AMENDMENT 671

Amendment: Section 2L2.2(b) is amended by adding at the end the following:

"(3) If the defendant fraudulently obtained or used a United States passport, increase by 4 levels.".

The Commentary to §2L2.2 captioned "Application Notes" is amended by striking Note 1 as follows:

"1. For purposes of this guideline—

‘Immigration and naturalization offense’ means any offense covered by Chapter Two, Part L.",

and inserting the following:

"1. Definition.—For purposes of this guideline, ‘immigration and naturalization offense’ means any offense covered by Chapter Two, Part L.";

by striking Note 2 as follows:

"2. For the purposes of Chapter Three, Part D (Multiple Counts), a conviction for unlawfully entering or remaining in the United States (§2L1.2) arising from the same course of conduct is treated as a closely related count, and is therefore grouped with an offense covered by this guideline.";

and redesignating Note 3 as Note 2; and in Note 2, as redesignated by this amendment, by inserting "Application of Subsection (b)(2).—" before "Prior".

The Commentary to §2L2.2 captioned "Application Notes" is amended by adding at the end the following:

"3. Application of Subsection (b)(3).—The term ‘used’ is to be construed broadly and includes the attempted renewal of previously-issued passports.

4. Multiple Counts.—For the purposes of Chapter Three, Part D (Multiple Counts), a count of conviction for unlawfully entering or remaining in the United States covered by §2L1.2 (Unlawfully Entering or Remaining in the United States) arising from the same course of conduct as the count of conviction covered by this guideline shall be considered a closely related count to the count of conviction covered by this guideline, and therefore is to be grouped with the count of conviction covered by this guideline.

5. Upward Departure Provision.—If the defendant fraudulently obtained or used a United States passport for the purpose of entering the United States to engage in terrorist activity, an upward departure may be warranted. See Application Note 4 of the Commentary to §3A1.4 (Terrorism).".

Reason for Amendment: The purpose of this amendment is to provide increased punishment for defendants who fraudulently use or obtain United States passports. The amendment adds a new specific offense characteristic at subsection (b)(3) of §2L2.2 (Smuggling, Transporting, or Harboring an Unlawful Alien) that provides an increase of four levels if the defendant fraudulently obtained or used a United States passport. Application Note 3 clarifies that "use" is to be construed broadly and includes the attempted renewal of a previously issued United States passport. Application Note 5 invites an upward departure if the defendant fraudulently obtained or used a United States passport with the intent to engage in terrorist activity.

This amendment responds to comments received from the Departments of State and Justice to the effect that maintaining the integrity of United States passports is at the core of United States border and security efforts. Accordingly, this amendment ensures increased punishment for those defendants who threaten the security of the United States by their fraudulent abuse of United States passports.

Effective Date: The effective date of this amendment is November 1, 2004.