Alien Smuggling and Transporting Aliens, Federal Crimes under 8 USC § 1324
ALIEN SMUGGLING 8 USC § 1324
If someone illegally brings a person into the United States, they may face alien smuggling charges. Maximum sentences can be 5, 10, or 20 years, mandatory minimums of 3 or 5 years can apply depending on the situation.
Example – US citizen driver hides an undocumented person under the seats of their car then drives through the border without telling government agents about the smuggled alien, they are caught at secondary inspection after the car is taken through an x-ray, they may be charged with alien smuggling.
Common defense: driver did not know the undocumented person was in the car
TRANSPORTING ALIENS 8 USC § 1324
If someone transports a person within the United States they may face alien transporting charges. Maximum sentences can be 5, 10, or 20 years, mandatory minimums of 3 or 5 years can apply, depending on the situation.
Example –a driver finds a job on the internet paying $500 to pick someone up on the side of the road inside the USA next to the border fence and drive them somewhere else like Los Angeles or Riverside, border patrol watches the person on surveillance systems illegally cross then get into the driver’s car, the driver can be charged with transporting aliens.
Common defense: lack of knowledge that people transported are aliens and lack of intent to violate immigration laws, such as an innocent ride share or taxi driver.
RECENT SUCCESS (2023, 2024) – US attorney’s office in San Diego offers diversion for some Alien Smuggling and Alien Transporting Offenses. San Diego Federal Criminal Defense Attorney Nate Crowley has obtained diversion, which results in full dismissal of the case after completion for multiple clients, preventing felony conviction and any jail time.
**SUBSTANTIAL RISK OF SERIOUS BODILY INJURY SENTENCING INCREASE IN ALIEN SMUGGLING CASES
If the alien smuggled is subjected to “substantial risk of serious bodily injury or death” the common base offense level of 12, is increased to 18, under the federal sentencing guidelines (section 2L1.1(a)(3), (b)(6).) If the defendant has no criminal history, this is a guideline range increase from 10-16 months to 27-33 – more than doubling the sentencing range!
Judges often find substantial risk where the smuggled alien is restrained and cannot escape, for example stuck behind a modified rear seat that can’t be unbolted without tools, riding in a place that is too hot, too cold, or without fresh air, in a tight hidden compartment, or anywhere they are more likely to be injured in case of an accident.
9th Circuit caselaw:
United States v. Dixon, 201 F.3d 1223, 1233-34 (9th. Cir.2000)(substantial risk finding reversed where smuggled person rode in “hatchback area” not a closed “trunk” with access to oxygen and ability to extricate),
U.S. v. Bernardo, 818 F.3d 983, 987 (9th Cir. 2016)(“ focus on the ways in which the method of transporting the alien increased the risk of death or injury beyond that faced by a normal passenger.”)
U.S. v. Torres-Flores, 502 F.3d 885, 889 (9th Cir. 2007)(substantial risk exists “only when the circumstances “increased the likelihood of an accident or the chance of injury without an accident”)
In an alien smuggling case, it’s crucial to have a federal criminal defense lawyer who understands substantial risk law in alien smuggling, who can convince the federal prosecutor not to ask the judge for substantial risk, and who can effectively argue against substantial risk before the judge to avoid the massive increase in guideline sentencing range.
***I, and many others in the legal community, do not like to use and avoid the term “alien” for people who are not from the United States, however federal criminal law uses this term, so it is used here.***