United States of America v. Sekou Fofana

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0394n.06
No. 09-6471
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SEKOU FOFANA,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE
Before: COOK, MCKEAGUE, and GRIFFIN, Circuit Judges.
COOK, Circuit Judge. After Sekou Fofana violated the terms of his supervised release, the
district court sentenced him to thirty months’ imprisonment followed by thirty-six months’
supervised release. Fofana now appeals, claiming that the district court (1) issued a sentence that
exceeded the statutory maximum and (2) violated his due process rights by sentencing him more
harshly based on his alien status. For the following reasons, we vacate his supervised-release1
sentence and remand for resentencing.
In his brief, Fofana additionally claimed that the district court issued a substantively1
unreasonable sentence. But because his incarceration ended prior to oral argument, Fofana has
conceded that this argument is moot. See United States v. Brown, --- F.3d ----, 2011 WL 1843377,
at *1 (6th Cir. May 17, 2011).

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No. 09-6471
USA v. Fofana
I.
Illegal alien Sekou Fofana pleaded guilty to participating in a “black money” scheme in
violation of 18 U.S.C. § 514. The district court sentenced him to six months’ imprisonment and2
five years’ supervised release.
At the conclusion of Fofana’s prison term, authorities released him into the custody of
Immigration and Customs Enforcement (ICE). Pending a deportation hearing, ICE released Fofana
on bond; he was supposed to report to probation within seventy-two hours to begin his supervised
release. He did not report until a year later—after probation issued a follow-up notice—and then
received instructions regarding the conditions of his supervised release. Fofana then failed to call
the probation office to learn which officer it had assigned to him. Efforts to reach Fofana proved
futile. Fofana’s officer could not reach him via telephone and, upon investigating his purported
residence, discovered an unopened letter she had sent him. A woman at the residence denied that
Fofana lived there.
During his release, authorities arrested Fofana in Harrisburg, Pennsylvania—outside the
Eastern District of Pennsylvania, which he was not supposed to leave without permission—for
engaging in a fraudulent scheme similar to that which led to his initial conviction. Following
A “black money” scheme typically involves presenting the potential victim with stacks of2
paper (and a few pieces of actual money) dyed black. The perpetrator claims that the money was
dyed black to allow it to be smuggled into the United States without intervention from the
authorities. The perpetrator then offers to sell the victim the money, along with chemicals to remove
the dye.
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Fofana’s arrest, he contacted his probation office in Pennsylvania; the office “denied his case” and
refused to supervise him.
The probation office filed a petition claiming that Fofana violated the terms of his supervised
release by failing to (1) surrender to probation following his release by ICE; (2) follow his probation
officer’s instructions; (3) obtain permission before leaving the Eastern District of Pennsylvania; and
(4) notify his probation officer within seventy-two hours of his arrest. Probation later amended its
petition to add an allegation that Fofana also violated his supervised-release terms by engaging in
the additional fraudulent scheme.
At his revocation hearing, Fofana refused to concede the factual allegations relating to his
Harrisburg conduct. The government agreed to proceed based only on the other four alleged
violations of his supervised release, which resulted in a guidelines range of three to nine months’
imprisonment. The government recommended a twenty-four-month sentence. The district court
sentenced Fofana to thirty months’ imprisonment and thirty-six months’ supervised release. Fofana
now appeals his sentence.
II.
A.
Fofana first contends—and the government agrees—that, in imposing a sentence of thirty
months’ incarceration followed by thirty-six months’ supervised release, the district court erred by
imposing a sentence greater than that authorized by statute. Under 18 U.S.C. § 3583(h),
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No. 09-6471
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[w]hen a term of supervised release is revoked and the defendant is required to serve
a term of imprisonment, the court may include a requirement that the defendant be
placed on a term of supervised release after imprisonment. The length of such a term
of supervised release shall not exceed the term of supervised release authorized by
statute for the offense that resulted in the original term of supervised release, less any
term of imprisonment that was imposed upon revocation of supervised release.
(emphasis added). 18 U.S.C. § 514—a class B felony and “the offense that resulted in the original
term of supervised release”—permits a maximum term of supervised release of sixty months. See
18 U.S.C. § 3583(b). By sentencing Fofana to a total of sixty-six months’ imprisonment and
supervised release, the district court unlawfully surpassed this limitation, necessitating remand. See
Brown, 2011 WL 1843377, at *2–3 (vacating defendant’s supervised-release sentence where district
court failed to heed limitation on length of supervised release imposed by 18 U.S.C. § 3583(h)).
B.
Fofana next claims that the district court violated his Fifth Amendment due process rights
by sentencing him more harshly based on his alien status. We ordinarily review constitutional
challenges to a sentence de novo, United States v. Graham, 622 F.3d 445, 452 (6th Cir. 2010), cert.
denied, --- S.Ct. ----, 2011 WL 742644 (June 6, 2011) (No. 10-9261), unless the defendant did not
register his objection before the district court, in which case plain-error review applies, see United
States v. Hall, 411 F.3d 651, 653 (6th Cir. 2005). Here, Fofana failed to object at his sentencing
hearing. The district court failed, however, to provide Fofana with an opportunity to lodge specific
objections after announcing the sentence but before adjourning the sentencing hearing, as required
by United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004). Although not conclusively
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No. 09-6471
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determined by this circuit, cases since Bostic suggest that this requirement is applicable only to
objections regarding error in the sentencing procedure. See, e.g., United States v.
Freeman, --- F.3d ----, 2011 WL 1226091, at *4 (6th Cir. Apr. 4, 2011); United States v. Vonner,
516 F.3d 382, 385 (6th Cir. 2008) (en banc). If, in fact, Bostic does not apply to constitutional
claims, Fofana’s failure to object would result in plain error-review of Fofana’s claim, regardless of
the court’s own failure to comply with the Bostic requirement. On the other hand, if Bostic does
apply to constitutional claims, we would review Fofana’s claim de novo. Because Fofana’s claim
fails under either standard of review, we decline to decide here which applies.
Summoning precedent from other circuits, Fofana posits that increasing a defendant’s
sentence based on his alien status violates his due process rights. See United States v.
Garcia-Cardenas, 242 F. App’x 579, 583 (10th Cir. 2007) (“Sentencing a defendant more harshly
because of his alien status violates the defendant’s constitutional right to due process.”); United
States v. Gomez, 797 F.2d 417, 419 (7th Cir. 1986) (noting that treating defendants more harshly
based on their nationality or alien status “obviously would be unconstitutional”).
We need not determine whether to adopt this stance in our circuit because the transcript lacks
evidence that the district court increased Fofana’s sentence based on his alien status. The court
granted an upward variance based on the 18 U.S.C. § 3553(a) factors of retribution, general
deterrence, and incapacitation. With respect to incapacitation, which the court described as the
“main” factor, the court noted that,
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No. 09-6471
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if Mr. Fofana is not in custody, . . . he’s going to be involved in criminal activities.
The Court is unable to rely upon the Immigration Service in keeping the defendant
in custody. So the Court is going to go outside of the guideline range to impose a
higher sentence. And the Court would encourage the Immigration Service, during
this time period, to initiate deportation proceedings while he’s still in federal custody.
The court focused on averting additional criminal conduct by incapacitating Fofana. Recognizing
that Immigration Services may not keep Fofana in custody does not suggest that Fofana received a
harsher sentence than he would have were he a legal resident.
Fofana grasps at other instances where the court mentioned his alien status, but these too fail
him. In some instances, the court did no more than acknowledge Fofana’s alien status and its
surprise that Fofana had not already been deported. See Gomez, 797 F.2d at 419 (“[T]he sentencing
judge [need not] shut his eyes to the reality of the factual situation before him and pretend that the
defendant is not an illegal alien . . . .”). In other instances, the court alluded to its previous
imposition of a lenient sentence because it believed Fofana would be deported. See United States
v. Jabi, No. 09-3643, 2011 WL 1042564, at *4 (6th Cir. Mar. 23, 2011) (“[T]he fact that [the
defendant] will be deported after serving his sentence could counsel toward a shorter
sentence . . . .”). Finally, the court noted its willingness to terminate Fofana’s incarceration early if
immigration initiated deportation. See United States v. Molina, 563 F.3d 676, 679 n.3 (8th Cir.
2009) (noting that court could consider the effects of defendant’s eventual deportation in connection
with the statutory sentencing factors). In none of these instances does the court suggest that it
sentenced Fofana more harshly due to his alien status.
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No. 09-6471
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III.
For the above reasons, we vacate Fofana’s supervised-release sentence and remand for
resentencing.
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