AMENDMENT 754

Amendment: Section 2L1.2(b)(1)(A) is amended by inserting "if the conviction receives criminal history points under Chapter Four or by 12 levels if the conviction does not receive criminal history points" after "16 levels".

Section 2L1.2(b)(1)(B) is amended by inserting "if the conviction receives criminal history points under Chapter Four or by 8 levels if the conviction does not receive criminal history points" after "12 levels".

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

"(C) Prior Convictions.—In determining the amount of an enhancement under subsection (b)(1), note that the levels in subsections (b)(1)(A) and (B) depend on whether the conviction receives criminal history points under Chapter Four (Criminal History and Criminal Livelihood), while subsections (b)(1)(C), (D), and (E) apply without regard to whether the conviction receives criminal history points.".

The Commentary to 2L1.2 captioned "Application Notes" is amended in Note 7 by inserting after "warranted. (B)" the following: "In a case in which the 12-level enhancement under subsection (b)(1)(A) or the 8-level enhancement in subsection (b)(1)(B) applies but that enhancement does not adequately reflect the extent or seriousness of the conduct underlying the prior conviction, an upward departure may be warranted. (C)".

Reason for Amendment: This amendment amends §2L1.2 (Unlawfully Entering or Remaining in the United States) to limit the extent of the enhancement at subsection (b)(1) provided for certain offenders. Subsection (b)(1) provides an enhancement if the defendant previously was deported, or unlawfully remained in the United States, after a predicate conviction. The amount of the enhancement ranges from 16 levels to 4 levels, depending on the nature of the prior conviction. Specifically, prior to the amendment, subsection (b)(1)(A) has provided a 16-level increase for a prior conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months, (ii) a crime of violence, (iii) a firearms offense, (iv) a child pornography offense, (v) a national security or terrorism offense, (vi) a human trafficking offense, or (vii) an alien smuggling offense; and subsection (b)(1)(B) has provided a 12-level increase for a felony drug trafficking offense for which the sentence imposed was 13 months or less. Both of these enhancements have applied regardless of whether the prior conviction received criminal history points under Chapter Four (Criminal History and Criminal Livelihood).

The amendment reduces the enhancements at subsections (b)(1)(A) and (B) to 12 or 8 levels, respectively, if the prior conviction does not receive criminal history points under Chapter Four. Subsections (b)(1)(A) and (B) as amended continue to provide a 16- or 12-level enhancement, as applicable, if the prior conviction receives criminal history points under Chapter Four. Thus, for reasons of proportionality, the amendment maintains the 4-level distinction between defendants who receive an enhancement under subsection (b)(1)(A) and those who receive an enhancement under subsection (b)(1)(B), regardless of whether the prior conviction receives criminal history points.

The amendment responds to case law and public comment regarding the magnitude of the enhancement when a defendant's predicate conviction does not receive criminal history points. Compare United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009) (defendant had two convictions that were 25 years old; court stated that the 16-level enhancement in §2L1.2(b)(1)(A) "addresses the seriousness of the offense" but "does not . . . justify increasing a defendant's sentence by the same magnitude irrespective of the age of the prior conviction at the time of reentry" [emphasis in original]); with United States v. Chavez-Suarez, 597 F.3d 1137, 1139 (10th Cir. 2010) (defendant had a conviction that was 11 years old; court discussed Amezcua-Vasquez but was "not convinced that this conviction was so stale" as to require the sentencing court to vary downward from the 16-level enhancement).

Under the amendment, defendants with predicate offenses that qualify for an enhancement under subsections (b)(1)(A) and (B) continue to receive an enhancement, regardless of whether the prior convictions receive criminal history points under Chapter Four. Other provisions in the guidelines exclude consideration of a predicate conviction because of the age of the predicate conviction. See, e.g., §2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited Transactions Involving Explosive Materials), comment. (n.9); §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition), comment. (n.10); §4B1.2 (Definitions of Terms Used in Section 4B1.1), comment. (n.3). The amendment conforms §2L1.2(b)(1)(A) and (B) more closely to those provisions, but because of the seriousness of the predicate offenses covered by subsection (b)(1)(A) and (B) reduces, rather than eliminates, the 16- and 12-level enhancements. See, e.g., Amezcua-Vasquez, 567 F.3d at 1055 (acknowledging that it is "reasonable to take some account of an aggravated felony, no matter how stale, in assessing the seriousness of an unlawful reentry into the country"). See also id. at 1055 (in certain cases in which the prior conviction is "stale", an enhancement may be appropriate to address the "seriousness" of the prior conviction but need not be of the "same magnitude"); Chavez-Suarez, 597 F.3d at 1139 (same). For similar reasons, the amendment also adds an upward departure provision at Application Note 7 for cases in which the lower 12- or 8-level enhancement does not adequately reflect the extent or seriousness of the conduct underlying the prior conviction. Conforming changes to the Commentary are also made.

Effective Date: The effective date of this amendment is November 1, 2011.