The U.S. Sentencing Commission recently submitted amendments to the U.S. Sentencing Guidelines to Congress. Among the changes that will become effective November 1, 2016 are:
- changes to the alien smuggling guideline, § 2L1.1 and
- significant revisions to the illegal re-entry guideline, § 2L1.2. This multi-part amendment is a result of the Commission’s multi-year study of immigration offenses and related guidelines.
The specific offense characteristic at § 2L1.1(b)(4) provides an enhancement "[i]f the defendant smuggled, transported or harbored a minor who was unaccompanied by the minor’s parent or grandparent." This enhancement has changed.
First, the amendment increases the enhancement at § 2L1.1(b)(4) from two levels to four levels and broadens its scope to offense-based rather than defendant-based. Second, the amendment narrows the scope of the enhancement at § 2L1.1(b)(4) by revising the meaning of an "unaccompanied" minor. The amendment narrows the class of offenders who would receive the enhancement by specifying that the enhancement does not apply if the minor was accompanied by the minor's "parent, adult relative, or legal guardian." Third, the amendment expands the definition of "minor" in the guideline, as it relates to the enhancement in § 2L1.1(b)(4), to include an individual younger than 18. The guideline currently defines "minor" to include only individuals younger than 16.
Sexual Abuse of Aliens
The amendment to § 2L1.1 also addresses offenses in which an alien (whether or not a minor) is sexually abused. A "serious bodily injury" enhancement of four levels will apply in such a case. The commentary to § 2L1.1 has been changed to clarify that the term "serious bodily injury" included in § 2L1.1(b)(7)(B) has the meaning given that term in the commentary to U.S.S.G. § 1B1.1, which states that "serious bodily injury" is deemed to have occurred if the offense involved conduct constituting criminal sexual abuse under 18 USCA §§ 2241 or 2242 or any similar offense under state law.
Instead of using the categorical approach, the amendment adopts a much simpler sentence-imposed model for determining the applicability of predicate convictions. The level of the sentencing enhancement for a prior conviction generally will be determined by the length of the sentence imposed for the prior offense, not by the type of offense for which the defendant had been convicted. The definition of "sentence imposed" is the same definition that appears in Chapter Four of the Guidelines Manual.
Next, the Commission modified guidelines to account for prior criminal conduct in a broader and more proportionate manner. The amendment reduces somewhat the level of enhancements for criminal conduct occurring before the defendant's first order of deportation and adds a new enhancement for criminal conduct occurring after the defendant's first order of deportation. It also responds to concerns that prior convictions for illegal re-entry offenses may not be adequately accounted for in the existing guideline by adding an enhancement for prior illegal reentry and multiple prior illegal entry convictions.
Accounting for Prior Illegal Re-entry Offenses
The amendment at § 2L1.2(b)(1) provides a new tiered enhancement based on prior convictions for illegal re-entry offenses under 8 USCA § 1253, § 1325(a), or § 1326. A defendant who has one or more felony illegal re-entry convictions will receive an increase of 4 levels. "Illegal re-entry offense" includes all convictions under 8 USCA § 1253 (failure to depart after an order of removal) and § 1326 (illegal re-entry), as well as second or subsequent illegal entry conviction under § 1325(a). A defendant who has two or more misdemeanor illegal entry convictions under 8 USCA § 1325(a) will receive an increase of two levels. For a defendant with a conviction under § 1326, or a felony conviction under § 1325(a), the four-level enhancement in the new § 2L1.2(b)(1)(A) is identical in magnitude to the enhancement the defendant would receive under existing § 2L1.2(b)(1)(D).
Accounting for Other Prior Convictions
The Commission amended U.S.S.G. § 2L1.2(b)(2) and § 2L1.2(b)(3) to account for convictions (other than illegal entry or re-entry convictions) primarily through a sentence-imposed approach, which is similar to how Chapter Four of the Sentencing Guidelines Manual determines a defendant's criminal history score based on his or her prior convictions. The specific offense characteristics at subsections (b)(2) and (b)(3) each contain a parallel set of enhancements of:
- 10 levels for a prior felony conviction that received a sentence of imprisonment of five years or more
- 8 levels for a prior felony conviction that received a sentence of two years or more
- 6 levels for a prior felony conviction that received a sentence exceeding one year and one month
- 4 levels for any other prior felony conviction
- 2 levels for three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses
The (b)(2) and (b)(3) specific offense characteristics are to be calculated separately, but within each specific offense characteristic, a defendant may receive only the single greatest applicable increase.
The amendment adds a new departure provision, at Application Note 5, applicable to situations where "an enhancement in § 2L1.2 subsection (b)(2) or (b)(3) substantially understates or overstates the seriousness of the conduct underlying the prior offense."
Excluding Stale Convictions
For all three specific offense characteristics, the amendment considers prior convictions only if the convictions receive criminal history points under the rules in the Guidelines' Chapter Four.
Application of the "Single Sentence Rule"
The amendment also contains an application note addressing the situation when a defendant was simultaneously sentenced for an illegal re-entry offense and another federal felony offense. It clarifies that, in such a case, the illegal re-entry offense counts toward § 2L1.2(b)(1), while the other felony offense counts toward § 2L1.2(b)(3).
DEFINITION OF "CRIME OF VIOLENCE"
The amendment continues to use the term "crime of violence," although now solely in reference to the 2-level enhancement for three or more misdemeanor convictions at subsections § 2L1.2(b)(2)(E) and § 2L1.2(b)(3)(E). The amendment conforms the definition of "crime of violence" in Application Note 2 to that adopted for use in the career offender guideline effective August 1, 2016.