June 2023 Human Smuggling Defense Update.

Normally, alien smuggling is solely a federal crime. In fact, prior to 2021, Texas did not go after human smugglers in state court. However, in 2021, Texas Governor Greg Abbott launched Operation Lone Star. Since then, Texas started using Tex. Penal Code 20.05 to go after human smugglers in state court. In effect, Operation Lone Star turned human smuggling into state crime.

Another change that happened in 2021 is that police are filing most human smuggling cases in state court rather than the federal court. The reasons for this are political. Nonetheless, this is creating confusion.

For example, a person may not know right away if police arrested their loved one for a state or federal crime. This is important because Texas and federal human smuggling crimes are two different crimes. And they work in two different systems.

To clear up the confusion, we created three web pages that show you how these laws work. This post focuses on the federal law. However, if you are arrested for Smuggling of Persons (the state law), then read our blog post that covers the Texas’ law of human smuggling. On top of that, we launched in a new page that provides an overview of both types of crimes.

Finally, we originally published the post below in August of 2021. It is accurate and up to date. If you have questions about your case or this post, then feel free to call our office at 210-733-7575.

What is alien smuggling?

Alien smuggling is a federal crime. It is also a common event on the southern border of the United States. Especially in places like Del Rio, Eagle Pass, El Paso, and Laredo. It happens when smugglers bring migrants with no papers into the United States.

But how do you know if someone is an alien smuggler? Or put a different way, how does the government prove someone is an alien smuggler?

That’s the question many clients arrested for an alien smuggling charge ask. And the answer to this question will help a person decide if he should plead guilty or go to trial.

Surprisingly, alien smuggling covers a wide range of conduct. In fact, there are six different ways the government can show someone is an alien smuggler. They are:

  1. Bringing aliens into the country;
  2. Transporting aliens within the country;
  3. Harboring or hiding aliens within the country;
  4. Encouraging aliens to enter the country;
  5. Conspiring with others to commit these crimes; and
  6. Aiding and abetting others to commit these crimes.

This means if a person does one or more of these six things, then the government can charge him with alien smuggling.

But critically, the government must also show a person had the criminal intent to commit one or more of these acts. Specifically, it means the person must have a guilty mind when he committed these acts. Or that he entered into a deal with other people to break this law.

What are examples of alien smuggling in Texas?

Examples of alien-smuggling include:

  1. Foot guides: Foot guides lead migrants through the brush to avoid border-patrol checkpoints;
  2. Stash-house operators: They hold migrants in houses, apartments, or motels during the smuggling trip. They also provide food and water for the migrants. And they coordinate with other smugglers to schedule pickup and drop off times for the migrants;
  3. Money couriers: They collect smuggling fees from migrants. They also wire money to other smugglers in the United States and Mexico; and
  4. Drivers: Drivers secretly move non-citizens in their cars, trucks, or semis. Of major interest, this is the most common fact pattern in South Texas. Police will make a traffic stop along the border. Then they will find people hidden in the car. This happens all the time on Hwy 90 near Del Rio and on IH 35 between Laredo and San Antonio.

Notably, each smuggler plays a different role in the joint venture. But they all work together to achieve the same goal.

Consequently, prosecutors can charge smugglers with more than one crime. For instance, prosecutors can charge a smuggler with transporting aliens and conspiracy to transport aliens.

What are the penalties for first-time alien smuggling crimes?

The table below lists the jail terms for first-time alien smuggling cases. Of major interest, these penalties increase for three reasons.

First, if the migrant paid a smuggling fee, then the max penalty for the smuggler goes from 5 years to 10 years. Second, if the smuggler causes another person serious injury, then the max penalty is 20 years. Finally, if anyone died during the crime, then the max penalty is either life in jail or even the death penalty.

The death penalty in alien-smuggling cases is rare. It almost never happens. But prosecutors consider this option when the smugglers’ conduct causes the death of the migrants.

However, these penalties only represent the worst case scenario. And in most cases, smugglers do not get the top jail term. In fact, judges usually give smugglers a guideline sentence. These jail terms are often well below the max penalties for smuggling.

Penalties for First-Time Alien Smuggling Cases in Federal Court.

8 USC § 1324(a)(1)(B)(ii)Transporting, harboring, concealing, or encouraging aliens to enter into the United States without financial gain.

Also includes aiding and abetting the commission of these acts.
Up to 5 years in prison.Up to a $250,000.00.$5,000.00 special assessment possible under the Justice for Victims of Trafficking Act of 2015.
*The special assessment will not apply to crimes committed after 23 December 2022.
8 USC § 1324(a)(1)(B)(i)Transporting, harboring, or encouraging aliens to enter the United States for financial gain.Up to 10 years in prison.Up to a $250,000.00.$5,000.00 special assessment possible under the Justice for Victims of Trafficking Act of 2015.
8 USC § 1324(a)(1)(B)(iii)The defendant causes another person serious bodily injury or places another person’s life in jeopardy.Up to 20 years in prison.Up to a $250,000.00.$5,000.00 special assessment possible under the Justice for Victims of Trafficking Act of 2015.
8 USC § 1324(a)(1)(B)(iv)The crime results in the death of any person.Death penalty or life in prison possible.Up to a $250,000.00.$5,000.00 special assessment possible under the Justice for Victims of Trafficking Act of 2015.
The table lists the maximum penalties for first-time alien smuggling cases in Federal Court.

Notably, the table contains three aggravating factors that increase the range of punishment. They are financial gain, serious bodily injury, and death.

If any of these factors are present, then the penalty range will increase for alien smuggling.

What are the guidelines for first-time alien smuggling cases?

USSG § 2L1.1 is the alien-smuggling guideline. It list the base-offense level for alien smuggling as 12. This is the starting point for all alien-smuggling sentences. The base-offense level may go up or down. The final number will depend on several factors.

To illustrate how this guideline works, let’s assume the smuggler has no criminal history. This means he will have an offense level of 12 and be in Criminal History Category I. This information allows us to calculate a guideline range.

In this scenario, the sentencing table shows his guideline range is 10-16 months in jail. In particular, this is where the base-offense level and the criminal-history category meet on the sentencing table.

Also, if the smuggler pleads guilty, then his offense level will drop by two points. Thus, his guideline range will go from 10-16 months to 6-12 months in jail.

But most important of all, these guideline ranges are only estimates. The judge does not have to follow the guidelines. The judge can give a smuggler more time. Or he can give the smuggler less time.

In fact, the law requires a judge to do three things before he decides on the sentence. First, the judge must calculate the guidelines. Second, the judge must consider the policy statements in the guidelines. And last of all, the judge must consider the 3553a factors before he decides on the jail time.

What are other factors that increase a jail term for human smugglers?

The jail term may increase if certain facts are present. For example, the base offense level increases when:

  • The number of aliens smuggled is between 6 and 24. The level increases by 3 points;
  • The number of aliens smuggled is between 25 and 99. The level increases by 6 points;
  • If the defendant smuggled more than 100 aliens, then the level increases by 9 points.
  • If the defendant smuggled a child who traveled without his or her parents, then the level increases by 4 points; and if
  • The defendant possessed a gun during the crime, the level increases by 2 points.

These are just a few ways the jail time can go up for alien smugglers. The guidelines contain more bumps to the offense level.

Therefore, it is helpful to review the guidelines before a defendant decides to plead guilty or go to trial. This helps for two reasons.

First, it protects clients from unwanted surprises. By getting an estimate of the guidelines upfront, the client will know what he or she is signing up for.

Second, reviewing the guidelines helps clients weigh the risk of going to trial. In some cases, there is not a big difference in jail time between pleading guilty versus going to trial.

This is true for first-time offenders who are caught smuggling less than six adults if no one was hurt or put in danger during the crime. In these situations, clients sometimes go to trial because the reward outweighs the risk.

What to expect when you speak with a San Antonio Federal Criminal Defense Attorney about your Human Smuggling case?

Alien smuggling charges covers a wide range of criminal conduct. It includes foot guides, drivers, money couriers, and stash-house operators. It also includes first-time human smuggling cases.

Most importantly, the penalties for alien smuggling increase if certain facts are present. For these reasons, anyone charged with alien smuggling should speak with a qualified defense attorney.

The consultation should cover several topics. Specifically, the defense attorney should review the top jail terms for alien smuggling with you. Next, the attorney should review the guidelines with you. And then give you an estimate of your possible jail term.

Finally, your attorney should give you an honest and objective assessment about the facts of your case. And he or she should do it without scaring you about your options. This is critical because you need to think through your options carefully.

Above all, you should use the consultation to answer the most important question of all: Is this lawyer a good fit for me and my case?

Alien Smuggling Defense Attorney Genaro R. Cortez.

Questions about your alien smuggling charge? Call 210-733-7575 today for a free case consult.