562


AMENDMENT 562

Amendment: Section 2L1.2 is amended by deleting subsection (b) as follows:

"(b) Specific Offense Characteristics

If more than one applies, use the greater:

(1) If the defendant previously was deported after a conviction for a felony, other than a felony involving violation of the immigration laws, increase by 4 levels.

(2) If the defendant previously was deported after a conviction for an aggravated felony, increase by 16 levels.",

and inserting in lieu thereof:

"(b) Specific Offense Characteristic

(1) If the defendant previously was deported after a criminal conviction, or if the defendant unlawfully remained in the United States following a removal order issued after a criminal conviction, increase as follows (if more than one applies, use the greater):

(A) If the conviction was for an aggravated felony, increase by 16 levels.

(B) If the conviction was for (i) any other felony, or (ii) three or more misdemeanor crimes of violence or misdemeanor controlled substance offenses, increase by 4 levels.".

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

"3. A 4-level increase is provided under subsection (b)(1) in the case of a defendant who was previously deported after a conviction for a felony, other than a felony involving a violation of the immigration laws.

4. A 16-level increase is provided under subsection (b)(2) in the case of a defendant who was previously deported after a conviction for an aggravated felony.";

by redesignating Notes 1 and 2 as Notes 2 and 3, respectively; by deleting in Note 3, as redesignated, "without criminal conviction" after "deportation"; and by inserting the following as the new Note 1:

"1. For purposes of this guideline—

‘Deported after a conviction,’ means that the deportation was subsequent to the conviction, whether or not the deportation was in response to such conviction. An alien has previously been ‘deported’ if he or she has been removed or has departed the United States while an order of exclusion, deportation, or removal was outstanding.

‘Remained in the United States following a removal order issued after a conviction,’ means that the removal order was subsequent to the conviction, whether or not the removal order was in response to such conviction.

‘Aggravated felony,’ is defined at 8 U.S.C. § 1101(a)(43) without regard to the date of conviction of the aggravated felony.

‘Crime of violence’ and ‘controlled substance offense’ are defined in §4B1.2. For purposes of subsection (b)(1)(B), ‘crime of violence’ includes offenses punishable by imprisonment for a term of one year or less.

‘Firearms offense’ means any offense covered by Chapter Two, Part K, Subpart 2, or any similar offense under state or local law.

‘Felony offense’ means any federal, state, or local offense punishable by imprisonment for a term exceeding one year.".

The Commentary to §2L1.2 captioned "Application Notes" is amended by redesignating Note 5 as Note 4; in Note 4, as redesignated, by deleting "(b)(1) or (b)(2)" and inserting in lieu thereof "(b)"; and by inserting after Note 4, as redesignated, the following new note:

"5. Aggravated felonies that trigger the adjustment from subsection (b)(1)(A) vary widely. If subsection (b)(1)(A) applies, and (A) the defendant has previously been convicted of only one felony offense; (B) such offense was not a crime of violence or firearms offense; and (C) the term of imprisonment imposed for such offense did not exceed one year, a downward departure may be warranted based on the seriousness of the aggravated felony.".

The Commentary to §2L1.2 captioned "Application Notes" is amended by deleting Notes 6 and 7 as follows:

"6. ‘Deported after a conviction,’ as used in subsections (b)(1) and (b)(2), means that the deportation was subsequent to the conviction, whether or not the deportation was in response to such conviction.

7. ‘Aggravated felony,’ as used in subsection (b)(2), means murder; any illicit trafficking in any controlled substance (as defined in 21 U.S.C. § 802), including any drug trafficking crime as defined in 18 U.S.C. § 924(c)(2); any illicit trafficking in any firearms or destructive devices as defined in 18 U.S.C. § 921; any offense described in 18 U.S.C. § 1956 (relating to laundering of monetary instruments); any crime of violence (as defined in 18 U.S.C. § 16, not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least five years; or any attempt or conspiracy to commit any such act. The term ‘aggravated felony’ applies to offenses described in the previous sentence whether in violation of federal or state law and also applies to offenses described in the previous sentence in violation of foreign law for which the term of imprisonment was completed within the previous 15 years. See 8 U.S.C. § 1101(a)(43).".

Reason for Amendment: This amendment implements sections 321 and 334 of the Illegal Immigration and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009. Section 321 of the Act adds to the definition of "aggravated felony" crimes of rape and sexual abuse of a minor, as well as any crime of violence for which the term of imprisonment is at least one year. This amendment conforms the definition of "aggravated felony" in the guidelines with the amended definition in the Immigration and Nationality Act.

Section 334 directs the Sentencing Commission to promulgate amendments to the guidelines for the crimes of unlawfully remaining and illegally entering the United States corresponding to changes made in statutory penalties for these offenses in the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 1796. This amendment enhances penalties for those who unlawfully enter or remain in the United States following conviction for an aggravated felony, any other felony, or three misdemeanor crimes of violence or controlled substance offenses. The amendment also makes clarifying changes to the commentary.

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