II 109th CONGRESS 2d Session S. 3948 IN THE SENATE OF THE UNITED STATES September 27, 2006 Mr. Frist introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend chapter 27 of title 18, United States Code, to prohibit the unauthorized construction, financing, or, with reckless disregard, permitting the construction or use on one’s land, of a tunnel or subterranean passageway between the United States and another country.

1.

Short title

This Act may be cited as the Enhanced Border Tunnel Prevention Act.

2.

Construction of border tunnel or passage

(a)

In general

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 the Bureau of Immigration and Customs Enforcement, shall be imprisoned for not more than 25 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 imprisoned for not more than 15 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 212(a)(3)(B)(vi) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi))) shall be subject to a maximum term of imprisonment that is twice the maximum term of 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,.

3.

Directive to the United States Sentencing Commission

(a)

In general

Pursuant to its authority under section 994 of title 28, United States Code, and in accordance with this section, 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 section 2. (b)

Requirements

In carrying out this section, the United States Sentencing Commission shall— (1)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; (2)provide adequate base offense levels for offenses under such section; (3)account for any aggravating or mitigating circumstances that might justify exceptions, including— (A)the use of a tunnel or passage described in subsection (a) of such section to facilitate other felonies; and (B)the circumstances for which the sentencing guidelines currently provide applicable sentencing enhancements; (4)ensure reasonable consistency with other relevant directives, other sentencing guidelines, and statutes; (5)make any necessary and conforming changes to the sentencing guidelines and policy statements; and (6)ensure that the sentencing guidelines adequately meet the purposes of sentencing set forth in section 3553(a)(2) of title 18, United States Code.