AMENDMENT 692

Amendment: Section 2L1.1 is amended by redesignating subsections (a)(1) and (a)(2) as subsections (a)(2) and (a)(3), respectively; and by inserting after "Base Offense Level:" the following:

"(1) 25, if the defendant was convicted under 8 U.S.C. § 1327 of a violation involving an alien who was inadmissible under 8 U.S.C. § 1182(a)(3);".

Section 2L1.1 is amended by redesignating subsections (b)(4) through (b)(6) as subsections (b)(5) through (b)(7), respectively; and by inserting after subsection (b)(3) the following:

"(4) If the defendant smuggled, transported, or harbored a minor who was unaccompanied by the minor’s parent or grandparent, increase by 2 levels.".

Subsection (b)(7), as redesignated by this amendment, is amended by striking "8 levels" and inserting "10 levels"; and by redesignating subdivisions (1) through (4) as subdivisions (A) through (D), respectively.

Section 2L1.1(b) is amended by adding at the end the following:

"(8) If an alien was involuntarily detained through coercion or threat, or in connection with a demand for payment, (A) after the alien was smuggled into the United States; or (B) while the alien was transported or harbored in the United States, increase by 2 levels. If the resulting offense level is less than level 18, increase to level 18.".

Section 2L1.1(c) is amended by striking "If any person" through the end of "Subpart 1." and inserting the following:

"(1) If death resulted, apply the appropriate homicide guideline from Chapter Two, Part A, Subpart 1, if the resulting offense level is greater than that determined under this guideline.".

The Commentary to §2L1.1 captioned "Application Notes" is amended in Note 1 by striking "For purposes of this guideline—" and inserting "Definitions.—For purposes of this guideline:"; and by adding at the end the following:

"‘Minor’ means an individual who had not attained the age of 16 years.

‘Parent’ means (A) a natural mother or father; (B) a stepmother or stepfather; or (C) an adoptive mother or father.".

The Commentary to §2L1.1 captioned "Application Notes" is amended in Note 2 by inserting "Interaction with §3B1.1.—" before "For"; and by adding at the end the following:

"In large scale smuggling, transporting, or harboring cases, an additional adjustment from §3B1.1 typically will apply.".

The Commentary to §2L1.1 captioned "Application Notes" is amended by striking Notes 3 and 4 as follows:

"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.",

and inserting the following:

"3. Upward Departure Provisions.—An upward departure may be warranted in any of the following cases:

(A) 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.

(B) The defendant smuggled, transported, or harbored an alien the defendant knew was inadmissible for reasons of security and related grounds, as set forth under 8 U.S.C. § 1182(a)(3).

(C) The offense involved substantially more than 100 aliens.";

by redesignating Notes 5 and 6 as Notes 4 and 5, respectively; in Note 4, as redesignated by this amendment, by inserting "Prior Convictions Under Subsection (b)(3).—" before "Prior felony"; and in Note 5, as redesignated by this amendment, by inserting "Application of Subsection (b)(6).—" before "Reckless"; by striking "(b)(5)" each place it appears and inserting "(b)(6)"; and by striking "(b)(4)" and inserting "(b)(5)".

The Commentary to §2L1.1 captioned "Application Notes" is amended by adding at the end the following:

"6. Inapplicability of §3A1.3.—If an enhancement under subsection (b)(8) applies, do not apply §3A1.3 (Restraint of Victim).".

The Commentary to §2L1.1 captioned "Background" is amended by striking the last sentence as follows:

"In large scale smuggling, transporting, or harboring cases, an additional adjustment from §3B1.1 (Aggravating Role) typically will apply to the most culpable defendants.".

Section 2L2.1(b) is amended by adding at the end the following:

"(5) If the defendant fraudulently obtained or used (A) a United States passport, increase by 4 levels; or (B) a foreign passport, increase by 2 levels.".

Section 2L2.2(b)(3) is amended by inserting "(A)" after "used" and by inserting "; or (B) a foreign passport, increase by 2 levels" after "4 levels".

Reason for Amendment: This two-part amendment addresses various issues pertaining to §§2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien), 2L2.1 (Trafficking in a Document Relating to Naturalization, Citizenship, or Legal Resident Status, or a United States Passport; False Statement in Respect to the Citizenship or Immigration Status of Another; Fraudulent Marriage to Assist Alien to Evade Immigration Law), and 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).

The first part of this amendment modifies §2L1.1. First, this amendment addresses national security concerns pertaining to the smuggling of illegal aliens. Specifically, a new base offense level of 25 at §2L1.1(a)(1) provides increased punishment for defendants convicted of 8 U.S.C. § 1327 involving an alien who is inadmissable because of "security or related grounds," as defined in 8 U.S.C. 1182(a)(3). To further address concerns related to national security, an application note provides that an upward departure may be warranted if the defendant had specific knowledge that the alien the defendant smuggled, transported, or harbored was inadmissible for reasons of security and related grounds, as set forth in 8 U.S.C. § 1182(a)(3). This upward departure note applies regardless of whether the defendant is convicted of 8 U.S.C. § 1327.

Second, the amendment provides a two-level enhancement for a case in which the defendant smuggled, transported, or harbored a minor unaccompanied by the minor’s parent or grandparent. This enhancement addresses concerns regarding the increased risk involved when unaccompanied minors are smuggled into, or harbored or transported within, the United States. Application Note 1 defines "minor" as "an individual who had not attained the age of 16 years" and defines "parent" as "(A) a natural mother or father; (B) a stepmother or stepfather; or (C) an adoptive mother or father."

Third, the amendment makes two changes with respect to offenses involving death. First, the amendment increases the enhancement from 8 levels to 10 levels if any person died as a result of the offense. Additionally, the cross reference at §2L1.1(c)(1) is expanded to cover homicides other than murder. This amendment ensures that any offense involving the death of an alien will be sentenced under the guideline appropriate for the particular type of homicide involved if the resulting offense level is greater than the offense level determined under §2L1.1.

Fourth, the amendment adds a two-level enhancement and a minimum offense level of 18 in a case in which an alien was involuntarily detained through coercion or threat, or in connection with a demand for payment, after the alien was smuggled into the United States, or while the alien was transported or harbored in the United States. This conduct may not be covered by §3A1.3 (Restraint of Victim) because an illegal alien, as a participant in the offense, may not be considered a "victim" for purposes of that adjustment. Additionally, application of §3A1.3 requires "physical restraint," as that term is defined in §1B1.1, and the involuntary detainment involved in offenses sentenced under §2L1.1 may not involve physical restraint. Finally, the amendment provides an application note, as a corollary to Application Note 2 in §3A1.3, that instructs the court not to apply §3A1.3 if the involuntary detainment enhancement applies

The second part of the amendment modifies §§2L2.1 and 2L2.2. First, this part of the amendment adds a new specific offense characteristic at §2L2.1(b)(5)(A) that provides a four-level enhancement in a case in which the defendant fraudulently used or obtained a United States passport. The same specific offense characteristic was added to §2L2.2, effective November 1, 2004 (see USSC Guidelines Manual Supplement to Appendix C, Amendment 671). The addition of this specific offense characteristic to §2L2.1 promotes proportionality between the document fraud guidelines, §§2L2.1 and 2L2.2.

Second, the amendment provides, at §2L2.1(b)(5)(B) and §2L2.2(b)(3)(B), a two-level enhancement if the defendant fraudulently obtained or used a foreign passport. This modification addresses concern regarding the threat to the security of the United States in document fraud offenses involving foreign passports.

Effective Date: The effective date of this amendment is November 1, 2006.