[Federal Register Volume 62, Number 58 (Wednesday, March 26, 1997)]
[Notices]
[Pages 14490-14492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7607]
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of promulgation of temporary, ``emergency'' guideline
amendments increasing penalties for alien smuggling, fraudulent use of
government-issued documents, and involuntary servitude, peonage, and
slave trade offenses and a proposal to re-promulgate these amendments
as permanent amendments.
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SUMMARY: The Sentencing Commission hereby gives notice of the following
actions: (1) Pursuant to its authority under sections 203, 211, and 218
of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, the Commission is promulgating temporary, emergency amendments to
Secs. 2L1.1, 2L2.1, 2L2.2, and 2H4.1 and accompanying commentary; and
(2) pursuant to section 217(a) of the Comprehensive Crime Control Act
of 1984 (28 U.S.C. 994(a) and (p)), the Commission further proposes to
re-promulgate these amendments as permanent, non-emergency amendments.
DATES: The Commission has specified an effective date of May 1, 1997,
for the emergency amendments increasing the penalties for offenses
involving alien smuggling (Sec. 2L1.1), immigration document fraud
(Secs. 2L2.1, 2L2.2), and involuntary servitude, peonage, and slave
trade (Sec. 2H4.1).
FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information
Specialist, Telephone: (202) 273-4590.
Authority. 28 U.S.C. 994 (a), (o), (p), (x).
Richard P. Conaboy,
Chairman.
Amendments to the Sentencing Guidelines, Policy Statements, and
Official Commentary
Emergency Amendment--Alien Smuggling
1. Amendment: Section 2L1.1(a)(1) is amended by deleting ``20'' and
inserting in lieu thereof ``23''.
Section 2L1.1(a)(2) is amended by deleting ``9'' and inserting in
lieu thereof ``12''.
Section 2L1.1(b) is amended by deleting subdivision (1) in its
entirety and inserting the following in lieu thereof:
``(1) If (A) the defendant committed the offense other than for
profit, or the offense involved the smuggling, transporting, or
harboring only of the defendant's spouse or child (or both the
defendant's spouse and child), and (B) the base offense level is
determined under subsection (a)(2), decrease by 3 levels.''.
Section 2L1.1(b)(2) is amended in the column captioned ``Increase
in Level'' by deleting ``2'' and inserting in lieu thereof ``3''; by
deleting ``4'' and inserting in lieu thereof ``6''; and by deleting
``6'' and inserting in lieu thereof ``9''.
Section 2L1.1 is amended by deleting (b)(3) in its entirety and by
inserting the following in lieu thereof:
``(3) If 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 offenses, each
such conviction arising out of a separate prosecution, increase by 4
levels.''.
Section 2L1.1(b) is amended by inserting the following additional
subdivisions:
``(4) (Apply the greatest):
(A) If 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 the resulting offense
level is less than level 20, increase to level 20.
(C) if 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.
(5) If the offense involved intentionally or recklessly creating a
substantial risk of death or serious bodily injury to another person,
increase
[[Page 14491]]
by 2 levels, but if the resulting offense level is less than level 18,
increase to level 18.
(6) If any person died or sustained bodily injury, increase the
offense level according to the seriousness of the injury:
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Death or degree of injury Increase in level
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(1) Bodily Injury...................... Add 2 levels.
(2) Serious Bodily Injury.............. Add 4 levels.
(3) Permanent or Life-Threatening Add 6 levels.
Bodily Injury.
(4) Death.............................. Add 8 levels''.
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Section 2L1.1 is amended by inserting the following additional
subsection:
``(c) Cross Reference
If any person was killed under circumstances that would constitute
murder under 18 U.S.C. 1111 had such killing taken place within the
special maritime and territorial jurisdiction of the United States,
apply the appropriate murder guideline from Chapter Two, Part A,
Subpart 1.''.
The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is
amended in Note 1 by inserting at the beginning ``For purposes of this
guideline''; by deleting the first sentence in its entirety and
inserting in lieu thereof `` `The defendant committed the offense other
than for profit'' means that there was no payment or expectation of
payment for the smuggling, transportation, or harboring of any of the
unlawful aliens.'; by inserting as the second paragraph `` `Aggravated
felony' is defined in the Commentary to Sec. 2L1.2 (Unlawfully Entering
or Remaining in the United States).''; by inserting as the third
paragraph `` `Child' has the meaning set forth in section 101(b)(1) of
the Immigration and Nationality Act (8 U.S.C. 1101(b)(1)).''; by
inserting as the fourth paragraph `` `Spouse' has the meaning set forth
in 101(a)(35) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(35)).''; and by inserting as the fifth paragraph ``An
`immigration and naturalization offense' means any offense covered by
this Part.''.
The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is
amended by deleting Note 3 in its entirety and by redesignating Note 4
as Note 3.
The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is
amended in Note 5 by deleting ``dangerous or inhumane treatment, death
or bodily injury, possession of a dangerous weapon, or'' immediately
following ``involved''; and by redesignating Note 5 as Note 4.
The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is
amended by deleting Note 6 in its entirety.
The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is
amended by inserting the following additional notes:
``5. Prior felony conviction(s) resulting in an adjustment under
subsection (b)(3) are also counted for purposes of determining criminal
history points pursuant to Chapter Four, Part A (Criminal History).
6. Reckless conduct to which the adjustment from subsection (b)(5)
applies includes a wide variety of conduct (e.g., 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.) If subsection (b)(5) applies solely on the basis
of conduct related to fleeing from a law enforcement officer, do not
apply an adjustment from Sec. 3C1.2 (Reckless Endangerment During
Flight). Additionally, do not apply the adjustment in subsection (b)(5)
if the only reckless conduct that created a substantial risk of death
or serious bodily injury is conduct for which the defendant received an
enhancement under subsection (b)(4).''.
The Commentary to Sec. 2L1.1 captioned ``Background'' is amended by
deleting the second and third sentences; and, in the last sentence, by
inserting ``smuggling, transporting, or harboring'' immediately
following ``scale''.
Reason for Amendment: This amendment implements section 203 of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
which directs the Commission to amend the guidelines for offenses
related to smuggling, transporting, or harboring illegal aliens.
Emergency Amendment--Alien Document Fraud
2. Amendment: Section 2L2.1(a) is amended by deleting ``9'' and
inserting ``11'' in lieu thereof.
Section 2L2.1(b) is amended by deleting subdivision (1) in its
entirety and inserting the following in lieu thereof:
``(1) If the defendant committed the offense other than for profit,
or the offense involved the smuggling, transporting, or harboring only
of the defendant's spouse or child (or both the defendant's spouse and
child), decrease by 3 levels.''.
Section 2L2.1(b)(2) is amended in the column captioned ``Increase
in Level'' by deleting ``2'' and inserting in lieu thereof ``3''; by
deleting ``4'' and inserting in lieu thereof ``6''; and by deleting
``6'' and inserting in lieu thereof ``9''.
Section 2L2.1(b) is amended by inserting the following additional
subdivision:
``(4) If 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 offenses, each
such conviction arising out of a separate prosecution, increase by 4
levels.''.
The Commentary to Sec. 2L2.1 captioned ``Application Notes'' is
amended in Note 1 by inserting at the beginning ``For purposes of this
guideline--''; by deleting the first sentence in its entirety and
inserting in lieu thereof `` `The defendant committed the offense other
than for profit' means that there was no payment or expectation of
payment for the smuggling, transportation, or harboring of any of the
unlawful aliens.''; by inserting as the second paragraph ``An
`immigration and naturalization offense' means any offense covered by
this Part.''; by inserting as the third paragraph `` `Child' has the
meaning set forth in section 101(b)(1) of the Immigration and
Nationality Act (8 U.S.C. 1101(b)(1)).''; and by inserting as the
fourth paragraph `` `Spouse' has the meaning set forth in 101(a)(35) of
the Immigration and Nationality Act (8 U.S.C. 1101(a)(35)).''.
The Commentary to Sec. 2L2.1 captioned ``Application Notes'' is
amended by inserting the following additional notes:
``4. Prior felony conviction(s) resulting in an adjustment under
subsection (b)(4) are also counted for purposes of determining criminal
history points pursuant to Chapter Four, Part A (Criminal History).
5. If the offense involved substantially more than 100 documents,
an upward departure may be warranted.''.
Section 2L2.2(a) is amended by deleting ``6'' and inserting in lieu
thereof ``8''.
Section 2L2.2(b) is amended by deleting ``Characteristic'' and
inserting in lieu thereof ``Characteristics''; and by inserting the
following additional subdivision:
``(2) If 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 offenses, each
such conviction arising out of a separate prosecution, increase by 4
levels.''.
The Commentary to Sec. 2L2.2 captioned ``Application Note'' is
amended by deleting ``Note'' and inserting in lieu thereof ``Notes'';
by redesignating Note 1
[[Page 14492]]
as Note 2; and by inserting the following as the new Note 1:
``1. For purposes of this guideline--
`Immigration and naturalization offense' means any offense covered
by Chapter Two, Part L.''.
The Commentary to Sec. 2L2.2 captioned ``Application Note'' is
amended by inserting the following as Note 3.
``3. Prior felony conviction(s) resulting in an adjustment under
subsection (b)(2) are also counted for purposes of determining criminal
history points pursuant to Chapter Four, Part A (Criminal History).''.
Reason for Amendment: This amendment implements section 211 of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
which directs the Commission to amend the guidelines for offenses
related to the fraudulent use of government-issued documents.
Emergency Amendment--Involuntary Servitude
3. Amendment: Section 2H4.1(a) is amended by deleting ``(Apply the
greater)'' and inserting in lieu thereof ``: 22''; and by deleting
subdivisions (1) and (2) in their entirety.
Section 2H4.1 is amended by inserting the following additional
subsection:
``(b) Specific Offense Characteristics
(1)(A) If any victim sustained permanent or life-threatening bodily
injury, increase by 4 levels; (B) if any victim sustained serious
bodily injury, increase by 2 levels.
(2) If a dangerous weapon was used, increase by 2 levels.
(3) If any victim was held in a condition of peonage or involuntary
servitude for (A) more than one year, increase by 3 levels; (B) between
180 days and one year, increase by 2 levels; or (C) more than 30 days
but less than 180 days, increase by 1 level.
(4) If any other felony offense was committed during the commission
of, or in connection with, the peonage or involuntary servitude
offense, increase to the greater of:
(A) 2 plus the offense level as determined above, or
(B) 2 plus the offense level from the offense guideline applicable
to that other offense, but in no event greater than level 43.''.
The Commentary to Sec. 2H4.1 captioned ``Statutory Provisions'' is
amended by inserting ``241,'' immediately before ``1581''.
The Commentary to Sec. 2H4.1 captioned ``Application Note'' is
amended by deleting ``Note'' and inserting in lieu thereof ``Notes'';
by deleting Note 1 in its entirety and inserting in lieu thereof the
following new note:
``1. For purposes of this guideline--
`A dangerous weapon was used' means that a firearm was discharged,
or that a firearm or dangerous weapon was otherwise used.
Definitions of `firearm,' `dangerous weapon,' `otherwise used,'
`serious bodily injury,' and `permanent or life-threatening bodily
injury' are found in the Commentary to Sec. 1B1.1 (Application
Instructions).''; and by inserting the following additional notes:
``2. Under subsection (b)(4), `any other felony offense' means any
conduct that constitutes a felony offense under federal, state, or
local law (other than an offense that is itself covered by this
subpart). When there is more than one such other offense, the most
serious such offense (or group of closely related offenses in the case
of offenses that would be grouped together under Sec. 3D1.2(d)) is to
be used. See Application Note 3 of Sec. 1B1.5 (Interpretation of
References to other Offense Guidelines).
3. If the offense involved the holding of more than ten victims in
a condition of peonage or involuntary servitude, an upward departure
may be warranted.''.
The Commentary to Sec. 2H4.1 captioned ``Background'' is deleted in
its entirety.
Reason for Amendment: This amendment implements section 218 of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
which directs the Commission to review the guideline for peonage,
involuntary servitude and slave trade offenses and amend the guideline.
Note: The Commission proposes to re-promulgate and submit to
Congress by May 1, 1997, as permanent amendments the forgoing
emergency amendments. When the Commission again considers these
amendments for re-promulgation as permanent amendments, it may adopt
an amended version of Sec. 2L1.1(b)(1)(A) and Sec. 2L2.1(b)(1). The
amended version would provide for a three-level decrease if ``an
offense was committed other than for profit or the offense involved
the smuggling, transporting, or harboring only of the defendant's
spouse or child (or both the defendant's spouse and child).'' Such a
change could be expected to restrict somewhat the number of
defendants who might otherwise qualify for the offense level
reduction. On the other hand, this approach may provide a more
realistic measure of whether the overall character of the smuggling
offense was a not-for-profit venture.
[FR Doc. 97-7607 Filed 3-25-97; 8:45 am]
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