United States v. Barraza

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 95-10611 & 95-10634
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO GABRIEL BARRAZA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Northern District of Texas
USDC Nos. 89-CR-00026 & 90-CR-00039
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June 24, 1996
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:*
Armando Gabriel Barraza appeals his sentences from his
convictions for unlawful use of a communication facility in
committing, causing, and facilitating a controlled-substance
felony and escape from federal custody, in violation of 18 U.S.C.
§ 751(a) and 21 U.S.C. § 843.
Barraza’s arguments that the district court erred in
sentencing him by considering prejudicial information in the
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
No. 95-10611
No. 95-10634
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Presentence Report and by sentencing him to the maximum of the
applicable sentencing range for both offenses are without merit.
See United States v. Buenrostro, 868 F.2d 135, 139 (5th Cir.
1989), cert. denied, 495 U.S. 923 (1990).
Barraza argues that the district court lacked authority to
order him deported under 18 U.S.C. § 3583(d).
In relevant part, § 3583(d) 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 officer for such deportation."
§ 3583(d). Although the district court could have provided that
deportation be a condition of supervised release, the district
court lacked authority under § 3583(d) to order Barraza deported
without a deportation hearing. See United States v. Quaye, 57
F.3d 447, 449-51 (5th Cir. 1995).
A 1994 amendment to 8 U.S.C. § 1252a(d), which authorizes
district courts to order aliens deported under certain
circumstances, is inapplicable to either of Barraza’s
convictions.
Accordingly, we MODIFY the judgments as follows and AFFIRM
as modified:
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
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No. 95-10634
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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.
MODIFIED AND AFFIRMED.