Opinion
CRIMINAL ACTION NO. 3:02-CR-260(01)-G
November 25, 2002
MEMORANDUM ORDER
Before the court is the motion of the defendant Ibrahim Mustafa I. Abu-Baker ("Abu-Baker") to expedite sentencing and order immediate deportation. For the following reasons, the motion is denied.
Abu-Baker filed the instant motion in order to clarify his rather opaque oral motion presented at the conclusion of his rearraignment.
I. ANALYSIS 1. The Presentence Investigation Report
Abu-Baker's first request is that this court impose sentence upon him without the preparation of a Presentence Investigation Report ("PSI"). Specifically, Abu-Baker asserts that his case "might be . . . proper for the [c]ourt to exercise its sentencing authority without a PSI being prepared." Motion to Expedite Sentencing and Briefing Support ("Defendant's Motion") at 1. Abu-Baker is in error.
While Federal Rule of Criminal Procedure 32(b) does allow the court to impose sentence without the benefit of a PSI, the court may do so only if it "finds that the information in the record enables it to exercise its sentencing authority meaningfully under 18 U.S.C. § 3553." See F.R. CRIM. P. 32(b)(1)(A). Here, however, the record is unclear on a number of factors that are essential in determining an appropriate sentence for Abu-Baker. First, the record is unclear as to whether the victim, Debra Free ("Free"), will require any type of restitution as a result of her sham marriage to Abu-Baker. For example, Free may have incurred attorney fees in seeking an annulment of her marriage or may even have paid for professional counseling in order to cope with the emotional effects of Abu-Baker's offense conduct. Second, the record also lacks sufficient information for the court to determine Abu-Baker's criminal history category. See USSG § 4A1.1. Abu-Baker attempts to assuage the court's concern with his criminal history by asserting that we can with certainty conclude that the defendant has no criminal record and merits consideration under [a] criminal history category of one" due to the extension of his visitor's visa by the Immigration and Naturalization Service ("INS"). Defendant's Motion at 2. The court will not accept the naked assertion that Abu-Baker has no criminal record, however, merely because INS officials decided to extend his visitor's visa. Moreover, even if Abu-Baker had a crime-free record when he sought the extension of his visa, the record lacks any information as to whether Abu-Baker has engaged in criminal conduct subsequent to the INS's extension of his visa. Finally, Abu-Baker's motion fails to consider whether any sentencing adjustments are applicable in this case, such as the three-point enhancement for committing a crime against a vulnerable victim. See USSG § 3A1.1.
Consequently, this court requires the detailed research and general expertise of the United States Probation Office to fill in these — and possibly other — gaps in information before it can determine an appropriate sentence for Abu-Baker. Accordingly, this court will not exercise the discretion it has under Rule 32(b) to impose sentence without the benefit of a PSI.
2. Supervised Release Pursuant to 18 U.S.C. § 3583
Abu-Baker further asserts that this court has the authority to order his immediate deportation, pursuant 18 U.S.C. § 3583(d)(3), as a condition of supervised release. See Defendant's Motion at 3. Again, Abu-Baker is in error.
According to the Fifth Circuit, supervised release under 18 U.S.C. § 3583(d)
simply permits the sentencing court to order, as a condition of supervised release, that "an alien defendant [who] is subject to deportation" be surrendered to immigration officials for deportation proceedings under the Immigration and [Nationality] Act. In other words, following [the defendant's] surrender to Immigration authorities, he is entitled to whatever process and procedures are prescribed by and under the Immigration and [Nationality] Act for one in [the defendant's] circumstances, for the purpose of determining whether he is "an alien defendant . . . subject to deportation."United States v. Quaye, 57 F.3d 447, 449 (5th Cir. 1995) (citing and adopting the holding in United States v. Sanchez, 923 F.2d 236, 237 (1st Cir. 1991)); accord United States v. Xiang, 77 F.3d 771, 773 (4th Cir. 1996); United States v. Kassar, 47 F.3d 562, 568-69 (2d Cir. 1995). A district court, therefore, does not have the independent authority under section 3583(d) to deport an alien defendant as a condition of supervised release. Quaye, 57 F.3d at 449. Rather, the court is limited under section 3583 to merely surrendering the alien defendant to INS officials for a determination of whether he or she will be deported pursuant to INS procedures. Id. Thus, the court lacks the authority to issue an order of deportation as a condition of supervised release under 18 U.S.C. § 3583.
3. Judicial Removal Under the Immigration and Nationality Act
Abu-Baker alternatively requests deportation by this court pursuant to 8 U.S.C. § 238(c)(2) and (5). See Defendant's Motion at 4-5. Unfortunately, neither subsection (2) nor (5) allows this court to deport Abu-Baker under the present facts. Section 1228, in PERTINENT part, provides that
In 1996, Congress amended Title 8, which resulted in 8 U.S.C. § 238 being redesignated as 8 U.S.C. § 1228. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (" IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009. The court, therefore, will construe all requests by Abu-Baker pursuant to 8 U.S.C. § 238 as requests under the equivalent subsection of 8 U.S.C. § 1228. In addition, 8 U.S.C. § 1228 contains two sections designated as subsection (c). Consequently, any discussion in this memorandum order concerning 8 U.S.C. § 1228(c) refers only to the subsection (c) that covers judicial removal of alien defendants.
[A] United States district court shall have jurisdiction to enter a judicial order of deportation at the time of sentencing against an alien who is deportable, if such an order has been requested by the United States Attorney with the concurrence of the Commissioner [of the Immigration and Naturalization Service] and if the court chooses to exercise such jurisdiction.8 U.S.C. § 1228(c)(1). The language of the statute clearly delineates a number of preconditions that must be satisfied prior to an order of deportation by the district court. First, the United States Attorney must initially request the order of deportation by the district court and must do so "prior to commencement of the trial or entry of a guilty plea." 8 U.S.C. § 1228(c)(1) and (2)(A). Second, any order of deportation pursuant to section 1228 must have the agreement of the Commissioner of the Immigration and Naturalization Service. Abu-Baker has simply failed to present any evidence that these prerequisites have been met.
Finally, Abu-Baker's motion refers to 8 U.S.C. § 1228(c)(5) as an additional source of authority for the court to order his deportation. See Defendant's Motion at 5. Under that section, the court may issue a stipulated order of removal where
[T]he United States Attorney, with the concurrence of the [INS] Commissioner, . . . pursuant to Federal Rule of Criminal Procedure 11, enter[s] into a plea agreement which calls for the alien, who is deportable under this Act, to waive the right to notice and a hearing under this section, and stipulate[s] to the entry of a judicial order of deportation from the United States as a condition of the plea agreement or as a condition of probation or supervised release, or both.8 U.S.C. § 1228(c)(5). Because Abu-Baker has already rejected the government's proposed plea agreement and has failed to present evidence of a subsequent plea agreement, the requirements of this subsection have not been met. Subsection (c)(5), therefore, does not provide the court with any additional authority to deport Abu-Baker.
Even if Abu-Baker had entered into a plea agreement with the government in which he waived the right to notice and a hearing and stipulated to the entry of a judicial removal order, the concurrence of the INS Commissioner would still have been required before an order of removal could be entered by this court. See 8 U.S.C. § 1228(c)(5).
Abu-Baker's only response to these deficiencies is that the requirements of subsections (c)(2) and (5) are merely safeguards to ensure due process for alien defendants, and that he is willing to waive those safeguards to expedite deportation. See Defendant's Motion at 4-5. Abu-Baker cites no authority for this interpretation of the statute. Moreover, the court need not accept a statutory interpretation where, as here, that interpretation cuts against the clear and unambiguous language of the statute. See Barnhart v. Sigmon Coal Company, Inc., 534 U.S. 438, 450 (2002); Matter of Greenway, 71 F.3d 1177, 1179 (5th Cir.), cert. denied, 517 U.S. 1244 (1996); Matter of West Texas Marketing Corporation, 54 F.3d 1194, 1200 (5th Cir.), cert. denied, 516 U.S. 991 (1995). The court, therefore, concludes that it lacks the authority to issue an order deporting Abu-Baker under 8 U.S.C. § 1228(c)(2) or (5), because Abu-Baker has failed to present any evidence that the statutory prerequisites for such a court order have been satisfied.
II. CONCLUSION
For the reasons set forth above, Abu-Baker's motion for sentencing prior to the completion of a PSI and for his immediate deportation is DENIED.
The court will, however, expedite Abu-Baker's sentencing to allow it to take place at the earliest possible date following the preparation of the PSI.