United States Court of Appeals,

Eleventh Circuit.

No. 94-8154.

UNITED STATES of America, Plaintiff-Appellee,

v.

Henry Olushola OBOH, aka Henry Osa Omoboh, aka James Clark, aka

Derick Forest, Defendant-Appellant.

Sept. 29, 1995.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:93-00318-CR-1), Richard C. Freeman,

Judge.

Before BIRCH and BARKETT, Circuit Judges, and HENDERSON, Senior

Circuit Judge.

BARKETT, Circuit Judge:

Henry Olushola Oboh ("Oboh") appeals from an order of

deportation which the district court entered at the conclusion of

Oboh's sentencing hearing pursuant to a guilty plea. Both Oboh and

the government ask us to overrule our decision in United States v.

Chukwura, 5 F.3d 1420 (11th Cir.1993), cert. denied, --- U.S. ----,

115 S.Ct. 102, 130 L.Ed.2d 51 (1994), in which we held that 18

U.S.C. § 3583(d) authorizes a district court to order, as a

condition of supervised release, the deportation of an alien

defendant. Chukwura, 5 F.3d at 1424. In the alternative, Oboh

argues that even if we decline to reject Chukwura, we should vacate

the deportation order because he did not have an opportunity to

defend against the threshold claim that he was subject to

deportation pursuant to 8 U.S.C. § 1251. Because a panel cannot
 1

Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir.1981) (en banc) (prior decision of Eleventh Circuit, panel or

en banc, cannot be "overruled by a panel but only by the court

sitting en banc"). 

 2That portion of § 3583(d) dealing with aliens provides: 

"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

deportation." 

overturn one of this Court's prior decisions,1 Chukwura continues

to control, and accordingly we must find that the district court

had authority to order Oboh deported. However, we vacate the

deportation order and remand this action so that Oboh may have an

opportunity to contest his deportability before the district court.

In Chukwura, this Court rejected the contention that § 3583(d)

merely allows a district court to order a defendant who has

completed a custodial sentence to be surrendered to the Immigration

and Naturalization Service ("INS"), holding instead that the

section authorizes a district court to independently order, as a

condition of supervised release, the deportation of an alien

defendant subject to deportation. 2

 Chukwura, 5 F.3d at 1423.

While Chukwura's certiorari petition was pending before the Supreme

Court, the Solicitor General admitted error and agreed with

Chukwura that both the government and the court had misread §

3583(d). Both Chukwura and the Solicitor General contended that

the statute does not authorize the district court to order the

deportation of an alien defendant unless the court's order provides

that the INS carry out the deportation pursuant to the

administrative procedures which the Immigration and Naturalization

Act ("INA") has established. The Supreme Court, however, denied
certiorari, 115 S.Ct. 102 (1994), leaving the government to make

its argument in the instant proceeding.

 Both Oboh and the government contend that this Court should

apply the analysis of United States v. Sanchez, 923 F.3d 236, 237-

38 (1st Cir.1991), in which the First Circuit read § 3583(d) in

pari materia with the provisions of the INA. The Sanchez

interpretation, which the Fifth Circuit recently adopted in United

States v. Quaye, 57 F.3d 447, 449-51 (5th Cir.1995), is that §

3583(d) merely provides a means by which a district court may order

that an alien defendant subject to deportation "be surrendered to

immigration officials for deportation proceedings under the

Immigration and Naturalization Act," after which he is "entitled to

whatever process and procedures are prescribed by and under the

Immigration and Naturalization Act." Sanchez, 923 F.3d at 237.

Both parties in the instant case assert that the Sanchez

interpretation is consistent with the overall scheme which Congress

developed to deal with questions concerning immigration law, for

"the power to expel or exclude aliens [is] a fundamental sovereign

attribute exercised by the Government's political departments

largely immune from judicial control." Shaughnessy v. Mezei, 345

U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953). Moreover,

as the Fifth Circuit in Quaye recognized, any other reading of §

3583(d) "would permit district courts to deport any deportable

aliens without affording them any procedural safeguards," with the

exception of those aliens deportable pursuant to 8 U.S.C. §

1251(a)(2)(A), that is, those convicted of crimes of moral

turpitude or aggravated felonies. Quaye, 57 F.3d at 450. The
 3

Oboh pled guilty to producing false drivers' licenses, in

violation of 18 U.S.C. § 1028(a)(1). 

inapposite result of judicial deportation is that aliens convicted

of particularly heinous crimes receive, pursuant to the 1994

amendment of 8 U.S.C. § 1252a(d), "more expansive procedural

checks, including the requirement that the U.S. Attorney must

request deportation and that the Commissioner [of the INS] must

concur." Quaye, 57 F.3d at 450. Nonetheless, we are bound by

precedent. Because this Court in Chukwura found that a district

court has the authority to order deportation, only the Court

sitting en banc may now hold otherwise.

 Notwithstanding the district court's authority under Chukwura

to order Oboh's deportation, Oboh argues that he was never given

notice or opportunity to present either evidence or argument that

he was not subject to deportation at his sentencing hearing.3

 It

was not until the end of the sentencing hearing, when the district

court ordered Oboh to be deported, that he was made aware of any

possible deportation. Neither the portion of the probation

officer's presentence report which Oboh received nor any

governmental action indicated that the subject of his deportability

would be taken up at his sentencing. We find that Oboh was not

afforded adequate notice or opportunity at his sentencing hearing

to respond to the probation officer's recommendation that he be

deported. In fact, it appears that Oboh was never even made aware

of the basis for the recommendation. Absent such a finding, the

district court did not properly order deportation pursuant to §

3583(d).
AFFIRMED in part; VACATED in part; and REMANDED.