AMENDMENT 450

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

"If the defendant previously has been convicted of smuggling, transporting, or harboring an unlawful alien, or a related offense, increase by 2 levels.",

and inserting in lieu thereof:

"If the offense involved the smuggling, transporting, or harboring of six or more unlawful aliens, increase as follows:

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

"The ‘number of unlawful aliens smuggled, transported, or harbored’ does not include the defendant.".

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

"2. ‘Convicted of smuggling, transporting, or harboring an unlawful alien, or a related offense’ includes any conviction for smuggling, transporting, or harboring an unlawful alien, and any conviction for aiding and abetting, conspiring or attempting to commit such offense.

3. If the defendant was convicted under 8 U.S.C. § 1328, apply the applicable guideline from Part G (see Statutory Index) rather than this guideline.

4. The adjustment under §2L1.1(b)(2) for a previous conviction is in addition to any points added to the criminal history score for such conviction in Chapter Four, Part A (Criminal History). This adjustment is to be applied only if the previous conviction occurred prior to the last overt act of the instant offense.";

and by renumbering Notes 5, 6, 7, 8 and 9, as Notes 2, 3, 4, 5, and 6, respectively.

The Commentary to §2L1.1 captioned "Application Notes" is amended in Note 4 (formerly Note 7) by inserting "drug trafficking, or other serious criminal behavior," immediately following "subversive activity,".

The Commentary to §2L1.1 captioned "Application Notes" is amended by deleting the text of Note 5 (formerly Note 8) as follows:

"The Commission has not considered offenses involving large numbers of aliens or dangerous or inhumane treatment. An upward departure should be considered in those circumstances.",

and inserting in lieu thereof:

"If the offense involved dangerous or inhumane treatment, death or bodily injury, possession of a dangerous weapon, or substantially more than 100 aliens, an upward departure may be warranted.".

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

"A second specific offense characteristic provides an enhancement if the defendant was previously convicted of a similar offense.",

and inserting in lieu thereof:

"The offense level increases with the number of unlawful aliens smuggled, transported, or harbored. In large scale cases, an additional adjustment from §3B1.1 (Aggravating Role) typically will apply to the most culpable defendants.".

The title of §2L2.1 is amended by deleting "Evidence of Citizenship or Documents Authorizing Entry" and inserting in lieu thereof "Documents Relating to Naturalization, Citizenship, or Legal Resident Status; False Statement in Respect to the Citizenship or Immigration Status of Another; Fraudulent Marriage to Assist Alien to Evade Immigration Law".

Section 2L2.1(b) is amended by deleting "Characteristic" and inserting in lieu thereof "Characteristics"; and by inserting the following additional specific offense characteristic:

"(2) If the offense involved six or more sets of documents, increase as follows:

The Commentary to §2L2.1 captioned "Statutory Provisions" is amended by deleting "18 U.S.C. §§ 1425-1427, 1546. For additional statutory provision(s), see Appendix A (Statutory Index)" and inserting in lieu thereof "8 U.S.C. §§ 1160(b)(7)(A), 1185(a)(3), (4), 1325(b), (c); 18 U.S.C. §§ 1015, 1028, 1425-1427, 1546".

The Commentary to §2L2.1 captioned "Application Note" is amended by deleting "Note" and inserting in lieu thereof "Notes"; and by inserting the following additional note:

"2. Where it is established that multiple documents are part of a set intended for use by a single person, treat the set as one document.".

The title of §2L2.2 is amended by deleting "Evidence of Citizenship or Documents Authorizing Entry for Own Use" and inserting in lieu thereof "Documents Relating to Naturalization, Citizenship, or Legal Resident Status for Own Use; False Personation or Fraudulent Marriage by Alien to Evade Immigration Law".

The Commentary to §2L2.2 captioned "Statutory Provisions" is amended by deleting "18 U.S.C. §§ 1423, 1425, 1546. For additional statutory provision(s), see Appendix A (Statutory Index)" and inserting in lieu thereof "8 U.S.C. §§ 1160(b)(7)(A), 1185(a)(3), (5), 1325(b), (c); 18 U.S.C. §§ 911, 1015, 1028, 1423-1426, 1546".

Section 2L2.3(b) is amended by deleting "Characteristic" and inserting in lieu thereof "Characteristics"; and by inserting the following additional specific offense characteristic:

"(2) If the offense involved six or more passports, increase as follows:

Reason for Amendment: Prior to this amendment, §2L1.1 provided the same offense level for a defendant who smuggles, transports, or harbors 1, 5, 25, 50, or any number of unlawful aliens. The inclusion of specific offense characteristic (b)(2) in §2L1.1 in the guidelines as initially promulgated in April 1987 was intended to conform the guidelines to the offense level indicated by past practices data for "ongoing criminal conduct." However, further study has convinced the Commission that the specific offense characteristic "prior conviction for the same or similar offense" is not a good proxy for such conduct. Moreover, the inclusion of a prior criminal record variable in the offense guideline is inconsistent with the general treatment of prior record as a separate dimension in the guidelines.

This amendment addresses these issues by providing an enhancement in the guideline for the number of aliens smuggled, transported, or harbored as a more direct measure of the scope of the offense. Consistent with the Commission’s general approach throughout the guidelines, the offense level increases gradually with the number of aliens. It should be noted that §3B1.1 (Aggravating Role) generally provides an additional increase of 2, 3, or 4 levels for organizers, managers, and supervisors in large-scale cases. The enhancement in this amendment pertaining to the number of aliens is designed to work in conjunction with the operation of the role enhancements from §3B1.1. Sections 2L2.1 and 2L2.3 are amended to follow the same structure.

In addition, this amendment expands the titles of §§2L2.1 and 2L2.2, and the statutory provisions to these sections, to include additional statutes appropriately covered by these guidelines.

Effective Date: The effective date of this amendment is November 1, 1992.