* 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. 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

120monthsimprisonment,five yearssupervised release, a $10,000 fine, and a $50 special assessment.
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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

fundsin a certain bank account coupled with imprisonment constituted a violation of double jeopardy,

(2) he received ineffective assistance of counsel because his counselfailed 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 isissued an certificate of appealability (“COA”). See Antiterrorismand 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
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argues that the forfeiture coupled with hissentence 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

JeopardyClause. 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 assistancewas 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.
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