Genevieve Quinn


Despite the intensifying militarization of the United States’ borders, roughly 4,000 undocumented immigrants attempt to cross into the U.S. each day. Increased border security has not stopped the flow; rather, it has diverted migrants’ journeys into the most perilous stretches of borderlands and coastlines. In response, migrants increasingly rely on human smugglers to guide them across the border, even in the face of the well-known risks of injury and death. Under section 2L1.1(b)(7) of the U.S. Sentencing Guidelines, defendants convicted of smuggling illegal immigrants are subject to a sentence enhancement for any bodily injury or death that occurs. The Guidelines are silent as to the issue of causation, however. As a result, circuits are split over what causal connection section 2L1.1(b)(7) requires between the defendant’s conduct and the resulting harm. This Note discusses the continuing importance of the Guidelines in the post-Booker era, and examines the circuits’ differing interpretations of section 2L1.1(b)(7). This Note concludes that a section 2L1.1(b)(7) enhancement is predicated on only a loose causal connection to the defendant’s overall criminal conduct. It advocates for an amendment to the Guidelines that would require a section 2L1.1(b)(7) enhancement to be contingent on a finding that the defendant recklessly or intentionally created a serious risk of bodily harm. Further, this Note proposes that, even before the Sentencing Commission enacts a formal amendment, judges should exercise their post-Booker sentencing discretion to require a causal connection that will best achieve the goals of retribution and deterrence.

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