Smuggling, Transporting, or Harboring an Unlawful Alien

(a) Base Offense Level: (1) 25, if the defendant was convicted under 8 U.S.C. § 1327 of a violation involving an alien who was inadmissible under 8 U.S.C. § 1182(a)(3); (2) 23, if the defendant was convicted under 8 U.S.C. § 1327 of a violation involving an alien who previously was deported after a conviction for an aggravated felony; or (3) 12, otherwise. (b) Specific Offense Characteristics (1) If (A) the offense was committed other than for profit, or the offense involved the smuggling, transporting, or harboring only of the defend- ant’s spouse or child (or both the defendant’s spouse and child), and (B) the base offense level is determined under subsection (a)(3), de- crease 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, TRANSPORTED, OR HARBORED INCREASE IN LEVEL (A) 6–24 (B) 25–99 (C) 100 or more add 3 add 6 add 9. (3) If the defendant committed any part of the instant offense after sus- taining (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) If the offense involved the smuggling, transporting, or harboring of a minor who was unaccompanied by the minor’s parent, adult relative, or legal guardian, increase by 4 levels. Guidelines Manual (November 1, 2024) ║ 273 §2L1.1 (5) (Apply the Greatest): (A) If a firearm was discharged, increase by 6 levels, but if the re- sulting 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, in- crease by 2 levels, but if the resulting offense level is less than level 18, increase to level 18. (6) If the offense involved intentionally or recklessly creating a substan- tial 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, in- crease to level 18. (7) If any person died or sustained bodily injury, increase the offense level according to the seriousness of the injury: DEATH OR DEGREE OF INJURY (A) Bodily Injury (B) Serious Bodily Injury (C) Permanent or Life-Threatening Bodily Injury (D) Death INCREASE IN LEVEL add 2 levels add 4 levels add 6 levels add 10 levels. (8) (Apply the greater): (A) If an alien was involuntarily detained through coercion or threat, or in connection with a demand for payment, (i) after the alien was smuggled into the United States; or (ii) while the alien was transported or harbored in the United States, increase by 2 lev- els. If the resulting offense level is less than level 18, increase to level 18. (B) If (i) the defendant was convicted of alien harboring, (ii) the alien harboring was for the purpose of prostitution, and (iii) the de- fendant receives an adjustment under §3B1.1 (Aggravating Role), increase by 2 levels, but if the alien engaging in the pros- titution had not attained the age of 18 years, increase by 6 levels. (9) If the defendant was convicted under 8 U.S.C. § 1324(a)(4), increase by 2 levels. 274 ║ Guidelines Manual (November 1, 2024) §2L1.1 (c) Cross Reference (1) If death resulted, apply the appropriate homicide guideline from Chapter Two, Part A, Subpart 1, if the resulting offense level is greater than that determined under this guideline. Commentary Statutory Provisions: 8 U.S.C. §§ 1324(a), 1327. For additional statutory provision(s), see Appen- dix A (Statutory Index). Application Notes: 1. Definitions.—For purposes of this guideline: “The offense was committed other than for profit” means that there was no payment or expectation of payment for the smuggling, transporting, or harboring of any of the unlawful al- iens. “Number of unlawful aliens smuggled, transported, or harbored” does not include the de- fendant. “Aggravated felony” has the meaning given that term in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(43)), without regard to the date of conviction for the ag- gravated felony. “Child” has the meaning set forth in section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. § 1101(b)(1)). “Spouse” has the meaning set forth in 101(a)(35) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(35)). “Immigration and naturalization offense” means any offense covered by Chapter Two, Part L. “Minor” means an individual who had not attained the age of 18 years. “Parent” means (A) a natural mother or father; (B) a stepmother or stepfather; or (C) an adoptive mother or father. “Bodily injury,” “serious bodily injury,” and “permanent or life-threatening bodily in- jury” have the meaning given those terms in the Commentary to §1B1.1 (Application Instruc- tions). 2. Prior Convictions Under Subsection (b)(3).—Prior felony conviction(s) resulting in an ad- justment under subsection (b)(3) are also counted for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History). 3. Application of Subsection (b)(6).—Reckless conduct to which the adjustment from subsec- tion (b)(6) 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; harboring persons in a crowded, dangerous, or inhumane Guidelines Manual (November 1, 2024) ║ 275 §2L1.2 condition; or guiding persons through, or abandoning persons in, a dangerous or remote geo- graphic area without adequate food, water, clothing, or protection from the elements). If subsec- tion (b)(6) applies solely on the basis of conduct related to fleeing from a law enforcement officer, do not apply an adjustment from §3C1.2 (Reckless Endangerment During Flight). Additionally, do not apply the adjustment in subsection (b)(6) if the only reckless conduct that created a sub- stantial risk of death or serious bodily injury is conduct for which the defendant received an enhancement under subsection (b)(5). 4. Application of Subsection (b)(7) to Conduct Constituting Criminal Sexual Abuse.— Consistent with Application Note 1(M) of §1B1.1 (Application Instructions), “serious bodily in- jury” is deemed to have occurred if the offense involved conduct constituting criminal sexual abuse under 18 U.S.C. § 2241 or § 2242 or any similar offense under state law. 5. 6. Inapplicability of §3A1.3.—If an enhancement under subsection (b)(8)(A) applies, do not apply §3A1.3 (Restraint of Victim). Interaction with §3B1.1.—For the purposes of §3B1.1 (Aggravating Role), the aliens smuggled, transported, or harbored are not considered participants unless they actively assisted in the smuggling, transporting, or harboring of others. In large scale smuggling, transporting, or har- boring cases, an additional adjustment from §3B1.1 typically will apply. 7. Upward Departure Provisions.—An upward departure may be warranted in any of the fol- lowing cases: (A) 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. (B) The defendant smuggled, transported, or harbored an alien the defendant knew was inad- missible for reasons of security and related grounds, as set forth under 8 U.S.C. § 1182(a)(3). (C) The offense involved substantially more than 100 aliens. Background: This section includes the most serious immigration offenses covered under the Immi- gration Reform and Control Act of 1986. Historical Note Effective November 1, 1987. Amended effective January 15, 1988 (amendments 35, 36, and 37); November 1, 1989 (amendment 192); November 1, 1990 (amendment 335); November 1, 1991 (amendment 375); Novem- ber 1, 1992 (amendment 450); May 1, 1997 (amendment 543); November 1, 1997 (amendment 561); Novem- ber 1, 2006 (amendments 686 and 692); November 1, 2007 (amendment 702); November 1, 2009 (amendment 730); November 1, 2014 (amendment 785); November 1, 2016 (amendment 802); November 1, 2018 (amend- ment 805).