2005 Federal Sentencing Guidelines
Chapter 2 - PART L - OFFENSES INVOLVING IMMIGRATION, NATURALIZATION, AND
§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. § 1327 of a violation involving an alien who previously
was deported after a conviction for an aggravated felony; or
(2) 12, otherwise.
(b) Specific Offense Characteristics
(1) If (A) the offense was committed other than for profit, or the offense
involved the smuggling, transporting, or harboring only of the defendant’s
spouse or child (or both the defendant’s spouse and child), and (B)
the base offense level is determined under subsection (a)(2), decrease by 3 levels.
(2) If the offense involved the smuggling, transporting, or harboring of
six or more unlawful aliens, increase as follows:
||Number of Unlawful Aliens Smuggled Transported
||Increase in Level
||100 or more
(3) If 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 offenses, each such
conviction arising out of a separate prosecution, increase by 4 levels.
(4) (Apply the Greatest):
(A) If 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 the resulting offense level is less than level 20,
increase to level 20.
(C) If 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.
(5) If the offense involved intentionally or recklessly creating a substantial
risk of death or serious bodily injury to another person, increase by 2 levels,
but if the resulting offense level is less than level 18,
increase to level 18.
(6) If any person died or sustained bodily injury, increase the offense
level according to the seriousness of the injury:
||Death or Degree of Injury
||Increase in Level
||add 2 levels
||Serious Bodily Injury
||add 4 levels
||Permanent or Life-Threatening Bodily Injury
||add 6 levels
||add 8 levels.
(c) Cross Reference
If any person was killed under circumstances that would constitute murder
under 18 U.S.C. § 1111 had such killing taken place within the special
maritime and territorial jurisdiction of the United States, apply the appropriate
murder guideline from Chapter Two, Part A, Subpart 1.
Statutory Provisions: 8 U.S.C. §§ 1324(a),
1327. For additional statutory provision(s), see Appendix
A (Statutory Index).
1. For purposes of this guideline—
"The offense was committed other than for profit" means that there was no
payment or expectation of payment for the smuggling, transporting, or harboring
of any of the unlawful aliens.
"Number of unlawful aliens smuggled, transported, or harbored"
does not include the defendant.
"Aggravated felony" is defined in the Commentary to §2L1.2 (Unlawfully
Entering or Remaining in the United States).
"Child" has the meaning set forth in section 101(b)(1) of the Immigration
and Nationality Act (8 U.S.C. § 1101(b)(1)).
"Spouse" has the meaning set forth in 101(a)(35) of the Immigration and Nationality
Act (8 U.S.C. § 1101(a)(35)).
"Immigration and naturalization offense" means any offense covered by Chapter
Two, Part L.
2. For the purposes of §3B1.1 (Aggravating Role), the aliens smuggled,
transported, or harbored are not considered participants unless they actively
assisted in the smuggling, transporting, or harboring of others.
3. Where the defendant smuggled, transported, or harbored an alien knowing
that the alien intended to enter the United States to engage in subversive
activity, drug trafficking, or other serious criminal behavior, an upward departure
may be warranted.
4. If the offense involved substantially more than 100 aliens, an upward
departure may be warranted.
5. Prior felony conviction(s) resulting in an adjustment under subsection
(b)(3) are also counted for purposes of determining criminal history points
pursuant to Chapter Four, Part A (Criminal History).
6. Reckless conduct to which the adjustment from subsection (b)(5) applies
includes a wide variety of conduct (e.g.,
transporting persons in the trunk or engine compartment of a motor vehicle,
carrying substantially more passengers than the rated capacity of a motor vehicle
or vessel, or harboring persons in a crowded, dangerous, or inhumane condition).
If subsection (b)(5) applies solely on the basis of conduct related to fleeing
from a law enforcement officer, do not apply an adjustment from
§3C1.2 (Reckless Endangerment During Flight). Additionally, do not apply
the adjustment in subsection (b)(5) if the only reckless conduct that created
a substantial risk of death or serious bodily injury is conduct for which the
defendant received an enhancement under subsection (b)(4).
Background: This section
includes the most serious immigration offenses covered under the Immigration
Reform and Control Act of 1986. In large scale smuggling, transporting, or
harboring cases, an additional adjustment from §3B1.1 (Aggravating Role)
typically will apply to the most culpable defendants.
Historical Note: Effective
November 1, 1987. Amended effective January 15, 1988 (see Appendix
C, amendments 35, 36, and 37); November 1, 1989 (see Appendix
C, amendment 192); November 1, 1990 (see Appendix
C, amendment 335); November 1, 1991 (see Appendix
C, amendment 375); November 1, 1992 (see Appendix
C, amendment 450); May 1, 1997 (see Appendix
C, amendment 543); November 1, 1997 (see Appendix
C, amendment 561).