[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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:

------------------------------------------------------------------------
       Death or degree of injury                Increase in level       
------------------------------------------------------------------------
(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''.                
------------------------------------------------------------------------

    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]
BILLING CODE 2210-40-P