                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0394n.06

                                           No. 09-6471

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                   Jun 10, 2011
UNITED STATES OF AMERICA,                        )                           LEONARD GREEN, Clerk
                                                 )
       Plaintiff-Appellee,                       )
                                                 )   ON APPEAL FROM THE UNITED
v.                                               )   STATES DISTRICT COURT FOR THE
                                                 )   EASTERN DISTRICT OF TENNESSEE
SEKOU FOFANA,                                    )
                                                 )
       Defendant-Appellant.                      )




       Before: COOK, MCKEAGUE, and GRIFFIN, Circuit Judges.


       COOK, Circuit Judge. After Sekou Fofana violated the terms of his supervised release, the

district court sentenced him to thirty months’ imprisonment followed by thirty-six months’

supervised release. Fofana now appeals, claiming that the district court (1) issued a sentence that

exceeded the statutory maximum and (2) violated his due process rights by sentencing him more

harshly based on his alien status.1 For the following reasons, we vacate his supervised-release

sentence and remand for resentencing.




       1
         In his brief, Fofana additionally claimed that the district court issued a substantively
unreasonable sentence. But because his incarceration ended prior to oral argument, Fofana has
conceded that this argument is moot. See United States v. Brown, --- F.3d ----, 2011 WL 1843377,
at *1 (6th Cir. May 17, 2011).
No. 09-6471
USA v. Fofana


                                                 I.


       Illegal alien Sekou Fofana pleaded guilty to participating in a “black money” scheme in

violation of 18 U.S.C. § 514.2 The district court sentenced him to six months’ imprisonment and

five years’ supervised release.


       At the conclusion of Fofana’s prison term, authorities released him into the custody of

Immigration and Customs Enforcement (ICE). Pending a deportation hearing, ICE released Fofana

on bond; he was supposed to report to probation within seventy-two hours to begin his supervised

release. He did not report until a year later—after probation issued a follow-up notice—and then

received instructions regarding the conditions of his supervised release. Fofana then failed to call

the probation office to learn which officer it had assigned to him. Efforts to reach Fofana proved

futile. Fofana’s officer could not reach him via telephone and, upon investigating his purported

residence, discovered an unopened letter she had sent him. A woman at the residence denied that

Fofana lived there.


       During his release, authorities arrested Fofana in Harrisburg, Pennsylvania—outside the

Eastern District of Pennsylvania, which he was not supposed to leave without permission—for

engaging in a fraudulent scheme similar to that which led to his initial conviction. Following




       2
         A “black money” scheme typically involves presenting the potential victim with stacks of
paper (and a few pieces of actual money) dyed black. The perpetrator claims that the money was
dyed black to allow it to be smuggled into the United States without intervention from the
authorities. The perpetrator then offers to sell the victim the money, along with chemicals to remove
the dye.

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No. 09-6471
USA v. Fofana


Fofana’s arrest, he contacted his probation office in Pennsylvania; the office “denied his case” and

refused to supervise him.


       The probation office filed a petition claiming that Fofana violated the terms of his supervised

release by failing to (1) surrender to probation following his release by ICE; (2) follow his probation

officer’s instructions; (3) obtain permission before leaving the Eastern District of Pennsylvania; and

(4) notify his probation officer within seventy-two hours of his arrest. Probation later amended its

petition to add an allegation that Fofana also violated his supervised-release terms by engaging in

the additional fraudulent scheme.


       At his revocation hearing, Fofana refused to concede the factual allegations relating to his

Harrisburg conduct. The government agreed to proceed based only on the other four alleged

violations of his supervised release, which resulted in a guidelines range of three to nine months’

imprisonment. The government recommended a twenty-four-month sentence. The district court

sentenced Fofana to thirty months’ imprisonment and thirty-six months’ supervised release. Fofana

now appeals his sentence.


                                                  II.


                                                  A.


       Fofana first contends—and the government agrees—that, in imposing a sentence of thirty

months’ incarceration followed by thirty-six months’ supervised release, the district court erred by

imposing a sentence greater than that authorized by statute. Under 18 U.S.C. § 3583(h),

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No. 09-6471
USA v. Fofana


       [w]hen a term of supervised release is revoked and the defendant is required to serve
       a term of imprisonment, the court may include a requirement that the defendant be
       placed on a term of supervised release after imprisonment. The length of such a term
       of supervised release shall not exceed the term of supervised release authorized by
       statute for the offense that resulted in the original term of supervised release, less any
       term of imprisonment that was imposed upon revocation of supervised release.


(emphasis added). 18 U.S.C. § 514—a class B felony and “the offense that resulted in the original

term of supervised release”—permits a maximum term of supervised release of sixty months. See

18 U.S.C. § 3583(b). By sentencing Fofana to a total of sixty-six months’ imprisonment and

supervised release, the district court unlawfully surpassed this limitation, necessitating remand. See

Brown, 2011 WL 1843377, at *2–3 (vacating defendant’s supervised-release sentence where district

court failed to heed limitation on length of supervised release imposed by 18 U.S.C. § 3583(h)).


                                                  B.


       Fofana next claims that the district court violated his Fifth Amendment due process rights

by sentencing him more harshly based on his alien status. We ordinarily review constitutional

challenges to a sentence de novo, United States v. Graham, 622 F.3d 445, 452 (6th Cir. 2010), cert.

denied, --- S.Ct. ----, 2011 WL 742644 (June 6, 2011) (No. 10-9261), unless the defendant did not

register his objection before the district court, in which case plain-error review applies, see United

States v. Hall, 411 F.3d 651, 653 (6th Cir. 2005). Here, Fofana failed to object at his sentencing

hearing. The district court failed, however, to provide Fofana with an opportunity to lodge specific

objections after announcing the sentence but before adjourning the sentencing hearing, as required

by United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004). Although not conclusively



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No. 09-6471
USA v. Fofana


determined by this circuit, cases since Bostic suggest that this requirement is applicable only to

objections regarding error in the sentencing procedure.              See, e.g., United States v.

Freeman, --- F.3d ----, 2011 WL 1226091, at *4 (6th Cir. Apr. 4, 2011); United States v. Vonner,

516 F.3d 382, 385 (6th Cir. 2008) (en banc). If, in fact, Bostic does not apply to constitutional

claims, Fofana’s failure to object would result in plain error-review of Fofana’s claim, regardless of

the court’s own failure to comply with the Bostic requirement. On the other hand, if Bostic does

apply to constitutional claims, we would review Fofana’s claim de novo. Because Fofana’s claim

fails under either standard of review, we decline to decide here which applies.


       Summoning precedent from other circuits, Fofana posits that increasing a defendant’s

sentence based on his alien status violates his due process rights.           See United States v.

Garcia-Cardenas, 242 F. App’x 579, 583 (10th Cir. 2007) (“Sentencing a defendant more harshly

because of his alien status violates the defendant’s constitutional right to due process.”); United

States v. Gomez, 797 F.2d 417, 419 (7th Cir. 1986) (noting that treating defendants more harshly

based on their nationality or alien status “obviously would be unconstitutional”).


       We need not determine whether to adopt this stance in our circuit because the transcript lacks

evidence that the district court increased Fofana’s sentence based on his alien status. The court

granted an upward variance based on the 18 U.S.C. § 3553(a) factors of retribution, general

deterrence, and incapacitation. With respect to incapacitation, which the court described as the

“main” factor, the court noted that,




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No. 09-6471
USA v. Fofana


        if Mr. Fofana is not in custody, . . . he’s going to be involved in criminal activities.
        The Court is unable to rely upon the Immigration Service in keeping the defendant
        in custody. So the Court is going to go outside of the guideline range to impose a
        higher sentence. And the Court would encourage the Immigration Service, during
        this time period, to initiate deportation proceedings while he’s still in federal custody.


The court focused on averting additional criminal conduct by incapacitating Fofana. Recognizing

that Immigration Services may not keep Fofana in custody does not suggest that Fofana received a

harsher sentence than he would have were he a legal resident.


        Fofana grasps at other instances where the court mentioned his alien status, but these too fail

him. In some instances, the court did no more than acknowledge Fofana’s alien status and its

surprise that Fofana had not already been deported. See Gomez, 797 F.2d at 419 (“[T]he sentencing

judge [need not] shut his eyes to the reality of the factual situation before him and pretend that the

defendant is not an illegal alien . . . .”). In other instances, the court alluded to its previous

imposition of a lenient sentence because it believed Fofana would be deported. See United States

v. Jabi, No. 09-3643, 2011 WL 1042564, at *4 (6th Cir. Mar. 23, 2011) (“[T]he fact that [the

defendant] will be deported after serving his sentence could counsel toward a shorter

sentence . . . .”). Finally, the court noted its willingness to terminate Fofana’s incarceration early if

immigration initiated deportation. See United States v. Molina, 563 F.3d 676, 679 n.3 (8th Cir.

2009) (noting that court could consider the effects of defendant’s eventual deportation in connection

with the statutory sentencing factors). In none of these instances does the court suggest that it

sentenced Fofana more harshly due to his alien status.




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No. 09-6471
USA v. Fofana


                                            III.


       For the above reasons, we vacate Fofana’s supervised-release sentence and remand for

resentencing.




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