United States v. Giraldo-Prado

United States Court of Appeals,
Eleventh Circuit.
No. 97-5634
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Mery GIRALDO-PRADO, Defendant-Appellant.
Aug. 19, 1998.
Appeal from the United States District Court for the Southern District of Florida. (No. 97-259-CR-
DLG), Donald L. Graham, Judge.
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
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).
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 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 1431, (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 1431. Because these actions by the district court 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.