AMENDMENT 785

Amendment: The Commentary to §2L1.1 captioned “Application Notes” is amended in Note 5 after “vehicle” by striking the comma and inserting a semicolon; after “vessel” by striking “, or” and inserting a semicolon; and after “inhumane condition” by inserting the following: “; or guiding persons through, or abandoning persons in, a dangerous or remote geographic area without adequate food, water, clothing, or protection from the elements”.

Reason for Amendment: This amendment accounts for the risks of death, injury, starvation, dehydration, or exposure that aliens potentially face when transported through dangerous and remote geographical areas, e.g., along the southern border of the United States.

Section 2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien) currently has an enhancement at subsection (b)(6), which provides for a 2‑level increase and a minimum offense level of 18, for intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person. The Commentary for subsection (b)(6), Application Note 5, explains that §2L1.1(b)(6) may apply to a “wide variety of conduct” and provides as examples “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.”

One case that illustrates the concerns addressed in this amendment is United States v. Mateo Garza, 541 F.3d 290 (5th Cir. 2008), in which the Fifth Circuit held that the reckless endangerment enhancement at §2L1.1(b)(6) does not per se apply to transporting aliens through the South Texas brush country, and must instead be applied based on the specific facts presented to the court. The Fifth Circuit emphasized that it is not enough to say, as the district court had, that traversing an entire geographical region is inherently dangerous, but that it must be dangerous on the facts presented to and used by the district court. The Fifth Circuit identified such pertinent facts from its prior case law as the length of the journey, the temperature, whether the aliens were provided food and water and allowed rest periods, and whether the aliens suffered injuries and death. See, e.g., United States v. Garcia‑Guerrero, 313 F.3d 892 (5th Cir. 2002). Additional facts that have supported the enhancement include: whether the aliens were abandoned en route, the time of year during which the journey took place, the distance traveled, and whether the aliens were adequately clothed for the journey. See, e.g., United States v. Chapa, 362 Fed. App’x 411 (5th Cir. 2010); United States v. De Jesus‑Ojeda, 515 F.3d 434 (5th Cir. 2008); United States v. Hernandez‑Pena, 267 Fed. App’x 367 (5th Cir. 2008); United States v. Rodriguez‑Cruz, 255 F.3d 1054 (9th Cir. 2001).

The amendment adds to Application Note 5 the following new example of the conduct to which §2L1.1(b)(6) could apply: “or guiding persons through, or abandoning persons in, a dangerous or remote geographic area without adequate food, water, clothing, or protection from the elements.” The Commission determined that this new example will clarify application of subsection (b)(6), highlight the potential risks in these types of cases, provide guidance for the courts to determine whether to apply the enhancement, and promote uniformity in sentencing by providing factors to consider when determining whether to apply §2L1.1(b)(6).

Effective Date: The effective date of this amendment is November 1, 2014.