Alien Smuggling in Texas: Federal Felonies & United States Sentencing Guidelines
Posted on by Michael Lowe.
The Texas border with Mexico extends 1254 miles. Along this international boundary there are currently 28 bridges and border crossings (including a couple of dams and a hand-drawn ferry) for travel between the two jurisdictions. And of course, there are long stretches of open riverbank along the Rio Grande where the waterway provides a natural border crossing.
Of course, there are many ways for people to enter the Lone Star State other than entry through Mexico. However, our Texas-Mexico border is the main concern for law enforcement today in the illegal immigration of people into the state.
Illegal entry into Texas through Mexico, and from here into the rest of the country, is a huge and controversial issue today for both federal and state authorities. Consider this: on October 31, 2023, the Texas Senate approved additional funding into construction of the Texas Border Wall whose planned completion along the Texas-Mexico border is set for 2026. Read, “Texas Senate OKs $1.54 billion for border wall construction, security initiatives,” written by Hogan Gore and published by the Austin American Statesman on October 31, 2023.
Government Interest in Protecting Borders and Immigration
Why block people from entering the country? Obviously, there is a humanitarian reason for immigration laws and policy. As SCOTUS explains in Plyler v. Doe, 457 U.S. 202, 218-19, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982):
Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial “shadow population” of illegal migrants — numbering in the millions — within our borders. This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents. The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.
Because of these concerns, Congress has made it a federal crime to transport, harbor, or aid individuals across the United States border outside of existing immigration law. The crime of “alien smuggling” is defined in 8 U.S.C. §1324. The term “alien” is defined by statute as “any person not a citizen or national of the United States.” 8 U.S.C. §1101(a)(3). It is a felony charge.
Alien smuggling crimes are vigorously prosecuted here in Texas by the United States Department of Justice. This is a big deal. Upon conviction, anyone accused of this crime can face severe punishment with the possibility of life imprisonment if a crafty prosecutor successfully dovetails other felony charges alongside the core smuggling allegations. Moreover, the AUSA can go after not only the people that are actively smuggling aliens into the country; criminal charges can also be filed against anyone shown to aid, abet, or conspire in the smuggling operation.
Texas criminal charges for alien smuggling
It’s not just the federal authorities, either. Since this crime involves the national border, it has been traditionally considered to be a federal crime within the federal jurisdiction. However, with the heavy Texas border traffic, all sorts of activity is happening at the state level to deal with the border crossing traffic.
In 2021, Texas Governor Greg Abbott announced the implementation of Operation Lone Star here in Texas. This is a state directive to state prosecutors to charge people with smuggling under Texas Penal Code §20.05. It means smuggling charges are now fair game in state criminal proceedings.
As for criminal defense constitutional concerns with Operation Lone Star creating state crimes for smuggling people across national borders, and Texas prosecutions for alien smuggling, read our earlier discussion in Are Texas Anti-Smuggling Laws Unconstitutional? Governor Abbott and Texas Penal Code §20.05 and §20.06.
Federal Charges for Alien Smuggling
At the federal level, there is a collaborative effort between a number of agencies to investigate and arrest people for violating federal alien smuggling laws. Not only the Federal Bureau of Investigation (FBI) and Immigration and Customs Enforcement (ICE), but the Immigration and Naturalization Service (INS), the U.S. Customs Service, the U.S. Marshal’s Service, and even the State Department may work together with state and local law enforcement to locate smuggling operations throughout Texas.
Their focus will be not only upon the individuals who are participating in moving the aliens across the border but upon anyone who is hiring those who are in the State of Texas illegally. They will also focus on anyone helping to keep aliens in Texas (or the United States) after they have successfully made it across the border.
These are complicated law enforcement operations; charges resulting from these joint efforts may be wide-ranging.
8 U.S.C. Section 1324
Under the federal alien smuggling law (8 U.S.C. §1324) there are several distinct illegal activities defined in 8 U.S.C. §1324 (a):
- Concealing or harboring an illegal alien (in car, building, etc.);
- Crossing the border with an alien or being involved in planning or orchestrating the crossing (the actual smuggling event);
- Encouraging someone to be involved in an illegal border crossing;
- Hiring or referring for employment or even recruiting an illegal alien; and
- Any conspiracy to commit any of the above acts or any aiding or abetting others in committing the above acts are also defined as felony crimes.
From the statute:
(1) (A)Any person who—
(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien;
(ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;
(iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;
(iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or
(v) (I) engages in any conspiracy to commit any of the preceding acts, or (II) aids or abets the commission of any of the preceding acts, shall be punished as provided in subparagraph (B).
Related Alien Smuggling Statutes
The circumstances surrounding smuggling people across the border can be complex. Charges can be filed for federal criminal statutes related to the basic alien smuggling law include:
- 8 U.S.C. §1321 – prevention of unauthorized landing of aliens;
- 8 U.S.C. §1322 – bringing in aliens for healthcare grounds;
- 8 U.S.C. §1323 – unlawful bringing of aliens into the United States;
- 8 U.S.C. §1325 – improper entry by the alien;
- 8 U.S.C. §1326 – reentry of removed aliens;
- 8 U.S.C. §1327 – aiding or assisting certain aliens in entering;
- 8 U.S.C. §1328 – importation of alien for immoral purpose;
- 18 U.S.C. §911 – false claim of United States citizenship;
- 18 U.S.C. §1427 – sale of citizenship papers.
Additional Charges: Aggravating Factors
Furthermore, there are situations which make these charges worse. If the alien has a criminal history, then the arrest will be more serious. If the smuggling event involved a large number of people or if there is evidence it was part of an ongoing operation, then the charges escalate.
For more on organized criminal enterprises, read What are Racketeering Charges? Organized Crime, Gangs and Cartels, and Overcharging RICO.
Another concern: if the aliens were at risk of being hurt or seriously injured in the smuggling incident (through the use of weapons; dangerous methods of hiding or moving them; etc.) then the prosecution will have a basis for increased charges and seeking greater punishment. Finally, there will be much more serious criminal charges in an alien smuggling case where there is evidence of an illegal purpose for the smuggling, such as prostitution or sex trafficking. Kidnapping charges may be filed if the government has evidence the individual was being held against their will pending additional monies being paid.
Unfortunately, all too often Texas criminal defense lawyers representing people charged with alien smuggling see prosecutors adding on additional felony charges alleging things like money laundering; drug trafficking; conspiracy; weapons trafficking; and more.
In sum, there are times when these alien smuggling scenarios are families simply trying to be together and there is no organized criminal intent. These are activities that violate the alien smuggling law but they are simpler in their prosecution. When there are facts that tend to show the accused is doing things for personal gain or profit in some way, then the AUSA will be looking to boost the charges accordingly.
Alien Smuggling in Texas: Smuggler Roles
Here in Texas, there are creative ways to get someone across the border. Law enforcement agencies consider the different participants in an alien smuggling operation and look for their efforts. These include:
- Couriers: Some people are needed in the alien smuggling operation to carry the money that is being paid by the alien as a fee for the transport. The couriers may collect the cash or they may be involved in wire transactions.
- Drivers: Anyone who drives a motor vehicle that hides or shelters an alien as they cross the border and onward, through the State of Texas. These vehicles can be anything from a small sedan to a tractor-trailer truck. They know to avoid the traffic stops and checkpoints on infamous smuggling routes such as Interstate 35 (Laredo to San Antonio to Dallas).
- Guides: These are the individuals who lead people over terrain on both sides of the border to circumvent the border patrol agents or their checkpoints.
- Stash House Hosts: In their travel from the border through Texas and elsewhere, the aliens may be kept overnight or for short stays in hidden places like motels or apartments. They will be provided food to eat and a place to sleep in these “stash houses.” Their hosts will provide this support as well as working with others on the smuggling route on travel arrangements and moving schedules.
If these people are caught and arrested, then they may be charged with one or more violations of the alien smuggling law. For instance, they may be charged with conspiracy and with harboring. These roles also invite other correlated charges, for instance money laundering as an additional charge for the smuggler involved as a courier.
Penalties for Alien Smuggling Crimes Under Federal Law
For a first-time alien smuggling conviction, under the worst-case scenario, the punishment under federal law can involve the following with increasing punishment due to aggravating factors involving (1) doing it for profit (financial gain); (2) causing someone bodily harm; or (3) causing someone’s death. Special assessments may also be ordered pursuant to the Justice for Victims of Trafficking Act of 2015.
- Transportation, harboring, concealing, or encouraging aliens to enter into the United States without financial gain has a maximum penalty of 5 years’ incarceration with a maximum fine of $250,000.00. 8 U.S.C. §1324(a)(1)(B)(ii).
- Transportation, harboring, concealing, or encouraging aliens to enter into the United States for commercial advantage or private financial gain (profit motive) has a maximum penalty of 10 years’ incarceration with a maximum fine of $250,000.00. 8 U.S.C. §1324(a)(1)(B)(i).
- Cause another person’s serious bodily injury (as defined in section 1365 of title 18) or places in jeopardy the life of any person has a maximum penalty of 20 years’ incarceration with a maximum fine of $250,000.00. 8 U.S.C. §1324(a)(1)(B)(iii).
- Cause the death of an individual has a maximum penalty of life imprisonment or the death penalty with a maximum fine of $250,000.00. 8 U.S.C. §1324(a)(1)(B)(iv).
For example, if someone is paid something that the prosecution argues constitutes a “smuggling fee,” then the penalty can jump from five years to ten years under the statute.
Sentencing Under the United States Sentencing Guidelines
Anyone convicted of violation of the federal alien smuggling law will face sentencing under the federal practice of judicial reliance on the United States Sentencing Guidelines Manual (USSG Manual) as compiled by the United States Sentencing Commission (USSC). See, Primer: Immigration Guidelines published by the United States Sentencing Commission in September 2017.
For details on how the USSG work in calculating the particular sentence to be imposed upon a convicted defendant, read our earlier discussions (complete with examples using the Sentencing Tables) in Money Laundering and Federal Sentencing Guidelines; Heroin Trafficking in Texas and Federal Sentencing Guidelines; Methamphetamine Trafficking and Federal Sentencing; and Federal Sentencing Guidelines: Conspiracy to Distribute Controlled Substance Cases.
At a minimum, someone facing conviction for the first time for violating the federal alien smuggling law without any criminal history and no evidence of any aggravating factors will be considered by the judge at an offense level of 12 as detailed in USSG 2.L1.1 (USSG Manual, page 265).
Sentencing will increase with the number of aliens alleged to have been smuggled by the accused. The USSG also provides for a two-point increase if the defendant had a firearm during the commission of the crime involving alien smuggling. If the AUSA can show that a minor child was smuggled without their parents there can be a four-point increase.
Less Than Maximum Sentencing for Alien Smuggling Convictions
Defense lawyers recognize, however, that most who face first time convictions for violation of federal alien smuggling laws do not receive the maximum punishment. In its August 2023 Quick Facts publication, the USSC has detailed how punishment has been given for those convicted of alien smuggling in recent years.
The USSC reports that for the past few reporting years (2018 – 2022) sentencing has “remained steady” with the average guideline minimum was 19 months and the average sentence imposed being 15-16 months. In its new Quick Facts, the USSC provides the following data from past years for those that have faced sentencing for violation of the alien smuggling law:
Sentencing Under the USSG
Most (84.5%) of the federal alien smuggling offenders were sentenced under the United States Sentencing Guidelines Manual; however, less than half were sentenced within the guideline range (45.3%). Over half (48.0%) were placed into an Early Disposition Program (EDP) departure and their average sentence reduction was 49.1%.
Another 3.6% received a substantial assistance departure and their average sentence reduction was 59.6%. Finally, 3.1% received some other downward departure with an average sentence reduction of 55.0%.
Variance From the USSG
A significant percentage (15.5%) received a variance. Of these alien smuggling law offenders, 91.6% received a downward variance and their average sentence reduction was 50.5%. A small percentage, 8.4%, received an upward variance with an average sentence increase of 38.9%.
Defense Considerations in Alien Smuggling Arrests in Texas
From a defense standpoint, these alien smuggling cases can be simple matters of family members trying to unite but often the federal prosecutors are targeting smuggling operations alleged to be maintaining business enterprises where illegal immigration is merely a part. Lots of criminal charges may be involved here for serious felonies like money laundering and more.
Key here will be a thorough investigation into the government’s case by the defense. What evidence are they bringing before the court? Is it sufficient to prove the elements of each charge beyond a reasonable doubt? Are all these pieces of evidence able to withstand constitutional scrutiny or are there arguments of search and seizure violations?
What if the Department of Homeland Security or the Federal Bureau of Investigation used wiretaps as part of their investigation. Was this done within the bounds of the law?
And specifically, within the alien smuggling law, does the AUSA have sufficient evidence, authenticated and admissible, of the accused’s criminal intent to violate the federal law? If the defendant cannot be shown to have knowledge or intent to transport the alien illegally then there is a failure in the government’s claims. Other laws may come into play here, too: for instance, is there a religious organization exemption that applies in the case?
If the AUSA is able to obtain a conviction, the defense must focus upon the sentencing aspects as defined by the USSG.
Alien Smuggling Defense in Texas
Texas leads the country in the federal prosecution of alien smuggling offenses here in Texas. According to the USSC, the top two districts for alien smuggling offenses in the nation were the (1) Southern District of Texas and (2) Western District of Texas with districts in Arizona, New Mexico, and California rounding out the top five.
The creativity of these federal investigations and subsequent prosecutions by our AUSAs cannot be underestimated. Consider the recent case out of Arizona, where a 22-year-old woman was sentenced to one year in a federal prison facility (with subsequent three years’ supervised release) for a charge of Conspiracy to Transport Illegal Aliens for Profit, with a sentencing enhancement under the USSG for being a coordinator.
What had she done? The convicted woman was shown to have “…used social media to solicit and advertise for drivers to assist with smuggling undocumented noncitizens further into the United States after their arrival.”
In other words, it is possible for someone to be investigated, arrest, charged, convicted, and sentenced to federal prison for activity on X(Twitter), Instagram, TikTok, Facebook, etc. without ever leaving their apartment or home and never even seeing the alleged aliens or any smuggling efforts or operations.
It is imperative that anyone who thinks they may be a target of a federal investigation into alien smuggling as well as anyone who has been arrested on suspicion of this felony crime, to have the guidance and support of an experienced, aggressive federal criminal attorney to help them build an effective defense as soon as possible.
Federal alien smuggling charges cover all sorts of activities. It is entirely possible to be arrested in these cases without being involved in any kind of physical transport of any person across the border or helping them once they are here in Texas.
For more, read:
- Human Trafficking in Texas: Criminal Defense Perspective Part 1 of 2
- Human Trafficking in Texas: Criminal Defense Perspective Part 2 of 2
- Mandatory Minimum Penalties in Federal Sentencing
- What are Racketeering Charges? Organized Crime, Gangs and Cartels, and Overcharging RICO
- Federal Sentencing for Drug Couriers and Drug Mules.
For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth articles ”Pre-Arrest Criminal Investigations” and “Top 10 Defense Mistakes In Federal Conspiracy Cases And How To Avoid Them.”
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