United States v. Giraldo-Prado

PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED No. 97-5634 U.S. COURT OF APPEALS Non-Argument Calendar ELEVENTH CIRCUIT 08/19/98 D. C. Docket No. 97-259-CR-DLG THOMAS K. KAHN CLERK

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

MERY GIRALDO-PRADO, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida (August 19, 1998)

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 2 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).

3 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 4 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 , (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 . Because these actions by the district court 5 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.

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