United States v. Oboh

United States Court of Appeals,
Eleventh Circuit.
No. 94-8154.
UNITED STATES of America, Plaintiff-Appellee,
v.
Henry Olushola OBOH, aka Henry Osa Omoboh, aka James Clark, aka
Derick Forest, Defendant-Appellant.
Sept. 29, 1995.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:93-00318-CR-1), Richard C. Freeman,
Judge.
Before BIRCH and BARKETT, Circuit Judges, and HENDERSON, Senior
Circuit Judge.
BARKETT, Circuit Judge:
Henry Olushola Oboh ("Oboh") appeals from an order of
deportation which the district court entered at the conclusion of
Oboh's sentencing hearing pursuant to a guilty plea. Both Oboh and
the government ask us to overrule our decision in United States v.
Chukwura, 5 F.3d 1420 (11th Cir.1993), cert. denied, --- U.S. ----,
115 S.Ct. 102, 130 L.Ed.2d 51 (1994), in which we held that 18
U.S.C. § 3583(d) authorizes a district court to order, as a
condition of supervised release, the deportation of an alien
defendant. Chukwura, 5 F.3d at 1424. In the alternative, Oboh
argues that even if we decline to reject Chukwura, we should vacate
the deportation order because he did not have an opportunity to
defend against the threshold claim that he was subject to
deportation pursuant to 8 U.S.C. § 1251. Because a panel cannot
overturn one of this Court's prior decisions,1 Chukwura continues
to control, and accordingly we must find that the district court
had authority to order Oboh deported. However, we vacate the
deportation order and remand this action so that Oboh may have an
opportunity to contest his deportability before the district court.
In Chukwura, this Court rejected the contention that § 3583(d)
merely allows a district court to order a defendant who has
completed a custodial sentence to be surrendered to the Immigration
and Naturalization Service ("INS"), holding instead that the
section authorizes a district court to independently order, as a
condition of supervised release, the deportation of an alien
2
defendant subject to deportation. Chukwura, 5 F.3d at 1423.
While Chukwura's certiorari petition was pending before the Supreme
Court, the Solicitor General admitted error and agreed with
Chukwura that both the government and the court had misread §
3583(d). Both Chukwura and the Solicitor General contended that
the statute does not authorize the district court to order the
deportation of an alien defendant unless the court's order provides
that the INS carry out the deportation pursuant to the
administrative procedures which the Immigration and Naturalization
Act ("INA") has established. The Supreme Court, however, denied
1
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981) (en banc) (prior decision of Eleventh Circuit, panel or
en banc, cannot be "overruled by a panel but only by the court
sitting en banc").
2
That portion of § 3583(d) dealing with aliens provides:
"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
deportation."
certiorari, 115 S.Ct. 102 (1994), leaving the government to make
its argument in the instant proceeding.
Both Oboh and the government contend that this Court should
apply the analysis of United States v. Sanchez, 923 F.3d 236, 237-
38 (1st Cir.1991), in which the First Circuit read § 3583(d) in
pari materia with the provisions of the INA. The Sanchez
interpretation, which the Fifth Circuit recently adopted in United
States v. Quaye, 57 F.3d 447, 449-51 (5th Cir.1995), is that §
3583(d) merely provides a means by which a district court may order
that an alien defendant subject to deportation "be surrendered to
immigration officials for deportation proceedings under the
Immigration and Naturalization Act," after which he is "entitled to
whatever process and procedures are prescribed by and under the
Immigration and Naturalization Act." Sanchez, 923 F.3d at 237.
Both parties in the instant case assert that the Sanchez
interpretation is consistent with the overall scheme which Congress
developed to deal with questions concerning immigration law, for
"the power to expel or exclude aliens [is] a fundamental sovereign
attribute exercised by the Government's political departments
largely immune from judicial control." Shaughnessy v. Mezei, 345
U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953). Moreover,
as the Fifth Circuit in Quaye recognized, any other reading of §
3583(d) "would permit district courts to deport any deportable
aliens without affording them any procedural safeguards," with the
exception of those aliens deportable pursuant to 8 U.S.C. §
1251(a)(2)(A), that is, those convicted of crimes of moral
turpitude or aggravated felonies. Quaye, 57 F.3d at 450. The
inapposite result of judicial deportation is that aliens convicted
of particularly heinous crimes receive, pursuant to the 1994
amendment of 8 U.S.C. § 1252a(d), "more expansive procedural
checks, including the requirement that the U.S. Attorney must
request deportation and that the Commissioner [of the INS] must
concur." Quaye, 57 F.3d at 450. Nonetheless, we are bound by
precedent. Because this Court in Chukwura found that a district
court has the authority to order deportation, only the Court
sitting en banc may now hold otherwise.
Notwithstanding the district court's authority under Chukwura
to order Oboh's deportation, Oboh argues that he was never given
notice or opportunity to present either evidence or argument that
he was not subject to deportation at his sentencing hearing. 3 It
was not until the end of the sentencing hearing, when the district
court ordered Oboh to be deported, that he was made aware of any
possible deportation. Neither the portion of the probation
officer's presentence report which Oboh received nor any
governmental action indicated that the subject of his deportability
would be taken up at his sentencing. We find that Oboh was not
afforded adequate notice or opportunity at his sentencing hearing
to respond to the probation officer's recommendation that he be
deported. In fact, it appears that Oboh was never even made aware
of the basis for the recommendation. Absent such a finding, the
district court did not properly order deportation pursuant to §
3583(d).
3
Oboh pled guilty to producing false drivers' licenses, in
violation of 18 U.S.C. § 1028(a)(1).
AFFIRMED in part; VACATED in part; and REMANDED.