United States Court of Appeals,
Eleventh Circuit.
No. 97-8085.
Non-Argument Calendar
UNITED STATES of America, Plaintiff-Appellee,
v.
Efosa Lyon AIMUFA, Defendant-Appellant.
Sept. 22, 1997.
Appeal from the United States District Court for the Northern District of Georgia. (No. 1:94-CR-
221-1-FMH), Frank M. Hull, Judge.
Before TJOFLAT, COX and CARNES, Circuit Judges.
CARNES, Circuit Judge:
Efosa Lyon Aimufa challenges the district court's imposition of deportation, and detainer
without bond pending deportation, following the court's revocation of his term of supervised release.
Because district courts lack statutory authority to modify the conditions of supervised release terms
that have been revoked, we vacate the district court's sentencing order and remand for resentencing.
I. BACKGROUND
Efosa Lyon Aimufa pleaded guilty to a single-count indictment charging him with violating
8 U.S.C. § 1326 by re-entering the United States after having been deported. On December 12,
1994, the district court sentenced Aimufa to fifteen months of imprisonment to be followed by a
three-year term of supervised release. As one condition of his supervised release, Aimufa was
ordered to submit himself to the Immigration and Naturalization Service ("INS") for deportation
proceedings. The district court did not, however, order that Aimufa be deported.
After completing his fifteen-month prison term, Aimufa was released from prison. He then
violated numerous conditions of his supervised release and was arrested for those violations. On
January 8, 1997, Aimufa appeared before the district court and admitted each of the violations with
which he was charged.
On January 15, 1997, the district court revoked Aimufa's term of supervised release and
sentenced him to eighteen months of imprisonment. Additionally, the district court's order
commanded that Aimufa be deported following service of his prison term and that he be detained
by the INS without bond pending his deportation:
[T]he Bureau of Prisons, at the conclusion of the imprisonment portion of this sentence, shall
deliver the defendant to a duly authorized Immigration official so that the Immigration and
Naturalization Service may immediately deport the defendant. Due to the risk of flight ...
the Court orders that the Immigration and Naturalization Service detain the defendant
without bond until the defendant is deported and leaves the United States.
At the revocation hearing, Aimufa's attorney objected to the court's imposition of deportation
and detainer without bond, contending that the district court lacked authority to impose those
conditions. The district court overruled those objections, and this appeal followed.
II. CONTENTIONS OF THE PARTIES
Aimufa contends that upon revocation of his term of supervised release, the district court
lacked statutory authority to order his deportation and detainer without bond. The Government
agrees, stating that it "is unaware of any authority which would support the court's order of
deportation in this case," and that "the court was also without authority to order that the INS detain
the defendant pending deportation."
III. STANDARD OF REVIEW
This Court reviews de novo the legality of a sentence, including a sentence imposed
pursuant to revocation of a term of supervised release. See, e.g., United States v. Tatum, 998 F.2d
893, 894 (11th Cir.1993) (citations omitted).
IV. DISCUSSION
Title 18 U.S.C. § 3583(e) provides the courses of action available to a district court faced
with a motion to revoke or modify a term of supervised release. Under that provision, a district
court may:
(1) terminate a term of supervised release and discharge the defendant released at any
time after the expiration of one year of supervised release ...;
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(2) extend a term of supervised release if less than the maximum authorized term was
previously imposed, and may modify, reduce, or enlarge the conditions of supervised
release, at any time prior to the expiration or termination of the term of supervised release
...;
(3) revoke a term of supervised release, and require the defendant to serve in prison
all or part of the term of supervised release authorized by statute for the offense that resulted
in such term of supervised release without credit for time previously served on postrelease
supervision ...; or
(4) order the defendant to remain at his place of residence during nonworking hours
and, if the court so directs, to have compliance monitored by telephone or electronic
signaling devices....
18 U.S.C. § 3583(e) (West Supp.1997).
As we explained in United States v. Tatum, 998 F.2d 893, 895 (11th Cir.1993), "[b]ecause
§ 3583(e) is unambiguous, we need look no further than the plain language of this statute." Section
3583(e) provides the exclusive list of alternatives available to a district court in modifying or
revoking a defendant's term of supervised release. It states that the court may: (1) terminate a term
of supervised release; (2) extend a term of supervised release and modify the conditions of
supervised release; (3) revoke a term of supervised release and order imprisonment for all or part
of the remaining term of supervised release without credit for time served; or (4) order the
defendant to remain at his residence during nonworking hours.
The Government does not suggest in this case that § 3583(e) authorizes a district court to use
the foregoing four alternatives in tandem with each other, e.g., by combining the revocation option
provided by subsection (3) with the modification option provided by subsection (2). The
Government did make such a suggestion in Tatum, but we rejected it. We explained in Tatum that
tandem usage of these provisions "is not what Congress has said in this statute." 998 F.2d at 895.
Instead, we adopted the Fifth Circuit's reasoning that "[o]nce a term of supervised release has been
revoked under § 3583(e)(3), there is nothing left to extend, modify, reduce or enlarge under §
3583(e)(2)." Id. at 895 (quoting United States v. Holmes, 954 F.2d 270, 272 (5th Cir.1992)).
Continuing, we explained: "[T]he use of the disjunctive "or' indicates that the possible courses of
action detailed in § 3583(e) are discrete alternatives not to be used conjunctively as the Government
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suggests. Section 3583(e) permits a district court to extend a term of supervised release or revoke
it, not both." Id. (citations omitted).
Here, the district court: (1) revoked Aimufa's term of supervised release, requiring him to
serve an additional eighteen months in prison; and (2) ordered Aimufa deported, requiring that he
be detained by the INS without bond pending his deportation. Section 3583(e)(3) clearly authorized
the court to revoke Aimufa's supervised release and to order him to serve additional prison time.
However, nothing in the statute authorized the court thereafter to order Aimufa deported or to order
that he be detained by the INS without bond pending his deportation, either as modified conditions
of the revoked term of supervised release or otherwise.
Our decision in United States v. Oboh, 92 F.3d 1082 (11th Cir.1996) (en banc), has no
bearing on this case. Oboh stands for the proposition that 18 U.S.C. § 3583(d) authorizes a district
court to order that an alien defendant subject to deportation be deported as a condition of supervised
release. Id. at 1084. Here, the district court did not order Aimufa deported in connection with the
court's imposition of a term of supervised release under § 3583(d). Instead, the court revoked the
term of supervised release, leaving the court with no supervised release term upon which to impose
additional conditions. In any event, we have held that the Oboh decision did not survive the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1229a(a) (3). See
United States v. Romeo, ___ F.3d ___, No. 96-4421 (11th Cir. Sept. 10, 1997).
V. CONCLUSION
Upon revocation of Aimufa's term of supervised release, the district court lacked statutory
authority to order Aimufa deported or to order him detained by the INS without bond pending his
deportation. Accordingly, we VACATE Aimufa's sentence in its entirety and REMAND for
resentencing consistent with this opinion.
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