United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge
Floyd Wilson ("Wilson"), a federal inmate
proceeding pro se, filed a "request for modification of
supervised release conditions" pursuant to 18 U.S.C.
§ 3583(e)(2). ECF No. 120. For the reasons discussed
below, Wilson's motion is denied with prejudice.
U.S.C. §3583 authorizes the court to "modify,
reduce, or enlarge the conditions of supervised release, at
any time prior to expiration or termination of the term
before modifying any conditions of supervised release, the
court must consider all the factors set forth in 18 U.S.C.
§ 3553(a). § 3583(e). The § 3553(a) factors
require the court to "consider general punishment issues
such as deterrence, public safety, rehabilitation,
proportionality, and consistency ...." United States
v. Lussier, 104 F.3d 32, 35 (2d Cir. 1997).
Conspicuously absent from the list of relevant considerations
is the legality of the condition. [... ] Subsection
3583(e)(2) on its face authorizes the court to modify
conditions of supervised release only when general punishment
goals would be better served by a modification. It does not
authorize the court to assess the lawfulness of a condition
of release. Other procedures, such as a direct appeal under
18 U.S.C. § 3742 or a collateral attack under 28 U.S.C.
§ 2255, are available to challenge the legality of a
condition of supervised release, as long as the requirements
of those procedures have been met.
Id.; See also United States v. McMahon. No.
99-4239, 2000 U.S. App. LEXIS 18182, at *12 (4th Cir. July
28, 2000) (stating that other means of challenging an illegal
sentence are "through direct appeal or, where
appropriate, a collateral attack under 28 U.S.C. §
case, Wilson alleges that the immigration condition of his
supervised release is an "illegal Judicial
banishment...." ECF No. 120, 2. Wilson argues that
"[c]ourts across the country have confirmed that
conditions, like the one currently being disputed ... are
illegal... ." Id. at 3. Therefore, Wilson
argues, the "[j]udgment should be modified to remove
that illegal condition." Id. at 4.
18 U.S.C. § 3583(e)(2) nor § 3553(a) allows the
court to modify a condition of supervised release because it
is illegal. So, Wilson's motion is procedurally defective
and must be dismissed.
Wilson's motion was not procedurally defective, however,
it must still be dismissed on substantive grounds. 18 U.S.C.
§ 3583(d) states: "[i]f 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." Section 3583(d) allows "courts to add
as a condition of supervised release deportation by the INS
of defendants who are deportable, " but it does not
allow courts to "order deportation directly...
." United States v. Brotherton. 33
Fed.Appx. 78, 79 (4th Cir. 2002) (Citing United States v.
Xiang. 77 F.3d 771, 772 (4th Cir. 1996)).
Xiang, the District Court for the Eastern District of North
Carolina ordered a defendant to be deported as a condition of
his supervised release. 77 F.3d 771, 772 (4th Cir. 1996). The
district court also ordered the defendant to be
"delivered to a duly authorized immigration official for
deportation" and "[i]f deported by the Immigration
and Naturalization Service, the defendant [was ordered] not
[to] illegally reenter the United States during the period of
supervised release." Id. On appeal, the
defendant argued that the district court's order
"arrogate[d] the executive power vested in the Attorney
General to determine [his]
IcL The government argued that the district court
"merely provide[d] for the Immigration and
Naturalization Service (INS) to decide whether or not to
order the appellant's deportation." Id. The
Fourth Circuit stated "[w]hile the district court did
order the defendant's deportation as a condition of
supervised release, it also recognized that the court itself
would not accomplish the deportation because it ordered the
delivery of the defendant 'to a duly authorized
immigration official for deportation.'" Id.
at 773. Only then did the Fourth Circuit proceed to modify
the language in the district court's order to
"eliminate any ambiguity." Id.
case, the contested immigration condition states:
Upon completion of his term of imprisonment, the defendant is
to be surrendered to a duly authorized Immigration official
for deportation in accordance with the . established
procedures provided by the Immigration and Naturalization
Act., Title 8, U.S.C. Section 1101. As a further condition of
supervised release, the defendant shall remain outside the
74, 4. Like the condition in Xiang, this condition
contemplates Wilson's transfer to the proper immigration
authority. When the two sentences are read together, the
second sentence is contingent on a finding by that authority
that Wilson be deported. So, a plain reading of the condition
as a whole reveals that the court did not order Wilson
directly deported. Rather, the court ordered Wilson to be
surrendered to the proper immigration authority and, if
deported, to remain outside of the United ...