•X0&/'2004 09:36 FAX 2023129874 MSTPCC CENTER 1^1001

HUMAN SMUGGLING & TRAFFICKING CENTER

Fax Unclassified: (202) 312-9874 FAX
Fax Classified: (202) 312-9875

HSTC
To: Susan Ginsburg Office: 9/11 Commission

From: Jim Chaparro Pages:

Phone: (202)312-9685 Date: March 30,2004

Subject sentencing guideline issues

CLASSIFICATION: Q TOP SECRET D SECRET Q CONFIDENTIAL

D SENSITIVE BUT UNCLASSIFIED (SBU) IE LIMITED OFFICIAL USE (LOU)
D UNCLASSIFIED

Comments:
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J72004 09:36 FAX 2023129874

STAFF RECOMMENDATIONS; IMMIGRATION

•Staff recommends lhai the Commission defer any action on these proposed amendments until a
more comprehensive package addressing all immigration guidelines can be accomplished.

Staff is concerned thai a piecemeal approach of amending only the §2L1.1 (Smuggling.
Harboring, Transporting Illegal Aliens) -and §2L2-2 (Document Fraud) guidelines may resiilHn- -
inconsistencies acrosa Ihe breadth of immigration guidelines as *'dJ as frusvaie guidelines users
as the Commission most likely will be amending various immigration guidelines during the next
amendment cycle,

Additionally, the staff is concerned about the interplay between the operation of these guidelines
and. various "fast track" and early disposition programs that impact the sentences of the
guidelines for which amendments were proposed as well as thfi other immigration guidelines not
addressed by this amendment. The Commission may wish to gather niore information regarding
early disposition programs during the next amendment cycle to better understand their impact on
sentencing practices relating to immigration offenses.

Staff understands that the Commission may wish to act this amendment cycle to respond to
specific concerns addressed in these proposed immigration amendments. As a result, the staff
has come to a consensus on recommendations for ail of the options found in the proposed
amendment, and they arc outlined below.

Part 1; S2L1.1 (Smuggling, Harboring, Transporting Illegal Aliens)

Issue I: Entering ihc United States 10 Engage in Subversive Activity

Staff favors the adoption of both options 1 and 3 to address the concerns over aliens who pose a
risk involving national security. Option 1 requires an offense of convjet]on under 8 TJ.S.C.
§ 1.327, knowing that the alien smuggledis inadmissible pursuant lo S U.S.C. § US2(a)(3). This
would require the-=Govemment 10 prove the inadmissibility pursuant to the staiutory definitions in
order to receive ttiis enhancement. Additionally, staff advocates adopting the bracketed language
presented in optional that limics the subsections of 8 U.S.C. § 1182(a)(3) TO be used lo provide
cfo.6 increased basef'offense level. Adoption of the bracketed language will alleviate the
potentially broad, application of this option since some provisions of 8 U.S.C. § 1182(a)(3) may
encompass moretriari the security risk This option is attempting to uddress.
•i

Staff also favors retaining the upward departure language hi application note 8(Q to allow the
court to upwardfy?depan in cases without convictions under S U.S.C. § 1327 involving
inadmissible alicto^fcs defined in 8 U.S.C. § 1182(aX3), but where evidence is present thai the
alien smuggled intended lo engage in terrorism related activities.
v?>
Finally, staff rscjjjiHnends a two level increase at (b)(4) For defendants knowingly smuggling
illegal aliens enfenng the United States intending to engage in a crime of violence or controlled
substance offenste,!'
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fesue 2: Number of Illegal Aliens

Staff does no: recommend adoption of Che new subsections Under (b)(2): the table providing an
increase for the number of unlawful aliens smuggled, harbored, or iransponed. Fiscal year 2001
data shows that 57 of 1,843 cases computed under §2L1.1 received an increase of nine levels
—Because the-offenasinvelved-i-nore-than 100-aJienth-^The immigration Tearcvis-GUHe^tl-y-irHlVJ'
process of reviewing these 57 cases as well as the ten cases involving upward departures in order
to beccerprovide the Comroission with, a description of cases involving over 100 aliens.

Should the Commission wish 10 adopt this amendment, staff recommends an increase of 11
levels for offenses involving 200 to 2P9 aliens, and au increase of 13 levels for offenses
involving 300 or more aliens. Because the slope of the numbers involved on the left side of the
Lable decreases as the numbers increase, staff feels thai Ihe increases in offense levels should not
mirror the ihree level increments present in the first three subdivisions oj'this enhancement.

jssue 3: Offenses. Involving £>eatb

Staff recommends the Commission adopt the ten level increase for offenses involving death in
specific offense characteristic (b)(9). This increase will ensure that defendants whose base
offense level is determined under (a)(3) (base offense level 12') wil] have punishment equal to
those defendants convicted of involuntary manslaughter (which provides a hose offense level of
22 when the offense involves the reckless operation of u means of transportation).

Staff also recommends adoption of the cross reference, as this will ensure chat if il\ offense
involved the death of an alien committed by means other that manslaughter, the appropriate
penalty will be determined using the applicable homicide guideline. This cross reference will
apply only if the offense level determined under the appropriate homicide guideline results in a
greater offense level than that determined under §2LL1.

Part 2: §2L2.2 (Document Fraud)

l% / - .t»
Issue 1: Increasi r>g.:ifhaBas& Offense Lcva|
, .
Staff is opposed-&^!lany increas^in the base offense levd for this guideline. In 1997, the
Commission recfei&i&'a directive as well as emergency amendment iiuihoriiy to increase the
offense level for^2E2.1 (Trafficking in Fraudulent Dwumcnls) as \vcill as §2L2.2. Prior to 1997.
the base offcnse';I:ev.6ls were nine and six, respectively. To implement, the directive, the
Commission ino^fe'^ithe base" offense levels to 11 and eight, respectively. The rhree level
separation of th^a$e'offens&ievels under 2L2.1 and 2L2.2 is a long slanding Commission
policy representiH^jpie re!aiiv^.severity and consequently UK proportionality between these two
offenses. Any irjc^^b in the'base offense level would overturn (.his long standing policy.
• " ''"' >
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Issue 2: Increasing OffftnecJLevels in Existing Specific Offansa Characteristics

Staff is also opposed to any increase in the existing specific Qff&nse characteristics that address
previous deportations and prior convictions for immigration and naturalization offenses. Staff
does not feel there is sufficient evidence to support an increase for these particular specific
offense characteristics.

Issue 3: Specific Offense Characteristics Addressing Security Risk

Staff docs nol recommend adopting the specific offense characteristic addressing fugitive status,
especially if that slaius is from another foreign country. This specific offense characteristic
prese-nts potential conflict with the criminal hisiory guidelines, and information regarding foreign
fugitive status may be difficult for guidelines users to obtain. Should the Commission decide to
include this specific offense characteristic as part of the amendment package, staff feels an
increase of two levels is appropriate.

Staff does not recommend adoption of the specific offense characteristic (b)(4) that considers the
defendant's status as an inadmissible alien pursuant lo 8 U.S.C. § 1182(a>(3). Hcnvever, if die
Commission decides to include this specific offense characteristic us pan of this amendment
package, staff recommends including the bracketed language thai limits ihe potentially broad
applicability of Ihis specific offense characteristic. Staff also Ibcls thai an increase of four levels
is appropriate.

Issue 4: United Stales Passports

Staff" recommends adoption of the specific offense characteristic for defendants fraudulently
obtaining or using United States passports. Slaff recommends an increase of four levels to
address offenses involving the use of U.S. passports.
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2023129874
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REVISED PROPOSED AMENDMENT: IMMIGRATION

Synopsis of Proposed Amendment: This proposed amendment addresses issues involving immigration
offenses. Spaciftcalty, the proposed ame.ndme.nt makes changes io §§2L1.J (Smuggling Traitypitrting, or
Harboring Qn Unlawful Alien) and 2L2.2 (Fraudulently Acquiring Document.'; Relating iff Naturalization,
Cilizenshrp, -or Legal Resident Sia.ius.for- Own U$e; Kalxe Persoiiaium ar rn^duitini'MarHage byAUw- •
tu Evade Immigration. Law; Fraudulently Acquiring or Improperly Using a United Stales Passport). Two
issues far comment also are contained in IhLt proposed amendment.

(1) §2LJ.} (Smuggling, Transporting, or Harboring cm Unla\vful Alien)

(A) Entering the United States to Engage in Subversive AcriWty

In an effort to address the increased concern regarding aliens \vhv pose a threat to the
security of the Untied Slates, the proposed amendment provides iwu options for cases in which
the defendant knowingly smuggled, harbored or transported an alien aiadm'ssable under 8
U.S.C. § ll&2(a)(3)(relaring to aliens ineligible to reeulvt \>lxas and unter into the United States
due to security and related grounds). Currently, §2L1.1 provide* a base offense level of level 23,
if the defendant was convicted under $ U,S.C. § 1327 of a violation involving un alien who
previously was deported after a conviction for an aggravated felony. Option 1 and 2 provide an
alternative base vffense level of level 125) for offenses in which lha defendant knowingly
smuggled, harbored, or transported an, alien who was inadruissible under 3 U.S.C- § ]182(a)(3).
Options J and 2 differ in thai Option 3 requires a conviction under S U.S.C. $ 1327 for such
conduct, "while, Option 2 applies regardless ofwhetlier the defendant was convicted of such
conduct. The commentary makes clear t)iat application of the euhcmrerrusnt requires only that
the defendant tanow the alien is inadmissible, not that the inadmissibiliiy was related to security
issues. Option 3 provides encouraged upward departure Iruiguage jo address a case in which
the defendant smuggled, transported, or harbored an alien fluwwing thai the} I and such} alien
intended to enter tlie United Srtaex to engage in an off&as ntltaiftl lo terrorism.

The proposed amendment aht> provides an enhanccmcm ai $2hl- I(b)(4) if the defendant
smuggled,.harbored or transported] aji_alien knowing that the. alieit itaeiided TO enter the Untied
States 1o engage in a crime of violence or a controlled substance offense-

(B) Nianfev of-Illegal-Aliens'"'•••^jr?S '

The'proposed amendment provides additional <tffens& level increases to (he table, in

§2U.l(t>)(2)'r^lating to thenumtierofahens involved in the offense. An increase of[llj[22}
Levels v/e>iifi|i& applicable under th& proposal ifihc offense, involved 200 lo 299 aliens, and an
increase ErfJ.J.3-18] levels would be applicable If file offeree involved 300 or more aliens. The
current ufyw^idepariure-proyinori'iitAjspKcation. Nme 4 lias been modified io reflect this 1
£&;>*»>.• •': ' ''"•• • -7.-:"/"'*•'. -.

(CJ ^Gejt'/nvoiving-Dir^I." ]; "• '•'. ' • " . . ' . -

- r**1 :-."•• • ; • . ..-. _;., ,.- -.
Tij^etunendmentproposes tw% signififont changes ID Ihc guideline en cases in which
dearh vccc?knfffi. first, the proposedtimSindmenf removes the iiirrseuti afelshi levels "if death
 MSTPCC CENTER JUUD
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resulted"from the current specific offense characi&risiic in 821.1.I(b)(6) addressing bodily

injury and places this increase in a. fftind alone specific offense characteristic in §2L]J(b)(fi).
'rhis new specific offense characi&ristic provides an increase of'[10] levels. Second. I/re cross
reference at §2L1, l(c) is expamled to caver deadis niher than, murder, if tits resulting offense
level is greater than ihe offense level derenninetl under §2 U. I.

(2) IfHuiigracion Documentation Fraud

Tfie proposed amendment makes several clianges to §2L3.2 (Fraudulently Acquiring Documents
Relating LO Naturalization, Citizenship, or tegal Resident Status far Own Use; False
Perscrnaiion or Fraudulent Marriage by Allen to Evadl Immigration Law; Fraudulently
Acquiring or Improperly Using a United Stares Passport). First, ihe proposed amendment
Increases the base offense level in §2L2,2(a)from level S iv I aval [8-12]. Second, ihe propos&d
amendment increases by mo levels she current erJumrenvtnty in j)§2L2.2(b)(l) (regarding
unlawful allenn wlio Imve been deponed on one or more occasions) /aid 2L2.2(b)(2) (regarding
defendants who commit the instani offense after fitstaining a felony conv'sctionfor cut
immigration and naturalization, offense). Tiib'tl, Ih-e propound amendment prcivides two specific
offense characteristics for addressing the increased ccnccm regartllK$ aliens who pose a Threat
w tiie security of the. United Sttttes, Specjfic offense characteristic (h)(3) provides a [4-lQJ-levei
enhancement in §2L2.2(b)(3) if the defendant was a. fugitive wanted for u felony offense in the
United Staces (or any other country). Specific offense, characteristic (b)(4) provides a (4-10)
level enhancement if, at the rime of the offense, ihe defendant wax vn madmissable ah'en
pursuant to S U.S.C. § Jl82(a)(3). Fatally, tlie proposed amendment provides an [2-3]-level
cnhuncemem at §2L2.2(b)(5) Iflhs defendant fraudulently obtained or used a Untied Slaws
passport. Commentary is added to make clear that "use" includes cases involving a» attempt to
renew a previously issued passport.

Proposed Amendment:

$21,1.1. Smuggling. Transporting, or Harboring nn Unlawful Alien

(a) Base Offense. Level:

[Option 1: A i.|

:UlA:'.&S
:•:' ':•'.''.;,'* Krt*$fy&$@®$&&.&

,*
[Option 2: :''?
r*ssi™1..T>aotT—MssKveestMT ,|J
^#t*^SBOTH$

23i-if the defendant was convjolod undisr S U.S.C. § 1327 ot'a violation
involving an alien who previously \v«i$ deponed after a canviction for an
ggra\awd felony; or

12, oihcrwise.
 ^2004 09:36 FAX 2023129874 MSTPCC CENTER 1^1007
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* *
(b) Specific Offense Characteristics

(2) If ehc offense involved die smuggling, transporting, or harboring of six.

nr more unlawful aliens, increase as follows:

Number qf Unla>vfaLAlleflS
Smuggled Transported, or
Harbored Increasa In Leval

(A) 6-24 mid 3

(B) 25^99 add(J
(Q 100 add 9:

i;tlo|$hoi|ippty,, and'the .defendant &nuggied.

iis'eb-.L2-6! levels.

If any person JLvl ut suscamed bodily injury, increase the offense leval
according CO the seriousness of tin- injury:

Increase in .
.!
udd 2 levels
add 4 levels
-• Pemarieiif'br-Eif e-rhreacen i n g 1
Bodily Injury • add 6 levels:
add C kvalA. I
1 Xl

-Li'ikV.vi-r x "i~* i ) ITBC^SMV irrct

 1008
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Comrnenia>~v

Siatuiarv Provisions: $ U.S.C. §§ )324(a). 7327. far tuldilional MTaiulory provisions), see Appendix A
(Stannary Index).

Annlicarian

]. ^:^-Fur purposes of this guide tine=

* * *

* *

/_____..'„ ..... -rgj.'r.. .A,... /,,,ff7. l.'i

t»Ui/vbfU frVt L(l_i.I»K_Vr ii/ Lt^ tf C^/ll-A.C^^r L/f
$
•//£

[ Option 1:
1

'^^(fniiKJf^ifin^iK^I^S^

^^f^<^m^^^^
^'^^i^^i^m^:^^^.,
'%^^ii^:^^^^t ..f<=
^

(Option 2:

2.
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jffiiffii:&a^ vn3£^s--0'.s::G, § ni&fo^Mi'c),

M&laM^
.'•-i-i.y-'/i-yAi'fet- strV^*^^-i^j.V»L>O^)LV^iWv..i-Y. rvrvv : .IV-.T . • i.'^r?.'/ ».--'.• -"j-r-.i T-. v • >."*•'•»• «=.v-r-w-^rs.•*

S. tf&fflSMMft^^

•#r /y*I • ,,,-./-, T TT. rf T i i f f-Jl?/^rmii.-irv^ fT/nii »J iTliO ,. f.'.'-r^—-If P ir.J . ?.'.T,.T.T>V4JV i Jti

raiorifjj i-esiilring in an
adjuxLment under subsection (b){$) are also r.nunledfoi* purposes of dele mining criminal history
points pursuant to Chapter Four, Pan A (Criminal /fiy/niy).

K^^S^S^£^S^§!^ifi^«if '-given'thfh ienn i}f.^4Bl^'2.\(Defl)iirlQn& fff.-THrms

i&rffl& '^WiM^ &^&&&s>®£Sl&

: ! rS,lA
,t-*-T *Ttri£' i^£C9£>w^t'Q£ •'•''"'' '*'•"-*''"'
J.Sy^ki.!^S5§SKKS^J?<?ct?tfM conduct 10 which ilia adjustment from 'I
:•*
subsection
^p^^^i^^:(i^i4eyja'ri'ery ofcoiulucr(i\f>.. rranspbrtin^ persons in the trunk or
engine compqrtnfenf'ofa 'jnoip'r'M'ehicle. carrying sidisiamidly more passengers ili&n the rated
capacity of'ctwtpny&hicle'oryesJel, or harboring ftenons In u crowdad, dangerous, or
inhumane.'cpj'i^^^lj', "ifxu&itectipn (if)(Si^app]its solely on die btt,tis of conduct related ro .S
fleeing frovp&lXfw. enforcement 'officer, donol apply an adjuxmienrfroni $3CJ.2 (Reckless
EndangermerftfBwng Flight)-; Addmonallyj do not apply r/t£ cidfusinient in subsection (b)ffi$
(fine only;-itf£Jj^$\c£nduct,that'created a subawnrial rhk oj.einaih or serious bodlh injury is
r.._,-"-«i»MakJW ,_.'Ar-:J"- ., . enlamxniKitt untlcr sutetierion ( ^
_f£o04 09:37 FAX 2023129874 MSTPCC CENTER 1^1010
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&e &fi'r

&)

§21,2.2, Fraudulently Acnuiriug Documents Relating to Naturalization. Citizenship, or

Legal Resident Status for Own Use; False PctsonaUoa or Fraudtdcnt Marriage bv
Alien to Evndc ImmigratioD Law: Fraudulently Acquiring or Improperly Using a
United States j

(a) Base Offense Level:

(b) Specific Offense Characteristics

(1) If the defendant is an unlawful alien who has been dtoponttd (voluntarily
or involuntarily) on one or more occusjgns prior \o ihe insiftnl offense,
increase by 3[4j levels.

If the defendant committed any part of the instant offense after

sustaining (A) a conviction tor a felony immigration aiitl naturalization
offense, iacrease by 2[^t] levels; or (R) two for mure) convictions for
feloay immigration and naiuralizaricm offenses, each such conviction
arising oui of a. separate prosecution, increase by 4L^J levels.
•

p^^
^••:^:sB
5*i'i6W.* '
&1NV..1:. -; -.r1
^V"
*W».ih''
jfevl"*-'-1 Convrutmarv
yS";."" • # XI 01

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Application. Notes:

I. M^tfrfEti/iifefeFe'r purposes of this guideline**:

p£pa^v^
X: • 7 . .;}_ i-*« i_^l!>' ._*> ? itj

"Immigration and naturalization offense" means any offense covered by Chapter Two, Pan L.

ii^fttffkjifr IZTtt

\VIL/L i\n tsffin

r6^'^
r /gfonv conviaion(s) resulting in an adjustment under
sulisection (b)(2) are also counted for purposes ofdencririinlng criminal history poinis pursuant
to Chapter Four, Parr A (Criminal Hisrory).

;
&(^^
e'Q'f&c grouped with?in. vff&rtie coy.ere.ii
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?004 09:37 FAX 2023129874 ALiBIV J01Z

March 29,2004

MEMORANDUM

TO: Commissioners

FROM: Immigration Policy Team

TCrista Rubin, Chair
Kealin Cuibreath
Timothy Drisko
Jeanneine Gabriel
Larry Kupsrs
Rache] Pierce

RE: April Meeting Materials

The Immigration Policy Team (the Team) has continued to review the proposal amendments
regarding immigration offenses. This memorandum highlights the. changes to the proposed
amendments regarding immigration offenses, and identifies specific policy issues for the
Commission to address.

The Team has received public comment from: Secrewry of Stare Colin Powell,, the Department
of Justice, the Probation Officers Advisory Group (POAG), The .Federal Public Defenders (FPD),
The Criminal Law Gommtnce (CLC), and, from the District of Arizona, the Honorable Cindy K.
Jorgenson and the Horicirable John M. Roll. Cornmenr specific to the proposed amendment
Options will be addressed in ihis memo under each pertinent section.

Both the CLC an'd'th&FPD advocate thai the Commission defer any action on this proposed
amendment Ufliil.k-wjEnprehensive package can be developed. The CLC notes that the
Commission has rna|tfrevisions to £2L1.2 (Unlawfully Entering or Remaining in (he "United
Slates) in 2001, 200s&and 2003. The CLC also slates, "since acis of terrorism can be .separately
chargad by the government, we support the delay in any revisions 10 the immigration guidelines
until a comprehenstvVpackage can be developed."

The FPD recomn3eridff.hat "the Commission delay until next cycle; any psinial amendments
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rvu.

dealing with ihe immigration guideline . . . iL would be more efficient and appropriate to submit
an immigration package (hat incorporates both appropriate reductions as wejl as any increases
that may be required." TheFPD also suggest dim tho Commission collect information regarding
how early disposition departures are being applied in These cases. However, the FPD have
provided specific comment un the proposed amendment should the Commission wjsh to ?ici this
amendment cycle. Their specific commence are addressed jn ihis memo within each appropriate
six lion.

The Honorable John M- Roll and the Honorable Cindy K. )orgenson provided o joint letter
describing cases in Che district of Arizona involving the smuggling and transportation of minors.
These judges request that the Commission provide enhancements under the smuggling guideline
(§2L1.1) to account for the risk involved when small children are placed in the hands of
smugglers. Early In this amendment cycle, options regarding the endangermenl of minors were
presented Lo ihe Commission. However, these options were not published for comment. The
Commission will need LO revisit §2LI.l next amendment cycle in order u> address the
endan germ.cn t of minors.

Part I: §2L1.1 Smuggling, Transporting, or Harboring an Unlawful Alien

Enteringihs United Stales to Engage in Subversive Activity

In an effort to address the increased concern regarding aliens who pone ti threat co the security of
the United Slates, the proposed amendment provides three nc\ options. These new options
strive to address ihe following issues: 1) a desire expressed by the Dc-partm&nt of Justice, (before
publication for public comment) to expand the scope of the base offense level under this
guideline to included all violations of S U.S.C. § 1327, and 2) concerns relating to national
I
security, which, due to directives to the Commission, may preclude Lhe addition of a specific
offense characteristic based on terrorism related conduct.
1
I
Options 1 and 2 provide new base offense levels for cases in which the defendant knowingly
smuggled, harbdre'ji, or transported an alien inadmissible under t> U.S.C. g I LS2(ii)(3) (relating TO
aliens ineligible ro'ieceivft visas and enter into"theTJniTcd States due to security and related
grounds). Option"! provides an alternative base offense level (all 1) of level [25] if the
defendant was convicted under 8 U.S.C. § 1327 of a violation involving an aJien who was
i
inadmissible undec-8 U.S.C. § 1182(a)(3). Option 2 provides another alternative base offense
level (a)(l) of level [25) if the defendant knowingly smuggled, transported, or harbored an alien
inadmissible under8 U.S.C. § 1182(a)(3). regardless of whether the defendant was convicied of
such conduct. Th"e'rcomrnentary maVes clear that the application of the base offense lcvc-1 in '-3
':i
option 2'requires.only that the defendant kno\ the alien is inadmixxible, not that The
inadmissability was related to security issues. The primary difference between these iwo options
is Ihtkt option 1 is based upon the offense of conviction, t\nd option 2 is haxcd on the knowing
acts of the defendant regardless of the offense of conviciion.

Both options 1 and 2 provide bracketed languuge thai would limit the categories of inadmissible
aliens considered under these base offense levels. Staff was concx-med that particular
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subsections of 8 U.S.C. § 1182(a)(3) may be too broad. The bracketed language is targeted lo
aliens who seeks to enter the United States to engage in activities renting lo: 1} espionage, 2)
opposition to the United States by force or violence, or 3) rcrrorisTn; or, if the defendant has an
association with terrorist organizations.

Additionally, specific offense characteristic (b)(4) provides, a [2-6] level enhnnccment if the
defendant knew that the alien that was smuggled, harbored, or transported intended co commit a
crime of violence or a controlled substance offense. This specific offense characteristic would
not apply if base offense level (a)(l) is applicable.

Option 3 provides anew application note, 8(C), to address the case in which a defendant
smuggled an alien who intended to enter the United States 10 engage in a terrorism offense.
Originally presented to the Commission and published for comment in ihe form of a specific
offense characteristic, due to potential problems wilh a terrorism directive contained In the
PATRIOT Act, staff felt upward departure language was appropriate to address this specific
concern.

Public Conunenl

The Department of Justice agrees wilh ihe underlying premise of the proposal, "thai those
who illegally smuggle people into this country should he punished differently depending
upon the alien's purpose." However, the Department advocates a different approach.
Specifically, the Department advocates that smugglers who enable terrorists lo illegally
enter this country undetected should not be able to escape increased Jiability simply
bewauss they did not "know" what specific illegal wcl ihe alien intended to commit.
Therefore, they recommend u strict liability standard ruihcr than imposing a knowledge
requirement.

The Department suggests a reworking of Lha specific olTense characteristics addressing

this issue. The Department would like to see an increase of 12 - 6J levels based on the
number of aliens smuggled that intended to engage in a crime of violence or controlled
substance offense. Additionally, the Department suggcsls an increase of [2 - 6] Jcvels
based on the number of aliens smuggled thai are inadmissible as defined in S U.S.C. §
ll82(a)(2)andUX3).

POAG suggests thai gathering the facts to warrant Lhe proposed enhancements in (b)(4)
may l>c difficult for the probation officer lo obtain, They suggest the issue may be
resolved if the language cracks the provisions found in 8 U.S.C'. !j 1327 wherein the
charging document ^ould outline (ha specifics of ihe conduct.

Number of Illegal Aliens

The modifications' addressing ihis issue remain unchanged from the version of the amendment
published for public comment. Additional offense level increases ro the table in §2Ll.l(b)(2) are
' provided to address the number of aliens involved in the off&nae. An increase of f 11-12] levels
 I-0!3-1!?!/,4.

would be applicable if The offense involved 200 Co 299 aliens, and an increase of [13 -18] levels
would be applicable if the offense involved 300 or more aliens. The current upward depute tore
provision iu Application Note 4 has been modified to reflect this proposed change.

In Fiscal Year 2001, 1,843 cases had guideline compulations under §2Ll.l. Of the 1,543 cases,
57 received an enhancement of nine levels because the offense involved more than 100 aliens.
Only len of ihe 1,843 cases received an upward departure.1 The Team is currently reviewing the
57 cases thai received this enhancement, as well as the 10 upward departure cases. A summary
of the findings will be provided to the Commission at the April meeting.

Public Connnem

The Department of Justice supports this portion of rho amwidmcnr, and recommends an
increase of 12 for an offense involving 200 to 299 aliens, and an increase of 15 for an
offense involving move than 300 aliens.

POAG found no application problems if The tahle J'oj (lie number of aliens smuggled is
amended.

The FPD recommend two level increments for this amendment. Overall, however, the
PPD advise the Commission ro keep enhancements to a minimum, due lo "serious issues -./
for obtaining evidence and preserving testimony of malemtJ wittiesacs" as a. result of the ;
usually quick deportation of witnesses in these cases.
ii.
Offenses Involving Death :;.

The proposed amendment addresses the inadequacies of the. current guideline to provide ?
sufficient punishment in smuggling cases involving death. This proposed amendment removes .%;
the increase of eight levels "if death resulted" from the current specific offense characteristic in $
(b)(6) addressing bodily injury and places this increase in a stand alone specific offense $jjj
characteristic in...|3LX',l(b)(8). This new specific offense characteristic provides an increase of "•$
[10] levels. A tfirleJveVincreaiie for Ihis specific offense characteristic will ensure that defendants :m
who receive the lowest base offense level at §2L1.1 (level 12) will receive punishment $f-
commensurate w.i$ ^defendants convicted of involuntary manslaughter involving the reckless ^
operation of a means of iransporuition. • • •.*

Additionally, tlieproposed amendment modifies t)ie cross reference at §2L1. i (c) to expand its £
application to coVec'deaths other than murder, if ihe resulting offense level is greater than the |
offense level de tc'rmihcd under §2L 1.1. "^
.'•'*!.' : r*'

The one change^iade "m this area addresses multiple dewths, The propose*! iimendment provides .j
commentary authorizing un upward departure if more than one death occurred during the 'i

1 Of the -Ij843 eases, 100 cases were excluded due 10 missing departure informuiion.

V . 4.
 4 0 9 : 3 8 FAX 2023129874
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smuggling offense. Initially presented to the Commission as a special instruction ai $2Ll.l(d) (

aflcr review, the team concluded this structure would not work within the confines of relevant
conduct as it operates in S2L1.1 offenses. The Team feels the best approach would he to address
this with upward departure language.

Public Comment

The Department of Justice supports the three amendmanw as presented for public
comment. The Department, referencing the- floor offense level for offenses involving
death, recommends the Commission provide an increase commensurate to other
guiddin&s where the underlying criminal conduct results in dftaih.

POAG supports an enhancement for multiple deaths, especially in light of recent cases
involving The death of more than one alien. POAG suggesis thai an encouraged upward
dtparture (rather than the special instruction language rhoT wns published) would t>B ch£5
preferred way to address this issue.

The FPD suggest thai the specific offense characrerisiic regarding, death would create
serious due process problems, particularly us ihe cnruma-jnem applias baaed on relevant
conduct of others and is not limited to conduct for \whidi (he defendant alone is
responsible. FPD states that in cases of chis nature, the government often indicts every
person remotely connected to che offense.

Part 2: §2L2-2 Fraudulently Acquiring Documents Relating to Naturalization, Citizenship, V

or Legal Resident Status for Own Use; False Personation or Fraudulent Marriage by Alien
to Evade Immigration Lawj Fraudulently Acquiring or Improperly U.s'mg a United States
Passport

This section of the memorandum sets forth the published options, highlights changes to the
published proposal, ai\ summarizes relevant comment. Attached lo Lhis memo are case •;*
examples of offenses receiving sentences under JJ2L2.2. The Team has reviewed 45 cases &
receiving sentences under §21.2.2. The sample is not sufficiently large to be a representative -,v
sample; it is meant to provide The Commission with specific examples of rile types of offenses •'•'
and offenders receiving sentences under this guideline. Please see the documfsnt immediately
following rhis memo for the case examples.

Increased Base Offense l^evel

This portion of the proposed amendment directly responds lu concerns raised by the Department
of Justice regarding ih* adequacy of penalties under this purlieu lur guideline, especially in light
of national security concerns. The proposed amendment provides ibc option for [he Commission
to increase Ihe base offense level in the range of [S -12].

Public Comment

The Department of'State iidvocate,s,rai,sin£The base offense level u> 9, keeping rhc base

5
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offense level two levels below §2L2.1 (Trafficking in Documents Relating re-
Naturalization. Citizenship, or Legal Resident Status, or a U.S. Passport). Francis Taylor.
Ambassador also commented that tha Department of Slats intends lo work with the
Commission during next terra to propose raising ihe sentences for crimes relating to the
vendors of these documents.

Tile Department of Justice urges the Commission 10 incrousu Uie base offense level to 12,
which would bring §2L2.2into parity with §2BJ.l. Guideline 2Bl.l(b)(9)(C)(T) provides
a floor offense level of 12 for the "unauthorized transfer or use of any means of
identification to produce or obtain any other means of identification."

The FPD Strongly oppose any increase in the base oflcnse lave.1. Tha FPD staic that this
proposal is "inconsistent with the new compassion toward hardworking undocumented
aliens lhat the Administration has announced.''

Increas&d Levels in Existing Specific Offense Characteristics

The proposed amendment increases by two levels the current enhancements in §§2T.2.2(b)(l)
(regarding unlawful aliens who have been deported on one or more occasions) and 2L2.2(b)(2)
(regarding defendants who commit the instant offense after sustaining a felony convictjon(s) for
immigration and naturalization offensc(s)).

In Fiscal Year 2001, 802 cases had §2L2.2 compulations. Of tine 802 cases, 224 received an
increase of two levels under (b)(l). Specific offense characteristic (b)( I) addresses cases in
which the defendant is an unlawful alien who previously was deponed. Fifteen defendants
received an increase of two levels at specific offense characteristic (b)(2)(A) for cnmmitlinfi the
instant offense after sustaining a conviction for a felony immigration and naturalization offense;.
Two defendants received an increases of four levels ai specific offense characteristic (b)(2)(B) Tor
committing the instant offenst after sustaining two (or more") convictions for felony immigration
and naturalization offenses.

Public Comment

The Department of Justice, did not comment on these potential increases to the existing
specific offense characteristics in §2L2.2(b)(J) and (b)(2). However, these increases
would satisfy their concern regarding the overall severity of sentences received under
§2L2.2.

The Department of State recommends no increase lor §2L2.2(b)( 1) (addressing unlawful

aliens who have previously been deported). Mowever, ihu ayoncy recommends increasing
thefcnViiuicemenlat §2L2.2(b)(2)(A) (where a defendant has a prior conviction for a
felony immigration or naturalization offense) from two to four levels. The Department of
Stale also recommends increasing the enhuncement at §2L2.2(b){2)(B) (where the
defendant has c\vo or more prior convictions Tor folony immigration and naturalization
offenses) from four to atx levaJs.
^ 09:38 FAX 2023129874 MSTPCC CENTER
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The FPD oppose any increases based on prior convictions, especially when those
convictions are not subject to th* criminal history rules in Chapter Four. Should the
Commission wish to promulgate this amendment, FPD suggest subjecting these prior
convjcrjons to traditional criminal history limitations.

Posi ;i Threat to the Security of ihe United Stales

The proposed amendment provides two options for addressing this particular conccrr. The first
option, which was published for public comment, provides a [4-lOJ level enhancement in
§2L2.2{b)(3) if the defendant was a fugitive wanted for a felony offense in the LJiuced States [or
any orher country]. Option two, which was not presented in the proposed amendment for public
comment, provides an alternative to option 1. Option 2 provides a 1.4-10] level increase if, at the
lime of the offense, the defendant was inadmissible under1 S U.S.C. § 1182(a)(3). Should the
Commission choose to adopt one of the aUermitivo base offense levels presented ill §2Ll.J,
Option 2 will help maintain consistency between §2Ll.i anil §2L2.2 in cases involving
inadmissible aliens.

Public Commeru

The Department of Justice supports the addition of ihe specific offense characteristic
addressing fugitive status. The Department recommends ihe enhancement be
accompanied by an application note addressing the type of evidence necessary to prove
this status.
.V
The Department of Suite recommends modifying the proposed specific offense ft,
characteristic regarding fugitive status to provide on eight level increase if the defendant •i'

is wanted fora crime of violence or controlled substance offense, and an increase of four .,1

levels if the defendant is wanted for any other iV-lony ryffcn.se,

POAG opposes an enhancement in the case of n fugitive from another country. The
group exjslrftsses concerns regarding: 1) timely obtaining foreign criminal arrest
••n
mformaiK)n;:2)-fugitives from foreign countries who are escaping political or religious -.1.
prosecution; and 3) potential conflict with Chapter Four of The GuMali/ins Manual.
POAG takes no position with regard to fugitive status from & "United States jurisdiction,
but notes, a potcniiid conflict with Chapter Four in Unit mere limits cannot be uonsidtred
in determining »n upward departure in a defendant's criminal history category.

The FPD-ioppose any enhancement for fugitives wanted in another country. The FPD
state that fugitive status in another country should b* excluded for The same reasons
foreign convictions are excluded from criminal history u-uUiixiUilions under Chupier Fuur:
"Fugitive warrants may have been obtained without regard tu the most basic due process
guarantees or may reflect political or religious prosecution, which would be very difficult
for a defendant 10 prove,1'
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Offenses Involving States Passports

Finally, the proposed amendment provides a [2-8] laveJ enhancement at §2L2.2(b)(4) if the
defendant fraudulently used or obtained a Uniicd Slates passport. Commentary is added to
clarify that "use" includes cases involving attempts to renew previously issued passports.

Public Comment

Colin Powell, Secretary of State expressed his thanks to the Commission for considering
this proposed amendment, wnd commented thai "maintaining. Hie integrity of U.S.
passports and visas is a critical component of our global effort 10 fight terrorism, in
addition to ensuring that our immigration policies und laws arc enforced." Secretary
Powell slated thai ihis amendment "will be u clear signal ihal the United Slates
Government recognize the severity of pass port and visa fraud und the importance of
maintaining our border security." Secretary Powell also cited a XJ.S. passport as the "gold
standard" of all passports.

The Department of Stace, concerned with the inreariiy of passports and visas at ihe core of
U.S. bonier security efforts, suggests modifying Ihte specific offense chflraereristii; Lo read
as follows:
!Tf the defendaru us*d a counterfeit or forged passport or visa, increase by 4
levels; if the defendant fraudulently applied for a U.S. passport or visa-, 5ncrca.sc
by 6 levels; if the defendant used a fraudulently obtained U,S. passport or visa,
increase by 8 levels/'

The Department of State also comments that someone convicted of a false statement
before Jaw enforcement or judicial officials would fa.cc a base offense level of 14 under
§2J1.2.

The Department of Justice supports adoption of this proposed specific offense

characteristic, but recommends a slightly revised tiered enhancement. The Department
proposes a four level increase if the defendant fraudulently obtained or used a U.S.
passpon. and an eight level increase if rhc defendant fraudulently obtained or used a U.S.
passport intending lo enter the U.S. to engage in iciTorisi activity. The Department
bdicvcs this new specific offense characteristic properly distinguishes cases involving
U.S. passports from casas involving visa fraud or foreign passports and visas. The
Departmcni also supports the enhancement's Itroiied scope; that is. it applies only if the
U.S. passport was fraudulently obtained or used. The Peptirtmem believes that this
specific offense characteristic should be uccompanieiJ by an application note staling that
"use" should be defined to include the attempted renews! of U.S. Passports as well.

The FPD oppose any special treatment for obtaining or using passports. If the increase is
based upon some speculative rational security risk, that issue may be addressed by
application of the terrorism enhancement in $3A 1 .4,
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§2L2.2 Case Examples

Case Examples Involving Defendants with Fugitive Status

Case Number District Sentence Received Criminal History

581617 California Southern 27 months V
Defendant pled guilty to one count of illegal entry (8 U.S.C. § J325) and one count Of false
claim toU.S, citizenship (18U-S.C. § 911). Defendant attempted Lo enter the United States in
San Ysidro. Defendant has prior juvenile convictions for robbery and burglary. Defendant has
prior adult convictions for assault, sale of cocaine base, attempted robbexy and robbery.
Defendant has an arrest warrant outstanding from a 1997 robb&ry. Defendant was previously
deponed from the United Stales.

Case Number District Sentence Received Criminal History

559222 Texas Western (5 months m
Defendant pled guilty to one count of fraud and misuse of documents (18 U.S.C. § 1546.(a)).
Defendant is a 19 year old Mexican citizen who came to a border checkpoint and prcscnTad a
false resident alien card that he purchased for $500 in Mexico. Defendant was born in
Mexico, entered the U.S. illegally nnd worked in the U.S. for two years. He relumed to
Mexico u> visit his ailing mother, und was on his way back to Chicago to be with his wife and
children when arrested. Defendant was previously deponed from the United States.
Defendant has prior convictions for banery ant) possession ol u conU'oJlcd substance.. Ax the
time of ihe instant offense, defendant was on probation. Due 10 probation violations and n
subsequent arrest, the defendant has an outstanding arresr warrant.

Case Number;: *;;-.. District Sentence Received Criminal History

541521" --•-. California Southern 1 1 months n
Defendant, a Jamaican citizen, pled guilty to one count of false, claim to U.S. citizenship (IS
U.S.C. § 911). During a traffic stop, defendant declared to border pam>[ agents that he was A
citizen of the U.S.:-_Virgin Islands. De-fcrvdanl had illegally entered die U.S. to visit his ailing
mother in Florid^..75biefendant was in possession of a fraudulent Alabama birth certificate, a
fraudulent Florida>it%ttificfltion card, and a fraudulent social security cwd. Defendant has
been deported frprntriie U.S. on two previous occasions. Defcnd:mi has prior convictions for:
false statements hi-application of apas*pon, and illegal nxniry, Defendant has an outstanding
bench warrant for "failure to appear in relation to feloTiy drug charges.
 i .
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Ca&e Example Involving Fugitive Status and Possession/Renewal of U.S. Passport

Case Number District Sentence Received Criminal History

541661 Arizona 36 months prubulion TV
Defendant pled guilty to one count of false statement in acquisition ol' a pnssporc (18 U.S.C. §
1542). Defendant was a candidate for ihe Scottsdale, A2 city council and withdrew after
questions regarding his identiiy arose. After ftmher investigation, defendant revealed he vvas a
fugitive living under art alias. Defendant is a U.S. citizen, college graduate who owns his own
businesses and is active in ihe local community. In 1970, defendant, was found guilty by jury
of obstructing, impeding, and interfering with a firefighter and law enforcement officer.
Defendant was participating in & protest demonstration on a college campus. Defendant was
sentenced to 5 years. Defendant failed to appear far sentencing, tn 1976. defendant obtained
identification documents, including a U.S. passport under an assumed identity. The defendant
obtained two renewal passports under the same assumed identity in 19&2 and 1987. The
instant offense of conviction is the result of the defendant's third renewal of ihe passport IK
1997.

Case Examples Involving the Possession of United Slates and Foreign Passports

Case Number District Sentence Received Criminal History

541671 California Northern 46 months V
Defendant is convicted of one count of illegal reentry following, deportation (8 U.S.C. § 1326)
and one count of false statement In a passport application (J.R U.S.C. 5 1546). Defendant
arrested for driving while under the influence of alcohol. DeferKtoiiT presented a U.S.
as identification to the arresting officers. Dcfcndiiftt obtained this purport using n bjrth
certificate and sociaJ security number under someone else'? name. Defendant is a native of
Mexico. Defendant was previously d&ported following a conviction for sale o1' a controlled
substance. Defendant also has a prior conviction for illegal reentry; arid again was deported
after that conviction. Defendant's children and fiancee live in San Francisco.

'
004 09:39 FAI 2023129874 MSTPCC CENTER
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Case Number District Sentence Received Criminal History

576054 Virgin Islands time served (approx, n
9 months)
Defendant pled guilty to one count of fraud and misuse of documents (18 U.S.C. § 1546(a)).
Defendant, a citizen of the Dominbaii Republic, entered the Virgin Islands wjch a Dominican
Republic passport. The passport stamp indicated he wns a lawful, permanent resident of the
U.S.. The passport had been altered, had a false name, and false biographical pages. 11993,
the defendant was convicted for illegal entry, after which he was deported. In 1999, ihe
defendant was convjcied of UJegal reentry, after which he was agi'iin deported. Defendant
reports that he was entering che United Smcslo find work to financially assiei his ill mother.

Case Number District Sentbnce Receiver! Criminal History

576063 Virgin Islands 2 months, with credit T
for lime served from
2/26/01 to 3/ WO I
Defendant pled guilty 10 one counl of fraud and misuse of documents CIS U.S.C. §
Defendant, a citizen of Guyana, presented himself !it the Virgin Islands airport under a false
name with a false Barbados passport. The passport had a substituted plioio and altered
information. Defendant stated that he committed the offense hecauRt; he wanted u.> yet
political asylum from Guyana, which was experiencing race riots. DcCendant has no prior
arrest a and no prior convictions.

Case Examples Involving Attempts to Obtain U.S. Passports

Case Number District Sentence Receiver! Criminal History

5*77023 Texas Southern 1 year probation 1

Defendant convicted by jury of one count of false scai&mem in application for a U.S. passport
(18 U.S.C. § 1542). Defendant, born in Nigeria, had been grunted permanent residency status
in the U.S. Defendant wanted to go to Great Britain where her I'iancee resides, but was dunied
visa by the British consulate. Defendant then used Ihe Texas £D card and name of a former co-
worker to apply for an American passport. Defendant has no prior arrests and no prior
convictions.
1^004 J./.OD
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Case Number District Sentence Received Criminal History

562958 Florida Southern 2 years probation T
Defendant pled guilty to one count of false statement in application for a U.S. passport (18
U.S.C. § 1542). Defendant, a Colombian citizen, used a fraudulent birth certificate and social
security card to apply for a U.S. passport. At the time of the instant offense, defendant was in
ihc country legally on a student visa. Defendant reports he purchased the fraudulent
documents in order to further his goals of working iind siudymg in ihe U.S. Dofcndanl hag no
prior arrests and no prior convictions. __

Case Number District Sentence Received Criminal History

561878 Florida Southern 143 days, wilh credit I
for time seivud
(amount unknown)
Defendant pled guilty to one count of false gUitemenls in an application for a U.S. passport (18
U.S.C. § 1542), Defendant, a citizen of Guatemala, usud a fraudulent birth certificate,
Identification card and social security card lo apply for a U-S. pmpon. Defendant came to the
U.S. illegally two years prior to the comraisaon of ihe instaol offense. The dtfaidailE was
employed as a laborer. Defendant has prior minor traffic violations.

Case Number District Sentence Received Criminal History

563872 Florida Southern 2 years probation 1
Defendant pled guilty to one count of false statements in an application for a U.S. passport (IS
U.S.C § 1542). Defendant, an Egyptian citizen, c«mc lo the U.S. in 1090 wilh legal work
permit In 1995, INS revoked his work permit. Defendant wiix never contacted about
deportation. Defendant purchasad a fraudulent birth ccrLifictile and socittl security card for
himself and his wife (see case # 563873) lo app]y for a U.S. passport, at a post office in Florida
after EI similarly failed attempt in Connecticut, Defendant has no prior arrests and no prior
convictions.

Case Number District Sentence Received Criminal History

563873 Florida Southern 2 years probation 1
'004 09:39 FAI 2023129874 MSTfCC CfcJNTtiK
AidiJOIN

Defendant pled guilty to one count of false statements in an applicuiion for a U.S. passport (18
U.S.C. § 1542), Defendant, an Egyptian citizen, came ro 1hc U.S. in 1991 with under valid
circumstances. In 1995, INS revoked her husband's work permit, Defendant's husband
purchased a fraudulent birth certificate and social security card Cor himself and his wife to
apply for a U.S. passport at a post office in Florida after a similarly faiJed attempt in
Connecticut. Defendant hag no prior arrests tind no prior convictions.

CasD Number District Sentence Received Criminal History

535930 New York Southern 3 years probation I
Defendant pled guilty lo one count of fraud in relation lo identification documents (IS U-S-C.
§ 102S(a)(4)). Defendant applied for a U.S. passpyrt with a fraudulent birth certificate.
Defendant failed to appear for removal/deportation pr<>ceccHn|3 approximately 10 months
prior to the commission of the instant offense. Defendant has no prior arrests and no prior
convictions.

Case Number District Sentence Received Criminal History

579813 Florida Northern . 36 months VI

Defendant pled guilty to one count of false statements in a applk'mion for a pussport f IS
U.S.C. § 1542), Defendant, is a US, citizen with an extensive criminal history (28 criminal
history points). Defendant applied for a passport using another person's identity; he possessed
a fraudulent birth certificate. Defendant stated thut he committed ihc offense because he
wanted to get a fresh start because he has had such difficulty finding employment given his
criminal background.

Case Number District Sentence Received Criminal History

547067 New York Southern 1 year probation I
Defendant pled guilty to one count of possession of falsa identification documents with the
I
intent to defraud/the U.S. (18 U.S.C. § I028(a)(4)). Defendant attempted to obtain a U.S.
passport to crave}1 to Morocco to meet (for the first time) his fiance' of 2years. Defendant
purchased a Fraudulent birth certificate and social security number, applied for and received a
dri vers license using those documents. Defendant came to the U.S. in 198S with a visitor's
visa; it has expired. Defendant has no prior arresis and no prior convictions.
004 09:39 FAI 2023129874 MSTPCC CENTER
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Case Number District Sentence Received Criminal His Lory

5639 11 Texas Western 3 years probation u
Defendant pled guilty to one count of false claim or U.S. triiizcnship (IS U.S.C. § 9J I).
Defendant w;is in a car returning from Mexico and siaiccl thai he was a U.S. citizen.
Defendant stares thnt following a night of drinking in El Paso, his wife drove across ihe border
to Mexico to pick up her sister while ihe defendant was asleep in the passenger seat.
Defendant stat&s that he had no knowledge of crossing the border, find also starss he does not
remember stating Lhai he was a U.S, citizftn. Defendant is currently appealing a deportation
order following a conviction for possession of cocaine. ParcnLs and siblings live in U.S.
permanent resident status. Defendant is manied and has one child.

Case Example \viih Potential Security Risk

Case Number District Sentence Received Criminal History

' 575996 Texas Northern 3 yeiirs probation J
Defendant pled guiltyto one counc of false statements on INS Fflrmi-0 (18 U.S.C.'§ E>11).
Defendant entered the U.S. in 1998 in New Jersey. Defendant obtained social security card in
Pennsylvania using his Kenyan passport and INS papers us identification. The social security
card the defendant received had a stamp indicating his \vas not allowed to work -without INS
authorization. Defendant scratched out the scamp and used rlie curd to obtain employment,.
Defendant, an INS form 1-9 stated be was aU.S. citizen. Defendapi joined die U.S. Army in
Feb. 2000. Defendant is ranked private first class. Defendant falsely represented himself as an
immigrant alien in order to enlist in the U.S. Army. Defendant lias no prior arrests and no
prior convictions.
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COMMENTS SUBMITTED TO USSC REGRARDTNG 2L1.1

IMMIGRATION

1. Alien Smuggling

We agree with the underlying premise of the pi'oposal - i.e., that those, who illegally
smuggle people into the country should be punished differently depending upon the alien's
purpose. However, we believe it should go further if it is to have effect.

A. Entering the United States to Engage in Certain Activity

The proposed new specific offense characteristic would require that the defendant have
"knowledge" of the alien's intended unlawful activity within the United States at the time the
defendant assisted the alien to illegally enter the country. However, a defendant who "smuggled,
transported, or harbored" an alien knowing that the alien intended to engage in terrorist activity
could also be charged as a co-conspirator in the underlying terrorist activity and thus already
would be subject to a substantial sentence. Significantly, this proposal does not address the more
typical situation of smugglers who assist "all comers" and who are often deliberately ignorant of
the identity or motive of the person entering the country illegally.

We believe this proposal is far too restrictive. Aliens who are inadmissible pose a serious
threat to the security of the United States. The guidelines and laws already address individuals,
who with direct knowledge, facilitate those entering illegally to commit acts of terrorism and
other specific crimes. What the guidelines do not adequately address are the smugglers who arc
used by terrorists and others to gain entry, but do so without fully revealing to the smugglers their
real identity or intent. The smugglers who enable terrorists to illegally enter this country
undetected should not be able to escape increased liability simply because they did not "know1"
what specific illegal act the alien intended to commit.

As such, we recommend that the guidelines impose a strict liability standard rather than
imposing a knowledge requirement. We believe that once a defendant has been convicted of the
underlying smuggling offense, the offense level should be increased under a new specific offense
characteristic thai would take into account the reason the alien was coming into the country (to
engage in terrorist activity, in a crime of violence or controlled substance offense) or why they
were barred from entry pursuant to 8 U.S.C. § 1182(a)(2) or (3). This could be accomplished by
changing proposed specific offense characteristic §2Ll.l(b)(4) to read;

"(4) If the defendant smuggled, transported, or harbored an alien, who -

(A) entered the United States

A. to engage in a crime of violence or controlled substance offense,

increase by:
004 0 9 : 3 9 FAX 2023129874 Jf^Ji^ SMIK^'JJN
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i) two levels, if only one such alien was smuggled, transported

or harbored;

ii) four levels, if two-five such aliens were smuggled,

transported or harbored; and

iii) six levels, if six or more such if aliens were smuggled,

transported or harbored.

B. to engage in terrorist activity, increase by [1 2] levels, but if the

resulting offense is less than [32], increase to level [32].

(2) was inadmissable as defined in 8 U.S.C § 1 182(a)(2) or (3) increase

i) two levels, if only one such alien was smuggled, transported

Or harbored;

ii) four levels, if two-five such aliens were smuggled,

transported or harbored; and

iii) six levels, if six or more such if aliens were smuggled,

transported or harbored."

This alternative is similar to the criteria used in §2K2. 1 (Unlawful Receipt,. Possession, or
Transportation of Firearms). An individual found guilty of illegally possessing a firearm faces a
base offense level of 12. However, if the weapon is one that is particularly dangerous - as
described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 92|(a)(30) - then the offense level is increased
six levels to a level 18. It is not necessary that the defendant have knowledge of die restricted
nature of the weapon, See, e.^ United States V. Fry. 51 F.3d 543 (5* Cir 1995).

This proposal would also increase the enhancement commensurate with the number of
dangerous aliens smuggled, in arnanner similar to that used in §2LI . l(b)(2). A person who
smuggles six aliens barred from entry because they were designated terrorists should receive a
substantially higher increase than just the three levels under current §2L1 . l(b)(2)(A).

B. Offenses Involving Death

The published proposal suggests three changes thqt would impact the treatment of deaths
resulting from alien smuggling. The first removes the specific offense characteristic subcategory
from its present grouping with other injuries and creates a new specific category and suggests, in
the alternative, increases of eight (current), 10, or 12 levels. The second proposed change
expands a related cross-reference to include deaths involving manslaughter Eind not just murder,1

'A similar provision exists at §2K1.3(c)(l)(B); §2K2.1 (c)(l)(B); §2K2,5(c)(l)(B);

§2M5.3(c)(l); §2M6.1(c)(l); §2Q1.4(c)(l)
 09:40 FAX 2023129874 MSTPCC CENTKK

while the third proposed amendment would also address incidents of multiple deaths.

We support the three amendments. The first change, separating the death enhancement
from the other injuries and providing a minimum offense level of25, will have an impact on those
cases where the death results from negligence rather than just intentional or reckless conduct.
Under the proposed §2L1- I(b)(8), alien smuggling resulting in a death due to negligence would
result in an offense level of at least 25 (57-71 months under Criminal History Category 1) while
under exiting guidelines it would most likely result in a level 20 (33-41 months). We support
increasing the minimum offense level for these cases to any of the alternative minimum levels
between 25 to 30, but would suggest that they should be commensurate to other guidelines where
underlying criminal conduct results in death.1

We also support the amendment to treat multiple deaths occurring in a single incident as if
the case involved multiple counts. It would bring §2L1.1 in conformity with other similar
guideline provisions such as §§2D2.3(b)(l), 2G2.1(o)(l), 2M6.!(d)(l), 2NM(d)(I) and
2Q1.4(d)(l). Jn recent years, we have seen a number of alien smuggling cases involving multiple
deaths. This provision would, we believe, result in an appropriate increase in the sentence
imposed,

C. Number of Illegal Aliens

We support the Commission's proposal to expand the specific offense characteristic that
increases the offense levels depending upon the number of unlawful aliens smuggled, transported,
or harbored, adding groupings of %'200 to 299", and of "300 or more" with a corresponding
increase in levels of either 11 or 12, for the first set and either 13,15 or 18 for the second.

We believe increases in offense levels of 12 and 15 for the two new groups would be an
appropriate extension of the enhancements already assigned to the lower levels. This would result
in increases of three, six, nine, 12, and 15 levels for the entire specific offense characteristic. It
would provide a six level enhancement for the first 99 aliens smuggled and then three level
increases for each additional 100 illegal aliens. Sentencing courts would still be able to depart
upward in those cases involving substantially more than 300 aliens, pursuant to Application Note
4.

*See for example, §2D2.3(a)(l) (base offense level 26. if death resulted from operating or
directing the operation of a common carrier under the influence of alcohol or drugs).
/2004 09:40 FAI 2023129874 MSTPCC CENTER

USSG, §2L1.1, 18U.S.C.A.

UNITED STATES CODE ANNOTATED

FEDERAL SENTENCING GUIDELINES
CHAPTER TWO-OFFENSE CONDUCT
PART U--OFFENSES INVOLVING IMMIGRATION, NATURALIZATION, AND PASSPORTS
1. IMMIGRATION

Copr. 0 West Group 2003. No claim to Orig. U.S. Govt. Works.

As amendedTO05-14-03

§ 2L1.1. Smuggling, Transporting, or Harboring an Unlawful Alien

(a) Base Offense Level;

(1) 23, if the defendant was convicted under 8 U.S.C. § 1327of d nukiiun ijnulvliig aualiui whu picuiuujilji
WfUTUil)GlDiu d_LiCX' Lr^WPMLlltjIl IQ£ till fl^l^rtiV^tCO JtClOJjy Of

(2)19, if tfie defendant was convicted under 8 U.S.C. § J324(a)(2)(B)Q) or (it), OrJ324(a)(J)(A)fl)(iliwlltch
lite offense was done for the purpose of commercial advantage or private financial gain).

& (3) « 14, otherwise.

(b) Specific Offense Characteristic
(1) If (A) (he defendant conuniued the offense oflicr than for profit, or (he offense involved the smuggling,
transporting, or harboring only of die defendant's spouse or child (or both die defendant's spouse and child), and
(B) 'die base offense level is determined under subsection (a) (2). decrease by 3 levels.

(2) It" the offense involved the smuggling, transporting, or harboring oTsix or more unlawful aliens, increase as
follows;

Number of unlawful aliens smuggled, : Increase

transported, or harbored : In level

(A) 6-24 : Add 3.

(B) 25-99 : Add(5.

(Q lOOonrorc- 199 : Add 9.

(D) 200-299 : Add 12

(E) 300 or more...,. ; Add IK

 2004 09:40 FAI 2023129874 r
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(3) 7jf die offense involved die smuggling, transporting, or harboring of inadmissabls aliens as defined in 8
USC ll&2(a)(2) or (3)i
Number of inadmissable or unregistered aliens, : Increase
smuggled^ transported, or harbored : In level

(A)J .-
(A) 2-5 : Add4.

(B)6-20 : Add 6.

(Q 20 or more .- Add 8.

<3)- (4) Tf 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 pffenses, each such conviction arisiuj: out of a separate pro.secnnon, increase by 4
levels.

t*) (5) (Appry me greatest):

(A) Jf 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 die
resulting offense level Ls less than 20, increase to level 20.

(Q Tf 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.

f5} (6) If the offense involved intentionally or recklessly creating a substantial risk of dauh or serious bodily
injury co another person, inurease by 2 levels, but if the resulting offense level is less than level 18, muraase to
level 18.

f6) (7) If any person died or sustained bodily injury, increase che offense level according to the seriousness of the
injury:

Death or Degree of Injury : Increase in Level

(1)fiodflyInjury : : add 2 levels

(2.) Serious Bodily Injury : add 4-levels
(3) Permanent or Lifc-TliroaceiuaB Bodily Injury .. : add 6 levuls
(4) Deadi : addS levels.

(8) If during the course of the offense an alien was (A) physically restrained, increase by 2 levels; or (B) if
restrained or detained by coercion, implied threat, fear or deception, increase by 1 level.
(c) Cross Reference

If any person was killed under circumstances that would cousiitutc murder under 18 U.S.C. g 1111 Jiad
killing taken place wiiiuji the special maritime and territorial jurisdiction nt" die United States, apply the
appropriate murder guideline from Chapter Two, Part A. Subpm 1.
 /2004 09:40 FAX 2023129874 MSTPCC CENTER ItJ V O X
,/Z004 17:37 FAi 202 6165748 ALIEN 3MUUULJ.MW IgJUOJ.

U.S. Department of Justice

Criminal Division

Dwutlc Security Stctfon Washington. D C.' 2

April 2, 2004

MEMORANDUM

To: Jonathan Wroblewski

Office of Policy and Legislation

From: Teresa McJiemy

Chief, Domestic Security Section

SUBJECT: Summary of Proposed Changes to U.S.S.G. 2L1.1

The Domestic Security Section, working wilh a number of United States Attorney's
Offices and the Department of Homeland Security, has identified 6 changes to U.S.S.G. 2L1. 1,
Smuggling, Transporting, or Harboring an Unlawful Alien that we believe should be considered
by the United States Sentencing Commission. A proposed revised 2L1 .1 is attached. The
following is a brief explanation of each revision,

Proposal 1: (amendment of 2L1 . l(a)(l))

"2Ll,l(a)(l) 23, ifihe defendant was convicted under 8 U.S.C, § 1327 vfu. viuluti lving
i.I'fc QtlL&L iViLL)~~l//& ViL/tii i-V^ VWiJT tiCiJ?O/Tcit t^WCT^tt^v'/'l'tCtrtTTl^/*.'/ LUL it^t/tiV't/it.w yc-tly/ijr/ Or

This amendment to 2L1 . l(a)(l) removes the distinction between a conviction under 8
U.S.C. § 13271 when the violation involved an alien "who previously was deported after a
conviction for an aggravated felony" and one when the violation involved an alien who is
inadmissable because of "Security or related grounds" as defined in 8 U.S.C. 1 1 82(a)(3). It also
eliminates the disparate treatment between those who are inadmissable because they have been

1 8 U.S.C. § 1327. Aiding or assisting certain aliens to euler

Any person who knowingly aids or assists any alien inadmissible uMer section 1182,(a)(2) (insofar us uu ulien
inadmissible under such section lias bean coiivieted of an aggravated telouy) or 1182(;i)(3) (other rha »
subparaetaph (£5 thereof) of this title to enter tht United Stints, or who connives or conspires wch any person or
parsons to allow, procure, or permit any such alienTOeuler Uic United Sty we, shall be tliwd under Title 18, or
iinpmoned not more than 10 years, or both.
/2004 09:40 FAX 2023129874 MSTPCC CENTER

convicted of certain specified crimes and those who have been previously deported fortheh-
conviction for those crimes.

The Coinmission has already recognized that those convicted of knowingly aiding or
assisting the reentry of an aggravated felon who has been deponed should received a
substantially higher sentence than those convicted of the same conduct where the alien has no
such prior record. The Domestic Security Section submits that the same increase should apply
to those who knowingly aide or assist aliens to enter into the United States who have been
determined to be inadmissable due to "Security or related grounds" or who have been
convicted anywhere of certain serious crimes. 8 U.S.C, ij'1327 is the result of Congressional
recognition thai certain aliens pose a heightened risk EO the safety of the citizens of the United
States and that those who knowingly assist their illegal entry into this country should be
punished distinctly from the provisions of 8 U.S.C. § 1324 which applies to all aliens who
attempt to enter the country illegally. However, U.S.S.G. 2Ll.l(a)(l) only applies to a
limited subgroup of those convicted under § 1327. The Domestic Security Section believes ,
for example, that those who knowingly assist aliens, \vho have engaged in terrorist activity or
who have been convicted of murder in another country, to illegally enter the United States,
should be subject to the same guideline same as someone who illegally assists the reentry of an
alien who was deponed after a conviction for attempted burglary of a motor vehicle. 2

Proposal 2: (New subsection)

2U.l(a)(2) J9 if the defendant was convicted under 8 U.S.C. § 1324(a)(2)(B)(i) or (ti),
or J324(a)(l)(A)(i)( in which the offense was done for the purpose of
commercial advantage or private ft ncuicial gain).

This proposal would add a new subsection to reflect the Congressional enactment that
those convicted of violations of 8 U.S.C, § 1324(a)(2)(B)(i) or (ii) shall, for a first offense, be
sentenced to not less than 3 years incarceration. The Domestic Security Section also believes
that this new base offense level should apply 10 similar convictions under §1324(a)(l)(A)(i)( in
which the offense was done for the purpose of commercial advantage or private financial
gain).

Proposal 3: (amendment of 2Ll.l(a)(3) increasing base offense level)

14, otherwise. "
The Department proposes increasing the base offense level for most smuggling,
transporting, or harboring illegal alien cases to level 14. Presently, the guidelines provide for
a sentence of 10 to 16 months (assuming no acceptance of responsibility) for an individual

~ See Untied States v. Re'moso. F3d , 2003 WL227I5589 (2d Gil1, Nov. 17.2003)

2
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//2004 17:37 FAX 202 6165748 ALIEN

convicted of transporting 5 unlawful aliens. Given the magnitude of the problem involving
illegal aliens entering into this country and the national security concerns in having persons
enter into the United States withour any idea of-who they arc, especially in light of the events
of September 11, 2001, the Domestic Security Section suggests that a base sentence of 15-21
months is appropriate.

Proposal 4: (amendment of 2L1.1 (b)(2))

"(2) If the offense involved the smuggling, transporting, or har/wlng of six or more unlawful
aliens, increase as follows:

Number of unlawful aliens smuggled, Increase

transported, or harbored in level

(A) 6-24 Add 3.

(B) 25-99 Add 6.
(C) Add 9.

(D) 200-299 Add 12

(E) 300 or more AddlS

The Domestic Security Section recommends adding two new levels to the Specific
Offense Characteristic dealing with the number of unlawful aliens who are "smuggled,
transported, or harbored" so that punishment for these offenses continue to increase incrementally
for the larger enterprises. Presently, the guidelines treat defendants who are found guilty of
smuggling 100 or 500 aliens identically (absent an upward departure). In both cases, the current
base offense level of 12 is increased to an adjusted offense level of 21, or 37 to 46 months.
D.S.S. suggests that by adopting this proposal, individuals involved in smuggling, transporting,
or harboring at least 300 aliens would receive a more appropriaie sentence of at least 97 months.
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//2004 17:37 FAX 202 6165748 ALIEN SMUGGLING 1^1034

Proposal 51 (New subsection)

"(3) If the offense involved the smuggling, transporting, or harboring ofirtadmissable aliens as
defined in 8 USC JJ82(a)(2) or (3):

Number ofinadmissahle or unregistered aliens, ; Increase

smuggled, transported, or harbored : in level

(A) I : Add 2

(A) 2-5 ; Add 4.

(B)6-20 ; Add 6.
(C) 20 or more .- Add 8."

2L1.1 currently treats defendants, convicted under § 1324 for ihe illegal smuggling of
unlawful aliens, the same regardless of whether the alien is "unlawfully in this country"
because he: 1) has been previously deported, 2) is barred from entry because of ties to
terrorism or has a serious criminal record, or 3) because they have failed to have a proper
visa.

The Domestic Security Section recommends that a new Specific Offense Characteristic
be added that would take into account certain aggravating factors i.e., whether the person is
barred from entry pursuant to the provisions of 8 U.S.C. § 1182(a)(2) or U82(a)(3). Under
this new S.O.C., the threshold for increases would be much lower if the unlawful aliens posed
an enhanced threat to the security of the United Stales either because of their prior criminal
record or because of their ties to terrorism.

Proposal 6: (New Subsection)

"(8) If during the course of the offense an alien was (A) physically restrained, increase by 2
levels- or (B) if restrained or detained by coercion, implied threat, fear or deception, increase
by 1 level."
This new subsection would reflect a type of conduct that occurs relatively often in alien
smuggling cases but is not taken into account by any guideline factor. § 3A1.3 (Restraint of
Victim) states that "if a victim was physically restrained in the course of the offense, increase
by 2 levels." A number of prosecutors have told us of cases where the'unlawful aliens are
coerced, without the use of physical force or even direct threats, into remaining in "safe
houses" for long periods of time through coercion, implied ihreat or deception. This is done
so [hat the smugglers can get more money from the families of the aliens or so they will
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z/zuu* IY:;JY FAA zuz 0x00/40

provide inexpensive labor.