What is a federal alien smuggling crime?
8 USC § 1324 is the federal alien smuggling law. It also covers first-time federal alien smuggling crimes. Of major interest, it lists six different ways that a person can commit the crime of alien smuggling.
Namely, it is a crime to:
- Bring aliens into the country;
- Transport aliens within the country;
- Harbor or hide aliens;
- Encourage aliens to enter the country;
- Conspire or enter into a criminal agreement with other people to commit these crimes; and
- Aid and abet others to commit these crimes.
Together, these six crimes make up the federal alien smuggling law under 8 USC § 1324.
Further, many people who get charged with this crime are first-time offenders. That is to say, they have little or no criminal history. And they have no record of human smuggling. The law calls these people “zero-point offenders.”
Of major interest, if you qualify as a “zero-point offender” under USSG § 4C1.1, then you may get a lower jail term for a first-time human smuggling crime in federal court.
How do I know if I qualify as a “zero-point offender”?
USSG § 4C1.1 is the Zero-Point Offender guideline. To become a zero-point offender, you need to meet the 10-point test below:
- No criminal history points (i.e., a mostly clean record);
- The case cannot be related or connected to a terrorism charge;
- Not use violence or threats of violence during the crime;
- Nobody is hurt or killed in the crime;
- Not a sex crime;
- The defendant did not cause another person “substantial financial hardship”;
- No guns or weapons used in the crime;
- The case must no be a civil rights or human rights case;
- The case must not be a hate crime or a serious human rights case;
- Finally, the defendant cannot be a leader, organizer, manager, or supervisor in the crime.
This list is overwhelming. But here is how it works in many first-time alien smuggling crimes.
Example of when someone qualifies as a Zero Point Offender for a first-time federal alien smuggling crime.
Many first time smugglers have little or no criminal history. Rather, cartels and human smugglers recruit drivers online to go to the border to pick up migrants. And the cartels offer to pay $2,500.00 or more per person. Consequently, people do this crime because they need money.
Unfortunately, once the driver picks up the migrants, police stop the car and arrest the driver for an 8 USC § 1324 crime. Critically, many of these crimes have the following features:
- The migrant load is under 6 people;
- The driver pulls over right away and does not try to run from police;
- Police find no guns or weapons in the car;
- No one is hurt in the crime; and
- The driver has a clean record.
If these are the facts in your case, then you will likely qualify as a zero-point offender. The table below illustrates how these guidelines work in the real world.
Example of possible guideline ranges for a First-Time Alien Smuggling Offender with a Clean Record.
| Offense Level | Change to Offense Level | Jail Range | Description |
|---|---|---|---|
| 12 | n/a | 10-16 months. | This is the starting point for most 8 USC § 1324 crimes. |
| 10 | -2 | 6-12 months. | If you plead guilty, then the court will lower your offense level by 2 points. This will reduce your guideline range from 10-16 months to 6-12 months in jail. |
| 8 | -2 | 0-6 months. | Most important of all, if you qualify as a zero-point offender, then the court will lower your offense level by an extra 2 points. This will put you in the best position to get a favorable jail term during your sentencing hearing. |
Key takeaways for a first-time alien smuggling cases.
Putting this all together, the table above shows three things. (I am still assuming the facts we used above.) First, if you go to trial and lose with these facts, then you are looking at 10-16 months in jail. Second, if you plead guilty but do not qualify as a zero-point offender, then you are looking at 6-12 months in jail. Finally, if you are a true first-time federal alien smuggling offender and plead guilty, then your guideline range maybe 0-6 months.
But the key is that you have to qualify for these points. And if you have a gun, a criminal record, or someone is hurt or killed in the crime, then you will not qualify as a zero-point offender.
Who is an “alien” under 8 USC § 1324?
Under federal law, an alien means any person not a citizen or national of the United States. More importantly, alienage is the key fact in a federal alien smuggling crime. Specifically, the Government must prove to a jury that the migrant is not a U.S. Citizen and does not have permission to be in the country.
On top of that, the Government must show the defendant knew that the migrant or alien was in the country without permission. And they must also prove that the defendant acted with criminal intent to smuggle the alien.
The alienage of the migrant is also the biggest difference between the Federal Alien Smuggling law under 8 USC § 1324 and the state crime of Smuggling of Persons in Texas.
Under Texas Penal Code § 20.05, the alienage of the migrant does not matter. Unlike the federal law that requires the government to show that the person being smuggled is an alien, Texas’ law does not require the prosecutor to prove up the alienage of the migrant.
To see why, we need to look at how Texas defines its own human smuggling crime. Texas law makes no reference to the alienage of the migrant. Instead, it refers to the smuggling of “individuals” or “persons.” And Texas Penal Code § 1.07 defines an individual as “a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.”
Similarly, Texas law defines a “person” to include an “individual.” These definitions are circular and broad. And it gives the State of Texas the option to arrest and prosecute alien smugglers in State Court.
Lastly, this definition is also how Texas is fighting off constitutional challenges under the Supremacy Clause to its human smuggling law in court.
What is the jail time for a first-time federal alien smuggling crime?
| Law. | Description. | Jail Time. | Fine. |
|---|---|---|---|
| 8 USC 1324(a)(1)(B)(ii) | Transporting, Harboring, Concealing, or Encouraging aliens to enter the country without financial gain. | 0-5 years. | $0-$250,000.00. |
| 8 USC 1324(a)(1)(B)(i) | Transporting, Harboring, or Encouraging aliens to enter the country for financial gain. | 0-10 years. | $0-$250,000.00. |
| 8 USC 1324(a)(1)(B)(iii) | Defendant causes serious bodily injury. | 0-20 years. | $0-$250,000.00. |
| 8 USC 1324(a)(1)(B)(iv) | Crime results in death. | Death penalty or life in prison possible. | $0-$250,000.00. |
| 8 USC 1324(a)(2)(B)(ii) | Bringing an illegal alien to the country for financial gain. | 3-10 years. | $0-$250,000.00. |
How much time will I get in my federal alien smuggling case?
We talked about zero-point offenders above. But not everyone will qualify for this benefit. Further, we need to take a step back and see how the guidelines work in general. This will help you see where your case fits in the bigger picture of the human smuggling universe.
The table above shows the range of punishment for a first-time federal alien smuggling crime. It contains both the best case and worst case scenarios in your case. The good news is that most people do not get the max jail time in this table.
Instead, judges refer to the sentencing guidelines to help figure out the right amount of jail time in your case. These guidelines are often way less than the max jail term in the table above. Therefore, to get a sense of how much time you may get, then you need to figure out the guideline range.
If you plead guilty or if a jury finds you guilty, then a probation officer with the U.S. Probation Department will prepare a report that the judge will use to decide your jail term. That report will also contain your guideline range.
Finally, I prepared a YouTube video that shows you how to calculate your sentencing guidelines for a first-time federal alien smuggling crime. However, I made the video before the USSC added the “zero-point offender” guidelines. So the chances are that your jail term may be lower if you have a clean record.
Video: How to calculate your alien smuggling guidelines.
Can you get probation for a first-time federal alien smuggling crime?
Yes, but it depends on your guideline range and the judge in your case. Worse yet, some judges rarely give out probation on these types of cases. For this reason, you should speak with a lawyer that practices regularly in the court you are in so you can get an idea of what to expect.
Human Smuggling Defense Attorney.
Genaro R. Cortez is a criminal defense attorney that handles state and federal alien smuggling crimes in San Antonio, Del Rio, Eagle Pass, Brackettville, and South Texas. He has over 20 years experience as a trial and appellate attorney.
In particular, after law school, Genaro R. Cortez clerked for a state court of appeals. During this time, he learned how state courts review and handle appeals from criminal and civil cases. After that, Genaro R. Cortez started a solo law practice handling criminal cases and car wreck cases.
If you have a first-time federal alien smuggling case in South Texas, then call today for a free case review.