IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-10191
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMWILLIAM AYI QUAYE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(June 21, 1995)
Before HIGGINBOTHAM and PARKER, Circuit Judges, and BROWN*,
District Judge.
HIGGINBOTHAM, Circuit Judge:
Samwilliam Quaye pled guilty to making false statements on
immigration documents and education grant program applications.
The district court sentenced him to ten months incarceration and
ordered him deported as a condition of his supervised release.
Quaye appeals. We must decide the statutory authority of a
federal court to order the deportation of an alien and the amount
of loss caused by Quaye.
*
District Judge of the Eastern District of Texas, sitting by
designation.
I.
Quaye argues that the district court erred in increasing his
offense level under U.S.S.G. § 2F1.1(b)(1)(D) based on a finding
that he caused losses of over $10,000. Quaye argues that had the
court found he caused a loss of less than $10,000, he would have
had a lower offense level under U.S.S.G. § 2F1.1(b)(1)(C), which,
combined with his criminal history category I, would have capped
his sentence at six months. Quaye has been in custody since
September 16, 1994. We granted an expedited appeal.
Application Note 7(b) to U.S.S.G. § 2F1.1 provides that "[i]n
fraudulent loan application cases . . . the loss is the actual loss
to the victim . . . However, where the intended loss is greater
than the actual loss, the intended loss is to be used." Quaye
received $10,504 in loans, which was reduced by $1,065 when he
dropped some of his courses for the 1992-93 academic year. He
would probably have received $6,025 for the upcoming third year had
his false statements not been detected.
Quaye argues that he intended to repay the money. The
government argues that Quaye had no such intent. The district
court failed to make a finding as to whether Quaye would pay back
the loans; instead, it appears to have rested its sentencing
decision on the finding that Quaye intended to receive the final
loans. Without a finding that Quaye did not intend to repay the
loans, we must vacate the portion of Quaye's sentence increasing
his offense level by three levels under U.S.S.G. § 2F1.1(b)(1)(D).
2
We remand to the district court to calculate Quaye's sentence and
order his release if he has served the sentence, as recalculated.
In this new calculation, his sentence can be increased by no more
than two levels under U.S.S.G. § 2F1.1(g)(1)(c).
II.
Quaye also argues that the district court erred in ordering
him deported under 18 U.S.C. § 3583(d). In relevant part, § 3583
provides that "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." Quaye argues that the district court exceeded its
authority in ordering him deported as a condition of supervised
release. We have not spoken on this question, and the Eleventh
Circuit and First Circuit are split.
The Eleventh Circuit supports the district court's view. In
United States v. Chukwura, 5 F.3d 1420, 1423 (11th Cir. 1993),
cert. denied, 115 S. Ct. 102 (1994), the Eleventh Circuit held that
the plain language of § 3583(d) gave district courts the power to
order a defendant deported as a condition of supervised release.
The court held that § 3583(d) did not intrude upon the INS's
authority to deport resident aliens because the INS still retains
the power to carry out deportations. See id. at 1423.
We disagree and subscribe to the First Circuit's
interpretation of § 3583(d). In United States v. Sanchez, 923 F.2d
3
236, 237 (1st Cir. 1991) (per curiam), the First Circuit held that
§ 3583(d)
simply permits the sentencing court to order, as a
condition of supervised release, that "an alien defendant
[who] is subject to deportation" be surrendered to
immigration officials for deportation proceedings under
the Immigration and Naturalization Act. In other words,
following appellant's surrender to Immigration
authorities, he is entitled to whatever process and
procedures are prescribed by and under the Immigration
and Naturalization Act for one in appellant's
circumstances, for the purpose of determining whether he
is "an alien defendant . . . subject to deportation."
The Solicitor General has supported the position of Quaye and
the First Circuit in a brief in support of a grant of certiorari in
Chukwura.1 The text of § 3583(d), the Solicitor General argued,
authorizes district courts to "provide," not "order," that an alien
be deported and remain outside of the United States. Congress used
the verb "order" elsewhere in Section 3583(d), implying that its
choice of the verb "provide" was intentional here.
Section 3583(d)'s language authorizing deportation "as a
condition of supervised release" also favors the First Circuit's
interpretation, the Solicitor General argued. Under this
reasoning, if the Attorney General did not order a defendant
deported, the condition of supervised release would fail, and the
court could revoke his supervised release. The court could not,
under this interpretation, order the Attorney General to deport the
defendant if she chose not to do so.
1
The Supreme Court has denied certiorari in that case. See
115 S. Ct. 102 (1994).
4
The Solicitor General further argued that his reading would
leave meaning for § 3583(d); that otherwise, deportation under the
INA could conflict with the standard provision of supervised
release that the defendant not leave the judicial district without
permission of the court or probation officer. Section 3583(d)
prevents any such conflict by authorizing the court to permit the
Attorney General to deport defendant during his term of supervised
release.
The First Circuit's interpretation of § 3583(d) also preserves
Congress's long tradition of granting the Executive Branch sole
power to institute deportation proceedings against aliens. We are
unwilling to conclude that Congress intended to undermine that
executive prerogative sub silentio in § 3583(d), or that Congress
intended by its silence to deprive aliens deported at sentencing of
such relief as alien asylum, which the Attorney General may grant.
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 this 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. Section
3583(d)'s predecessor, enacted in 1931, provided that
where a Federal prisoner is an alien and subject to
deportation the board of parole may authorize the release
of such prisoner after he shall have become eligible for
parole on 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 the duly authorized
immigration official for deportation.
Law of Mar. 2, 1931, ch. 371, 46 Stat. 1469.
5
The 1931 Act 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. § 3583(d), the present codification of its
predecessor, paves the way for Executive Branch deportation
proceedings; it does not permit courts to order deportation alone.
But, the phrasing of the modern version has caused some
confusion. In apparent response, Congress amended 8 U.S.C.
§ 1252a(d) in 1994 to read:
(1) Authority
Notwithstanding any other provision of this chapter,
a United States district court shall have jurisdiction to
enter a judicial order of deportation at the time of
sentencing against an alien whose criminal conviction
causes such alien to be deportable under section
1251(a)(2)(A) of this title, if such an order has been
requested by the United States Attorney with the
concurrence of the Commissioner and if the court chooses
to exercise such jurisdiction.
Under the 1994 amendment, the district court may order
deportation only "if such an order has been requested by the United
States Attorney." The U.S. Attorney did not make such a request
here, and it is not applicable here.
Although the government concedes that the Solicitor General's
argument has force, the prosecution argues in the alternative that
the 1994 amendment provides a kind of retroactive legislative
history, demonstrating that "Congress intended District Courts to
have deportation power over convicted aliens in certain
6
circumstances and that Congress has now provided the procedure for
such a deportation to be achieved."
However, the retroactive legislative history can be read the
other way just as easily. The fact that Congress gave the district
courts the power to order deportations in 1994 could illustrate
that Congress believed that the district courts lacked that power
before the amendment. Further, reading the 1994 amendment to
overlay a congressional understanding that district courts may
order deportations would create an extraordinary set of rules.
Section 3583(d) would permit district courts to deport any
deportable aliens without affording them any procedural safeguards,
but the 1994 amendment would protect deportable aliens convicted of
particularly heinous crimes2 with more expansive procedural checks,
including the requirement that the U.S. Attorney must request
deportation and that the Commissioner must concur.
We are persuaded by the arguments of the Solicitor General and
the reasoning of the First Circuit. We hold that the district
court exceeded its statutory power under § 3583(d) in ordering
Quaye deported as a condition of supervised release. Because the
1994 amendment does not apply here, we adopt the language of the
First Circuit in Sanchez, 923 F.2d at 238, and ORDER that the
judgment below to be amended as follows:
2
The 1994 amendment applies only to those aliens deportable
under 8 U.S.C. § 1251(a)(2)(A); that is, those convicted of crimes
of moral turpitude, those with multiple criminal convictions
involving moral turpitude, or those convicted of an aggravated
felony.
7
As a condition of supervised release, upon 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. §§ 1101 et seq. As a further condition of
supervised release, if ordered deported, defendant shall
remain outside the United States.
We VACATE the portion of Quaye's sentence based upon U.S.S.G.
§ 2F1.1(b)(1)(D), holding that his sentence can be increased by
only two levels under U.S.S.G. § 2F1.1(b)(1)(C), and REMAND to
allow the district court to recalculate Quaye's sentence.
VACATED in part, MODIFIED in part, and REMANDED.
8