On Appeal from the United State District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 84-00121-02)
Seitz, Gibbons, and Sloviter Circuit Judges.
SLOVITER, Circuit Judge. I. FACTS
Mohamad Abushaar, a Syrian citizen who was in the United States on a student visa, took part in a scheme to induce American citizens to marry Syrian aliens in exchange for money so that the Syrians could obtain permanent residence status in the United States. Abushaar married Paula Kiessling, who was paid money and told that she would not have to consummate the marriage nor reside with Abushaar. Abushaar filed an INS application for status as a permanent resident falsely stating that he was residing with his wife.
Abushaar, who was 21 years old at the time, was indicted both for conspiracy to make false statements to an agency of the United States in violation of 18 U.S.C. § 371 and for the substantive offense of making the false statements, i.e., the fraudulent application for status as a permanent resident in violation of 18 U.S.C. § 1001. He pled guilty to making the false statement, the penalty for which is a fine of not more than $10,000 and/or imprisonment of up to five years. Under the terms of the plea bargain, the government agreed not to oppose sentencing pursuant to the Federal Youth Corrections Act (YCA), Act of Sept. 30, 1950, ch. 1115, § 2, 64 Stat. 1085-90 (formerly codified as amended at 18 U.S.C. §§ 5005-5026 (1982)), repealed by Act of Oct. 12, 1984, Pub. L. No. 98-473, Title II, ch. II, § 218(a) (8), 98 Stat. 2027, to recommend that the any custodial sentence be imposed pursuant to 18 U.S.C. § 3651, para. 2, and to move to dismiss the conspiracy count.
The government's sentencing memorandum submitted to the district court stated:
It is the position of the government that this court should impose a sentence pursuant to the Youth Corrections Act/ This defendant, though convicted of criminal offenses, does not present the type of individual who poses a threat to society. To the contrary, the evidence shows him to be hardworking. That he have an opportunity to prove himself worthy of the benefits of th Act is not, therefore, unreasonable. In view of the nature of this offense, however, the government respect- fully requests the Court to consider imposing as a condition of any probationary sentence the specific condition of any probationary sentence specific condition that the defendant leave the United States at his own expense and not return within the probationary period. This would serve the purpose of generally deterring others from committing similar offenses.
At the sentencing hearing, the district court stated:
The court finds that the defendant, although eligible by reason of his age for commitment under the Federal Youth Offenders, Act, will not derive any benefit form treatment under subsection b or c of that Act and will therefore, be sentenced without regard to that Act.
It is the sentence of this court as to Count II of the indictment that the sentence is suspended; that the defendant is placed on pro- bation for a period of three years upon the following conditions and terms:
The defendant is to comply with all local, state and federal laws; the defendant is to comply with the rules and regulations of the pro- bation department. That the defendant cooperate under the direction of the Department of Immigration and Naturalization; and that the defendant serve his probation period outside of the United States; that he leave the United States at his own expense. If you come back -- I am giving you three years' probation -- if you come back during the period of time I am going to send you to prison. If you want to come back to the United States, you come back to the United States in the same manner that so many other people come to the United States.
Abushaar appeals from two features of the sentence. First, he challenges his sentence to adult probation, as distinguished from probation under the YCA, 18 U.S.C. § 5010(a). Second, he challenges the condition of his probation requiring him to spend his period of probation outside of the United States.
ADULT PROBATION AND THE YCA
Preliminarily, we note that although the YCA has been repealed by the Crime Control Act of 1984, the YCA was applicable at the time of Abushaar's sentencing. Abushaar was convicted and sentenced on July 13, 1984, before the repeal of the YCA and October 12, 1984. Thus, we need not consider the questions raised in other courts as to the ex post facto implications of repeals of the YCA for offenses committed while that statute was still in force . See, e.g., United States v. Romero, 596 F. Supp. 446, 448-49 (D.N.M. 1984).
We thus examine Abushaar's contention that a sentence of probation imposed upon a defendant eligible for sentencing under the YCA must be imposed as a matter of law pursuant to 18 U.S.C. § 5010(a) in light of the statute itself. The YCA specifies four options for the district court when dealing with a youth offender. They are:
(a) If the court believes the youth offender does not need commitment, it may place the youth offender on probation. 18 U.S.C. § 5010(a);
(b) It may sentence the youth offender to the custody of the Attorney General for treatment and supervision for a term not to ...