United States v. Oboh

AMENDED*

PUBLISH
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________________

No. 94-8l54
________________________________
D.C. Docket No. l:93-003l8-CR-l

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

HENRY OLUSHOLA OBOH,
a/k/a Henry Osa Omoboh,
a/k/a James Clark a/k/a Derick Foster,

Defendant-Appellant.

________________________________

No. 95-8l43
________________________________
D.C. Docket No. l:94-00398-CR-l

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus

MITCHEL AUGUSTUS BOWEN,
Defendant-Appellant.
_________________________________________________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________________________________________________
(August 8, 1996)

Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, ANDERSON,
EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit
Judges, and HENDERSON**, Senior Circuit Judge.

-----------------------
*This amendment includes concurrences of Judges KRAVITCH,
ANDERSON, BIRCH and CARNES in the dissent of Judge BARKETT.

**Senior U.S. Circuit Judge Albert J. Henderson has elected to
participate in the decision in case No. 94-8154 pursuant to 28
U.S.C. § 46(c).
HATCHETT, Circuit Judge:

In this consolidated appeal, the en banc court decides that

it will not overturn United States v. Chukwura, 5 F.3d l420 (llth
Cir. l993), cert. denied, ll5 S. Ct. l02 (l994).

In Chukwura, a panel of this court held that l8 U.S.C. §

3583(d) authorized a district court to order the deportation of a

defendant "subject to deportation" as a condition of supervised

release. Chukwura, 5 F.3d at 1423. Prior to the panel's opinion

in Chukwura, the First Circuit held that district courts lacked

authority under section 3583(d) to order deportation and that

section 3583(d) merely permitted the district court to order the

surrender of the defendant to the Immigration and Naturalization

Service (INS) to receive process in accordance with the

Immigration and Naturalization Act. See United States v.

Sanchez, 923 F.2d 236 (lst Cir. l99l). Since Chukwura, the

Fourth and Fifth Circuits have also addressed this issue and

joined the First Circuit in holding that section 3583(d) does not

permit district courts to order deportation as a condition of

supervised release. See United States v. Xiang, 77 F.3d 77l (4th

Cir. l996); see also United States v. Quaye, 57 F.3d 447 (5th
Cir. 1995). In light of the Fourth and Fifth Circuits' recent

rejection of the panel's holding in Chukwura, a majority of

judges in regular active service voted to address this issue en

banc in these cases.
FACTS AND PROCEDURAL HISTORY

2
 In March 1989, Mitchel Augustus Bowen pleaded guilty to a

two-count criminal indictment charging him with false

representation of United States citizenship in violation of 18

U.S.C. § 911 and possession of a firearm as a convicted felon in

violation of 18 U.S.C. 922(g). After accepting Bowen's plea of

guilty, the district court sentenced Bowen to a term of

imprisonment and ordered, as a condition of supervised release,

the surrender of Bowen to the Immigration and Naturalization

Service (INS) for deportation proceedings. After Bowen served

the sentence, INS began deportation proceedings. On April 15,

1993, INS returned Bowen to Jamaica, his native country. Bowen,

however, reentered the United States approximately one year

later. On October 11, 1994, INS agents received a "tip" that

Bowen was living in a hotel in Marietta, Georgia. INS agents

went to the hotel and arrested Bowen for unlawful reentry into

the United States. Pursuant to a lawful search warrant, the

agents seized approximately seven ounces of marijuana from a

briefcase located underneath the bed.

On November 3, l994, the government filed a two-count

criminal information in the Northern District of Georgia charging

Bowen in Count I with violation of 8 U.S.C. § l326, alleging that

he unlawfully reentered the United States after having been

deported. Count II of the information charged Bowen with

possession of marijuana in violation of 2l U.S.C. § 844. Bowen

subsequently entered a negotiated plea of guilty to both counts.
On January 24, l995, the district court sentenced Bowen to

3
concurrent terms of fifteen months and twelve months imprisonment

for illegal reentry and drug possession. As a condition of

supervised release, the district court ordered the deportation of

Bowen from the United States after completion of the term of

imprisonment. Bowen objected to the district court's deportation

order and requested the court to withhold its order to allow INS

to determine whether he should be deported based on his claim of

eligibility for asylum under the Immigration and Naturalization

Act.

In the other case, a confidential informant informed INS

that Henry Olushola Oboh manufactured fraudulent driver's

licenses. On June 9, l993, the confidential informant introduced

an undercover INS agent to Oboh. During this meeting, the agent

agreed to purchase two fraudulent driver's licenses from Oboh for

$600. Oboh, equipped with a portable camera, driver's licenses,

laminating machine, and a red drop cloth, took the picture of the

undercover agent and created two North Carolina licenses. A

short time later, law enforcement agents arrested Oboh.

On September l7, l993, Oboh pleaded guilty to two counts of

producing false identification documents in violation of l8

U.S.C. § l028(a)(l) in the Northern District of Georgia. On

January 28, l994, the district court sentenced Oboh to concurrent

terms of eight months imprisonment for each count. As a

condition of supervised release, the district court ordered that

the government deport Oboh from the United States pursuant to l8
U.S.C. § 3583(d), that the government deliver Oboh to the duly

4
authorized immigration official for such deportation, and that

Oboh remain in the custody of the Immigration and Naturalization

Service until deported. Oboh timely objected to the district

court's order of deportation arguing that the PSI did not include

a recommendation for deportation or any information regarding

Oboh's immigration status. With respect to Oboh's immigration

status, the presentence report (PSI) revealed that Oboh was born

in Ibadan, Nigeria, on December 2, l952, and entered the United

States in l974.

Oboh and Bowen filed separate appeals challenging the

district court's authority to deport as a condition of supervised

release under l8 U.S.C. § 3583(d). Oboh also challenges the

district court's determination that he was subject to

deportation. This court on its own motion consolidated these

cases for the purpose of this appeal.
DISCUSSION

In Chukwura, a panel of this court addressed for the first

time in this circuit the question of whether section 3583(d)

authorizes a district court to order the deportation of a

defendant "subject to deportation" as a condition of supervised

release. Chukwura, 5 F.3d at 1420. After reviewing the plain

language of section 3583(d), the Chukwura panel concluded that

Congress intended to grant district courts the authority to

deport defendants "subject to deportation" as a condition of

supervised release. Chukwura, 5 F.3d at l423. Before the panel,

the government argued that the plain language of the statute

5
should be followed. Now, appellants, Oboh and Bowen, and the

government contend on appeal that Chukwura was wrongly decided

and urge this en banc court to overrule Chukwura. Recognizing

that only this court sitting en banc or a Supreme Court decision

can overrule a prior decision of this circuit, we agreed to

address this issue. Bonner v. City of Prichard, 66l F.2d l206,

l209 (llth Cir. l98l) (en banc).

We begin our analysis as the panel did in Chukwura and

examine the plain language of section 3583(d). Section 3583(d)

provides in pertinent part: "If an alien defendant is subject to

deportation, the court may provide, as a condition of supervised

release, that he be deported and remain outside the United

States, and may order that he be delivered to a duly authorized

immigration official for such deportation." l8 U.S.C. § 3583(d)

(l988). We find this language clear and unequivocal. The

language states that a sentencing court may require that a

defendant "subject to deportation" be deported as a condition of

supervised release and order the surrender of the defendant to

INS for such deportation. This court "must presume that a

legislature says in a statute what it means and means in a

statute what it says there." Connecticut Nat'l Bank v. Germain,

503 U.S. 249, 253-54 (1992). "When the words of a statute are

unambiguous, then, this first canon is also the last: `judicial

inquiry is complete.'" Germain, 503 U.S. at 254 (quoting Rubin

v. United States, 449 U.S. 424, 430 (1981)); see also United

States v. McLymont, 45 F.3d 400, 40l (llth Cir.) (the plain

6
meaning of a statute controls unless the language of the statute

is ambiguous or would lead to an absurd result), cert. denied,

ll5 S. Ct. l723 (1995); Williams v. NEC Corp., 93l F.2d l493,
l498 (llth Cir. l99l) (same). Despite the plain language of this

statute, appellants and the government now argue to the en banc

court that Congress did not intend to grant district courts

authority to deport because the plain meaning of section 3583(d)

would in effect deny defendants the opportunity to challenge a

deportation order under the administrative procedures of the

Immigration and Naturalization Act. 8 U.S.C. §§ ll0l-l557

(l994). In support of their argument, they note that other

circuits addressing this issue have held that section 3583(d)

merely authorizes the district court to order the surrender of a

defendant to INS for deportation proceedings in accordance with

the Immigration and Naturalization Act. The First, Fourth, and

Fifth Circuits have each accepted arguments similar to the

arguments appellants and the government make in this case.

Consequently, we turn our attention to the decisions in those

circuits.

The First Circuit in United States v. Sanchez was the first

to address the issue of whether section 3583(d) authorized

district courts to order deportation as a condition of supervised

release. Sanchez, 923 F.2d 236. In Sanchez, the district court

ordered the defendant upon his release from confinement to "`be

deported in accordance with l8 U.S.C. [§] 3583(d).'" Sanchez,

923 F.2d at 237. On appeal, the defendant argued that the

7
district court entered an invalid order because a reasonable

person could interpret the order to mean that the government

could deport him without a INS deportation hearing. The First

Circuit agreed. Finding "no indication of a contrary legislative

design," the Sanchez court read section 3583(d) in conjunction

with the provisions of the Immigration and Naturalization Act.1

Sanchez, 923 F.2d at 237.

The Fifth Circuit also addressed this issue in United States

v. Quaye and held that courts lacked authority to order

deportation under section 3583(d). Quaye, 57 F.3d 447. In

explaining its holding, the Quaye court noted that Congress had

not granted the Judicial Branch authority to deport at anytime

prior to the enactment of section 3583(d). Quaye, 57 F.3d at

449-50. The court also reasoned that the history of the

predecessor of section 3583(d), along with prior absence of

congressional authority for judicial deportation, supported the

conclusion that Congress never intended to alter the traditional

allocation of "deportation" power between the Executive and

1
The Sanchez court amended the district court's order to
state:

As a condition of supervised release upon the
completion of his term of imprisonment the defendant is
to be surrendered to a duly authorized immigration
official for deportation in accordance with the
established procedures provided by the Immigration and
Naturalization Act, 8 U.S.C. §§ ll0l et seq. As
further condition of supervised release if ordered
deported defendant shall remain outside the United
States.

Sanchez, 923 F.2d at 237.

8
Judicial Branches of government.2 The Quaye court noted that

section 3583(d)'s predecessor, enacted in l93l,

permitted deportation of an alien prisoner in spite of
the then-current parole rule that demanded that a
prisoner remain within the court jurisdiction. Far
from empowering the Parole Board to usurp the Executive
Branch's deportation power, the 1931 Act only provided
a means by which an alien could be deported upon
parole.

Quaye, 57 F.3d at 450.3 Based on the similarity of the language

in the 1931 Act and section 3583(d), the Quaye court found that

section 3583(d) codified the l93l Act. Quaye, 57 F.3d at 450.

Consequently, it concluded that section 3583(d) only "paves the

way for Executive [B]ranch deportation proceedings" and "does not

2
Specifically, the Quaye court stated:

We insist on greater clarity of purpose when a
statute would be read to upset a status quo long in
place. Indeed, here, the history of the statute is a
powerful argument that Congress never intended to alter
this traditional allocation of power between the
Article II and Article III branches of government.

Quaye, 57 F.3d at 450.
3
The 1931 Act, the predecessor to section 3583(d), provides
in pertinent part:

where a Federal prisoner is an alien and subject to
deportation the [B]oard of [P]arole may authorize the
release of such prisoner after he shall have become
eligible for parole on [the] condition that he be
deported and remain outside of the United States and
all places subject to its jurisdiction, and upon such
parole becoming effective said prisoner shall be
delivered to duly authorized immigration official for
deportation.

Quaye, 57 F.3d at 450 (quoting Law of March 2, l93l, ch. 37l, 46
Stat. l469).

9
permit courts to order deportation alone." Quaye, 57 F.3d at

450.

Even more recently, the Fourth Circuit in United States v.

Xiang interpreted the meaning of section 3583(d) "in the context

of the overall scheme for the deportation of aliens" and held

that district courts lack authority to order deportation as a

condition of supervised release. Xiang, 77 F.3d at 772. In

explaining its holding, the court in Xiang also found that its

interpretation of section 3583(d) adhered to the "division of

responsibility that Congress created between the INS and the

court." Xiang, 77 F.3d at 773.

Like other courts that have addressed this issue, we believe

it is instructive to look at the allocation of the power between

the Executive and Judicial Branches with respect to deportation

in determining whether Congress intended to grant courts

authority to deport when it enacted section 3583(d). The First,

Fourth, and Fifth Circuits' analysis, however, fails to recognize

important congressional action that occurred before and after the

enactment of section 3583(d). As previously noted, the Executive

Branch, prior to the enactment of section 3583(d), had exclusive

authority to order the deportation of a convicted alien "subject

to deportation."4 The Executive Branch's authority to deport,

4
Article I, Section 8, Clause 3 of the Constitution grants
Congress exclusive authority to formulate the United States
immigration policy. Congress enacted its first law dealing with
deportation in l798 with the passage of the Alien Act of June 25,
l798. Frank L. Auerbach, Immigration Laws of the United States l
(Bobbs-Merrill Co., Inc. l955). The l798 Act authorized the
President to deport aliens who he "deemed dangerous" to the

10
however, was not unlimited. The Judicial Branch, for over

seventy-five years, possessed the power to thwart INS's ability

to deport when the grounds for deportation involved a single

conviction of a crime of moral turpitude which resulted in a

sentence exceeding one year or where the alien subject to

deportation committed two unrelated crimes of moral turpitude.

See United States v. Sanchez-Guzman, 744 F. Supp. 997, 999 n.5

(E.D. Wash. l990). Under such circumstances, a district court

could issue a judicial recommendation against deportation (JRAD)

to INS to prevent INS from finding an alien deportable or

excludable on the basis of that conviction.5 A JRAD once

United States. Auerbach, at 2. This Act expired in l800. From
l798 to the enactment of section 3583(d) in l987, the Executive
Branch retained exclusive authority to order the deportation of
aliens.
5
In l940, for example, 8 U.S.C. § l55 provided in pertinent
part:

The provision of this section respecting the
deportation of aliens convicted of a crime involving
moral turpitude shall not apply to one who has been
pardoned, nor shall deportation be made or directed if
the court, or a judge thereof, sentencing such alien
for such crime shall, at the time of imposing judgment
or passing sentence or within thirty days thereafter,
due notice having first been given to representatives
of the state, make a recommendation to the Secretary of
Labor that such alien shall not be deported in
pursuance of this subchapter.

United States ex rel. Santarelli v. Hughes, ll6 F.2d 6l3, 6l6
n.l5 (3d Cir. 1940) (quoting 8 U.S.C.A. § l55). INS at that time
was under the direction of the Labor Department. On June 14,
1940, Congress transferred all functions and powers relating to
immigration and nationality law to the Department of Justice.
Auerbach, at 21. Title 8 U.S.C. § l25l subsequently replaced
section l55 and limited the application of JRADs to crimes of
moral turpitude not involving narcotic offenses. See 8 U.S.C. §§
1251(a)(1), (b)(2).

11
properly entered with respect to a conviction absolutely barred

INS from using that conviction as a basis for deportation.

United States v. Bodre, 948 F.2d 28, 30 (lst Cir. l99l). In

fact, even appellate courts lacked authority to reverse the

district court's grant of JRAD. Bodre, 948 F.2d at 34.

On November 29, l990, the Immigration Act of l990, section

505(a), however, abolished the sentencing judge's power to issue

JRADs. See Immigration Act of 1990, Pub. L. No. 101-649, §

505(a). Three years prior to the abolishment of JRADs Congress

enacted section 3583(d).6 The plain meaning of section 3583(d)

taken together with the abolishment of JRADs, a longstanding

mainstay in the criminal process, not only persuades us that

Congress intended to enable district courts to order the

deportation of defendants "subject to deportation," but in fact

favors such deportation when either the Executive or Judicial

Branch deems it appropriate.

In further support of our conclusion, we note that since our

holding in Chukwura Congress has amended the Immigration and

Naturalization Act to give district courts the power to order the

deportation of alien defendants upon the request of the United

States Attorney with concurrence of the Commissioner of INS.7

6
Section 3583(d) became effective on November 1, 1987.
7
The district court, however, does not have to grant the
government's motion. See 8 U.S.C. § 1252a(d)(1) (providing for
judicial deportation "if the court chooses to exercise such
jurisdiction"). Upon the denial of the United States Attorney's
request, the government may appeal the district court's decision
as well as seek deportation through INS's administrative
proceedings. See 8 U.S.C. § 1252a(d)(3), (4).

12
See 8 U.S.C. § l252a(d) (l994). As a result of section l252a(d),

the Executive Branch can now effectuate the deportation of a

defendant "subject to deportation" through a judicial rather than

an administrative proceeding if the government meets certain

procedural requirements. See 8 U.S.C. § 1252a(d)(2) (1994).

In response to our holding today, appellants and the

government argue that giving effect to the plain meaning of

section 3583(d) renders the Immigration and Naturalization Act's

procedural requirements meaningless, asserting that section

3583(d) authorizes judicial deportation without procedural

safeguards. We reject this argument noting that procedural

safeguards already exist in the sentencing process through

appellate review of the conviction and the sentence. Although we

acknowledge that procedural safeguards exist in the sentencing

process, we do not contend that these safeguards afford

defendants recourse from deportation equal to that available

under the Immigration and Naturalization Act. This matter,

however, is for Congress and not this court to decide. As

Justice Frankfurter stated in Harisiades v. Shaughnessy:

The conditions of entry of every alien, the particular
classes of aliens that shall be denied entry
altogether, basis for determining such classification,
the right to terminate hospitality to aliens, the
grounds on which such determination shall be based,
have been recognized as matters solely for the
responsibility of the Congress and wholly outside the
power of this Court to control.

Shaughnessy, 342 U.S. 580, 596-97 (l952) (Frankfurter, J.,
concurring). For this reason, we interpret section 3583(d) in

accordance with its plain language and reaffirm Chukwura's

13
holding that section 3583(d) authorizes district courts to deport

defendants "subject to deportation" as a condition of supervised

release. In reaching this holding, we emphasize that deportation

under this provision is a condition of supervised release and not

a sentence. We also note that defendants "subject to

deportation" have no constitutional or statutory right to remain

in this country. Shaughnessy, 342 U.S. at 586-87. Their "status

within the country . . . is [merely] a matter of permission and

tolerance." Shaughnessy, 342 U.S. at 586-87.

In this appeal, Oboh also argues that the district court

failed to give him notice and an opportunity to present evidence

or argument that he is not "subject to deportation."8 At the

sentencing hearing, the government presented an INS document

revealing that Oboh entered the United States unlawfully.

Although, Oboh objected to the introduction of this document

because the government did not give him notice of the document

prior to the hearing, Oboh did not argue that he legally entered

this country. Moreover, Oboh does not argue that the district

court erred in finding that he unlawfully entered the United

States. We therefore summarily reject Oboh's argument that the

district court's order of deportation denied him due process.

The plain language of section 3583(d) gave Oboh sufficient notice

that the district court could deport him as a condition of

8
Bowen does not challenge the fact that he is "subject to
deportation" or that he failed to receive adequate notice or an
opportunity to be heard as to his eligibility for relief under
the Immigration and Naturalization Act.

14
supervised release upon a finding that he was "subject to

deportation." Accordingly, we affirm the district court's

decisions ordering the deportation of Oboh and Bowen as

conditions of supervised release.
AFFIRMED

15