* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 5 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. OMAR DAVID CANNON,

Defendant-Appellant. No. 96-7014 (D.C. No. CR-95-41-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO, ANDERSON, and BRISCOE, Circuit Jud ges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.-2-

Defendant entered into a plea agreement and pled gu ilty to four counts of a nine-count indictment. The trial court sentenced h im to the statutory mandatory minimum of ten years for distribution of methamphet amines and possession of a firearm after a felony conviction, in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 922(g). In this appeal, defendant challe nges the sentencing court’s imposition of the statutory mandatory minimum sente nce. Defendant argues that he received ineffective assis tance of counsel because his attorney did not argue that double jeopardy barred application of the statutory mandatory minimum sentence. We must first address whether defendant’s claim of ineffective assistance of counsel is properly br ought in this direct appeal. This court has held that an ineffective assistance of co unsel claim should be brought in a collateral proceeding, not in a direct appeal. S ee United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). Howeve r, “[s]ome rare claims which are fully developed in the record may be brought ei ther on direct appeal or in collateral proceedings.” Id. at 1242. Because this ineffective assistance clai m turns on a purely legal point and would not be enli ghtened by an evidentiary hearing, further development of the record, or a di strict court opinion, see id. at 1240, we will address it on direct appeal. In addition to methamphetimines, $9,900.00 in cash was seized at the time of defendant’s arrest. A civil forfeiture proceedi ng was brought against the-3-

money, no claim was made, and the money was forfeit ed. Defendant argues that his sentence violates double jeopardy because he wa s put in jeopardy in the civil forfeiture action involving the money, and then aga in when the sentencing court considered the overall offense conduct at sentencin g. Taking into account the overall offense conduct, and not just the amounts o f drugs charged in the indictment, the sentencing court applied the statut ory mandatory minimum sentence of ten years, rather than the sentencing g uideline range of sixty-three to seventy-eight months. Defendant argues that consid ering the overall offense conduct to arrive at the mandatory minimum sentence on the heels of the civil forfeiture placed him in double jeopardy. Defendant’s argument is convoluted, and we fail to see the connection between the sente ncing court’s consideration of additional amounts of methamphetamine for which def endant was not charged as “relevant conduct,” and the forfeited money. We ca n, however, say with certainty that defendant’s claim of ineffective assistance of counsel for failure to raise double jeopardy must fail. The Supreme Court recently clarified that “civil forfeiture does not constitute punishment for the p urpose of the Double Jeopardy Clause.” United States v. Ursery , 116 S. Ct. 2135, 2147 (1996). Because the double jeopardy issue has no merit, counsel cannot have been ineffective for failing to raise the argument. See United States v. Cook , 45 F.3d 388, 393 (10th Cir. 1995).1 Defendant argues that Reyes is distinguishable because that defendant was

given notice that the mandatory minimum was ten years. In this case, defendant’s plea agreement stated that the mandatory minimum wa s five years. Before defendant was sentenced, however, the sentencing co urt explained to defendant that, because of an intervening change in the law, the mandatory minimum was ten years and gave defendant the opportunity to withdraw his guilty plea. After conferring with counsel, defendant declined to with draw his plea, and the sentencing hearing continued. As in Reyes , defendant had notice of the ten-year mandatory minimum sentence. -4- Defendant also complains of the sentencing court’s use of “relevant conduct” in sentencing him to the statutory mandato ry minimum. In calculating the quantity of methamphetamine for sentencing, the court found that the overall offense conduct involved more than 100 grams of methamphetamine, including quantities seized at the time of arrest that were n ot included in the charges to which defendant pled guilty, thereby triggering the statutory mandatory minimum sentence of ten years. See 21 U.S.C. § 841(b). Defendant’s challenge is foreclosed by our decision in United States v. Reye s , 40 F.3d 1148, 1151 (10th Cir. 1994). Contrary to defendant’s argument, we are not persuaded that this case is distinguishable from Reyes

. 1 The judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED. Entered for the Court

John C. Porfilio Circuit Judge