TENTATIVE RULING RE OBJECTIONS TO PRESENTENCE REPORT
GARLAND E. BURRELL, Jr., Senior District Judge.
Each party makes formal objections to the Presentence Report ("PSR"). The objections are addressed in turn.
A. Six Point Enhancement under Section 2L1.1(b)(2)(B)
Defendant objects to paragraph twenty-nine of the PSR, in which the United States Probation Officer ("Probation") recommends a six-level enhancement under U.S. Sentencing Guidelines Manual ("Sentencing Guidelines") § 2L1.1(b)(2)(B) for an offense that "involve[s] the smuggling, transporting, or harboring" of 25 or more unlawful aliens.
The basis for Probation's application of this enhancement is as follows:
The conspiracy involved more than 25 petitions submitted on behalf of aliens. The defendant's criminal conduct assisted in aliens residing in the United States unlawfully based on fraudulent petitions. It was reasonably foreseeable that these aliens would have to travel in order to obtain entry, and the defendant and her codefendants' conduct assisted them in having their means of transportation approved via fraudulent petitions. Although the defendant did not personally transport or harbor any of the aliens, pursuant to USSG [§] 1B1.3(a)(1)(B), the defendant is held for all foreseeable acts and omissions of others in the furtherance of the jointly undertaken criminal activity. Pursuant to [section] 2L1.1(b)(2)(B), [six] levels are added because the offense involved the smuggling, transporting, or harboring of 25 or more unlawful aliens.
(PSR ¶ 29.)
While U.S.S.G. §2L1.1 is entitled "Smuggling, Transporting, or Harboring an Unlawful Alien, " it encompasses and is applicable to all variants of offenses concerning aliens contained within 8 U.S.C. § 1324(a)....
[Defendant's charged offense] does not in and of itself involve actual smuggling, transporting[, ] or harboring of... aliens unless there is evidence to the contrary. Therefore, an offense that comes under the purview of U.S.S.G. 2L1.1 for offense level scoring will not always involve application of the enhancement for the number of aliens involved, unless there is evidence of actual smuggling, transporting or harboring of those aliens.
(Def.'s Objections to the Presentence Report ("Def.'s Objs.") 2:14-16, 3:7-12, ECF No. 104.) Defendant further argues:
The object of the fraudulent marriage scheme... that [Defendant] participated in, was to provide United States citizens as brides (and sometimes grooms) to Indian nationals. Sippy Lal would then prepare and file petitions seeking either fiance or immediate relative visas for the Indians. It was foreseeable that if a petition was successful, then the Indian national could gain a visa and might then bring himself into the United States. That is all. This constitutes the offense of "encouraging or inducing" aliens to enter the country. It does not amount to actual smuggling or transporting of aliens and no smuggling or transporting was carried out by any of the participants here. This was not a smuggling and transporting operation.
Nor was there any "harboring" of illegal aliens.... If Sippy Lal and his wife, Mamta Sharma, provided additional services to any Indian nationals who later entered the country on visas obtained by their efforts, ... then it is the Government's burden to prove that.... As it stands, the Government has provided no evidence that Sippy Lal and Sharma somehow "harbored" six or more aliens who entered the country on these visas. All that is known is the single statement on page 6 of the PSR: "[a]fter the petitions were successful, and the Indian national would gain entry into the United States, Sharma or [Sippy] Lal would arrange to show up at the U.S. Citizenship and Immigration Services (USCIS) to assist the nationals in obtaining United States citizenship." The source of that statement is unknown and, in any event, that is not enough.
In sum, the Probation Officer reasoned that the smuggling, transporting[, ] or harboring enhancement applies because there were 25 or more petitions filed by Sippy Lal and it was foreseeable that 25 or more aliens could thereby obtain visas and then could travel to the United States. Any aliens who did bring themselves to this country in this fashion were not smuggled or transported by the defendants or any other participants; self travel to the United States does not amount to being smuggled or transported by another.... And, significantly, there exists no evidence whatsoever that either 6 or more or 25 or more Indian nationals ever ...