                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-2480

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee.
                                  v.

JAVIER Z AMUDIO ,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 11 CR 388—Matthew F. Kennelly, Judge.



       S UBMITTED M AY 9, 2013—D ECIDED JUNE 4, 2013




 Before P OSNER, M ANION, and W OOD , Circuit Judges.
  P OSNER, Circuit Judge. This case is a sequel to United
States v. Gutierrez-Ceja, 711 F.3d 780 (7th Cir. 2013), a
case of unauthorized enhancement of punishment by
the sentencing judge of a felon who is not a U.S.
citizen; the defendant in the present case is also a
noncitizen felon.
  The judge in Gutierrez-Ceja had imposed a number
of post-release restrictions on the defendant that would
have been lawful only if they had been conditions
2                                             No. 12-2480

of supervised release—and the judge had not ordered
supervised release. One of those conditions, however—that
upon release from prison at the end of his term “the
defendant is to be surrendered to a duly authorized
official of the Department of Homeland Security for a
determination on the issue of deportability” and “if
ordered deported, the defendant shall not re-enter the
United States without” authorization in advance—we
did not discuss because it had not been objected to.
711 F.3d at 782. The judgment in this case, under the
heading “additional imprisonment terms,” similarly
states that the “defendant is to be turned over to
the proper immigration authorities for deportation pro-
ceedings upon completion of term of incarceration. If
deported, defendant is to remain outside the United
States and is not to return without the written consent
of the Secretary of the U.S. Department of Homeland
Security.”
  In neither case was the “additional imprisonment
term” authorized. Federal judges may impose restric-
tions on a defendant, effective after he completes the
prison term to which the judge sentenced him, only
as conditions of supervised release. That includes re-
strictions related to immigration: “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. § 3583(d) (emphasis added).
  Congress later clarified that only an immigration
judge may order deportation, or removal as it is now
No. 12-2480                                              3

called, 8 U.S.C. § 1229a(a)(3), unless the prosecutor
and immigration officials request that the district judge
hold a removal hearing, § 1228(c), a request not made
either in this case or in Gutierrez-Ceja. A district judge
may order, as a condition of supervised release, that a
defendant be turned over to immigration officials for
removal proceedings. See United States v. Romeo, 122
F.3d 941, 943-44 (11th Cir. 1997). But if there is no order
of supervised release—and in neither this case nor
Gutierrez-Ceja was there such an order—the imposition
of such a condition is ultra vires.
  The imposition is anyway gratuitous, in this case as
in Gutierrez-Ceja, in light of a recent amendment to the
sentencing guidelines which states that the sentencing
“court ordinarily should not impose a term of super-
vised release in a case in which supervised release
is not required by statute and the defendant is a
deportable alien who likely will be deported after im-
prisonment.” U.S.S.G. § 5D1.1(c). (Notice the correct
assumption that the imposition of an additional punish-
ment term on a deportable alien requires an order of
supervised release.) When the Department of Homeland
Security is informed (for example by the probation
service) that an inmate may be subject to removal, it tries
to hold removal proceedings before the inmate is
released, so that he can be removed with no break in
detention. “The identification and processing of incar-
cerated criminal aliens, before release from jails and
prisons, decreases or eliminates the time spent in
[DHS] custody and reduces the overall cost to the Federal
Government.” Department of Homeland Security, Im-
4                                               No. 12-2480

migration and Customs Enforcement, “Criminal Alien
Program,” www.ice.gov/criminal-alien-program; Andrea
Guttin, The Criminal Alien Program: Immigration Enforcement
in Travis County, Texas, Immigration Policy Center (Feb.
2010), pp. 4-5, www.immigrationpolicy.org/sites/default/
files/docs/Criminal_Alien_Program_021710.pdf (both web-
sites were visited on May 12, 2013). The Department
can also issue a detainer, requesting that the Bureau of
Prisons release the inmate into the custody of immigra-
tion officials. 8 C.F.R. § 287.7. Neither of these procedures
requires an order by the district judge.
  In comment 5 to the new guideline amendment, we
read that “the court should, however, consider imposing
a term of supervised release on such a defendant if the
court determines that it would provide an added measure
of deterrence and protection based on the facts and cir-
cumstances of a particular case.” Many district judges
regularly make such findings, see, e.g., United States v.
Becerril Peña, No. 11-11171, 2013 WL 1845587, *2 (5th Cir.
May 2, 2013)—a questionable practice in light of the
Sentencing Commission’s remark that imposing super-
vised release on a removable defendant is both unneces-
sary and undesirable. Amendment 756, U.S.S.G. App. C
Supp., p. 410 (2011). (It would for example burden pro-
bation officers.) There is no suggestion either in the
judgment in this case or in the sentencing transcript of
any need for that added measure of deterrence and pro-
tection with respect to this defendant; and to repeat,
that “added measure” could be ordered only as a condi-
tion of supervised release.
No. 12-2480                                               5

  There clearly is no need for the “added measure” in
this case, because the defendant is an aggravated felon,
as a result of previous felony convictions for robbery. See
8 U.S.C. §§ 1101(a)(43)(F), (G). An aggravated felon who
is an alien is removable upon the completion of his
prison sentence, § 1227(a)(2)(A)(iii), and the removal
proceedings must be begun and if possible completed
before the end of his prison term and if they are not
completed he must be detained until then. See 8 U.S.C.
§§ 1226(c)(1)(B), 1228(a)(1)-(2), (3)(A). We have difficulty
imagining, in light of these provisions, what purpose
would be served by the sentencing judge’s ordering
the defendant upon completion of his prison term to be
turned over to the immigration authorities—he will
be anyway. Such an order would be needed only when
there was reason to think that the defendant would
somehow evade the rules governing aliens who are
adjudged to be aggravated felons. There is no sugges-
tion of any such danger in this case.
   There is no other merit to the appeal, so we grant
the Anders motion and dismiss the appeal except with
respect to the additional punishment term, which (as
in United States v. Gutierrez-Ceja, supra, 711 F.3d at 784)
is stricken.
                                              S O O RDERED.




                           6-4-13
