U.S. v. Oboh

• Decision Date: 08 August 1996
• Docket Number: Nos. 94-8154,95-8143,s. 94-8154
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry Olushola OBOH, a/k/a Henry Osa Omoboh, a/k/a James Clark a/k/a Derick Forest, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mitchel Augustus BOWEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1082

92 F.3d 1082

65 USLW 2141

UNITED STATES of America, Plaintiff-Appellee, v. Henry Olushola OBOH, a/k/a Henry Osa Omoboh, a/k/a James

Clark a/k/a Derick Forest, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Mitchel Augustus BOWEN, Defendant-Appellant.

Nos. 94-8154, 95-8143.

United States Court of Appeals, Eleventh Circuit.

Aug. 8, 1996.

Richard M. Langway, Amy Levin Weil, Asst. U.S. Attys., Atlanta, GA, for U.S. in No. 94-8154.

Mildred H. Geckler, Federal Defender Program, Inc., Atlanta, GA, for Bowen.

Allen Moye, Asst. U.S. Atty., U.S. Attorney's Office, Atlanta, GA, for U.S. in No. 95-8143.

Appeals from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges, and HENDERSON ^*, Senior Circuit Judge.

HATCHETT, Circuit Judge:

In this consolidated appeal, the en banc court decides that it will not overturn United States v. Chukwura, 5 F.3d 1420 (11th Cir.1993), cert. denied, 513 U.S. 830, 115 S.Ct. 102, 130 L.Ed.2d 51 (1994).

In Chukwura, a panel of this court held that 18 U.S.C. § 3583(d) authorized a district court to order the deportation of a defendant "subject to deportation" as a condition of supervised release. Chukwura, 5 F.3d at 1423. Prior to the panel's opinion in Chukwura, the First Circuit held that district courts lacked authority under section 3583(d) to order deportation and that section 3583(d) merely permitted the district court to order the surrender of the defendant to the Immigration and Naturalization Service (INS) to receive process in accordance with the Immigration and Nationality Act. See United States v. Sanchez, 923 F.2d 236 (1st Cir.1991). Since Chukwura, the Fourth and Fifth Circuits have also addressed this issue and joined the First Circuit in holding that section 3583(d) does not permit district courts to order deportation as a condition of supervised release. See United States v. Xiang, 77 F.3d 771 (4th Cir.1996); see also United States v. Quaye, 57 F.3d 447 (5th Cir.1995). In light of the Fourth and Fifth Circuits' recent rejection of the panel's holding in Chukwura, a majority of judges in regular active service voted to address this issue en banc in these cases.

FACTS AND PROCEDURAL HISTORY

In March 1989, Mitchel Augustus Bowen pleaded guilty to a two-count criminal indictment charging him with false representation of United States citizenship in violation of 18 U.S.C. § 911 and possession of a firearm as a convicted felon in violation of 18 U.S.C. § 992(g). After accepting Bowen's plea of guilty, the district court sentenced Bowen to a term of imprisonment and ordered, as a condition of supervised release, the surrender of Bowen to the Immigration and Naturalization Service (INS) for deportation proceedings. After Bowen served the sentence, INS began deportation proceedings. On April 15, 1993, INS returned Bowen to Jamaica, his native country. Bowen, however, reentered the United States approximately one year later. On October 11, 1994, INS agents received a "tip" that Bowen was living in a hotel in Marietta, Georgia. INS agents went to the hotel and arrested Bowen for unlawful reentry into the United States. Pursuant to a lawful search warrant, the agents seized approximately seven ounces of marijuana from a briefcase located underneath the bed.

On November 3, 1994, the government filed a two-count criminal information in the Northern District of Georgia charging Bowen in Count I with violation of 8 U.S.C. § 1326, alleging that he unlawfully reentered the United States after having been deported. Count II of the information charged Bowen with possession of marijuana in violation of 21 U.S.C. § 844. Bowen subsequently entered a negotiated plea of guilty to both counts. On January 24, 1995, the district court sentenced Bowen to concurrent terms of fifteen months and twelve months imprisonment for illegal reentry and drug possession. As a condition of supervised release, the district court ordered the deportation of Bowen from the United States after completion In the other case, a confidential informant informed INS that Henry Olushola Oboh manufactured fraudulent driver's licenses. On June 9, 1993, the confidential informant introduced an undercover INS agent to Oboh. During this meeting, the agent agreed to purchase two fraudulent driver's licenses from Oboh for $600. Oboh, equipped with a portable camera, driver's licenses, laminating machine, and a red drop cloth, took the picture of the undercover agent and created two North Carolina licenses. A short time later, law enforcement agents arrested Oboh.

of the term of imprisonment. Bowen objected to the district court's deportation order and requested the court to withhold its order to allow INS to determine whether he should be deported based on his claim of eligibility for asylum under the Immigration and Nationality Act.

On September 17, 1993, Oboh pleaded guilty to two counts of producing false identification documents in violation of 18 U.S.C. § 1028(a)(1) in the Northern District of Georgia. On January 28, 1994, the district court sentenced Oboh to concurrent terms of eight months imprisonment for each count. As a condition of supervised release, the district court ordered that the government deport Oboh from the United States pursuant to 18 U.S.C. § 3583(d), that the government deliver Oboh to the duly authorized immigration official for such deportation, and that Oboh remain in the custody of the Immigration and Naturalization Service until deported. Oboh timely objected to the district court's order of deportation arguing that the PSI did not include a recommendation for deportation or any information regarding Oboh's immigration status. With respect to Oboh's immigration status, the presentence report (PSI) revealed that Oboh was born in Ibadan, Nigeria, on December 2, 1952, and entered the United States in 1974.

Oboh and Bowen filed separate appeals challenging the district court's authority to deport as a condition of supervised release under 18 U.S.C. § 3583(d). Oboh also challenges the district court's determination that he was subject to deportation. This court on its own motion consolidated these cases for the purpose of this appeal.

DISCUSSION

In Chukwura, a panel of this court addressed for the first time in this circuit the question of whether section 3583(d) authorizes a district court to order the deportation of a defendant "subject to deportation" as a condition of supervised release. Chukwura, 5 F.3d at 1420. After reviewing the plain language of section 3583(d), the Chukwura panel concluded that Congress intended to grant district courts the authority to deport defendants "subject to deportation" as a condition of supervised release. Chukwura, 5 F.3d at 1423. Before the panel, the government argued that the plain language of the statute should be followed. Now, appellants, Oboh and Bowen, and the government contend on appeal that Chukwura was wrongly decided and urge this en banc court to overrule Chukwura. Recognizing that only this court sitting en banc or a Supreme Court decision can overrule a prior decision of this circuit, we agreed to address this issue. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc ).

We begin our analysis as the panel did in Chukwura and examine the plain language of section 3583(d). Section 3583(d) provides in pertinent part: "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 such deportation." 18 U.S.C. § 3583(d) (1988). We find this language clear and unequivocal. The language states that a sentencing court may require that a defendant "subject to deportation" be deported as a condition of supervised release and order the surrender of the defendant to INS for such deportation. This court "must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992). "When the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.' " Germain, 503 U.S. at 254, 112 S.Ct. at 1149 (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701-02, 66 L.Ed.2d 633 (1981)); see also United States v. McLymont, 45 F.3d 400, 401 (11th Cir.) (the plain meaning of a statute controls unless the language of the statute is ambiguous or would lead to an absurd result), cert. denied, --- U.S. ----, 115 S.Ct. 1723, 131 L.Ed.2d 581 (1995); Williams v. NEC Corp., 931 F.2d 1493, 1498 (11th Cir.1991) (same). Despite the plain language of this statute, appellants and the government now argue to the en banc court that Congress did not intend to grant district courts authority to deport because the plain meaning of section 3583(d) would in effect deny defendants the opportunity to challenge a deportation order under the administrative procedures of the Immigration and Nationality Act. 8 U.S.C. §§ 1101-1557 (1994). In support of their argument, they note that other circuits addressing this issue have held that section 3583(d) merely authorizes the district court to order the surrender of a defendant to INS for deportation proceedings in accordance with the Immigration and Nationality Act. The First, Fourth, and Fifth Circuits have each accepted arguments similar to the arguments appellants and the government make in this case. Consequently, we turn our attention to the decisions in those circuits.

The First Circuit in United States v. Sanchez was the first to address the issue of whether section 3583(d) authorized district courts to order deportation as a condition of supervised release....