Illegal Reentry & Alien Smuggling

Illegal reentry and alien smuggling charges in San Diego federal court (8 U.S.C. § 1326 and § 1324)

Vikas Bajaj, Attorney at Law · Last reviewed: October 31, 2026

This guide is part of our San Diego Federal Crimes Defense resources. It explains what the government has to prove, how sentencing exposure is set, and how these cases move through the Southern District of California.

Illegal reentry: 8 U.S.C. § 1326

Under § 1326(a), the government must prove that the person:

1. is not a U.S. citizen (the statute says “alien”);
2. was previously denied admission, excluded, deported, or removed, or left while an order of exclusion, deportation, or removal was outstanding;
3. afterward entered, attempted to enter, or was “at any time found in” the United States; and
4. did not have the Attorney General’s express consent to reapply for admission (or, for someone denied admission and removed, cannot show that consent was not required).

The base penalty is a fine, up to 2 years in prison, or both.

The § 1326(b) enhancements

Section 1326(b) raises the statutory maximum based on what came before the removal:

• (b)(1): up to 10 years if the removal followed a conviction for three or more misdemeanors involving drugs, crimes against the person, or both, or for a felony other than an aggravated felony.
• (b)(2): up to 20 years if the removal followed a conviction for an aggravated felony.
• (b)(3): a 10-year term that may not run concurrently with any other sentence, for certain people excluded or removed on terrorism-related grounds.
• (b)(4): up to 10 years for people removed under 8 U.S.C. § 1231(a)(4)(B) who return without permission.

The statute counts a stipulated removal, including one agreed to during a criminal case, as a “removal” for these purposes. Whether a prior conviction fits a (b) category affects the maximum sentence.

Challenging the prior removal order: § 1326(d)

A defendant may attack the underlying removal order only by showing all three conditions in § 1326(d): administrative remedies were exhausted, the proceeding improperly took away the chance for judicial review, and the order was fundamentally unfair. In United States v. Palomar-Santiago (2021), the Supreme Court held that each requirement is mandatory. These challenges depend on the record of the earlier removal proceeding.

Alien smuggling, transporting, and harboring: 8 U.S.C. § 1324

Section 1324(a)(1)(A) covers several different acts:

• Bringing in: knowing a person is an alien, bringing or trying to bring them into the U.S. somewhere other than a designated port of entry.
• Transporting: knowing, or in reckless disregard of the fact, that a person entered or remains unlawfully, moving them within the U.S. in furtherance of that violation.
• Harboring: with the same knowledge, concealing, harboring, or shielding the person from detection, including in a building or vehicle.
• Encouraging or inducing someone to come to, enter, or reside in the U.S., knowing or in reckless disregard of the fact that it is or will be unlawful. In United States v. Hansen (2023), the Supreme Court read this clause to cover only purposeful solicitation and facilitation of specific unlawful acts.
• Conspiracy, or aiding and abetting, any of the above.

Penalties under § 1324(a)(1)(B)

Penalties apply for each alien involved:

• Up to 10 years for bringing in, for conspiracy, or for transporting, harboring, or encouraging done for commercial advantage or private financial gain.
• Up to 5 years for transporting, harboring, encouraging, or aiding and abetting without that profit element.
• Up to 20 years if the person caused serious bodily injury or placed a life in jeopardy.
• Death or any term of years up to life if the offense resulted in death.

A separate provision, § 1324(a)(2), covers bringing or attempting to bring to the United States an alien, knowing or in reckless disregard of the fact that the alien has not received prior official authorization to come to, enter, or reside here. For each alien, the base penalty is up to 1 year. Higher penalties apply if the offense was committed with intent or reason to believe the alien will commit a federal or state offense punishable by more than 1 year, was done for commercial advantage or private financial gain, or the alien was not immediately brought and presented to an immigration officer at a designated port of entry on arrival. For a first or second violation involving intent or profit, the range is not less than 3 nor more than 10 years. For a first or second violation involving failure to present at a port of entry, it is not more than 10 years. For any other violation, it is not less than 5 nor more than 15 years.

Each § 1324 offense requires proof of a mental state, such as knowledge or reckless disregard. What a person knew is often a central question in these cases.

Sentencing guidelines and fast-track pleas

The U.S. Sentencing Guidelines set the advisory range. Under the Guidelines Manual effective November 1, 2025 (the 2026 amendments effective November 1, 2026 do not change the provisions described here), illegal reentry is scored under § 2L1.2 (base offense level 8, with increases tied to prior reentry convictions and to other convictions before and after the first removal). Smuggling is scored under § 2L1.1 (base level 12 in most cases, with increases for the number of people and other factors, and a 3-level decrease for some offenses committed other than for profit).

Fast-track (early disposition) programs. These programs involve an early plea, and the government may then move for a lower offense level. Under the Guidelines Manual in effect since November 1, 2025, this is § 3F1.1, which replaced the former § 5K3.1. It allows a decrease of not more than 4 levels on the government’s motion, under a program authorized by the Attorney General and the U.S. Attorney for the district. Whether a fast-track offer is made, and on what terms, is up to the prosecution, not the defendant or the court.

Any decision on a plea offer should come after a methodical review of the removal history, prior convictions, and guideline calculation.

How a case moves through the Southern District of California

Under 28 U.S.C. § 84(d), the Southern District of California comprises Imperial and San Diego Counties, and court is held at San Diego and El Centro. The court’s San Diego courthouses are the Edward J. Schwartz United States Courthouse (221 West Broadway) and the James M. Carter and Judith N. Keep United States Courthouse (333 West Broadway). The El Centro courthouse is at 2003 West Adams Avenue. See the court’s contact page.

1. Arrest and charge. Federal agents make the arrest, and the case is filed in federal court.
2. Initial appearance before a federal judge. Questions of counsel and pretrial custody are taken up.
3. Indictment or information, and arraignment.
4. Discovery. After arraignment, once defense counsel is in the case, the government produces discovery.
5. Plea negotiations, motions, or trial. Depending on the case, motions may include a § 1326(d) challenge.
6. Sentencing, if there is a conviction.

First steps after an arrest

• You can decline to answer agents’ questions until you have spoken with a lawyer.
• Talk to a lawyer before agreeing to any plea offer.
• Family members should collect any prior immigration papers, court records, and proof of U.S. ties.
• Write down the case number and next court date.

Immigration consequences. These charges are tied to immigration status. A criminal defense lawyer coordinates with immigration counsel so that plea decisions take removal consequences into account. This page does not give immigration-law advice.

Why clients call the Law Office of Vikas Bajaj

Vikas Bajaj is an experienced lawyer who has practiced law in California since 2001. His approach in federal court is aggressive, methodical and results-oriented, and he handles federal court work in San Diego. He also provides TV legal commentary on Fox and KUSI.

Contact the office to discuss a federal immigration-related charge.

Questions and answers

This page is general information, not legal advice, and does not create an attorney-client relationship. Laws and guidelines change; speak with a lawyer about your specific situation.

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3. A plan for your case. You leave with a clear plan for the next steps.