September 18th, 1998

Precedential

96-4323

                                   United States Court of Appeals,

                                           Eleventh Circuit.

                                             No. 96-4323

                                      Non-Argument Calendar.

                         UNITED STATES of America, Plaintiff-Appellee,

                                                   v.

                                Daniel MEJIA, Defendant-Appellant.

                                            Sept. 18, 1998

Appeal from the United States District Court for the Southern District of Florida. (No. 95-14017-
CR-DAVIS), K. Michael Moore, Judge.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES.

Before TJOFLAT, DUBINA and BARKETT, Circuit Judges.

        PER CURIAM:

        The defendant is a Honduran national who was convicted in the Southern District of Florida

for illegally re-entering the United States after an earlier deportation, in violation of 

8 U.S.C. § 1326


(1994). The district court sentenced the defendant to 71 months imprisonment and three years

supervised release. As a condition of the supervised release, the district court ordered that the

defendant be deported, pursuant to 

18 U.S.C.A. § 3583

(d) (West Supp.1998), at the end of his

confinement.

        The question presented by the instant appeal is whether the district court had the authority

to enter such a deportation order. In a previous unpublished decision, we concluded, in reliance

upon United States v. Oboh, 

92 F.3d 1082

 (11th Cir.1996) (en banc), that the district courts did have

such authority. See United States v. Mejia, No. 96-4323 (11th Cir. July 23, 1997). On certiorari

from our holding, the Supreme Court disagreed, vacated our earlier holding, and remanded the case
for reconsideration. See Mejia v. United States, --- U.S. ----, 

118 S.Ct. 1384

, 

140 L.Ed.2d 643


(1998).

          Moreover, while the case was pending in the Supreme Court, a published opinion of this

court, United States v. Romeo, 

122 F.3d 941

 (11th Cir.1997), held that, under the 1996 amendments

to the federal immigration statutes contained in the Illegal Immigration Reform and Immigrant

Responsibility Act (IIRIRA), the district courts do not have the power independently to order

deportation as a condition of supervised release. See 

id. at 943-44

.1 We concluded in Romeo that

the district courts' authority to order deportations pursuant to 

18 U.S.C. § 3583

 was wholly

abrogated by the passage, as part of the IIRIRA, of 8 U.S.C. § 1229a. Romeo, 

122 F.3d at 943-44

.

That section provides in part that

          [a]n immigration judge shall conduct proceedings for deciding the inadmissibility or
          deportability of an alien[, and that] [u]nless otherwise specified in this chapter, a [removal
          proceeding before an immigration judge] shall be the sole and exclusive procedure for
          determining whether an alien may be admitted to the United States or, if the alien has been
          so admitted, removed from the United States.

8 U.S.C.A. § 1229a(a) (West Supp.1998).2

          We also held in Romeo that section 1229a(a) "is applicable to all ... cases [pending on the

effective date of the IIRIRA] because "[i]ntervening statutes conferring or ousting jurisdiction' are

ordinarily given immediate effect, "whether or not jurisdiction lay when the underlying conduct




   1
    Unpublished opinions of this court are non-binding precedent and may be overruled by a
published panel opinion. See Eleventh Circuit Rule 36-2 (stating in part that "[u]npublished
opinions are not considered binding precedent").
   2
    In U.S. v. Dieguimde, 

119 F.3d 933

, 934-35 (11th Cir.1997), we questioned but did not
decide whether Oboh remains good law in this circuit. We leave determination of that question
to the ongoing proceedings in Dieguimde.

                                                    2
occurred or when the suit was filed....' " Romeo, 

122 F.3d at 944

, (quoting Landgraf v. USI Film

Products, 

511 U.S. 244

, 274, 

114 S.Ct. 1483

, 1501, 

128 L.Ed.2d 229

 (1994)).

       Because the defendant's case was pending on the effective date of section 1229a of the

IIRIRA (April 1, 1997—see Effective Date, Historical and Statutory Notes to 8 U.S.C.A § 1229a,

at 459 (West Supp.1998)), we hold that section 1229a(a) applies in the instant case. We therefore

conclude that the district court did not have the authority to order the defendant's deportation as a

condition of his supervised release. Accordingly, we VACATE that portion of the defendant's

sentence ordering judicial deportation as a condition of his supervised release, and REMAND the

case to the district court for further proceedings consistent with this opinion.

       SO ORDERED.




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