* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 9/24/96 TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JIMMY JESS GUEST,

Defendant-Appellant. No. 95-6428 (W. Dist. of Oklahoma) (D.C. No. CIV-95-1550-C)

ORDER AND JUDGMENT *

Before ANDERSON , BARRETT , and MURPHY , Circuit Judges.

Pro se petitioner Jimmy Jess Guest appeals the district c ourt’s denial of his second habeas corpus petition filed pursuant to 28 U.S.C. § 2255. Guest asserted the following two claims in his current petition: ( 1) his guilty plea which incorporated and ratified a prior administrative fo rfeiture of his property violated the Double Jeopardy Clause; and (2) the government breached its plea agreement-2-

with Guest by failing to return certain property to him. The district court summarily denied this petition, finding Guest’s dou ble jeopardy claim without merit and his plea agreement claim an abuse of the writ. We affirm. On January 18, 1991, Drug Enforcement Administratio n (“DEA”) agents executed a search warrant at Guest’s residence. Du ring the search, the agents found and seized a large quantity of narcotics and nine firearms. Additionally, the agents seized additional items of property unde r the provisions of 21 U.S.C. § 881 because those items were used or ac quired as a result of a drugrelated offense. After complying with the provisio ns on administrative forfeiture, the DEA eventually issued declarations of forfeitur e for the bulk of this property. On February 20, 1991, the federal grand jury return ed a sixteen-count indictment, charging Guest with various drug and we apon related charges. On May 15, 1991, Guest pleaded guilty to conspiracy to distribute marijuana and the government dismissed the remaining counts of the in dictment. The plea agreement incorporated and ratified the disposition of the assets that had previously been administratively forfeited. Specif ically, the government agreed to return jewelry that had been seized from Guest’s re sidence and Guest agreed to the forfeiture of all other seized assets. After Guest brought an appeal challenging the distr ict court’s application of the sentencing guidelines, this court affirmed his sentence on direct appeal.-3-

United States v. Guest , 978 F.2d 577, 578-79 (10th Cir. 1992). Shortly thereafter, Guest brought his first section 2255 motion. The d istrict court denied that motion on February 24, 1994, and this court affirmed by unpublished order and judgement. United States v. Guest , 39 F.3d 1193 (10th Cir.), cert. denied, 115 S. Ct. 1415 (1995). Guest brought the current section 2255 motion on Se ptember 26, 1995. Although the sole basis for Guest’s section 2255 mo tion was a double jeopardy claim, Guest also raised a breach-of-the-plea-agree ment argument in his Memorandum of Authorities. The district court deni ed the double jeopardy claim on the merits and refused to reach the plea agreeme nt argument because the claim was both successive and/or an abuse of the writ. G uest appeals. On appeal, Guest contends that by incorporating andratifying the administrative forfeiture of this property, the ple a agreement violated his constitutional right “to not be twice put in jeopar dy for the same offense.” In support of his argument, Guest relies on the recentSupreme Court decisions in United States v. Halper , 490 U.S. 435 (1989), Austin v. United States , 509 U.S. 602 (1993), and Montana Department of Revenue v. Kurth Ranch , 114 S. Ct. 1937 (1994). This claim is clearly foreclosed by the re cent Supreme Court decision in United States v. Ursery , 116 S. Ct. 2135 (1996). In Ursery , the Supreme Court held that “nothing in Halper , Kurth Ranch , or Austin , purported to replace our1 We note that Guest filed a Motion for the Return of Property pursuant to Fed. R. Crim. P. 41(e) on May 31, 1995. Noting that the plea agreement provided the government was to return jewelry to Guest and that the government had sold the jewelry, the district court ruled that Guest wa s entitled to equitable relief. Although the government has apparently provided the district court with an accounting of the sale of the jewelry, the districtcourt has not yet determined the amount of equitable relief to be provided Guest. -4- traditional understanding that civil forfeiture doe s not constitute punishment for the purpose of the Double Jeopardy Clause.” Id. at 2147. More specifically, the Court held that in rem civil forfeiture pursuant to 21 U.S.C. § 881, the statute under which Guest’s property was forfeited, is not punishment for double jeopardy purposes. Id. at 2147-48. In light of Ursery , Guest’s double jeopardy claim necessarily fails. As to Guest’s claim that he is entitled to habeas r elief because the government has not returned the property that it wa s obligated to return under the plea agreement, we affirm for substantially the rea sons stated in the district court’s Order dated October 20, 1995. 1 The judgment of the United States District Court fo r the Western District of Oklahoma is hereby AFFIRMED

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge