Stctfon

Washington. D C.' 2

April 2, 2004 MEMORANDUM To:

Jonathan Wroblewski Office of Policy and Legislation

From:

Teresa McJiemy Chief, Domestic Security Section

SUBJECT:

Summary of Proposed Changes to U.S.S.G. 2L1.1

The Domestic Security Section, working wilh 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)) "2Ll,l(a)(l) 23, ifihe defendant was convicted under 8 U.S.C, § 1327 vfu. viuluti i.I'fc QtlL&L iViLL)~~l//& ViL/tii i-V^ VWiJT tiCiJ?O/Tcit t^WCT^tt^v'/'l'tCtrtTTl^/*.'/ LUL it^t/tiV't/it.w yc-tly/ijr/

lving 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. 1 1 82(a)(3). It also eliminates the disparate treatment between those who are inadmissable because they have been 1

8 U.S.C. § 1327. Aiding or assisting certain aliens to euler

Any person who knowingly aids or assists any alien inadmissible uMer section 1182,(a)(2) (insofar us uu ulien inadmissible under such section lias bean coiivieted of an aggravated telouy) or 1182(;i)(3) (other rha » subparaetaph (£5 thereof) of this title to enter tht United Stints, or who connives or conspires wch any person or parsons to allow, procure, or permit any such alienTOeuler Uic United Sty we, shall be tliwd under Title 18, or iinpmoned not more than 10 years, or both.

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convicted of certain specified crimes and those who have been previously deported forthehconviction for those crimes. The Coinmission 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, ij'1327 is the result of Congressional recognition thai certain aliens pose a heightened risk EO the safety of the citizens of the United States and that 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, \vho 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) 2U.l(a)(2)

J9

if the defendant was convicted under 8 U.S.C. § 1324(a)(2)(B)(i) or (ti), or J324(a)(l)(A)(i)( in which the offense was done for the purpose of commercial advantage or private ft ncuicial gain).

This proposal would add a new subsection to reflect the 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 10 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 2Ll.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 WL227I5589 (2d Gil1, Nov. 17.2003) 2

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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 that 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 har/wlng of six or more unlawful aliens, increase as follows:

Number of unlawful aliens smuggled, transported, or harbored

Increase in level

(A) 6-24

Add 3.

(B) 25-99

Add 6.

(C)

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 appropriaie sentence of at least 97 months.

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Proposal 51 (New subsection) "(3) If the offense involved the smuggling, transporting, or harboring ofirtadmissable aliens as defined in 8 USC JJ82(a)(2) or (3): Number ofinadmissahle or unregistered aliens, smuggled, transported, or harbored

; :

Increase in level

(A) I

:

Add 2

(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 ihe 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 U82(a)(3). Under this new S.O.C., the threshold for increases would be much lower if the unlawful aliens posed an enhanced threat to the security of the United Stales either because of their prior criminal record or because of their ties to terrorism.

Proposal 6: (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 ihreat or deception. This is done so [hat the smugglers can get more money from the families of the aliens or so they will

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provide inexpensive labor.

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