AMENDMENT 730
Amendment: Section 2H4.1(a) is amended by striking "(Apply the greater)" after "Offense Level"; and by striking subdivision (2) as follows:
"(2) 18, if the defendant was convicted of an offense under 18 U.S.C. § 1592.",
and inserting the following:
"(2) 18, if (A) the defendant was convicted of an offense under 18 U.S.C. § 1592, or (B) the defendant was convicted of an offense under 18 U.S.C. § 1593A based on an act in violation of 18 U.S.C. § 1592.".
The Commentary to §2H4.1 captioned "Statutory Provisions" is amended by inserting ", 1593A" after "1592".
The Commentary to §2H4.1 captioned "Application Notes" is amended by adding at the end the following:
"4. In a case in which the defendant was convicted under 18 U.S.C. §§ 1589(b) or 1593A, a downward departure may be warranted if the defendant benefitted from participating in a venture described in those sections without knowing that (i.e., in reckless disregard of the fact that) the venture had engaged in the criminal activity described in those sections.".
Section 2L1.1(b) is amended by striking subdivision (8) as follows:
"(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.",
and inserting the following:
"(8) (Apply the greater):
(A) If an alien was involuntarily detained through coercion or threat, or in connection with a demand for payment, (i) after the alien was smuggled into the United States; or (ii) 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.
(B) If (i) the defendant was convicted of alien harboring, (ii) the alien harboring was for the purpose of prostitution, and (iii) the defendant receives an adjustment under §3B1.1 (Aggravating Role), increase by 2 levels, but if the alien engaging in the prostitution had not attained the age of 18 years, increase by 6 levels.".
The Commentary to §2L1.1 captioned "Application Notes" is amended in Note 6 by inserting "(A)" after "(b)(8)".
Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 1350 the following:
"18 U.S.C. § 1351 2B1.1";
and by inserting after the line referenced to 18 U.S.C. § 1592 the following:
"18 U.S.C. § 1593A 2H4.1".
Reason for Amendment: This amendment responds to the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. 110–457 (the "Act"), which included a directive to the Commission and created two new offenses.
First, the amendment responds to the directive in section 222(g) of the Act. It directed the Commission to—
review and, if appropriate, amend the sentencing guidelines and policy statements applicable to persons convicted of alien harboring to ensure conformity with the sentencing guidelines applicable to persons convicted of promoting a commercial sex act if–
(1) the harboring was committed in furtherance of prostitution; and
(2) the defendant to be sentenced is an organizer, leader, manager, or supervisor of the criminal activity.
The amendment amends §2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien) to provide an alternative prong to the enhancement at subsection (b)(8), which covers cases in which an alien was involuntarily detained through coercion or threat, or in connection with a demand for payment. The new alternative prong, at subsection (b)(8)(B), applies in a case in which the defendant was convicted of alien harboring, the alien harboring was for the purpose of prostitution, and the defendant receives an adjustment under §3B1.1 (Aggravating Role). In such a case, a two-level increase applies, but if the alien engaging in the prostitution had not attained the age of 18 years, a six-level increase applies. Because this is an alternative enhancement, it does not apply if the enhancement for coercion at §2L1.1(b)(8)(A) is greater.
The amendment also amends Application Note 6 to provide that, while an adjustment under §3A1.3 (Restraint of Victim) does not apply in a case that receives an enhancement under §2L1.1(b)(8)(A), such an adjustment may apply in a case that receives an enhancement under §2L1.1(b)(8)(B).
Second, the amendment responds to a new offense created by the Act, 18 U.S.C. § 1351 (Fraud in foreign labor contracting). The new offense has a statutory maximum term of imprisonment of five years. Because this new offense has fraud as an element, the amendment references this new offense in Appendix A (Statutory Index) to §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States).
Third, the amendment responds to another new offense created by the Act, 18 U.S.C. § 1593A (Benefitting financially from peonage, slavery, and trafficking in persons). This new offense applies when a person has knowingly benefitted financially from participating in a venture that has engaged in a violation of 18 U.S.C. §§ 1581(a), 1592, or 1595(a), knowing or in reckless disregard of the fact that the venture has engaged in such violation. The amendment amends Appendix A (Statutory Index) to reference 18 U.S.C. § 1593A to §2H4.1 (Peonage, Involuntary Servitude, and Slave Trade) because that guideline covers the relevant underlying statutes, 18 U.S.C. §§ 1581(a) and 1592. The amendment also amends §2H4.1 to provide that a defendant convicted of 18 U.S.C. § 1593A receives the same base offense level as if the defendant were convicted of committing the underlying violation. Accordingly, if the defendant was convicted under section 1593A under circumstances in which the defendant benefitted from participation in a venture that engaged in a violation of 18 U.S.C. § 1592, the defendant would receive the same base offense level, 18, as if the defendant had been convicted of 18 U.S.C. § 1592. If the defendant was convicted under section 1593A under circumstances in which the defendant benefitted from participation in a venture that engaged in a violation of 18 U.S.C. § 1581(a), the defendant would receive the same base offense level, 22, as if the defendant had been convicted of 18 U.S.C. § 1581(a).
The amendment also amends the Commentary to §2H4.1 to provide that a downward departure may be warranted in a case in which the defendant is convicted under 18 U.S.C. §§ 1589(b) or 1593A if the defendant benefitted from participating in a venture described in those sections in reckless disregard of the fact that the venture had engaged in the criminal activities described in those sections. This downward departure provision recognizes that a defendant who commits such an offense in reckless disregard of the fact that the venture engaged in such criminal activities may be less culpable than a defendant who acts with knowledge of that fact.
Finally, the amendment makes a technical change to §2H4.1(a) by striking the phrase "(Apply the greater)".
Effective Date: The effective date of this amendment is November 1, 2009.