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

The following information, take from the Federal Sentencing Guidelines, will provide you with a general idea.

This material gives a list of illegal situations and attaches a base offense level to each. These numbers are added up and inserted into the sentencing table. When applied in conjunction with person’ s criminal history (see How does the sentencing table work?) A sentence length in months can be estimated.

It is important to keep in mind that any value of base offense levels or criminal history can be altered in a number of ways. This will become more clear as your lawyer and prosecutor work through the issues. The information provided here will help you understand the sentencing process. It is critical for you to communicate all relative points to your lawyer so that he or she can get you the best deal.

Relative Definitions

“The offense was committed other than for profit” means that there was no payment or expectation of payment for smuggling, transporting, or harboring of any of the unlawful aliens.

“Number of unlawful aliens smuggled, transported, or harbored” does not include the defendant.

“Aggravated felony” is defined in the commentary to Section 2L1.2 (unlawfully Entering or remaining in the United States).

“Aggravated felony” is defined at 8 U.S.C., Section 1101(a)(43) without regard to the date of the conviction of the aggravated felony.

“Child” has the meaning set forth in section 101 (b)(1) of the Immigration and Naturalization Act (8 U.S.C. Section 1101 (b)(1)).

“Spouse” has the meaning set forth in section 101 (a)(35) of the Immigration and Naturalization Act (8 U.S.C. Section 1101(a)(35).

“Immigration and naturalization offense” means any offense covered by Chapter Two, Part L.

“Deported after a conviction” mean that the deportation was subsequent to the conviction whether or not the deportation was in response to such conviction. An alien has previously been “deported” if he or she has been removed or has departed the United States while an order of exclusion, deportation, or removal was outstanding.

“Remained in the United States following a removal order issue after a conviction” means that the removal order was subsequent to the conviction, whether or not the removal order was in response to such conviction.

“Crime of violence” and “controlled substance offense” are defined in section 4B1.2 for purposes of subsection (b)(1)(B); “crime of violence” includes offense punishable by imprisonment for a term of one year or less.

“Firearms offense” means any offense covered by Chapter Two, Part K, Subpart 2, or any similar offense under state or local law.

“Felony offense” means any federal, state or local offense punishable by imprisonment for a term exceeding one year.

Offense involving Immigration, Naturalization, and Passports
Immigration

Smuggling, Transporting, or Harboring an Unlawful Alien
(Found in Section 2L1.1)

(a) Base Offense Level:

1) 23, if the defendant was convicted under 8 U.S.C. Section 1327 of a violation involving an alien who previously was deported after a conviction for an aggravated felony; or

2) 12, otherwise

(b) Specific Offense Characteristics:

(1) If the offense was committed other than for profit, or the offense involved the smuggling, transporting, or harboring only 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.

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

Number of Unlawful Aliens Smuggled, Increase in Level
Transported, or Harbored

(A) 6 -24 Add 3
(B) 25-99 Add 6
(C) 100 or more Add 9

(3) If the defendant committed any part of the instance 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.

(4) (Apply the Greatest):
(A) If a firearm was discharged, increase by 6 levels, but if the resulting offense level is less than 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 20, increase to level 20.

(C) If a dangerous weapon (including a firearm) was possessed, increase 2 levels, but if the resulting 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 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 Bodily Injury Add 6 Levels
4) Death Add 8 Levels

(C) Cross Reference: If any person was killed under circumstances that would constitute murder 18 U.S.C. Section 1111 had such killings 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.