Whether the five-year mandatory minimum penalty of 8 U.S.C. § 1324(a)(2) can be applied to first-time offenders

QUESTION PRESENTED In recent years, this Court has repeatedly granted certiorari to utilize textualist principles to correct interpretative errors in lower court decisions. This case presents the latest opportunity. Section 2 of the federal alien smuggling statute, 8 U.S.C. § 1324(a)(2), describes two types of substantive offenses, each of which includes its own penalties provision that directs the computation of penalties in two different ways. Penalties for the first offense increase “for each alien in respect to whom a violation of this paragraph occurs.” Penalties for the second group of offenses increase based on the number of “violation[s]” of each of the subparagraphs of § 1324(a)(2)(B), and each of those subparagraphs reference the commission of “an offense.” In United States v. Ortega-Torres, 174 F.3d 1199 (11th Cir. 1999)—a decision rubberstamped in the proceedings below—the Eleventh Circuit relied heavily on unenacted legislative history to justify grafting the “for each alien” language from the first penalties provision onto the second, and concluded that each alien smuggled counted as a separate “offense” under the statute. The question presented is: Whether the five-year mandatory minimum penalty of 8 U.S.C. § 1324(a)(2), which applies to a defendant’s third “violation” of subsection (a)(2)(B)(Gi)—a subsection which in turn requires the commission of “an offense done for the purpose of commercial advantage”—can be applied to first-time offenders. i INTERESTED PARTIES Pursuant to Sup. Ct. R. 14.1(b)@), Mr. Stuart submits that there are no