United States v. Aimufa

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that have been revoked, we vacate the district court's sentencing order and remand for resentencing.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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