United States of America v.  VIVIAN MALONE BROTHERTON, a/k/a Eric Blassingame

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4825 
VIVIAN MALONE BROTHERTON, a/k/a
Eric Blassingame,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-95-29-2)
Submitted: March 28, 2002
Decided: April 22, 2002
Before TRAXLER and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed as modified by unpublished per curiam opinion.
COUNSEL
James O. Broccoletti, ZOBY & BROCCOLETTI, P.C., Norfolk, Vir-
ginia, for Appellant. Paul J. McNulty, United States Attorney, Joseph
E. DePadilla, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Vivian Malone Brotherton appeals a district court’s order revoking
his supervised release, imposing a twelve-month sentence, and order-
ing that "once [he] has served the criminal sentence imposed by this
court, and any criminal sentence imposed by other courts of compe-
tent jurisdiction, he shall be immediately deported by the Immigration
and Naturalization Service, if he has not already been deported." On
appeal, Brotherton argues that the district court did not have authority
to order his deportation without complying with the procedural pre-
requisites of 8 U.S.C.A. § 1228(c) (West 1999). We affirm with mod-
ification.
Because Brotherton failed to object during the supervised release
violation hearing, we review for plain error. Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725 (1993) (to obtain reversal on
issues not preserved for review, defendant must show error that was
plain, affected substantial rights, and seriously affected the fairness,
integrity, or public reputation of judicial proceeding).
Section 3583(d) of Title 18 provides in pertinent part:
If 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.
18 U.S.C.A. § 3583(d) (West Supp. 2001).1 In United States v. Xiang,
77 F.3d 771, 772 (4th Cir. 1996), we held that Congress intended to
1Brotherton is a deportable alien under 8 U.S.C.A. § 1227(a)(2)(A)
(i)(II) (West 1999).
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permit courts to add as a condition of supervised release deportation
by the INS of defendants who are deportable, but authorized district
courts only to order that the defendant be delivered to the INS. We
further emphasized that the statute does not authorize the court itself
to order deportation directly, but that the INS must accomplish the
deportation under its established procedures and the court only orders
delivery of the defendant to the INS for that purpose. Id. at 772-73.
In Xiang, we modified the district court’s order to make clear that the
district court was not directly ordering deportation. To eliminate any
ambiguity in this case, we modify the district court’s judgment as fol-
lows to conform with the language approved in Xiang:
As a condition of supervised release, upon completion of his
term of imprisonment, the defendant is to be surrendered to
a duly-authorized immigration official for deportation in
accordance with established procedures provided by the
Immigration and Naturalization Act, 8 U.S.C. § 1101 et seq.
As a further condition of supervised release, if ordered
deported, the defendant shall remain outside the United
States.
Brotherton’s reliance on 8 U.S.C.A. § 1228(c) is misplaced. In
enacting 8 U.S.C.A. § 1228(c), Congress provided in limited circum-
stances for direct judicial deportation of aliens convicted of aggra-
vated felonies.2 It is only under this circumstance that the district
court must observe specific procedural safeguards. Xiang, 77 F.3d at
773. This statute is clearly inapplicable to Brotherton’s case.
To be clear, Brotherton is assured to receive the proper procedural
safeguards by the INS under 8 U.S.C.A. § 1229 (West 1999) because
the district court is not directly ordering Brotherton’s deportation, but
rather surrendering him to the INS who will seek deportation under
the clearly established procedures. See Xiang, 77 F.3d at 773 (the
exception created in 8 U.S.C.A. § 1228(c) would be meaningless if 18
U.S.C.A. § 3583(d) could be read to authorize judicial deportation for
lesser crimes without any procedural safeguards).
2The relevant provisions of 8 U.S.C. § 1252(a) were reclassified as 8
U.S.C.A. § 1228(c) in 1996.
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Accordingly, we affirm the judgment of the district court as modi-
fied. We dispense with oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED AS MODIFIED
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