* District Judge of the Eastern District of Texas, sitting by

designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-10191

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SAMWILLIAM AYI QUAYE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

(June 21, 1995)

Before HIGGINBOTHAM and PARKER, Circ uit Judges, and BROWN *

, District Judge.

HIGGINBOTHAM, Circuit Judge:

Samwilliam Quaye pled guilty to making false statements on

immigration documents and education grant program applications.

T he district court sentenced him to ten months incarceration and

ordered him deported as a condition of his supervised release.

Q uaye appeals. We must decide the statutory authority of a

federal court to order the deportation of an alien and the amount

of loss caused by Quaye.2 I.

Quaye argues that the district court erred in increasing his

o ffense level under U.S.S.G. § 2F1.1(b)(1)(D) based on a finding

that he caused losses of over $10,000. Quaye argues that had the

court fou nd he caused a loss of less than $10,000, he would have

had a lower offense level under U.S.S.G. § 2F1.1(b)(1)(C), which,

combined with his criminal history category I, would have capped

his sentence at six months. Quaye has been in custody since

September 16, 1994. We granted an expedited appeal.

Application Note 7(b) to U.S.S.G. § 2F1.1 provides that "[i]n

fraudulent loan application cases

. . . the loss is the actual loss

to th e victim . . . However, where the intended loss is greater

than the actual loss, the intended loss is to be used." Quaye

received $10,504 in loans, which was reduced by $1,065 when he

dropped some of his courses for the 1992-93 acade mic year. He

would probably have received $6,025 for the upcoming third year had

his false statements not been detected.

Quaye argues that he intended to repay the money. The

government argues that Quaye had no such intent. The district

court failed to make a finding as to whether Quaye would pay back

the loans; instead, it appears to have rested its sen tencing

decision on the finding that Quaye intended to receive the final

loans. Without a finding that Quaye did not intend to repay the

loans, we must vacate the portion of Quaye's sentence increasing

his offense level by three levels under U.S.S.G. § 2F1.1(b)(1)(D).3

We remand to the district court to calculate Quaye's sentence and

order his release if he has served the sentence, as recalculated.

In this new calculation, his sentence can be increased by no more

than two levels under U.S.S.G. § 2F1.1(g)(1)(c).

II.

Quaye also a rgues that the district court erred in ordering

him deported under 18 U.S.C. § 3583(d). In relevant part, § 3583

provides that "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

depor tation." Quaye argues that the district court exceeded its

author ity in ordering him deported as a condition of supervised

release. We have not spoken on this question, and the Eleventh

Circuit and First Circuit are split.

The Eleventh Circuit supports the district court's view. In

United States v. Chukwura

, 5 F.3d 1420, 1423 (11th Cir. 1993),

cert. denied

, 115 S. Ct. 102 (1994), the Eleventh Circuit held that

the plain language of § 3583(d) gave district courts the power to

order a defendant deported as a condi tion of supervised release.

T he court held that § 3583(d) did not intrude upon th e INS's

authority to deport resident aliens because the INS still retains

the power to carry out deportations. See id. at 1423.

We di sagree and subscribe to the First Circuit's

interpretation of § 3583(d). In U nited States v. Sanchez

, 923 F.2d1 The Supreme Court has denied certiorari in that case. S ee

115 S. Ct. 102 (1994).

4 236, 237 (1st Cir. 1991) (per curiam), the First Circuit held that

§ 3583(d)

simply permits the sentencing cou rt 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 Naturalization Act. In other words,

following appellant's surrender to Im migration

authorit i es, he is entitled to whatever process and

procedures are prescribed by and unde r the Immigration

and Naturalization Act for one in appellant's

circumstances, for the purpose of determining whether he

is "an alien defendant . . . subject to deportation."

The Solicitor General has supported the position of Quaye and

the First Circuit in a brief in support of a grant of certiorari in

Chukwura

. 1 The text of § 3583(d), the Solicitor General argued,

authorizes district courts to "provide," not "order," that an alien

be deported and remain outside of the United States. Congress used

the verb "ord er" elsewhere in Section 3583(d), implying that its

choice of the verb "provide" was intentional here.

Section 3583(d)'s language authorizing deportation "as a

condition of supervised release" also favors the First Ci rcuit's

interpretation, the Solicitor General argued. Under this

reasoning, if the Attorney Genera l did not order a defendant

deported, the condition of supervised release would fail, and the

court could revoke his supervised release. The court could not,

under this interpretation, order the Attorney General to deport the

defendant if she chose not to do so.5

The Solicitor General further argued that h is reading would

leave meaning for § 3583(d); that otherwise, deportation under the

INA could conflict with the standard provision of sup ervised

release that the defendant not leave the judicial district without

permission of the court or probation officer. Section 3583(d)

prevents any such conflict by authorizing the court to permit the

Attorney General to deport defendant during his term of supervised

release.

The First Circuit's interpretation of § 3583(d) also preserves

Congress's long tradi tion of granting the Executive Branch sole

power to institute deportation proceedings against aliens. We are

unwilling to conclude that Congress intended to undermine t hat

executive prerogative sub silentio in § 3583(d), or that Congress

intended by its silence to deprive aliens deported at sentencing of

such relief as alien asylum, which the Attorney General may grant.

We insist on greater clarity of purpose when a statute would

be read to upset a status qu o long in place. Indeed, here, the

history of this statute is a powerful argument that Congress never

intended to alter this traditional allocation of power between the

Article II and Article III branches of government. Section

3583(d)'s predecessor, enacted in 1931, provided that

where a Federal prisoner is an alien and subject to

deportation the board of parole may authorize the release

of such prisoner after he shall have become eligible for

parole on condition that he be de ported and remain

outsi de of the United States and all places subject to

its jurisdiction, and upon such parole becoming effective

said prisoner shall be delivered to the duly authorized

immigration official for deportation.

Law of Mar. 2, 1931, ch. 371, 46 Stat. 1469.6

The 1931 Act permitted deportation of an alien prisoner in

spite of the then-current parole rule that demanded that a prisoner

remain within the court jurisdiction. Far from empowering the

Parole Board to usurp the Executive Branch's deportation power, the

1931 Act only provided a means by which an alien could be deported

upon parole. § 3583(d), the present codification of its

predecessor, paves the way for Executive Branch depor tation

proceedings; it does not permit courts to order deportation alone.

But , the phrasing of the modern version has caused some

confusion. In apparent response, Congress amended 8 U.S.C.

§ 1252a(d) in 1994 to read:

(1) Authority

Notwithstanding any other provision of this chapter,

a United States district court shall have jurisdiction to

enter a judicial order of deportation at the time of

sentencing against an alien whose criminal conviction

causes such alien to be deportable under section

1251(a)(2)(A) of th is title, if such an order has been

requested by the United States Attorney with the

concurrence of the Commissioner and if the court chooses

to exercise such jurisdiction.

Under the 1 994 amendment, the district court may order

deportation only "if such an order has been requested by the United

States Attorney." The U.S. Attorney did not make such a request

here, and it is not applicable here.

Although the government concedes that the Solicitor General's

argument has force, the prosecution argues in the alternative that

the 1994 amendment provides a kind of retroactive legislative

history, demonstrating that "Congress intended District Courts to

have deportation power over convicted aliens in certain2 The 1994 amendment applies only to those aliens deportable

under 8 U.S.C. § 1251(a)(2)(A); that is, those convicted of crimes

of moral turpitude, tho se with multiple criminal convictions

involving moral turpitude, or tho se convicted of an aggravated

felony.

7 circumstances and that Congress has now provided the procedure for

such a deportation to be achieved."

However, the retroactive legislative history can be read the

other way just as easily. The fact that Congress gave the district

courts the power to order deportations in 1994 could illustrate

that Congress believed that the district courts lacked that power

before the am endment. Further, reading the 1994 amendment to

overlay a congressional underst anding that district courts may

order d eportations would create an extraordinary set of rules.

Section 3583(d) would per mit district courts to deport any

deportable aliens without affording them any procedural safeguards,

but the 1994 amendment would protect deportable aliens convicted of

particularly heinous crimes 2 with more expansive procedural checks,

including the requirement that the U.S. Attorney must request

deportation and that the Commissioner must concur.

We are persuaded by the arguments of the Solicitor General and

t he reasoning of the First Circuit. We hold that the district

court exceeded its statutory power under § 3583(d) in ordering

Quaye deported as a condition of supervised release. Because the

1994 amendment does not apply here, w e adopt the language of the

First Circ uit in Sanchez , 923 F.2d at 238, and ORDER that the

judgment below to be amended as follows:8

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 the established procedures

provided by the Immigration a nd Naturalization Act, 8

U.S.C. §§ 1101 et seq

. As a further condition of

supervised release, if ordered deported, defendant shall

remain outside the United States.

We VACATE the portion of Quaye's sentence base d upon U.S.S.G.

§ 2F1.1(b)(1)(D), holding that his sentence can b e increased by

only two levels under U.S.S.G. § 2F1.1(b)(1)(C), and REMAND to

allow the district court to recalculate Quaye's sentence.

VACATED in part, MODIFIED in part, and REMANDED.