No. 96-8145 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 ROY SLOAN, TAI NGUYEN, HOANG NGO HEIN VAN PHUNG, AND BAO VUONG, PETITIONERS v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOAN C. KEENEY Acting Assistant Attorney General THOMAS M. GANNON Attorney Department of Justice Washington, D.C. 20530-0001 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether use of the term "cocaine base" in 21 U.S.C. 841(b) (1) (B) (iii) renders the statute ambiguous so that the rule of lenity governs and requires application of the lesser penalty for offenses involving a substance containing cocaine, or renders the statute irrational in violation of the constitutional guarantee of equal protection. 2. Whether 18 U.S.C. 3583(d) authorizes a district court to order a criminal defendant deported, as a condition of supervised release, without recourse to the standards and procedures for determining deportability and relief from deportation under the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and implementing regulations. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8145 ROY SLOAN, TAI NGUYEN, HOANG NGO, HEIN VAN PHUNG, AND BAO VUONG, PETITIONERS v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. la-7a) in these consolidated cases is reported at 97 F.3d 1378. The opinion of the United States District Court for Northern District of Georgia (Pet. App. 10a-25a) and the rulings of the United States District Court for the Middle District of Florida are not reported. JURISDICTION The judgment of the court of appeals was entered on October 7, 1996. A petition for rehearing was denied on December 4, 1996. Pet. App. 8a-9a. The joint petition for a writ of certio- ---------------------------------------- Page Break ---------------------------------------- 2 rari was filed on March 4, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). STATEMENT This case involves several petitioners whose appeals from their criminal sentences were consolidated by the court of appeals. In the United States District Court for the Middle District of Florida, petitioner Sloan pleaded guilty to two counts of possession of cocaine base with intent to distribute it, in violation of 21 U.S.C. 841 (a) (1). He was sentenced to concurrent terms of 70 months' imprisonment on each count, to be followed by four years' supervised release. Gov't C.A. Br. 2. The four other petitioners were co-defendants in proceedings in the Northern District of Georgia. Petitioner Phung pleaded guilty to conspiring to commit offenses against the United States, i.e., to deal in firearms without a license, to transfer sawed-off shotguns unlawfully, and to traffic in unauthorized access devices, all in violation of 18 U.S.C. 371 (Count 1) ; conspiring to commit offenses against the United States, i.e., to possess cocaine with intent to distribute it, distributing cocaine, and using a minor to possess cocaine with intent to distribute it and to distribute cocaine, all in violation of 21 U.S.C. 846 (Count 2); dealing in firearms without a license, in violation of 18 U.S.C. 922 (a) (1) (A) (Count 3); unlawfully transferring a sawed-off shotgun, in violation of 26 U.S.C. 5812, 5861 (e) (Count 4); possession of cocaine with intent to distribute it, and distributing cocaine, in violation of 21 ---------------------------------------- Page Break ---------------------------------------- 3 U.S.C. 841 (a) (1) (Count 5); and possession of cocaine base with intent to distribute it, and distributing cocaine base, in violation of 21 U.S.C. 841 (a) (1) (Count 6). Petitioner Nguyen pleaded guilty to the offenses charged in Counts 1 and 4. Petitioner Ngo pleaded guilty to the offenses charged in Counts 1, 2, and 3, and a separate count of possession of cocaine and cocaine base with intent to distribute it, and distribution of cocaine and cocaine base, in violation of 21 U.S.C. 841 (a) (1) (Count 8). Petitioner Vuong pleaded guilty to the offenses charged in Counts 1, 2, 3, and 6. Gov't C.A. Br. 2-4. Phung was sentenced to 65 months' imprisonment on four counts and to 60 months' imprisonment on two counts, all to be served concurrently, to be followed by eight years' supervised release. Nguyen was sentenced to 24 months' imprisonment on each count, to be served concurrently, to be followed by three years' supervised release and, as a condition of supervised release, was ordered deported pursuant to 18 U.S.C. 3583 (d). Ngo was sentenced to 78 months' imprisonment on two counts and to 60 months' imprisonment on two other counts, all to be served concurrently, to be followed by four years' supervised release and, as a condition of supervised release, was ordered deported pursuant to 18 U.S.C. 3583 (d). Vuong was sentenced to 60 months' imprisonment on each of the four counts, all to be served concurrently, to be followed by four years' supervised release and, as a condition of supervised release, was ordered deported pursuant to 18 U.S.C. 3583 (d). Gov't C.A. Br. 4-6. ----------------------------------------- Page Break ---------------------------------------- 4 The court of appeals affirmed the sentences of all five petitioners. Pet. App. 1a-7a. 1. a. The Florida case. On two separate occasions in January 1993, petitioner Sloan and others sold cocaine base to a confidential informant. In June 1993, he was charged, along with several others, in a four-count indictment alleging various controlled substances offenses. He ultimately entered a guilty plea to two counts of possession of cocaine base with intent to distribute it. In the presentence report (PSR) prepared for the sentencing court in Sloan's case, the probation officer based her determination of Sloan's base offense level on the Sentencing Guidelines that govern offenses involving cocaine base. Sloan did not object to his PSR, nor dispute that the substances involved in his case were cocaine base. PSR 2-3; Pet. C.A. Br. 24; Gov't C.A. Br. 28. At the sentencing hearing, the district court "recognize[d] that the presentence report is accurate and correct," and imposed a 70-month term of imprisonment. Gov't C.A. Br. 7. b. The Georgia case. Between June 7, 1993, and October 26, 1993, several gang members, including the four petitioners in the Georgia case, sold illegal narcotics, stolen credit cards, stolen handguns, and other firearms to federal undercover law enforcement agents, and offered to deal in stolen military weapons, machine guns, stolen hand grenades, and stolen computer chips. Gov't C.A. Br. 7. Petitioners were named in a fourteen- ---------------------------------------- Page Break ---------------------------------------- 5 count indictment in November 1993 and subsequently entered guilty pleas to varying counts as set forth above. In the PSR prepared for Phung's sentencing, the probation officer determined that Phung's relevant criminal conduct involved 24.161 grams of cocaine base. PSR 28-29. Phung objected to that amount of cocaine base being attributed to him and contended that, for sentencing purposes, the cocaine base should be treated the same as other forms of cocaine. PSR 28, 29. In the PSR prepared for Ngo's sentencing, the probation officer determined that Ngo's relevant criminal conduct involved 21.62 grams of cocaine base. PSR 23. Ngo did not object to that determination. Gov't C.A. Br. 12. In the PSR prepared for Vuong's sentencing, the probation officer determined that Vuong's relevant criminal conduct involved 26.286 grams of cocaine base. PSR 23. Vuong did not object to that determination, but contended that, for sentencing purposes, the cocaine base should be treated the same as other forms of cocaine. PSR 23-24; Gov't C.A. Br. 12. At sentencing, Phung, Ngo, and Vuong moved the district court to declare the sentencing provisions of 21 U.S.C. 841 and Section 2D1.1 of the Sentencing Guidelines unconstitutional to the extent they refer to cocaine base. Pet. App. 10a. 1. They contended that the provisions were void for vagueness, that the ___________________(footnotes) 1 Although petitioner Vuong was not sentenced during the same proceeding as petitioners Phung and Ngo, he presented the same arguments and evidentiary record at his sentencing proceeding. Pet. 3. Petitioner Nguyen was not convicted of any offenses involving cocaine base. -------------------------------------- Page Break ---------------------------------------- 6 provisions contained an unconstitutional ambiguity because the terms "cocaine" and "cocaine base" are scientifically indistinguishable, and that the heightened penalties for cocaine base allow arbitrary application of the statute, in violation of the constitutional guarantee of due process. Ibid. Alternatively, they contended that the district court should apply the rule of lenity and sentence them pursuant to the laws governing "cocaine" rather than those governing "cocaine base," as the district court had in United States v. Davis, 864 F. Supp. 1303 (N.D. Ga. 1994). Pet. App. 11a. They also contended that the statute violates the guarantee of equal protection. Id. at 12a. After a hearing including testimony by a chemist and submission of the evidentiary record from the Davis case, the district court issued findings of fact. Pet. App. 12a-13a. The district court denied the motion, ruling that the statute is not void for vagueness and was not arbitrary as applied to the three defendants because the term "cocaine base" refers to a substance that has its own distinct properties and is distinguishable from other forms of cocaine; the statute provides an understandable definition of that term with sufficient definiteness to place the public on notice of what conduct is prohibited; and there was no ambiguity in determining whether the substance the three defendants possessed was cocaine base. Id. at 16a-19a (citing various cases that have found no difficulty in defining "cocaine base," or that have rejected similar statutory challenges). ---------------------------------------- Page Break ---------------------------------------- 7 The court held that the rule of lenity does not apply in these circumstances because the statute is not ambiguous. The court reasoned that a statute drawn to address a more specific subject controls over a generally drawn statute and that, to the extent the original statute generally applicable to cocaine included cocaine base, that portion of the original statute was repealed by implication by the enactment of the statute imposing increased punishments for cocaine base. Pet. App. 19a-22a. The court rejected the defendants' equal protection claim because they had not produced any evidence that Congress intended to discriminate against any identifiable group by enactment of the statute. Id. at 23a-24a (citing circuit precedent that rejected similar challenges). 2. The district court therefore sentenced petitioners according to the laws relating to cocaine base. 3 At sentencing, the district court also ordered that three petitioners, Vuong, Nguyen, and Ngo, be deported, pursuant to 18 U.S.C. 3583 (d), as a condition of supervised release upon completion of their terms of imprisonment. Gov't C.A. Br. 5-6. ___________________(footnotes) 2 The court also noted that, during oral argument, the defendants contended that Sentencing Guidelines 2D1.1, as amended in 1993 to define "cocaine base," should not be applied retroactively to their case. The court concluded that a more lenient punishment would not have resulted under the Guidelines in effect on the date the offense was committed; rather, the defendants would receive the same sentence under either set of Guidelines. Pet. App. 22a-23a. 3 The court sustained an objection by Phung to the amount of cocaine base involved in his relevant criminal conduct and adjusted slightly downward the amount attributed to him. Sept. 27, 1994, Tr. 138-141. ---------------------------------------- Page Break ---------------------------------------- 8 2. The court of appeals consolidated Sloan's appeal and the appeals of the four petitioners from the Georgia case, and affirmed. Id. at 1a-7a. a. The court observed that the references to "cocaine" and to "cocaine base" in different parts of 21 U.S.C. 841 (b) and Sentencing Guidelines 2D1.1 create some facial ambiguity. The court ruled, however, that the rule of lenity does not apply because it does not come into play at the beginning of the analysis of a criminal statute as an overriding consideration of leniency to wrongdoers, but rather, only after a court has construed a statute consistent with congressional intent and concludes that it is ambiguous. In the instant case, the statute is properly construed not to be ambiguous. Pet. App. 5a. The court relied on the structure of the statutory penalty scheme set forth in Section 841 (b). The court explained that Congress's inclusion in the cocaine base provision (Section 841 (b) (1) (B) (iii)) of a reference to the cocaine provision (Section 841 (b) (1) (B) (ii)) that would otherwise have been applicable, "indicates that Congress considered [the cocaine provision] a re-enactment of the preceding catch-all provision covering all cocaine-related substances and that by enacting [the cocaine base provision], Congress intended to single out a subset of cocaine-related substances, all forms of cocaine base, for harsher treatment." Pet. App. 5a. The court noted that the legislative history, the policies underlying Section 841 (b), and subsequent congressional action, support that construction of the ---------------------------------------- Page Break ---------------------------------------- 9 statute as well. Pet. App. 5a-6a. The court of appeals also rejected the contention that the 1993 amendment to the Guidelines defining crack cocaine applies and, therefore, did not address its validity. The court also found that the sentencing scheme's distinctions between cocaine base and cocaine hydrochloride had a rational basis. Id. at 6a-7a. b. The court of appeals rejected the argument by petitioners Nguyen, Ngo, and Vuong that the judicial orders of deportation pursuant to 18 U.S.C. 3583 (d) exceeded the sentencing court's authority. Those petitioners had urged the court of appeals to reconsider its ruling in United States v. Chukwura, 5 F.3d 1420 (11th Cir. 1993), cert. denied, 115 S. Ct. 102 (1994), that a district court is authorized by Section 3583 (d) to order deportation as a condition of supervised release. Pet. C.A. Br. 54-55. The government agreed that Chukwura had been wrongly decided, but noted that that case remained binding precedent in the Eleventh Circuit. Gov't C.A. Br. 37-39. The court of appeals ultimately concluded that those claims were precluded by the ruling of the en banc court of appeals in United States v. Oboh, 92 F.3d 1082 (11th Cir. 1996), cert. denied, 117 S. Ct. 1257, 1258 (1997). Pet. App. 3a n.1. 4 ___________________(footnotes) 4 The court of appeals had granted rehearing en banc in the Oboh matter on November 13, 1995, to consider the same issue while this case was pending appeal. On August 8, 1996, the en banc court of appeals issued its opinion reaffirming Chukwura. United States v. Oboh, 92 F.3d 1082, cert. denied, 117 S. Ct. 1257, 1258 (1997). The court acknowledged that its ruling was in conflict with the rulings in United States v. Sanchez, 923 F.2d 236 (1st Cir. 1991); United States v. Xiang, 77 F.3d 771 (4th Cir. 1996); and United States v. Quaye, 57 F.3d 447 (5th Cir. ---------------------------------------- Page Break ---------------------------------------- 10 c. Judge Cox filed an opinion, specially concurring, disagreeing with the court of appeals' conclusion that the amendment to the Guidelines that post-dated the commission of the offense did not apply. He also declined to join the portion of the opinion addressing the claim that crack cocaine and other forms of cocaine base are treated differently without a rational basis because he did not read petitioners' motion to have presented that issue in the district court. Pet. App. 7a. ARGUMENT 1. a. Petitioners contend (Pet. 16-39) that the references in 21 U.S.C. 841 (b) providing for different penalties for offenses involving "cocaine" and "cocaine base" are ambiguous. Petitioners assert that, therefore, the rule of lenity should govern and the lesser statutory and Sentencing Guidelines penalties for offenses involving cocaine should apply to their cases rather than those for cocaine base. 5. Petitioners contend ___________________(footnotes) 1995)). 92 F.3d at 1084-1085. 5 Although petitioners do not identify specific Sentencing Guidelines that are involved in this case (see Pet. 2), they challenge generally the federal "cocaine base" penalties. See Pet. I, 16, 18; see Pet. App. 4a n.6 (court of appeals rejected narrower view presented by government that petitioners challenged only statutory scheme and not Guidelines). The Sentencing Guidelines setting forth penalties for offenses involving "cocaine" and "cocaine base" (Guidelines 2D1.1 (c) (Drug Quantity Table)), are based on the penalty provisions set forth in 21 U.S.C. 841 (b), which establishes a 100:1 weight ratio that effectively punishes cocaine base offenses more severely than cocaine offenses. See Sentencing Guidelines 2D1.1, background para. 2. Petitioners discuss (Pet. 28-30) the 1993 amendment to the Guidelines that now provides that "cocaine base" is defined to mean "crack," Guidelines 2D1.1 (c) (Drug Quantity Table), Note D, but they do not challenge the court of appeals' ruling that that amendment does not apply to the instant cases. See ---------------------------------------------- Page Break ---------------------------------------- 11 (Pet. 16, 30-31) that the opinion below conflicts with the opinion of the Third Circuit in United States v. James, 78 F.3d 851 (3d Cir.), cert. denied, 117 S. Ct. 128 (1996). 6 The rule of lenity governs a case only if, "after seizing everything from which aid can be derived, "a reviewing court can make "no more than a guess as to what Congress intended." Reno v. Koray, 115 S. Ct. 2021, 2029 (1995) (quoting in part Smith v. United States, 508 U.S. 223, 239-240 (1993), and Ladner v. United States, 358 U.S. 169, 178 (1958)). Interpretation of Section 841 (b) does not lead to such guesswork. Section 841 (b) of Title 21 sets forth the penalties for violations of Section 841 (a). Subsection (1) (B) of Section 841 (b) establishes a mandatory minimum sentence of 5 years' imprisonment in cases involving certain amounts of controlled substances and lists eight categories of such substances, with the amount that triggers the mandatory sentence depending on the nature of the substance. Of relevance to petitioners' claims are the two categories defined in clauses (ii) and (iii) of Subsection 841 (b) (1) (B). Clause (ii) provides that the 5-year mandatory minimum sentence applies in cases involving 500 grams or more of a mixture or substance containing a detectable amount of-- ___________________(footnotes) Pet. App. 6a. 6 Although petitioner Sloan did not raise this issue in the district court, the court of appeals declined to address our contention that he had waived the claim because it found no error, plain or otherwise. Pet. App. 4a n.6. ---------------------------------------- Page Break ---------------------------------------- 12 (I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed; (II) cocaine, its salts, optical and geometric isomers, and salts of isomers * * * *. 21 U.S.C. 841 (b) (1) (B) (iii). Clause (iii) provides that the 5- year mandatory minimum sentence applies in cases involving 5 grams or more of a mixture or substance described in clause (ii) which contains cocaine base. 21 U.S.C. 841 (b) (1) (B) (iii) (emphasis added). Petitioners' argument is that "cocaine," as used in clause (ii), is the same as "cocaine base" as used in clause (iii), and that, therefore, Section 841 (b) (1) (B) is ambiguous about which penalty provision governs their cases which, concededly involved cocaine base. We agree that "cocaine base" is a form of "cocaine," but there is no ambiguity about which penalty provision governs the instant cases. When Congress established the enhanced penalties for offenses involving cocaine base in 1986, it did not establish two different penalties for cocaine base offenses. See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986). As the court of appeals explained, Congress's inclusion in clause (iii) of a reference to clause (ii) "indicates that Congress considered clause ii a re-enactment of the preceding catch-all provision covering all cocaine-related substances and that by enacting clause iii, Congress intended to single out a subject of cocaine-related substances, all forms of cocaine base, for harsher treatment." Pet. App. 5a. Another court of appeals similarly has found that the "reference to subsection (ii) in ---------------------------------------- Page Break ---------------------------------------- 13 subsection (iii) demonstrates that Congress recognized that cocaine base is a form of cocaine that would otherwise fall into subsection (ii), but that Congress intended the specific provi- sion of subsection (iii) to govern instead." United States v. Brown, 859 F.2d 974, 976 (D.C. Cir. 1988); see United States v. Fisher, 58 F.3d 96, 99 (4th Cir.), cert, denied, 116 S. Ct. 329 (1995). Thus, by creating the enhanced penalties for cocaine base, Congress provided that where cocaine base is involved, "the defendant must be sentenced under subsection (B) (iii), the more specific provision dealing with cocaine base." Brown, 859 F.2d at 976. The court of appeals' statutory interpretation is supported by the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative. United States v. Menasche, 348 U.S. 528, 538-539 (1955); Executive Software North America, Inc. v. U.S. Dist. Court for Cent. Dist. of California, 24 F.3d 1545, 1558 (9th Cir. 1994). Petitioners' reading of Section 841 (b) (1) (B) would render inoperative clause (iii) in its entirety. According to petitioners' interpretation, all offenses involving cocaine base would be sentenced under clause (ii). Their interpretation would similarly render inoperative the parallel clause in Section 841 (b) (1) (A). See 21 U.S.C. 841 (b) (1) (A) (iii). By contrast (and contrary to petitioners' contention, Pet. 23-24), the court of appeals' interpretation does not render clause (ii) inoperative; clause (ii) applies to cases involving all other forms of cocaine, ---------------------------------------- Page Break ---------------------------------------- 14 including its salts such as cocaine hydrochloride. And the term "cocaine" is not rendered superfluous in clause (ii) because that term is the antecedent for the category "its salts, optical and geometric isomers, and salts of isomer." Those subsequent terms would have no meaning without inclusion of the term "cocaine" in that clause. In sum, petitioners' offenses, which incontestably involved cocaine base, were correctly sentenced according to the laws governing offenses involving "cocaine base." See, e.g., United States v. Jackson, 84 F.3d 1154, 1160-1161 (9th Cir.) (because statute draws sufficient legal distinction between "cocaine" and "cocaine base," no need to resort to rule of lenity), cert. denied, 117 S. Ct. 445 (1996); United States v. Booker, 70 F.3d 488, 489-494 (7th Cir. 1995) (concluding that sentencing provisions are not ambiguous in light of legislative history), cert. denied, 116 S. Ct. 1334 (1996); United States v. Jackson, 64 F.3d 1213, 1219-1220 (8th Cir. 1995) (rejecting rule of lenity claim in light of legislative history), cert. denied, 116 S. Ct. 966 (1996); Fisher, 58 F.3d at 98-99 (rejecting rule of lenity claim on basis of rules of statutory construction, common-sense reading of Section 841 (b) (1) (A), and legislative history); United States v. Blanding, 53 F.3d 773, 776 (7th Cir. 1995) (rejecting rule of lenity claim, finding that Congress defined cocaine base ---------------------------------------- Page Break ---------------------------------------- 15 "and its intention to impose punishment befitting the crime -- with appropriate clarity"). 7 Petitioners err when the claim (Pet. 39) that the decision of the court of appeals is in conflict with United States v. James, 78 F.3d 851, 855-858 (3d Cir.), cert. denied, 117 S. Ct. 128 (1996). In James, the court held that the government had not proven that the "cocaine base" offense to which the defendant had pleaded guilty involved "crack" within the meaning of the 1993 amendment to the Guidelines that governed the James case because the criminal offense occurred after passage of the amendment. As noted above, the court of appeals in the instant cases held that the 1993 amendment does not govern here because the offenses occurred before the passage of that amendment, and petitioners did not seek review of that ruling. See note 5, supra. Thus, the issue whether the cocaine base involved in this case constituted crack as now defined in the Guidelines was not ___________________(footnotes) 7 Petitioners rely (e.g., Pet. 20-21, 28-29) principally on the rationale of United States v. Davis, 864 F. Supp. at 1309, to urge application of the rule of lenity, but every court of appeals that has considered that ruling has declined to follow it. See, e.g., United States v. Canales, 91 F.3d 363, 366-369 (2d Cir. 1996); United States v. Flanagan, 87 F.3d 121, 123-124 & n.1 (5th Cir. 1996); United States v. Jackson, 84 F.3d at 1160- 1161; United States v. Hill, 79 F.3d 1477, 1488-1489 & n.6 (6th Cir.), cert. denied, 117 S. Ct. 158 (1996); United States v. Smith, 73 F.3d 1414, 1417-1418 (6th Cir. 1996); United States v. Camilo, 71 F.3d 984, 990 (1st Cir. 1995), cert. denied, 116 S. Ct. 1555 (1996); United States v. Booker, 70 F.3d at 489-491; United States v. Jackson, 64 F.3d 1213, 1219-1220 (8th Cir. 1995), cert. denied, 116 S. Ct. 966 (1996); United States v. Fisher, 58 F.3d at 99. Petitioners' extended effort (Pet. 31-39) to explain how these courts have misunderstood Davis or the underlying issue or both is unpersuasive. ---------------------------------------- Page Break ---------------------------------------- 16 addressed by the court of appeals below and is not properly before this Court. b. Petitioners also suggest (Pet. 39) that equal protection principles are violated by application of the cocaine base penalty provisions in this case. Petitioners do not, however, offer any argument to support that suggestion other than their claim that the statute is ambiguous. All the other courts of appeals that have considered similar arguments have rejected claims that the cocaine base sentencing laws are intentionally racially discriminatory or irrational in violation of equal protection or due process. E.g., United States v. Moore, 54 F.3d 92, 94, 96-99 (2d Cir. 1995) (collecting cases), cert. denied, 116 S. Ct. 793 (1996); United States v. Coleman, 24 F.3d 37, 38- 39 (9th Cir.), cert. denied, 513 U.S. 901 (1994). The Court should similarly deny review of the issue in the instant case. See also, e.g., Edwards v. United States, No. 96-1492, cert. denied, 117 S. Ct. 3687, 3692 (1997) (denying review in case raising claim comparable to petitioners' claim); Robinson v. United States, No. 92-5594, cert. denied, 506 U.S. 1023 (1992) (same). 2. Petitioners Vuong, Nguyen, and Ngo also contend (Pet. 39-40) that the district court lacked authority to order them deported under 18 U.S.C. 3583 (d) as a condition of supervised release and that the Court should grant review to resolve the split among the circuits on this issue. ---------------------------------------- Page Break ---------------------------------------- 17 We agree that a district court lacks authority under 18 U.S.C 3583 (d) to order petitioners deported as a condition of supervised release without recourse to the standards and procedures for determining deportability and relief from deportation under the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and implementing regulations. See U.S. Br. in Ogbomon v. United States, No. 95-8736, cert. dismissed as improvidently granted, 117 S. Ct. 725 (1997). 8 Review by the Court is not warranted, however, because the issue presented is of diminishing importance in light of the enactment of Section 304 (a) (3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-589 (to be codified at 8 U.S.C. 1230 (a) (3)). Section 304 (a) (3) adds to the INA a new Section 240 that states that, [u]nless otherwise specified in [the INA], a proceeding under this section 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. The INA does "otherwise specif[y]" that judicial orders of deportation are authorized in proceedings under the recently enacted, and even more recently amended and renumbered, Section 238 (c) of the INA. That Section, unlike 18 U.S.C. 3583 (d), includes detailed procedures requiring, inter alia, a recommendation from the INS on the alien's eligibility for relief ___________________(footnotes) 8 We are providing counsel for petitioners Vuong, Nguyen, and Ngo with copies of the pertinent briefs that we filed in that case. ------------------------------------ Page Break ---------------------------------------- 18 from deportation. The INA, however, does not "otherwise specif[y] " that the determination of the admission or removal of an alien is authorized in proceedings under Section 3583(d) of Title 18. Thus, the new provision of IIRAIRA supersedes the holding of the court of appeals in this case. As of April 1, 1997, when new Section 240 became effective, federal courts were ousted of any jurisdiction that they may have had, under the Eleventh Circuit's interpretation of 18 U.S.C. 3583(d), to determine whether an alien defendant should be deported. It follows that the legal issues presented in this case i.e., the authority of the sentencing court under Section 3583 (d) to enter a judicial order of deportation, and what notice and hearing would be required if such authority is exercised, will not recur in the same form after the April 1, 1997, effective date of IIRAIRA. That circumstance deprives the issues raised by petitioners of ongoing significance. 9 ___________________(footnotes) 9 The Court recently denied petitions for writs of certiorari in four other cases presenting the same issues. See Oboh v. United States, 117 S. Ct. 1257 (March 17, 1997); Bowen v. United States, 117 S. Ct. 1258 (March 17, 1997); Akamiokhor v. United States, 117 S. Ct. 1258 (March 17, 1997) ; Valdez-Mejia v. United States, 117 S. Ct. 1259 (March 17, 1997). The issue is also presented in Akujorobi v. United States, petition for cert. pending, No. 96-7740. ---------------------------------------- Page Break ---------------------------------------- 19 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General THOMAS M. GANNON Attorney MAY 1997