UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-50281
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IKWUEMESI UZOMA OKOLI,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(A-95-CV-93)
_________________________________________________________________
January 13, 1997
Before JONES, DeMOSS, AND PARKER, Circuit Judges.
PER CURIAM:*
Ikwuemesi Uzoma Okoli appeals from the district court’s denial of his motion to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The sentence about which
Okoli complains is the result of his guilty plea to conspiracy to import heroin for which he received
120 months imprisonment, five years supervised release, a $10,000 fine, and a $50 special assessment.
*
Pursuant to Local Rule 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
His sentence was affirmed on appeal. See United States v. Okoli, 20 F.3d 615, 617 (5th Cir. 1994).
Pursuant to 28 U.S.C. § 2255, Okoli moved in the district court for vacatur of his
conviction and sentence alleging that (1) the plea agreement requiring the forfeiture of his vehicle and
funds in a certain bank account coupled with imprisonment constituted a violation of double jeopardy,
(2) he received ineffective assistance of counsel because his counsel failed to challenge the indictment
on double jeopardy grounds, and (3) he received ineffective assistance of counsel because his counsel
failed to request a departure below the minimum mandatory sentence.
On April 24, 1996, 28 U.S.C. § 2253 was amended to provide that an appeal may not
be taken to this court from a final order in a motion to the district court pursuant to § 2255 unless
the petitioner is issued an certificate of appealability (“COA”). See Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). AEDPA became
effective on April 24, 1996. The district court’s denial of Okoli’s motion to vacate, set aside, or
correct his sentence and Okoli’s notice of appeal were entered before April 24, 1996. Although this
court has not yet determined whether the COA requirement applies to an appeal from a 28 U.S.C.
§ 2255 action that was pending at the time that AEDPA became effective, it is not necessary for us
to do so today because we conclude that Okoli’s claims are without merit. Accordingly, we would
neither grant a COA, if the amendments applied, nor would we grant relief under the unamended
version of § 2255.
Okoli complains of the plea agreement which required the forfeiture of a vehicle and
funds in a cert ain bank account. This property subject to forfeiture was “either used to facilitate
and/or constitute[s] proceeds from unlawful controlled subst ance trafficking.” R. 1:149. Okoli
2
argues that the forfeiture coupled with his sentence of incarceration constitutes a violation of double
jeopardy. However, even if the forfeitures he complains of actually occurred here, forfeiture of
property under the federal drug statutes does not constitute punishment for purposes of the Double
Jeopardy Clause. See United States v. Ursery, ___ U.S. ___, 116 S.Ct. 2135, 2138-39 (1996). Okoli
complains that he received ineffective assistance of counsel because his counsel failed to challenge
the indictment on double jeopardy grounds. In light of the fact that there was no double jeopardy
violation, his ineffectiveness claim necessarily fails. See Lauti v. Johnson, ___ F.3d ___, 1996 WL
707014, *4 (5th Cir. 1996).
Okoli also complains that he received ineffective assistance of counsel because his
counsel did not request the sentencing court to depart below the minimum mandatory sentence after
the court granted the government’s motion for a downward departure. However, a district court is
precluded from considering a departure below a statutory minimum mandatory sentence upon the
Government’s § 5K1.1 motion unless the Government moves for such a departure pursuant to 18
U.S.C. § 3553(e). Because the Government made no such motion in this case, Okoli cannot
demonstrate the requisite prejudice -- a reasonable probability that the sentence would have been
significantly less harsh if counsel had so moved -- to establish an ineffective assistance of counsel
claim. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (in order to establish an ineffective
counsel claim, the defendant must prove that counsel’s assistance was deficient and that the deficiency
prejudiced his defense); Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993) (there must be a
reasonable probability that but for counsel’s errors, the defendant’s sentence would have been
significantly less harsh).
For the foregoing reasons, the judgment of the district court is AFFIRMED.
3
4