AMENDMENT 543

Amendment: Section 2L1.1(a)(1) is amended by deleting “20" and inserting in lieu thereof “23".

Section 2L1.1(a)(2) is amended by deleting “9" and inserting in lieu thereof “12".

Section 2L1.1(b) is amended by deleting:

"(1) If the defendant committed the offense other than for profit, and the base offense level is determined under subsection (a)(2), decrease by 3 levels.",

and inserting in lieu thereof:

"(1) If (A) the defendant committed the offense 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.".

Section 2L1.1(b)(2) is amended in the column captioned "Increase in Level" by deleting "2" in subdivision (A), and inserting in lieu thereof "3"; by deleting "4" in subdivision (B) and inserting in lieu thereof "6"; and by deleting in "6" subdivision (C) and inserting in lieu thereof "9".

Section 2L1.1(b) is amended by deleting:

"(3) If the defendant is an unlawful alien who has been deported (voluntarily or involuntarily) on one or more occasions prior to the instant offense, and the offense level determined above is less than level 8, increase to level 8.",

and by inserting in lieu thereof:

"(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.".

Section 2L1.1(b) is amended by inserting after subdivision (3) the following additional subdivisions:

"(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:

Section 2L1.1 is amended by inserting after subsection (b) the following additional subsection:

"(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.".

The Commentary to §2L1.1 captioned “Application Notes” is amended in Note 1 by inserting at the beginning “For purposes of this guideline—”;

by deleting:

"‘For profit’ means for financial gain or commercial advantage, but this definition does not include a defendant who commits the offense solely in return for his own entry or transportation.",

and inserting in lieu thereof:

"‘The defendant committed the offense 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."; and

by inserting at the end the following paragraphs:

"‘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.".

The Commentary to §2L1.1 captioned "Application Notes" is amended by deleting:

"3. For the purposes of §3B1.2 (Mitigating Role), a defendant who commits the offense solely in return for his own entry or transportation is not entitled to a reduction for a minor or minimal role. This is because the reduction at §2L1.1(b)(1) applies to such a defendant.";

and by redesignating Note 4 as Note 3.

The Commentary to §2L1.1 captioned “Application Notes” is amended in Note 5 by deleting “dangerous or inhumane treatment, death or bodily injury, possession of a dangerous weapon, or” following “involved”; and by redesignating Note 5 as Note 4.

The Commentary to §2L1.1 captioned “Application Notes” is amended by deleting:

"6. ‘Aggravated felony’ is defined in the Commentary to §2L1.2 (Unlawfully Entering or Remaining in the United States).".

The Commentary to §2L1.1 captioned “Application Notes” is amended by inserting after Note 4, as redesignated, the following additional notes:

"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).".

The Commentary to §2L1.1 captioned “Background” is amended by deleting:

"A specific offense characteristic provides a reduction if the defendant did not commit the offense for profit. The offense level increases with the number of unlawful aliens smuggled, transported, or harbored.".

The Commentary to §2L1.1 captioned “Background” is amended in the last sentence by inserting “smuggling, transporting, or harboring” immediately following “scale”.

Reason for Amendment: This amendment implements section 203 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009-566, which directs the Commission to amend the guidelines for offenses related to smuggling, transporting, or harboring illegal aliens.

Effective Date: The effective date of this amendment is May 1, 1997.