Pub. L. 109-295, tit. V, sec. 551

Sec. 551. (a) Construction of Border Tunnel or Passage.—Chapter 27 of title 18, United States Code, is amended by adding at the end the following: “§ 554. Border tunnels and passages “(a) Any person who knowingly constructs or finances the construction of a tunnel or subterranean passage that crosses the international border between the United States and another country, other than a lawfully authorized tunnel or passage known to the Secretary of Homeland Security and subject to inspection by Immigration and Customs Enforcement, shall be fined under this title and imprisoned for not more than 20 years. “(b) Any person who knows or recklessly disregards the construction or use of a tunnel or passage described in subsection (a) on land that the person owns or controls shall be fined under this title and imprisoned for not more than 10 years. “(c) Any person who uses a tunnel or passage described in subsection (a) to unlawfully smuggle an alien, goods (in violation of section 545), controlled substances, weapons of mass destruction (including biological weapons), or a member of a terrorist organization (as defined in section 2339B(g)(6)) shall be subject to a maximum term of imprisonment that is twice the maximum term of 120 STAT. 1390 imprisonment that would have otherwise been applicable had the unlawful activity not made use of such a tunnel or passage.” . (b) Clerical Amendment.—The table of sections for chapter 27 of title 18, United States Code, is amended by adding at the end the following: “Sec. 554. Border tunnels and passages.”. (c) Criminal Forfeiture.—Section 982(a)(6) of title 18, United States Code, is amended by inserting “554,” before “1425,”. (d) Directive to the United States Sentencing Commission.—(1) In general.—Pursuant to its authority under section 994 of title 28, United States Code, and in accordance with this subsection, the United States Sentencing Commission shall promulgate or amend sentencing guidelines to provide for increased penalties for persons convicted of offenses described in section 554 of title 18, United States Code, as added by subsection (a). (2) Requirements.—In carrying out this subsection, the United States Sentencing Commission shall—(A) ensure that the sentencing guidelines, policy statements, and official commentary reflect the serious nature of the offenses described in section 554 of title 18, United States Code, and the need for aggressive and appropriate law enforcement action to prevent such offenses; (B) provide adequate base offense levels for offenses under such section; (C) account for any aggravating or mitigating circumstances that might justify exceptions, including—(i) the use of a tunnel or passage described in subsection (a) of such section to facilitate other felonies; and (ii) the circumstances for which the sentencing guidelines currently provide applicable sentencing enhancements; (D) ensure reasonable consistency with other relevant directives, other sentencing guidelines, and statutes; (E) make any necessary and conforming changes to the sentencing guidelines and policy statements; and (F) ensure that the sentencing guidelines adequately meet the purposes of sentencing set forth in section 3553(a)(2) of title 18, United States Code.