I’m charged with an illegal immigration issue! How much prison time am I looking at? Part II

Special Considerations

For the purpose of Section 3B1, (Aggravating Rule), the aliens smuggled, transported, or harbored are not considered participants unless they actively assisted in the smuggling, transporting, or harboring of others.

Where the defendant smuggled, transported, or harbored an alien knowing that the alien intended to enter the United States to engage in subversive activity, drug trafficking, or other serious criminal behavior, an upward departure (an increase in criminal score) may be warranted.

If the offense involved substantially more than 100 aliens, an upward departure may be warranted.

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).

Reckless conduct, to which the adjustment from subsection (b)(5) applies, including a wide variety of conduct (e.g. transporting persons in the truck or engine compartment of motor vehicle, carrying substantially more passengers than the rated capacity of a motor vehicle or vessel, or harboring persons in crowded, dangerous or inhumane conditions). 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 Section 3C1.2 (Reckless Endangerment During Flight). Additionally, do not apply the adjustment in subsection (b)(5) if the only reckless conduct (which created a substantial risk of death or serious bodily injury) is conduct for which the defendant received an enhancement under subsection (b)(4).

Unlawfully Entering or Remaining in the United States

(Found in Section 2L1.2)

a) Base Offense Level 8

b) Specific Offense Characteristic:

(1) If the defendant previously was deported after a criminal conviction or if the defendant unlawfully remianed in the united States following a removal order issued after a criminal conviction, increase as follows (if more than one applies, use the greated):

(A) If the conviction was for an aggravated felony, increase by 16 levels.

(B) If the conviction was for (i) any other felony, or (ii) three or more misdemeanor crimes of violence or misdemeanor controlled substance offenses, increased by 4 levels.

Special Considerations

This guideline applies only to felonies. At first offense under 8 U.S.C. Section 1325(a) is a Class B Misdemeanor for which no guideline has been promulgated. A prior sentence for such offense, however, is to be considered under the provisions of Chapter Four, Part A (Criminal History).

In the case of a defendant with repeated prior instances of deportation, an upward departure may be warranted. See Section 4A1.3 (Adequacy of Criminal History Category)

An Adjustment under subsection (b) for a prior felony conviction applies in additional to any criminal history points added for such conviction in Chapter Four, Part A (Criminal History).

Aggravated felonies that trigger the adjustment from subsection (b)(1)(A) vary widely. If subsection (b)(1)(A) applies, and (A) the defendant has previously been convicted of only one felony offense, (B) such offense was not a crime of violence or firearms offense, and (C) the term of imprisonment imposed for such offence did not exceed one year, a downward departure may be warranted based on the seriousness of the aggravated felony.

Naturalization and Passports

Trafficking in a Document Relating to Naturalization, Citizenship, or Legal Resident Status, or a United States Passport; False Statement in Respect to the Citizenship or Immigration Status of Another; Fraudulent Marriage to Assist Alien to Evade Immigration Law

(Found in Section 2L2.1)

(a) Base Offense Level:11

(b) Specific Offense Characteristics:

(1) If the 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 or child), describe by 3 levels.

(2) If the offense involved six or more documents or passports, increase as follows:

Number of Documents/Passports Increase in Level:

(A) 6-24 Add 3

(B) 25-99 Add 6

(C) 100 or more Add 9

(3) If a defendant knew, believed, or had reason to believe that a passport or visa was to be used to facilitate the commission of a felony offense (other than an offense involving violation of the immigration laws) increase by 4 levels.

(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 levels 2, or (B) two (or more) convictions for felony immigration and naturalization offense (each such conviction arising out of separate prosecution) increase by 4 levels.

Special Considerations

Subsection (b)(3) provides an enhancement if the defendant knew, believed, or had reason to believe that a passport or visa was to be used to facilitate the commission of a felony offense, other than an offense involving violation of the immigration law. If the defendant knew, believed, or had reason to believe that the felony offense to be committed was of an especially serious type, an upward departure may be warranted,

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).

If the offense involved substantially more than 100 documents, an upward departure may be warranted.

Fraudulently Acquiring Documents Relating to Naturalization, Citizenship, or Legal Resident Status for own use; False Personation or Fraudulent Marriage by Alien to Evade Immigration Law; Fraudulently Acquiring or Improperly using a United States Passport

(Found in Section 2L2.2)

(a) Base Offense Level 8

(b) Specific Offense Characteristics:

(1) If the defendant is an unlawful alien who has been deported (voluntarily or involuntarily) on one or more occasions prior to the instant offense, increase by 2 levels.

(2) If the defendant committed any part of the instant offense after sustaining (A) a conviction for a felony immigration or naturalization offense, increase by 2 levels, or (B) two (or more) convictions for felony immigration and naturalization offense, each such conviction arising out of a separate prosecution, increase by 4 levels.

(c) Cross Reference

(1) If the defendant used a passport or visa in the commission or attempted commission of felony offense, other than an offense involving violation of the immigration laws, apply either:

(A) Section 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that felony offense, if the resulting offense level is greater than that determined above, or

(B) if death resulted, the most analogous guideline from Chapter Two, Part A, Subpart 1 (homicide), if the resulting offense level is greater than that determined above.

The Morales Law Firm would like to thank Mad Dogs guide to Club Fed (Instruction Manual for Newcomers) for sharing this information with us.