U.S. v. Phommachanh, 95-3248

• Decision Date: 26 July 1996
• Docket Number: No. 95-3248,95-3248
• Citation: 91 F.3d 1383
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Fongyxmany PHOMMACHANH, aka LO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1383

91 F.3d 1383

UNITED STATES of America, Plaintiff-Appellee v. Fongyxmany PHOMMACHANH, aka LO, Defendant-Appellant.

No. 95-3248.

United States Court of Appeals, Tenth Circuit.

July 26, 1996.

Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the brief), Office of Federal Public Defender, Wichita, Kansas, for Defendant-Appellant.

David M. Lind, Assistant United States Attorney (Jackie N. Williams, United States Attorney, and Lanny D. Welch, Assistant United States Attorney with him on the brief), Office of United States Attorney for the District of Kansas, Wichita, Kansas, for Plaintiff-Appellee.

Before BALDOCK, EBEL, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

In this appeal, Defendant-Appellant Fongyxmany Phommachanh challenges on jurisdictional and due process grounds the district court's order that he be deported as a condition of his term of supervised release. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and modify the district court's judgment.

I. BACKGROUND

Mr. Phommachanh is a permanent resident alien in the United States. On April 26, 1995, he pleaded guilty to two counts of using or carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). Mr. Phommachanh's petition to enter a guilty plea included the following paragraph:

I have been advised and understand that if I am not a U.S. citizen, a conviction of a criminal offense may result in deportation from the United States, exclusion from admission to the United States, and/or denial of naturalization.

Rec. vol. I, doc. 73 at 3. In addition, the United States Probation Office prepared a presentence investigation report (PSI), which advised Mr. Phommachanh that he might be deported as a condition of supervised release pursuant to 18 U.S.C. § 3583(d). Rec. vol. III, at 10. Mr. Phommachanh filed written objections to this portion of the PSI. See id. at 13-14.

At sentencing, the government asked the district court to order Mr. Phommachanh, as a condition of supervised release, to surrender to the INS to go through its administrative proceedings. See Rec. vol. II, doc. 89 at 10. The district court refused this request, stating that Mr. Phommachanh "doesn't deserve to be in the United States under any circumstances at any time ever." Id. at 10-11. At Mr. Phommachanh's sentencing hearing, the district judge told Mr. Phommachanh that one of the "[s]pecial conditions of supervision" to which he was going to sentence Mr. Phommachanh was "that you be deported and if you are not deported that you will participate in a program for substance abuse at the direction of the probation office." Id. at 12-13 (emphasis added). The district court subsequently sentenced Mr. Phommachanh to twenty-five years in prison and to three years of supervised release. Rec. vol. I, doc. 81 at 2, 3. As a condition of his supervised release, the district court ordered that Mr. Phommachanh "be deported and remain outside the United States, pursuant to 18 U.S.C. section 3583(d) and U.S. v. Chukwura, 5 F.3d 420 (11th Cir.1993), cert. den., [--- U.S. ----] 115 S.Ct. 102 [130 L.Ed.2d 51 (1994) ]." Id. at 3.

II. DISCUSSION

On appeal, Mr. Phommachanh claims that the sentence imposed by the district court is illegal for two reasons. First, he argues that the district court was without jurisdiction to enter an order deporting him upon release from prison. He next asserts that the order deporting him violated his right to due process because it denied him a meaningful hearing, which he would have received from a deportation hearing provided by the Immigration and Naturalization Service (INS). We hold that the district court lacked the authority to order, as a condition of supervised release, that Mr. Phommachanh be deported. We therefore need not address Mr. Phommachanh's due process argument. See United States v. Jalilian, 896 F.2d 447, 448 (10th Cir.1990) (refusing to reach the constitutional issue raised by the appellant where the court had another ground upon which to dispose of the case).

The district court based its order deporting Mr. Phommachanh as a condition of his supervised release on 18 U.S.C. § 3583(d). Section 3583(d) states:

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). Mr. Phommachanh argues that § 3583(d) only allows the district court "to order that, upon commencement of supervised release, [he] would be turned over to officials of the Immigration and Naturalization Service (I.N.S.) for them [sic] to conduct an administrative deportation hearing in accordance with the applicable statutes and I.N.S. regulations." Aplt's Br. at 8. We review de novo Mr. Phommachanh's challenge to his sentence because it involves a question of law. See United States v. Bailey, 76 F.3d 320, 323 (10th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 1889, 135 L.Ed.2d 183 (1996); United States v. Gonzalez-Lerma, 14 F.3d 1479, 1484 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 1862, 128 L.Ed.2d 484 (1994).

Although the Tenth Circuit has not previously decided the issue of whether a district court has the authority to deport a defendant-alien as a condition of supervised release pursuant to 18 U.S.C. § 3583(d), five circuits have. The First, Second, Fourth, and Fifth Circuits have held that a district court does not have such authority under 18 U.S.C. § 3583(d); see United States v. Xiang, 77 F.3d 771, 772 (4th Cir.1996); United States v. Quaye, 57 F.3d 447, 449-51 (5th Cir.1995); United States v. Kassar, 47 F.3d 562, 568 (2d Cir.1995); United States v. Ramirez, 948 F.2d 66, 68 (1st Cir.1991); United States v. Sanchez, 923 F.2d 236, 237 (1st Cir.1991) (per curiam); whereas the Eleventh Circuit has held that it does; see United States v. Chukwura, 5 F.3d 1420, 1423 (11th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 102, 130 L.Ed.2d 51 (1994). For several reasons, we adopt the First, Second, Fourth, and Fifth Circuits' interpretation of 18 U.S.C. § 3583(d). We hold that § 3583(d) does not authorize a district court to deport a defendant-alien as a condition of supervised release, but that it instead authorizes a district court to impose as a condition of supervised release that a defendant be delivered to the INS for deportation proceedings consistent with the Immigration and Naturalization Act (INA), 8 U.S.C. §§ 1101-1524.

A. The Ambiguity of 18 U.S.C. § 3583(d)

We begin our analysis of 18 U.S.C. § 3583(d) by determining that § 3583(d) is ambiguous. While § 3583(d) allows a sentencing court to "provide, as a condition of supervised release, that [an alien subject to deportation] be deported and remain outside the United States," 18 U.S.C. § 3583(d), it then allows the sentencing court to "order that [the defendant-alien] be delivered to a duly authorized immigration official for such deportation." Id. When these two portions of § 3583(d) are read together, the proper allocation of the authority to deport the alien between the sentencing court and the INS is left unclear.

B. Statutory Interpretation

1. Construction in Favor of the Alien

Because § 3583(d) is ambiguous, we must utilize various tools of statutory construction in order to interpret its meaning. In construing § 3583(d), a deportation statute, we are mindful of "the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien." See INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 1222, 94 L.Ed.2d 434 (1987); see also INS v. Errico, 385 U.S. 214, 225, 87 S.Ct. 473, 480, 17 L.Ed.2d 318 (1966) (recognizing that doubts as to the correct construction of a deportation statute "should be resolved in favor of the alien"); United States v. Quintana, 914 F.2d 1409, 1410 (10th Cir.1990) ("Statutes relating to deportation of aliens are liberally construed in favor of the alien concerned as the deportation penalty can be harsh.").

2. Textual Interpretation of 18 U.S.C. § 3583(d)

The text of § 3583(d) itself is instructive in gleaning the import of the statute. By using two different verbs to describe what a district court may do under § 3583(d), Congress presumably intended the verbs to convey their respective meanings. Section 3583(d) states that "the court may provide, as a condition of supervised release, that [an alien subject to deportation] be deported," but that it "may order that [the alien] be delivered to a duly authorized immigration official for such deportation," 18 U.S.C. § 3583(d) (emphasis added). The verb "provide" is defined as "[t]o exercise foresight in taking due measures in view of a possible event;" 12 The Oxford English Dictionary 713 (2d ed. 1989); whereas the verb "order" is defined as "[t]o ... command [or] authoritatively direct." 10 The Oxford English Dictionary 907 (2d ed. 1989). Had Congress intended that § 3583(d) allow the sentencing court to order, or "authoritatively direct," deportation, it could have easily so stated. However, its choice of the verb "provide" connotes a different, presumably intended, meaning; it allows the sentencing court "[t]o exercise foresight ... in view of a possible event," see 12 The Oxford English Dictionary 713 (2d ed. 1989), by directing that in the event that the INS determines that the defendant-alien is "subject to deportation" upon release from prison, see 18 U.S.C. § 3583(d), then the defendant-alien is to be deported. See Quaye, 57 F.3d at 449 (recognizing that "Congress used the verb 'order' elsewhere in Section 3583(d), implying that its choice of the verb 'provide' was intentional here"); see also Xiang, 77 F.3d at 772 (emphasizing that § 3583(d) "states that the court 'may provide, as a condition of supervised...