UNPUBLISHED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Affirmed as modified by unpublished per curiam opinion.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, Virginia, for Appellant. Paul J. McNulty, United States Attorney, Joseph

E. DePadilla, Assistant United States Attorney, Norfolk, Virginia, for

Appellee. 
Unpublished opinions are not binding precedent in this circuit.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 ordering that "once [he] has served the criminal sentence imposed by this

court, and any criminal sentence imposed by other courts of competent 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 prerequisites of 8 U.S.C.A. § 1228(c) (West 1999). We affirm with modification. 

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). 

2 UNITED STATES v. BROTHERTON
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 follows 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 circumstances for direct judicial deportation of aliens convicted of aggravated 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. 

UNITED STATES v. BROTHERTON 3
Accordingly, we affirm the judgment of the district court as modified. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process. 

AFFIRMED AS MODIFIED

4 UNITED STATES v. BROTHERTON