Substantial risk of injury enhancement in transportation of illegal aliens | 8 USC § 1324

Creating Risk of Injury – §2L1.1(b)(6)*

If the offense involved intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person, increase by 2 levels (or jump to level 18 if the adjusted level is still under 18)

Section 2L1.1(b)(6) applies to “a wide variety of conduct” for offenses involving reckless conduct. However, courts have avoided bright-line rules in applying §2L1.1(b)(6) and must engage in a fact-specific inquiry. Application Note 3 lists the following examples of conduct to which the enhancement applies:

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 condition; or guiding persons through, or abandoning persons in, a dangerous or remote geographic area without adequate food, water, clothing, or protection from the elements.

The Ninth Circuit noted the following:

Every passenger traveling on our highways faces a small, but non-trivial, risk of death or injury. This baseline risk is inherent in all vehicular travel and must therefore be disregarded in determining whether the offense was committed in a manner that involved a “substantial risk of death or serious bodily injury to another person.” We 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 traveling on our streets and highways.

Following this observation, the Ninth Circuit identified the following factors that increase risk: (1) Taking a dangerous route (e.g., off-road) or driving in a dangerous manner (e.g., recklessly or drunk); (2) using a method of transportation that increases the likelihood of an accident (e.g., a severely overloaded vehicle); (3) using a method of transportation that increases the risk of an injury even in the absence of an accident (e.g., passengers transported with insufficient ventilation or subject to injury from moving mechanical parts); or (4) using a method of transportation that increases the risk that an accident would cause injury or death (e.g., passengers transported in a manner that makes them more likely to be injured by crumpled metal or shattered glass than if they had been seated normally).

Thus, the Ninth Circuit explained that the enhancement applies “only when the circumstances increased the likelihood of an accident or the chance of injury without an accident.”

Also, to qualify for this enhancement, either the defendant must have created the risk of danger, or the risk must have at least been “reasonably foreseeable in connection with that criminal activity.”

*The information was taken from Immigration Primer that can be found here.

Anton Vialtsin, Esq.
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