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 and to direct the United States Sentencing Commission to modify the sentencing guidelines to account for such prohibition.

SA 4556. Mrs. FEINSTEIN (for herself, Mr. Kyl, Mrs. Boxer, Mr.
Talent, Ms. Cantwell, Mr. Salazar, Mr. Bingaman, Mrs. Hutchison, Mr.
Allen, Mr. Domenici, and Mr. Brownback) submitted an amendment intended
to be proposed by him to the bill H.R. 5441, making appropriations for
the Department of Homeland Security for the fiscal year ending
September 30, 2007, and for other purposes; as follows:

On page 127, between lines 2 and 3, insert the following:
Sec. 540. (a) Construction of Border Tunnel or Passage.--
Chapter 27 of title 18, United States Code, is amended by
adding at the end the following:

``Sec. 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 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 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.
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