* 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opinion should not be published and is not precedent except under the limited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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 95-20670

and No. 95-20141

Summary Calendar

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODNEY OGAGBA,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

H-93-CR-307-3

_________________________________________________________________

June 12, 1996

Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

Appellant Rodney Ogagba pleaded guilty to mail fraud and

money laundering and was sentenced in February 1995 to concurrent

37-month terms of imprisonment and supervised release and

restitution in the amount of $102,607.63. As part of the

restitution order, the district court ordered that money seized
1 Because of the overlapping nature of Ogagba’s two appeals, the court

has consolidated them sua sponte.

2

upon Ogagba’s arrest, including $5,120 in currency and $1,800 in

money orders, would be paid one-half to his family and one-half to

the restitution obligation. On appeal, Ogagba challenges the

voluntariness of his guilty plea based on the Rule 11 colloquy, the

district court’s sentencing decision, and whether the court erred

by ordering a portion of Ogagba’s seized property be applied to his

restitution obligation. Finding no error, we affirm.1

1. Ogagba first complains of the district court’s

failure explicitly to admonish him of the possibility that it could

impose a restitution order. Under the circumstances, this error

did not affect his substantial rights. United States v. Johnson,

1 F.3d 296, 298 (5th Cir. 1993) (en banc). Under Johnson, this

court may review any written plea agreement, the transcript of the

sentencing hearing, and the sentence actually imposed. To

determine whether the error effected substantial rights, this court

focuses “on whether the defendant’s knowledge and comprehension of

the full and correct information would have been likely to affect

his willingness to plead guilty.” Id. at 302.

At the guilty plea hearing, the district court failed to

mention restitution explicitly but informed Ogagba that he was

subject to paying fines in excess of $1 million. The plea

agreement, however, referred to any fine or restitution as being

due and payable immediately. The plea agreement also provided that
3

Ogagba would not attempt to avoid paying a fine or restitution by

filing a bankruptcy case. Ogagba declared in open court that he

had read the agreement and discussed it with his attorney, and he

executed an acknowledgment confirming his understanding of his

rights and the terms of the plea agreement. He was thus

sufficiently informed of the possibility of restitution.

Other alleged deficiencies in the court’s Rule 11

colloquy with Ogagba are picayune, read in light of the record, and

similarly did not affect Ogagba’s substantial rights. His plea was

not involuntary.

2. Ogagba has raised four sentencing issues on direct

appeal: the district court failed to make factual findings at

sentencing and relied on false and uncorroborated information to

enhance his sentence; the court used a prior “uncounselled”

conviction to enhance his base level one point; the court failed to

resolve a dispute as to the amount of restitution and ordered

excessive restitution; and the district court failed to consider

several mitigating circumstances and otherwise erred in refusing to

make a downward departure. Ogagba explicitly waived his right to

appeal his sentence, as part of his plea agreement with the

government. At the hearing on guilty plea, he confirmed for the
2 For the first time in his reply brief in case number 20141, Ogagba

challenges the effectiveness of the public defender who represented him at trial.

This court will not review issues which are initially raised in a reply brief.

United States v. Prince, 868 F.2d 1379, 1386 (5th Cir), cert. denied, 493 U.S.

932 (1989).

4

court his understanding of his waiver of the right to appeal his

sentence. The waiver is enforceable.2

3. Ogagba challenges the seizure of his cash and money

orders on various grounds. In case number 95-20141, to the extent

Ogagba contends that the government violated the plea agreement by

illegally seizing his cash and money orders and denying him access

to the funds, his argument is unavailing. The plea agreement,

which he signed before filing a motion for the return of the seized

funds, does not address the funds.

To the extent Ogagba argues, in case number 95-20670,

that the arrest warrant did not encompass seizure of the cash and

money orders and that the seizure was otherwise illegal or

unconstitutional, his arguments also fail. We are constrained by

a narrow scope of appellate review, because Ogagba’s notice of

appeal was not filed until June 14, 1995, 89 days after the

district court’s denial of his Rule 41(e) motion for return of

property, and it was therefore effective only to appeal the denial

of Ogagba’s Rule 60(b) motion for reconsideration. Appeal of a

Rule 60(b) order is not to be used as the vehicle for an out-oftime appeal. Instead, the grant or denial of a Rule 60(b) motion

is reviewed in this court for abuse of discretion. Bertrand v.
5

Sullivan, 976 F.2d 977, 979 (5th Cir. 1992). Ogagba’s challenges

to the district court’s “Solomon-like” decision to apply half of

the seized funds toward the restitution order reflects no such

abuse. In United States v. Mills, 991 F.2d 609, 612 (9th Cir.

1993), the Ninth Circuit held that a valid restitution order gives

the government a sufficient cognizable claim of ownership to defeat

a Rule 41(e) motion for return of property, if that property is

needed to satisfy the terms of the restitution order. Here, the

restitution order was valid. Further, Ogagba has effectively

waived review of the district court’s order partially denying him

relief under Rule 41(e) because he did not offer a copy of the

warrant authorizing his arrest and seizure and cannot demonstrate

that the seizure of the funds exceeded the scope of the search

incident to arrest. In sum, even if Rule 60(b) authorized the

relief Ogagba seeks, the court’s decision to turn over part of the

seized funds to satisfy Ogagba’s restitution order hardly

constituted an abuse of his broad discretion.

For these reasons, the judgment and sentence of the

district court are AFFIRMED.