II

103D CONGRESS

1ST SESSION S. 1196

To amend the Immigration and Nationality Act to increase criminal penalties

for persons smuggling aliens into the United States.

IN THE SENATE OF THE UNITED STATES

JULY 1 (legislative day, JUNE 30), 1993

Mr. SIMPSON introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To amend the Immigration and Nationality Act to increase

criminal penalties for persons smuggling aliens into the

United States.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Alien Smuggling

5 Control Act of 1993’’.

6 TITLE I—CRIMINAL PENALTIES

7 SEC. 101. INCREASED PENALTIES FOR ALIEN SMUGGLING.

8 Section 274(a) of the Immigration and Nationality

9 Act (8 U.S.C. 1324(a)) is amended—

10 (1) in paragraph (1)—
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1 (A) by striking ‘‘or’’ at the end of subpara2 graph (C);

3 (B) by striking the comma at the end of

4 subparagraph (D) and all that follows through

5 the period and inserting ‘‘; or’’; and

6 (C) by adding at the end the following:

7 ‘‘(E) engages in any conspiracy to commit any

8 of the preceding acts, or aids or abets the commis9 sion of any of the preceding acts,

10 shall be fined under title 18, United States Code, and shall

11 be imprisoned not less than 3 nor more than 10 years,

12 for each alien with respect to whom any violation of this

13 paragraph occurs.’’; and

14 (2) by adding at the end the following new

15 paragraphs:

16 ‘‘(3) Any person who commits an act described in

17 paragraph (1) who willfully subjects any alien to a sub18 stantial risk of death or serious bodily harm shall be sub19 ject to a term of imprisonment of not less than 3 nor more

20 than 10 years in addition to any term of imprisonment

21 imposed under that paragraph.

22 ‘‘(4) Any person who in the perpetration of, or in the

23 attempt to perpetrate, any violation of paragraph (1),

24 causes the death of an alien shall be subject to the penalty
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1 of death, or life imprisonment, subject to appropriate pro2 cedures under chapter 228 of title 18, United States Code.

3 ‘‘(5) Any person who hires for employment an alien—

4 ‘‘(A) knowing that such alien is an unauthor5 ized alien (as defined in section 274A(h)(3)), and

6 ‘‘(B) knowing that such alien has been brought

7 into the United States in violation of this subsection,

8 shall be fined under title 18, United States Code, and shall

9 be imprisoned for not less than 2 nor more than 5 years.’’.

10 SEC. 102. SMUGGLING ALIENS FOR COMMISSION OF

11 CRIMES.

12 Section 274(a)(2) of the Immigration and Nationality

13 Act (8 U.S.C. 1324(a)(2)) is amended—

14 (1) in subparagraph (B)—

15 (A) by striking ‘‘or’’ at the end of clause

16 (ii);

17 (B) by redesignating clause (iii) as clause

18 (iv); and

19 (C) by inserting after clause (ii) the follow20 ing:

21 ‘‘(iii) an offense committed with the

22 intent that the alien unlawfully brought

23 into the United States will commit an of24 fense against the United States punishable

25 for more than 1 year, including violations
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1 of or attempted violations of or aiding and

2 abetting violations of or conspiring to vio3 late the Controlled Substances Act (21

4 U.S.C. 802) or laws against prostitution,

5 importation of aliens for immoral purposes,

6 trafficking in firearms, money laundering,

7 gang activities, kidnapping or ransom de8 mands, fraudulent documents, or extortion,

9 the smuggling of known or suspected ter10 rorists or persons involved in organized

11 crime,’’; and

12 (2) at the end thereof, by striking ‘‘be fined’’

13 and all that follows through the period and inserting

14 the following: ‘‘be fined under title 18, United States

15 Code, and shall be imprisoned not less than 3 nor

16 more than 10 years.’’.

17 SEC. 103. ADDING ALIEN SMUGGLING TO RICO.

18 Section 1961(1) of title 18, United States Code, is

19 amended—

20 (1) by striking ‘‘or’’ after ‘‘law of the United

21 States,’’;

22 (2) by inserting ‘‘or’’ at the end of subpara23 graph (E); and

24 (3) by adding at the end the following:
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1 ‘‘(F) any act in violation of section 274 of the

2 Immigration and Nationality Act.’’.

3 SEC. 104. EXPANDED FORFEITURE FOR SMUGGLING OR

4 HARBORING ILLEGAL ALIENS.

5 Subsection 274(b) of the Immigration and National6 ity Act (8 U.S.C. 1324(b)) is amended—

7 (1) by amending paragraph (1) to read as fol8 lows:

9 ‘‘(b) SEIZURE AND FORFEITURE.—(1) Any property,

10 real or personal, which facilitates or is intended to facili11 tate, or which has been used in or is intended to be used

12 in the commission of a violation of subsection (a) or of

13 sections 274A(a)(1) or 274A(a)(2), or which constitutes

14 or is derived from or traceable to the proceeds obtained

15 directly or indirectly from a commission of a violation of

16 subsection (a), shall be subject to seizure and forfeiture,

17 except that—

18 ‘‘(A) no property, used by any person as a com19 mon carrier in the transaction of business as a com20 mon carrier shall be forfeited under the provisions of

21 this section unless it shall appear that the owner or

22 other person in charge of such property was a con23 senting party or privy to the illegal act;

24 ‘‘(B) no property shall be forfeited under the

25 provisions of this section by reason of any act or
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1 omission established by the owner thereof to have

2 been committed or omitted by any person other than

3 such owner while such property was unlawfully in

4 the possession of a person other than the owner in

5 violation of the criminal laws of the United States

6 or of any State; and

7 ‘‘(C) no property shall be forfeited under this

8 paragraph to the extent of an interest of any owner,

9 by reason of any act or omission established by that

10 owner to have been committed or omitted without

11 the knowledge or consent of the owner, unless such

12 action or omission was committed by an employee or

13 agent of the owner, and facilitated or was intended

14 to facilitate, or was used in or intended to be used

15 in, the commission of a violation of subsection (a) or

16 of section 274A(a)(1) or 274A(a)(2) which was com17 mitted by the owner or which intended to further the

18 business interests of the owner, or to confer any

19 other benefit upon the owner.’’.

20 (2) in paragraph (2)—

21 (A) by striking ‘‘conveyance’’ both places it

22 appears and inserting in lieu thereof ‘‘prop23 erty’’; and

24 (B) by striking ‘‘is being used in’’ and in25 serting in lieu thereof ‘‘is being used in, is fa-
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1 cilitating, has facilitated, or was intended to fa2 cilitate’’;

3 (3) in paragraphs (4) and (5) by striking ‘‘a

4 conveyance’’ and ‘‘conveyance’’ each place such

5 phrase or word appears and inserting in lieu thereof

6 ‘‘property’’; and

7 (4) in paragraph (4) by—

8 (A) striking ‘‘or’’ at the end of subpara9 graph (C),

10 (B) by striking the period at the end of

11 subparagraph (D) and inserting ‘‘; or’’, and

12 (C) by inserting at the end the following

13 new subparagraph:

14 ‘‘(E) transfer custody and ownership of

15 forfeited property to any Federal, State, or

16 local agency pursuant to the Tariff Act of

17 1930, as amended (19 U.S.C. 1616a(c)).’’.

18 SEC. 105. EXPANSION IN DEFINITION OF ‘‘AGGRAVATED

19 FELONY’’.

20 (a) EXPANSION IN DEFINITION.—Section 101(a)(43)

21 of the Immigration and Nationality Act (8 U.S.C.

22 1101(a)(43)) is amended to read as follows:

23 ‘‘(43) The term ‘aggravated felony’ means—

24 ‘‘(A) murder;
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1 ‘‘(B) any illicit trafficking in any con2 trolled substance (as defined in section 102 of

3 the Controlled Substances Act), including any

4 drug trafficking crime as defined in section

5 924(c) of title 18, United States Code;

6 ‘‘(C) any illicit trafficking in any firearms

7 or destructive devices as defined in section 921

8 of title 18, United States Code, or in explosive

9 materials as defined in section 841(c) of title

10 18, United States Code;

11 ‘‘(D) any offense described in (i) section

12 1956 of title 18, United States Code (relating

13 to laundering of monetary instruments) or (ii)

14 section 1957 of such title (relating to engaging

15 in monetary transactions in property derived

16 from specific unlawful activity) if the value of

17 the funds exceeded $100,000;

18 ‘‘(E) any offense described in—

19 ‘‘(i) subsections (h) or (i) of section

20 842, title 18, United States Code, or sub21 section (d), (e), (f), (g), (h), or (i) of sec22 tion 844 of title 18, United States Code

23 (relating to explosive materials offenses),

24 ‘‘(ii) paragraph (1), (2), (3), (4), or

25 (5) of section 922(g), or section 922(j),
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1 section 922(n), section 922(o), section

2 922(p), section 922(r), section 924(b), or

3 section 924(h) of title 18, United States

4 Code (relating to firearms offenses), or

5 ‘‘(iii) section 5861 of title 26, United

6 States Code (relating to firearms offenses);

7 ‘‘(F) any crime of violence (as defined in

8 section 16 of title 18, United States Code, not

9 including a purely political offense) for which

10 the term of imprisonment imposed (regardless

11 of any suspension of such imprisonment) is at

12 least 5 years;

13 ‘‘(G) any theft offense (including receipt of

14 stolen property) or any burglary offense, where

15 a sentence of 5 years imprisonment or more

16 may be imposed;

17 ‘‘(H) any offense described in section 875,

18 section 876, section 877, or section 1202 of

19 title 18, United States Code (relating to the de20 mand for or receipt of ransom);

21 ‘‘(I) any offense described in section 2251,

22 section 2251A or section 2252 of title 18, Unit23 ed States Code (relating to child pornography);

24 ‘‘(J) any offense described in—
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1 ‘‘(i) section 1962 of title 18, United

2 States Code (relating to racketeer influ3 enced corrupt organizations), or

4 ‘‘(ii) section 1084 (if it is a second or

5 subsequent offense) or section 1955 of

6 such title (relating to gambling offenses),

7 where a sentence of 5 years imprisonment or

8 more may be imposed;

9 ‘‘(K) any offense relating to commercial

10 bribery, counterfeiting, forgery or trafficking in

11 vehicles whose identification numbers have been

12 altered, where a sentence of 5 years imprison13 ment or more may be imposed;

14 ‘‘(L) any offense—

15 ‘‘(i) relating to the owning, control16 ling, managing or supervising of a pros17 titution business,

18 ‘‘(ii) described in section 2421, section

19 2422, or section 2423 of title 18, United

20 States Code (relating to transportation for

21 the purpose of prostitution) for commercial

22 advantage, or

23 ‘‘(iii) described in sections 1581

24 through 1585, or section 1588, of title 18,
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1 United States Code (relating to peonage,

2 slavery, and involuntary servitude);

3 ‘‘(M) any offense relating to perjury or

4 subornation of perjury where a sentence of 5

5 years imprisonment or more may be imposed;

6 ‘‘(N) any offense described in—

7 ‘‘(i) section 793 (relating to gathering

8 or transmitting national defense informa9 tion), section 798 (relating to disclosure of

10 classified information), section 2153 (relat11 ing to sabotage) or section 2381 or section

12 2382 (relating to treason) of title 18, Unit13 ed States Code, or

14 ‘‘(ii) section 421 of title 50, United

15 States Code (relating to protecting the

16 identity of undercover intelligence agents);

17 ‘‘(O) any offense—

18 ‘‘(i) involving fraud or deceit where

19 the loss to the victim or victims exceeded

20 $200,000; or

21 ‘‘(ii) described in section 7201 of title

22 26, United States Code (relating to tax

23 evasion), where the tax loss to the Govern24 ment exceeds $200,000;
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1 ‘‘(P) any offense described in section

2 274(a)(1) of title 18, United States Code (relat3 ing to alien smuggling) for the purpose of com4 mercial advantage;

5 ‘‘(Q) any violation of section 1546(a) of

6 title 18, United States Code (relating to docu7 ment fraud), for the purpose of commercial ad8 vantage; or

9 ‘‘(R) any offense relating to failing to ap10 pear before a court pursuant to a court order

11 to answer to or dispose of a charge of a felony,

12 where a sentence of 2 years or more may be

13 imposed;

14 or any attempt or conspiracy to commit any such

15 act. Such term applies to offenses described in this

16 paragraph whether in violation of Federal or State

17 law and applies to such offenses in violation of the

18 laws of a foreign country for which the term of im19 prisonment was completed within the previous 15

20 years.’’.

21 (b) EFFECTIVE DATE.—The amendments made by

22 this section shall apply to all convictions entered before,

23 on, or after the date of enactment of this Act.
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1 SEC. 106. DEPORTATION PROCEDURES FOR CERTAIN

2 CRIMINAL ALIENS WHO ARE NOT PERMA3 NENT RESIDENTS.

4 (a) ELIMINATION OF ADMINISTRATIVE HEARING FOR

5 CERTAIN CRIMINAL ALIENS.—Section 242A of the Immi6 gration and Nationality Act (8 U.S.C. 1252a) is amended

7 by adding at the end the following:

8 ‘‘(c) DEPORTATION OF ALIENS WHO ARE NOT PER9 MANENT RESIDENTS.—

10 ‘‘(1) Notwithstanding section 242, and subject

11 to paragraph (5), the Attorney General may issue a

12 final order of deportation against any alien described

13 in paragraph (2) whom the Attorney General deter14 mines to be deportable under section

15 241(a)(2)(A)(iii) (relating to conviction of an aggra16 vated felony).

17 ‘‘(2) An alien is described in this paragraph if

18 the alien—

19 ‘‘(A) was not lawfully admitted for perma20 nent residence at the time that proceedings

21 under this section commenced, or

22 ‘‘(B) had permanent resident status on a

23 conditional basis (as described in section 216)

24 at the time that proceedings under this section

25 commenced.
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1 ‘‘(3) The Attorney General may delegate the

2 authority in this section to the Commissioner or to

3 any District Director of the Service.

4 ‘‘(4) No alien described in this section shall be

5 eligible for—

6 ‘‘(A) any relief from deportation that the

7 Attorney General may grant in his discretion,

8 or

9 ‘‘(B) relief under section 243(h).

10 ‘‘(5) The Attorney General may not execute any

11 order described in paragraph (1) until 14 calendar

12 days have passed from the date that such order was

13 issued, in order that the alien has an opportunity to

14 apply for judicial review under section 106.’’.

15 (b) LIMITED JUDICIAL REVIEW.—Section 106 of the

16 Immigration and Nationality Act (8 U.S.C. 1105a) is

17 amended—

18 (1) in the first sentence of subsection (a), by in19 serting ‘‘or pursuant to section 242A’’ after ‘‘under

20 section 242(b)’’;

21 (2) in subsection (a)(1) and subsection (a)(3),

22 by inserting ‘‘(including an alien described in section

23 242A)’’ after ‘‘aggravated felony’’; and

24 (3) by adding at the end the following new sub25 section:
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1 ‘‘(d) Notwithstanding subsection (c), a petition for

2 review or for habeas corpus on behalf of an alien described

3 in section 242A(c) may only challenge whether the alien

4 is in fact an alien described in such section, and no court

5 shall have jurisdiction to review any other issue.’’.

6 (c) TECHNICAL AND CONFORMING CHANGES.—Sec7 tion 242A of the Immigration and Nationality Act (8

8 U.S.C. 1252a) is amended as follows:

9 (1) In subsection (a)—

10 (A) by striking ‘‘(a) IN GENERAL.—’’ and

11 inserting the following:

12 ‘‘(b) DEPORTATION OF PERMANENT RESIDENT

13 ALIENS.—

14 ‘‘(1) IN GENERAL.—’’; and

15 (B) by inserting in the first sentence ‘‘per16 manent resident’’ after ‘‘correctional facilities

17 for’’;

18 (2) In subsection (b)—

19 (A) by striking ‘‘(b) IMPLEMENTATION.—’’

20 and inserting ‘‘(2) IMPLEMENTATION.—’’; and

21 (B) by striking ‘‘respect to an’’ and insert22 ing ‘‘respect to a permanent resident’’;

23 (3) By striking out subsection (c);

24 (4) In subsection (d)—
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1 (A) by striking ‘‘(d) EXPEDITED PRO2 CEEDINGS.—(1)’’ and inserting ‘‘(3) EXPE3 DITED PROCEEDINGS.—(A)’’;

4 (B) by inserting ‘‘permanent resident’’

5 after ‘‘in the case of any’’; and

6 (C) by striking ‘‘(2)’’ and inserting ‘‘(B)’’;

7 (5) In subsection (e)—

8 (A) by striking ‘‘(e) REVIEW.—(1)’’ and

9 inserting ‘‘(4) REVIEW.—(A)’’;

10 (B) by striking the second sentence; and

11 (C) by striking ‘‘(2)’’ and inserting ‘‘(B)’’.

12 (6) By inserting after the section heading the

13 following new subsection:

14 ‘‘(a) PRESUMPTION OF DEPORTABILITY.—An alien

15 convicted of an aggravated felony shall be conclusively pre16 sumed to be deportable from the United States.’’.

17 (7) The heading of such section is amended to

18 read as follows:

‘‘EXPEDITED DEPORTATION OF ALIENS CONVICTED OF

COMMITTING AGGRAVATED FELONIES’’.

19 (d) EFFECTIVE DATE.—The amendments made by

20 this section shall apply to all aliens against whom deporta21 tion proceedings are initiated after the date of enactment

22 of this Act.
17

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1 SEC. 107. JUDICIAL DEPORTATION.

2 (a) JUDICIAL DEPORTATION.—Section 242A of the

3 Immigration and Nationality Act (8 U.S.C. 1252a) is

4 amended by inserting at the end the following new sub5 section:

6 ‘‘(d) JUDICIAL DEPORTATION.—

7 ‘‘(1) AUTHORITY.—Notwithstanding any other

8 provision of this Act, a United States district court

9 shall have jurisdiction to enter a judicial order of de10 portation at the time of sentencing against an alien

11 whose criminal conviction causes such alien to be de12 portable under section 241(a)(2)(A)(iii) (relating to

13 conviction of an aggravated felony), if such an order

14 has been requested prior to sentencing by the United

15 States Attorney with the concurrence of the Com16 missioner.

17 ‘‘(2) PROCEDURE.—

18 ‘‘(A) The United States Attorney shall pro19 vide notice of intent to request judicial deporta20 tion promptly after the entry in the record of

21 an adjudication of guilt or guilty plea. Such no22 tice shall be provided to the court, to the alien,

23 and to the alien’s counsel of record.

24 ‘‘(B) Notwithstanding section 242B, the

25 United States Attorney, with the concurrence of

26 the Commissioner, shall file at least 20 days
18

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1 prior to the date set for sentencing a charge

2 containing factual allegations regarding the

3 alienage of the defendant and satisfaction by

4 the defendant of the definition of aggravated

5 felony.

6 ‘‘(C) If the court determines that the de7 fendant has presented substantial evidence to

8 establish prima facie eligibility for relief from

9 deportation under section 212(c), the Commis10 sioner shall provide the court with a rec11 ommendation and report regarding the alien’s

12 eligibility for relief under such section. The

13 court shall either grant or deny the relief

14 sought.

15 ‘‘(D)(i) The alien shall have a reasonable

16 opportunity to examine the evidence against

17 him or her, to present evidence on his or her

18 own behalf, and to cross-examine witnesses pre19 sented by the Government.

20 ‘‘(ii) The court, for the purposes of deter21 mining whether to enter an order described in

22 paragraph (1), shall only consider evidence that

23 would be admissible in proceedings conducted

24 pursuant to section 242(b).
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1 ‘‘(iii) Nothing in this subsection shall limit

2 the information a court of the United States

3 may receive or consider for the purposes of im4 posing an appropriate sentence.

5 ‘‘(iv) The court may order the alien de6 ported if the Attorney General demonstrates by

7 clear and convincing evidence that the alien is

8 deportable under this Act.

9 ‘‘(3) NOTICE, APPEAL, AND EXECUTION OF JU10 DICIAL ORDER OF DEPORTATION.—

11 ‘‘(A)(i) A judicial order of deportation or

12 denial of such order may be appealed by either

13 party to the court of appeals for the circuit in

14 which the district court is located.

15 ‘‘(ii) Except as provided in clause (iii),

16 such appeal shall be considered consistent with

17 the requirements described in section 106.

18 ‘‘(iii) Upon execution by the defendant of

19 a valid waiver of the right to appeal the convic20 tion on which the order of deportation is based,

21 the expiration of the period described in section

22 106(a)(1), or the final dismissal of an appeal

23 from such conviction, the order of deportation

24 shall become final and shall be executed at the
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1 end of the prison term in accordance with the

2 terms of the order.

3 ‘‘(B) As soon as is practicable after entry

4 of a judicial order of deportation, the Commis5 sioner shall provide the defendant with written

6 notice of the order or deportation, which shall

7 designate the defendant’s country of choice for

8 deportation and any alternate country pursuant

9 to section 243(a).

10 ‘‘(4) DENIAL OF JUDICIAL ORDER.—Denial of a

11 request for a judicial order of deportation shall not

12 preclude the Attorney General from initiating depor13 tation proceedings pursuant to section 242 upon the

14 same ground of deportability or upon any other

15 ground of deportability provided under section

16 241(a).’’.

17 (b) TECHNICAL AND CONFORMING CHANGES.—The

18 ninth sentence of section 242(b) of the Immigration and

19 Nationality Act (8 U.S.C. 1252(b)) is amended by striking

20 out ‘‘The’’ and inserting in lieu thereof, ‘‘Except as pro21 vided in section 242A(d), the’’.

22 (c) EFFECTIVE DATE.—The amendments made by

23 this section shall apply to all aliens whose adjudication of

24 guilt or guilty plea is entered in the record after the date

25 of enactment of this Act.
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1 SEC. 108. RESTRICTING DEFENSES TO DEPORTATION FOR

2 CERTAIN CRIMINAL ALIENS.

3 (a) DEFENSES BASED ON SEVEN YEARS OF PERMA4 NENT RESIDENCE.—The last sentence of section 212(c)

5 of the Immigration and Nationality Act (8 U.S.C.

6 1182(c)) is amended by striking out ‘‘has served for such

7 felony or felonies’’ and all that follows through the period

8 and inserting in lieu thereof ‘‘has been sentenced for such

9 felony or felonies to a term of imprisonment of at least

10 5 years, provided that the time for appealing such convic11 tion or sentence has expired and the sentence has become

12 final.’’.

13 (b) DEFENSES BASED ON WITHHOLDING OF DEPOR14 TATION.—Section 243(h)(2) of the Immigration and Na15 tionality Act (8 U.S.C. 1253(h)(2)) is amended by—

16 (1) striking out the final sentence and inserting

17 in lieu thereof the following new subparagraph:

18 ‘‘(E) the alien has been convicted of an ag19 gravated felony.’’; and

20 (2) striking out the ‘‘or’’ at the end of subpara21 graph (C) and inserting ‘‘or’’ at the end of subpara22 graph (D).
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1 SEC. 109. ENHANCING PENALTIES FOR FAILING TO DE2 PART, OR REENTERING, AFTER FINAL ORDER

3 OF DEPORTATION.

4 (a) FAILURE TO DEPART.—Section 242(e) of the Im5 migration and Nationality Act (8 U.S.C. 1252(e)) is

6 amended—

7 (1) by striking out ‘‘paragraph (2), (3), or 4

8 of’’ the first time it appears, and

9 (2) by striking out ‘‘shall be imprisoned not

10 more than ten years’’ and inserting in lieu thereof,

11 ‘‘shall be imprisoned not more than four years, or

12 shall be imprisoned not more than ten years if the

13 alien is a member of any of the classes described in

14 paragraph (1)(E), (2), (3), or (4) of section

15 241(a).’’.

16 (b) REENTRY.—Section 276(b) of the Immigration

17 and Nationality Act (8 U.S.C. 1326(b)) is amended—

18 (1) in paragraph (1), by (A) inserting after

19 ‘‘commission of’’ the following: ‘‘three or more mis20 demeanors or’’, and (B) striking out ‘‘5’’ and insert21 ing in lieu thereof ‘‘10’’,

22 (2) in paragraph (2), by striking out ‘‘15’’ and

23 inserting in lieu thereof ‘‘20’’, and

24 (3) by adding at the end the following sentence:

25 ‘‘For the purposes of this subsection, the term ‘deporta26 tion’ shall include any agreement where an alien stipulates
23

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1 to deportation during a criminal trial under either Federal

2 or State law.’’.

3 (c) COLLATERAL ATTACKS ON UNDERLYING DEPOR4 TATION ORDER.—Section 276 of the Immigration and Na5 tionality Act (8 U.S.C. 1326) is amended by inserting

6 after subsection (b) the following new subsection:

7 ‘‘(c) In any criminal proceeding under this section,

8 no alien may challenge the validity of the deportation

9 order described in subsection (a)(1) or subsection (b) un10 less the alien demonstrates—

11 ‘‘(1) that the alien exhausted the administrative

12 remedies (if any) that may have been available to

13 seek relief against such order,

14 ‘‘(2) that the deportation proceedings at which

15 such order was issued improperly deprived the alien

16 of the opportunity for judicial review, and

17 ‘‘(3) that the entry of such order was fun18 damentally unfair.’’.

19 SEC. 110. MISCELLANEOUS AND TECHNICAL CHANGES.

20 (a) FORM OF DEPORTATION HEARINGS.—The sec21 ond sentence of section 242(b) of the Immigration and

22 Nationality Act (8 U.S.C. 1252(b)) is amended by insert23 ing before the period the following: ‘‘; except that nothing

24 in this subsection shall preclude the Attorney General

25 from authorizing proceedings by electronic or telephonic
24

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1 media (with or without the consent of the alien) or, where

2 waived or agreed to by the parties, in the absence of the

3 alien.’’.

4 (b) CONSTRUCTION OF EXPEDITED DEPORTATION

5 REQUIREMENTS.— No amendment made by this Act and

6 nothing in section 242(i) of the Immigration and Nation7 ality Act (8 U.S.C. 1252(i)), shall be construed to create

8 any right or benefit, substantive or procedural, which is

9 legally enforceable by any party against the United States,

10 its agencies, its officers or any other person.

11 TITLE II—PROCEDURES

12 SEC. 201. DEATH PENALTY PROCEDURES.

13 (a) ADDITION OF CHAPTER TO TITLE 18, UNITED

14 STATES CODE.—Title 18, United States Code, is amended

15 by inserting after chapter 227 the following new chapter:

16 ‘‘CHAPTER 228—DEATH PENALTY

17 PROCEDURES

‘‘Sec.

‘‘3591. Sentence of death.

‘‘3592. Factors to be considered in determining whether a sentence of death is

justified.

‘‘3593. Special hearing to determine whether a sentence of death is justified.

‘‘3594. Imposition of a sentence of death.

‘‘3595. Review of a sentence of death.

‘‘3596. Implementation of a sentence of death.

‘‘3597. Use of State facilities.

‘‘3598. Appointment of counsel.

‘‘3599. Collateral attack on judgment imposing sentence of death.

‘‘3600. Application in Indian country.
25

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1 ‘‘§ 3591. Sentence of death

2 ‘‘A defendant who has been found guilty of an offense

3 described in section 274(a)(4) of the Immigration and Na4 tionality Act, as determined beyond a reasonable doubt at

5 a hearing under section 3593, shall be sentenced to death

6 if, after consideration of the factors set forth in section

7 3592 in the course of a hearing held pursuant to section

8 3593, it is determined that imposition of a sentence of

9 death is justified, except that no person may be sentenced

10 to death who was less than 18 years of age at the time

11 of the offense or who is mentally retarded.

12 ‘‘§ 3592. Factors to be considered in determining

13 whether a sentence of death is justified

14 ‘‘(a) MITIGATING FACTORS.—In determining wheth15 er a sentence of death is justified for any offense, the jury,

16 or if there is no jury, the court, shall consider each of

17 the following mitigating factors and determine which, if

18 any, exist:

19 ‘‘(1) MENTAL CAPACITY.—The defendant’s

20 mental capacity to appreciate the wrongfulness of

21 his conduct or to conform his conduct to the require22 ments of law was significantly impaired, regardless

23 of whether the capacity was so impaired as to con24 stitute a defense to the charge.

25 ‘‘(2) DURESS.—The defendant was under un26 usual and substantial duress, regardless of whether
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1 the duress was of such a degree as to constitute a

2 defense to the charge.

3 ‘‘(3) PARTICIPATION IN OFFENSE MINOR.—The

4 defendant’s participation in the offense, which was

5 committed by another, was relatively minor, regard6 less of whether the participation was so minor as to

7 constitute a defense to the charge.

8 ‘‘(4) NO SIGNIFICANT CRIMINAL HISTORY.—

9 The defendant did not have a significant history of

10 other criminal conduct.

11 ‘‘(5) DISTURBANCE.—The defendant committed

12 the offense under severe mental or emotional dis13 turbance.

14 ‘‘(6) VICTIM’S CONSENT.—The victim consented

15 to the criminal conduct that resulted in the victim’s

16 death.

17 The jury, or if there is no jury, the court, shall consider

18 whether any other aspect of the defendant’s background,

19 character or record or any other circumstance of the of20 fense that the defendant may proffer as a mitigating fac21 tor exists.

22 ‘‘(b) AGGRAVATING FACTORS FOR HOMICIDE.—In

23 determining whether a sentence of death is justified for

24 an offense described in section 3591, the jury, or if there
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1 is no jury, the court, shall consider each of the following

2 aggravating factors and determine which, if any, exist:

3 ‘‘(1) INVOLVEMENT OF FIREARM OR PREVIOUS

4 CONVICTION OF VIOLENT FELONY INVOLVING FIRE5 ARM.—The defendant—

6 ‘‘(A) during and in relation to the commis7 sion of the offense or in escaping or attempting

8 to escape apprehension used or possessed a fire9 arm (as defined in section 921); or

10 ‘‘(B) has previously been convicted of a

11 Federal or State offense punishable by a term

12 of imprisonment of more than 1 year, involving

13 the use of attempted or threatened use of a

14 firearm (as defined in section 921), against an15 other person.

16 ‘‘(2) PREVIOUS CONVICTION OF OFFENSE FOR

17 WHICH A SENTENCE OF DEATH OR LIFE IMPRISON18 MENT WAS AUTHORIZED.—The defendant has pre19 viously been convicted of another Federal or State

20 offense resulting in the death of a person, for which

21 a sentence of life imprisonment or death was author22 ized by statute.

23 ‘‘(3) PREVIOUS CONVICTION OF OTHER SERI24 OUS OFFENSES.—The defendant has previously been

25 convicted of 2 or more Federal or State offenses,
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1 each punishable by a term of imprisonment of more

2 than 1 year, committed on different occasions, in3 volving the importation, manufacture, or distribution

4 of a controlled substance (as defined in section 102

5 of the Controlled Substances Act (21 U.S.C. 802))

6 or the infliction of, or attempted infliction of, serious

7 bodily injury or death upon another person.

8 ‘‘(4) GRAVE RISK OF DEATH TO ADDITIONAL

9 PERSONS.—The defendant, in the commission of the

10 offense or in escaping or attempting to escape ap11 prehension, knowingly created a grave risk of death

12 to one or more persons in addition to the victim of

13 the offense.

14 ‘‘(5) HEINOUS, CRUEL OR DEPRAVED MANNER

15 OF COMMISSION.—The defendant committed the of16 fense in an especially heinous, cruel, or depraved

17 manner in that it involved torture or serious physical

18 abuse to the victim.

19 ‘‘(6) PROCUREMENT OF OFFENSE BY PAY20 MENT.—The defendant procured the commission of

21 the offense by payment, or promise of payment, of

22 anything of pecuniary value.

23 ‘‘(7) COMMISSION OF THE OFFENSE FOR PECU24 NIARY GAIN.—The defendant committed the offense
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1 as consideration for the receipt, or in the expectation

2 of the receipt, of anything of pecuniary value.

3 ‘‘(8) SUBSTANTIAL PLANNING AND

4 PREMEDITATION.—The defendant committed the of5 fense after substantial planning and premeditation.

6 ‘‘(9) VULNERABILITY OF VICTIM.—The victim

7 was particularly vulnerable due to old age, youth, or

8 infirmity.

9 ‘‘§ 3593. Special hearing to determine whether a sen10 tence of death is justified

11 ‘‘(a) NOTICE BY THE GOVERNMENT.—Whenever the

12 Government intends to seek the death penalty for an of13 fense described in section 3591, the attorney for the Gov14 ernment, a reasonable time before the trial, or before ac15 ceptance by the court of a plea of guilty, or at such time

16 thereafter as the court may permit upon a showing of good

17 cause, shall sign and file with the court, and serve on the

18 defendant, a notice that the Government in the event of

19 conviction will seek the sentence of death. The notice shall

20 set forth the aggravating factor or factors enumerated in

21 section 3592, and any other aggravating factor not specifi22 cally enumerated in section 3592, that the Government,

23 if the defendant is convicted, will seek to prove as the basis

24 for the death penalty. The factors for which notice is pro25 vided under this subsection may include factors concerning
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1 the effect of the offense on the victim and the victim’s

2 family. The court may permit the attorney for the Govern3 ment to amend the notice upon a showing of good cause.

4 ‘‘(b) HEARING BEFORE A COURT OR JURY.—When

5 the attorney for the Government has filed a notice as re6 quired under subsection (a) and the defendant is found

7 guilty of an offense described in section 3591, the judge

8 who presided at the trial or before whom the guilty plea

9 was entered, or another judge if that judge is unavailable,

10 shall conduct a separate sentencing hearing to determine

11 the punishment to be imposed. Prior to such a hearing,

12 no presentence report shall be prepared by the United

13 States Probation Service, notwithstanding the provisions

14 of the Federal Rules of Criminal Procedure. The hearing

15 shall be conducted—

16 ‘‘(1) before the jury that determined the de17 fendant’s guilt;

18 ‘‘(2) before a jury impaneled for the purpose of

19 the hearing if—

20 ‘‘(A) the defendant was convicted upon a

21 plea of guilty;

22 ‘‘(B) the defendant was convicted after a

23 trial before the court sitting without a jury;

24 ‘‘(C) the jury that determined the defend25 ant’s guilt was discharged for good cause; or
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1 ‘‘(D) after initial imposition of a sentence

2 under this section, reconsideration of the sen3 tence under the section is necessary; or

4 ‘‘(3) before the court alone, upon motion of the

5 defendant and with the approval of the attorney for

6 the Government.

7 A jury impaneled pursuant to paragraph (2) shall consist

8 of 12 members, unless, at any time before the conclusion

9 of the hearing, the parties stipulate, with the approval of

10 the court, that it shall consist of a lesser number.

11 ‘‘(c) PROOF OF MITIGATING AND AGGRAVATING FAC12 TORS.—At the hearing, information may be presented as

13 to—

14 ‘‘(1) any matter relating to any mitigating fac15 tor listed in section 3592 and any other mitigating

16 factor; and

17 ‘‘(2) any matter relating to any aggravating

18 factor listed in section 3592 for which notice has

19 been provided under subsection (a) and (if informa20 tion is presented relating to such a listed factor) any

21 other aggravating factor for which notice has been

22 so provided.

23 The information presented may include the trial transcript

24 and exhibits. Any other information relevant to such miti25 gating or aggravating factors may be presented by either
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1 the Government or the defendant. The information pre2 sented by the Government in support of factors concerning

3 the effect of the offense on the victim and the victim’s

4 family may include oral testimony, a victim impact state5 ment that identifies the victim of the offense and the na6 ture and extent of harm and loss suffered by the victim

7 and the victim’s family, and other relevant information.

8 Information is admissible regardless of its admissibility

9 under the rules governing admission of evidence at crimi10 nal trials, except that information may be excluded if its

11 probative value is outweighed by the danger of creating

12 unfair prejudice, confusing the issues, or misleading the

13 jury. The attorney for the Government and for the defend14 ant shall be permitted to rebut any information received

15 at the hearing, and shall be given fair opportunity to

16 present argument as to the adequacy of the information

17 to establish the existence of any aggravating or mitigating

18 factor, and as to the appropriateness in that case of im19 posing a sentence of death. The attorney for the Govern20 ment shall open the argument. The defendant shall be per21 mitted to reply. The Government shall then be permitted

22 to reply in rebuttal. The burden of establishing the exist23 ence of an aggravating factor is on the Government, and

24 is not satisfied unless the existence of such a factor is es25 tablished beyond a reasonable doubt. The burden of estab-
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1 lishing the existence of any mitigating factor is on the de2 fendant, and is not satisfied unless the existence of such

3 a factor is established by a preponderance of the evidence.

4 ‘‘(d) RETURN OF SPECIAL FINDINGS.—The jury, or

5 if there is no jury, the court, shall consider all the informa6 tion received during the hearing. It shall return special

7 findings identifying any aggravating factor or factors set

8 forth in section 3592 found to exist and any other aggra9 vating factor for which notice has been provided under

10 subsection (a) found to exist. A finding with respect to

11 a mitigating factor may be made by one or more members

12 of the jury, and any member of the jury who finds the

13 existence of a mitigating factor may consider such factor

14 established for purposes of this section regardless of the

15 number of jurors who concur that the factor has been es16 tablished. A finding with respect to any aggravating factor

17 must be unanimous. If no aggravating factor set forth in

18 section 3592 is found to exist, the court shall impose a

19 sentence other than death authorized by law.

20 ‘‘(e) RETURN OF A FINDING CONCERNING A SEN21 TENCE OF DEATH.—If, in the case of an offense described

22 in section 3591, an aggravating factor required to be con23 sidered under section 3592(b) is found to exist, the jury,

24 or if there is no jury, the court, shall then consider wheth25 er the aggravating factor or factors found to exist under
34

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1 subsection (d) outweigh any mitigating factor or factors.

2 The jury, or if there is no jury, the court shall recommend

3 a sentence of death if it unanimously finds at least one

4 aggravating factor and no mitigating factor or if it finds

5 one or more aggravating factors which outweigh any miti6 gating factors. In any other case, it shall not recommend

7 a sentence of death. The jury shall be instructed that it

8 must avoid any influence of sympathy, sentiment, passion,

9 prejudice, or other arbitrary factors in its decision, and

10 should make such a recommendation as the information

11 warrants.

12 ‘‘(f) SPECIAL PRECAUTION TO ASSURE AGAINST

13 DISCRIMINATION.—In a hearing held before a jury, the

14 court, prior to the return of a finding under subsection

15 (e), shall instruct the jury that, in considering whether

16 a sentence of death is justified, it shall not be influenced

17 by prejudice or bias relating to the race, color, religion,

18 national origin, or sex of the defendant or of any victim

19 and that the jury is not to recommend a sentence of death

20 unless it has concluded that it would recommend a sen21 tence of death for the crime in question no matter what

22 the race, color, religion, national origin, or sex of the de23 fendant or of any victim may be. The jury, upon return

24 of a finding under subsection (e), shall also return to the

25 court a certificate, signed by each juror, that prejudice or
35

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1 bias relating to the race, color, religion, national origin,

2 or sex of the defendant or any victim was not involved

3 in reaching his or her individual decision and that the indi4 vidual juror would have made the same recommendation

5 regarding a sentence for the crime in question no matter

6 what the race, color, religion, national origin, or sex of

7 the defendant or any victim may be.

8 ‘‘§ 3594. Imposition of a sentence of death

9 ‘‘Upon the recommendation under section 3593(e)

10 that a sentence of death be imposed, the court shall sen11 tence the defendant to death. Otherwise the court shall

12 impose a sentence, other than death, authorized by law.

13 Notwithstanding any other provision of law, if the maxi14 mum term of imprisonment for the offense is life imprison15 ment, the court may impose a sentence of life imprison16 ment without the possibility of release.

17 ‘‘§ 3595. Review of a sentence of death

18 ‘‘(a) APPEAL.—In a case in which a sentence of death

19 is imposed, the sentence shall be subject to review by the

20 court of appeals upon appeal by the defendant. Notice of

21 appeal of the sentence must be filed within the time speci22 fied for the filing of a notice of appeal of the judgment

23 of conviction. An appeal of the sentence under this section

24 may be consolidated with an appeal of the judgment of

25 conviction and shall have priority over all other cases.
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1 ‘‘(b) REVIEW.—The court of appeals shall review the

2 entire record in the case, including—

3 ‘‘(1) the evidence submitted during the trial;

4 ‘‘(2) the information submitted during the sen5 tencing hearing;

6 ‘‘(3) the procedures employed in the sentencing

7 hearing; and

8 ‘‘(4) the special findings returned under section

9 3593(d).

10 ‘‘(c) DECISION AND DISPOSITION.—

11 ‘‘(1) AFFIRMANCE.—If the court of appeals de12 termines that—

13 ‘‘(A) the sentence of death was not im14 posed under the influence of passion, prejudice,

15 or any other arbitrary factor;

16 ‘‘(B) the evidence and information support

17 the special findings of the existence of an ag18 gravating factor or factors; and

19 ‘‘(C) the proceedings did not involve any

20 other prejudicial error requiring reversal of the

21 sentence that was properly preserved for and

22 raised on appeal,

23 it shall affirm the sentence.

24 ‘‘(2) REMAND.—In a case in which the sentence

25 is not affirmed under paragraph (1), the court of
37

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1 appeals shall remand the case for reconsideration

2 under section 3593 or for imposition of another au3 thorized sentence as appropriate, except that the

4 court shall not reverse a sentence of death on the

5 ground that an aggravating factor was invalid or

6 was not supported by the evidence and information

7 if at least one aggravating factor required to be con8 sidered under section 3592 remains which was found

9 to exist and the court, on the basis of the evidence

10 submitted at trial and the information submitted at

11 the sentencing hearing, finds no mitigating factor or

12 finds that the remaining aggravating factor or fac13 tors which were found to exist outweigh any mitigat14 ing factors.

15 ‘‘(3) STATEMENT OF REASONS.—The court of

16 appeals shall state in writing the reasons for its dis17 position of an appeal of a sentence of death under

18 this section.

19 ‘‘§ 3596. Implementation of a sentence of death

20 ‘‘(a) IN GENERAL.—A person who has been sen21 tenced to death pursuant to this chapter shall be commit22 ted to the custody of the Attorney General until exhaus23 tion of the procedures for appeal of the judgment of con24 viction and for review of the sentence. When the sentence

25 is to be implemented, the Attorney General shall release
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1 the person sentenced to death to the custody of a United

2 States Marshal, who shall supervise implementation of the

3 sentence in the manner prescribed by the law of the State

4 in which the sentence is imposed. If the law of such State

5 does not provide for implementation of a sentence of

6 death, the court shall designate another State, the law of

7 which does so provide, and the sentence shall be imple8 mented in the manner prescribed by such law.

9 ‘‘(b) SPECIAL BARS TO EXECUTION.—A sentence of

10 death shall not be carried out upon a person who lacks

11 the mental capacity to understand the death penalty and

12 why it was imposed on that person, or upon a woman while

13 she is pregnant.

14 ‘‘(c) EMPLOYEES MAY DECLINE TO PARTICIPATE.—

15 No employee of any State department of corrections, the

16 Federal Bureau of Prisons, or the United States Marshals

17 Service, and no employee providing services to that depart18 ment, bureau, or service under contract shall be required,

19 as a condition of that employment or contractual obliga20 tion, to be in attendance at or to participate in any execu21 tion carried out under this section if such participation

22 is contrary to the moral or religious convictions of the em23 ployee. For purposes of this subsection, the term ‘partici24 pate in any execution’ includes personal preparation of the

25 condemned individual and the apparatus used for the exe-
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1 cution, and supervision of the activities of other personnel

2 in carrying out such activities.

3 ‘‘§ 3597. Use of State facilities

4 ‘‘A United States Marshal charged with supervising

5 the implementation of a sentence of death may use appro6 priate State or local facilities for the purpose, may use

7 the services of an appropriate State or local official or of

8 a person such an official employs for the purpose, and

9 shall pay the costs thereof in an amount approved by the

10 Attorney General.

11 ‘‘§ 3598. Appointment of counsel

12 ‘‘(a) REPRESENTATION OF INDIGENT DEFEND13 ANTS.—This section shall govern the appointment of coun14 sel for any defendant against whom a sentence of death

15 is sought, or on whom a sentence of death has been im16 posed, for an offense against the United States, where the

17 defendant is or becomes financially unable to obtain ade18 quate representation. Such a defendant shall be entitled

19 to appointment of counsel from the commencement of trial

20 proceedings until one of the conditions specified in section

21 3599(b) has occurred. This section shall not affect the ap22 pointment of counsel and the provision of ancillary legal

23 services under section 408(q) (4), (5), (6), (7), (8), (9),

24 and (10) of the Controlled Substances Act (21 U.S.C. 848

25 (q) (4), (5), (6), (7), (8), (9), and (10)).
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1 ‘‘(b) REPRESENTATION BEFORE FINALITY OF JUDG2 MENT.—A defendant within the scope of this section shall

3 have counsel appointed for trial representation as provided

4 in section 3005. At least 1 counsel so appointed shall con5 tinue to represent the defendant until the conclusion of

6 direct review of the judgment, unless replaced by the court

7 with other qualified counsel.

8 ‘‘(c) REPRESENTATION AFTER FINALITY OF JUDG9 MENT.—When a judgment imposing a sentence of death

10 has become final through affirmance by the Supreme

11 Court on direct review, denial of certiorari by the Supreme

12 Court on direct review, or expiration of the time for seek13 ing direct review in the court of appeals or the Supreme

14 Court, the Government shall promptly notify the district

15 court that imposed the sentence. Within 10 days after re16 ceipt of such notice, the district court shall proceed to

17 make a determination whether the defendant is eligible

18 under this section for appointment of counsel for subse19 quent proceedings. On the basis of the determination, the

20 court shall issue an order—

21 ‘‘(1) appointing 1 or more counsel to represent

22 the defendant upon a finding that the defendant is

23 financially unable to obtain adequate representation

24 and wishes to have counsel appointed or is unable
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1 competently to decide whether to accept or reject ap2 pointment of counsel;

3 ‘‘(2) finding, after a hearing if necessary, that

4 the defendant rejected appointment of counsel and

5 made the decision with an understanding of its legal

6 consequences; or

7 ‘‘(3) denying the appointment of counsel upon

8 a finding that the defendant is financially able to ob9 tain adequate representation.

10 Counsel appointed pursuant to this subsection shall be dif11 ferent from the counsel who represented the defendant at

12 trial and on direct review unless the defendant and counsel

13 request a continuation or renewal of the earlier represen14 tation.

15 ‘‘(d) STANDARDS FOR COMPETENCE OF COUNSEL.—

16 In relation to a defendant who is entitled to appointment

17 of counsel under this section, at least 1 counsel appointed

18 for trial representation must have been admitted to the

19 bar for at least 5 years and have at least 3 years of experi20 ence in the trial of felony cases in the federal district

21 courts. If new counsel is appointed after judgment, at

22 least 1 counsel so appointed must have been admitted to

23 the bar for at least 5 years and have at least 3 years of

24 experience in the litigation of felony cases in the Federal

25 courts of appeals or the Supreme Court. The court, for
42

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1 good cause, may appoint counsel who does not meet the

2 standards prescribed in the 2 preceding sentences, but

3 whose background, knowledge, or experience would other4 wise enable him or her to properly represent the defend5 ant, with due consideration of the seriousness of the pen6 alty and the nature of the litigation.

7 ‘‘(e) APPLICABILITY OF CRIMINAL JUSTICE ACT.—

8 Except as otherwise provided in this section, section

9 3006A shall apply to appointments under this section.

10 ‘‘(f) CLAIMS OF INEFFECTIVENESS OF COUNSEL.—

11 The ineffectiveness or incompetence of counsel during pro12 ceedings on a motion under section 2255 of title 28 in

13 a capital case shall not be a ground for relief from the

14 judgment or sentence in any proceeding. This limitation

15 shall not preclude the appointment of different counsel at

16 any stage of the proceedings.

17 ‘‘§ 3599. Collateral attack on judgment imposing sen18 tence of death

19 ‘‘(a) TIME FOR MAKING SECTION 2255 MOTION.—

20 In a case in which a sentence of death has been imposed,

21 and the judgment has become final as described in section

22 3598(c), a motion in the case under section 2255 of title

23 28 shall be filed within 90 days of the issuance of the

24 order relating to appointment of counsel under section

25 3598(c). The court in which the motion is filed, for good
43

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1 cause shown, may extend the time for filing for a period

2 not exceeding 60 days. A motion described in this section

3 shall have priority over all noncapital matters in the dis4 trict court, and in the court of appeals on review of the

5 district court’s decision.

6 ‘‘(b) STAY OF EXECUTION.—The execution of a sen7 tence of death shall be stayed in the course of direct review

8 of the judgment and during the litigation of an initial mo9 tion in the case under section 2255 of title 28. The stay

10 shall run continuously following imposition of the sen11 tence, and shall expire if—

12 ‘‘(1) the defendant fails to file a motion under

13 section 2255 of title 28 within the time specified in

14 subsection (a), or fails to make a timely application

15 for court of appeals review following the denial of

16 such a motion by a district court;

17 ‘‘(2) upon completion of district court and court

18 of appeals review under section 2255 of title 28, the

19 motion under that section is denied and—

20 ‘‘(A) the time for filing a petition for cer21 tiorari has expired and no petition has been

22 filed;

23 ‘‘(B) a timely petition for certiorari was

24 filed and the Supreme Court denied the peti25 tion; or
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1 ‘‘(C) a timely petition for certiorari was

2 filed and upon consideration of the case, the

3 Supreme Court disposed of it in a manner that

4 left the capital sentence undisturbed; or

5 ‘‘(3) before a district court, in the presence of

6 counsel and after having been advised of the con7 sequences of the decision to do so, the defendant

8 waives the right to file a motion under section 2255

9 of title 28.

10 ‘‘(c) FINALITY OF DECISION ON REVIEW.—If one of

11 the conditions specified in subsection (b) has occurred, no

12 court thereafter shall have the authority to enter a stay

13 of execution or grant relief in the case unless—

14 ‘‘(1) the basis for the stay and request for relief

15 is a claim not presented in earlier proceedings;

16 ‘‘(2) the failure to raise the claim was—

17 ‘‘(A) the result of governmental action in

18 violation of the Constitution or laws of the

19 United States;

20 ‘‘(B) the result of the Supreme Court rec21 ognition of a new Federal right that is retro22 actively applicable; or

23 ‘‘(C) based on a factual predicate that

24 could not have been discovered through the ex-
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1 ercise of reasonable diligence in time to present

2 the claim in earlier proceedings; and

3 ‘‘(3) the facts underlying the claim would be

4 sufficient, if proven, to undermine the court’s con5 fidence in the determination of guilt on the offense

6 or offenses for which the death penalty was imposed.

7 ‘‘§ 3600. Application in Indian country

8 ‘‘Notwithstanding sections 1152 and 1153, no person

9 subject to the criminal jurisdiction of an Indian tribal gov10 ernment shall be subject to a capital sentence under this

11 chapter for any offense the Federal jurisdiction for which

12 is predicated solely on Indian country as defined in section

13 1151 and which has occurred within the boundaries of

14 such Indian country, unless the governing body of the

15 tribe has made an election that this chapter have effect

16 over land and persons subject to its criminal jurisdiction.’’.

17 (b) TECHNICAL AMENDMENT.—The part analysis for

18 part II of title 18, United States Code, is amended by

19 adding after the item relating to chapter 227 the following

20 new item:

‘‘228. Death penalty procedures ................................................... 3591.’’.

Æ

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