United States v. Giraldo-Prado , 150 F.3d 1328 ( 1998 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
No. 97-5634 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
08/19/98
D. C. Docket No. 97-259-CR-DLG THOMAS K. KAHN
CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MERY GIRALDO-PRADO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Florida
(August 19, 1998)
Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.
PER CURIAM:
Mary Giraldo-Prado (“Giraldo-Prado”) appeals the district
court’s order of judicial deportation as a condition of supervised
release. We vacate the district court's order in part and remand
for further proceedings, in light of our holding in United States v.
Romeo, 122 F.3d 941 (11th Cir. 1997), and the more recent
holding in United States v. Biro, 143 F.3d 1421 (11th Cir. 1998).
I. BACKGROUND
Giraldo-Prado pled guilty to count one of an indictment,
charging her with illegal importation of heroin. The district court
sentenced her to 46 months’ imprisonment and three-years’
supervised release. In addition, the district court ordered Giraldo-
Prado deported as a condition of her supervised release, pursuant
to 18 U.S.C. § 3583(d).
At the sentencing hearing, Giraldo-Prado did not object to
the district court’s authority to order such deportation; however,
the government objected based on our day-old holding in United
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States v. Romeo, 122 F.3d 941 (11th Cir. 1997). The district court
refused to entertain the government’s objection at the sentencing
hearing because the government failed to file a previous
objection.
Giraldo-Prado failed to object to the district court’s lack of
subject-matter jurisdiction to order her deported as a condition of
supervised release, but raises this issue on appeal. In response,
the government agrees that the district court exceeded its subject
matter jurisdiction.
II. DISCUSSION
We have noted that a party may raise jurisdiction at any time
during the pendency of the proceedings. United States v. Biro,
143 F.3d 1421, (11th Cir. 1998). Accordingly, Giraldo-Prado did
not waive subject-matter jurisdiction. The district court's subject-
matter jurisdiction is a question of law subject to de novo review.
See United States v. Perez, 956 F.2d 1098, 1101 (11th Cir. 1992).
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In Romeo, we held that 8 U.S.C. § 1229a(a) divests the
district court of jurisdiction to order deportation pursuant to 18
U.S.C. § 3583(d). Romeo, 122 F.3d at 943-44. We concluded
that “[t]he INA [Immigration and Nationality Act], as amended by
the IIRAIRA [Illegal Immigration Reform and Immigrant
Responsibility Act], does not provide for, or authorize, judicial
deportation pursuant to 18 U.S.C. § 3583(d). Thus, we hold
that 8 U.S.C. § 1229a(a) eliminates any jurisdiction district courts
enjoyed under § 3583(d) to independently order deportation.” Id.
at 943.
We further concluded in Romeo that §1229a(a) extends “to
all pending cases because '[i]ntervening statutes conferring or
ousting jurisdiction' are ordinarily given immediate effect, 'whether
or not jurisdiction lay when the underlying conduct occurred or
when the suit was filed . . . .'” Id. at 944 (citation omitted).
Accordingly, § 1229a(a) was given immediate effect and applied
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to all cases pending on the date of enactment, April 1, 1997. Id.
at 944.
In Biro, we reasoned that “[a]s a result of the enactment of §
1229a(a), '§ 3583(d) authorizes a district court to order that a
defendant be surrendered to the INS for deportation proceedings
in accordance with the INA, but it does not authorize a court to
order a defendant deported.'” Biro, 143 F.3d at , (quoting
Romeo, 122 F.3d at 943-44).
Because Giraldo-Prado was sentenced on September 11,
1997, after the enactment of 8 U.S.C. § 1229a(a), we remand with
instructions that the district court delete the deportation condition.
The district court may modify the sentence by deleting the
deportation order but provide that the appellant, upon completion
of her term of imprisonment, shall be turned over to the
Immigration and Naturalization Service for appropriate
proceedings pursuant to the Immigration and Nationality Act. See
Biro, 143 F.3d at . Because these actions by the district court
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on remand will operate in Giraldo-Prado’s favor, the district court
need not hold a new, complete sentencing hearing. See Fed. R.
Crim. P. 32.1(b) (providing that hearing and assistance of
counsel are required before terms of supervised release can be
modified unless relief to be granted is favorable to defendant).
Alternatively, the district court, in its discretion, may hold a
resentencing hearing if it desires to accomplish any other changes
in the sentence.
VACATED in part and REMANDED with instructions.
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