Condamnation de Moumouni Dieguimdé aux Etats-Unis : Ce qu’en dit un journal américain

UNITED STATES of America, Plaintiff-Appellee, v. Moumouni DIEGUIMDE, Defendant-Appellant.

No. 97-4366.
Decided : August 19, 1997
Before ANDERSON and BIRCH, Circuit Judges, and WOODS , Senior District Judge.* Dawn Bowen,Richard Scruggs, Adalberto Jordan, Asst. U.S. Atty., Miami, FL, for Plaintiff-Appellee. Donnal S. Mixon, Miami, FL, for Defendant-Appellant.
Appellant Moumouni Dieguimde pleaded guilty to paying an illegal gratuity in violation of 18 U.S.C. § 201(c)(1)(A).   At sentencing, the district judge ordered Dieguimde deported as a condition of supervised release.   In so doing, the district judge relied on our en banc decision in United States v. Oboh, 92 F.3d 1082 (11th Cir.1996), cert. denied, 520 U.S. 1121, 117 S.Ct. 1257, 137 L.Ed.2d 337 (1997), where we held that 18 U.S.C. § 3583(d) authorizes a district judge to order, as a condition of supervised release, the deportation of a defendant who is “subject to deportation.”   On appeal, Dieguimde argues that he is not “subject to deportation” because the crime of which he was convicted was not a crime of moral turpitude committed within five years after the date of entry.   See 8 U.S.C. § 1251(a)(2)(A)(i) (defining aliens convicted of such crimes as “deportable”).1  Dieguimde further argues that the sentencing judge should not have exercised his discretion to deport because Dieguimde fears political persecution should he return to his native country and has a petition for asylum pending with the INS.

The appellee United States agrees with appellant that the district judge erred in ordering deportation.   The government argues that our decision in Oboh is no longer good law in light of recent amendments enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA).2  See 8 U.S.C. § 1229a(a)(3).   According to the United States, although § 1229a(a)(3) did not take effect until after appellant’s sentencing, the provision is purely jurisdictional and should therefore be applied to pending cases.   Even assuming Oboh remains good law, the United States argues that Dieguimde cannot be “subject to deportation” under Oboh because his immigration status renders him a candidate for exclusion rather than deportation.3  Finally, the United States, like Dieguimde, argues that the district judge should not have exercised his discretion under Oboh in light of Dieguimde’s pending asylum petition and the claims of persecution underlying that petition.