United States v. Olaniyi-Oke

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50105 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JACKSON AYOBAM OLANIYI-OKE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-98-CR-81-1-SS -------------------- December 13, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Jackson Ayobam Olaniyi-Oke appeals the sentence he received

after his case was remanded for resentencing in United States v.

Olaniyi-Oke, 199 F.3d 767 (5th Cir. 1999). He contends that the

district court erred by declining to hold a hearing regarding the

applicability of a downward departure based upon mitigating

circumstances prior to his resentencing. As the issue of a

downward departure is beyond the scope of remand, the district

court did not err in refusing to hold a sentencing hearing. See

United States v. Marmolejo, 139 F.3d 528, 530-31 (5th Cir. 1998).

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-50105 -2-

Olaniyi-Oke also asserts that his counsel at sentencing was

ineffective for failing to move for the aforementioned downward

departure at the first sentencing hearing. However, in the

present state of the record, we could only speculate as to the

reasons for any of counsel’s actions and omissions. See United

States v. Thomas, 12 F.3d 1350, 1368 (5th Cir. 1994). He may

raise this issue in an appropriate proceeding under 28 U.S.C. §

2255. Id.

Accordingly, the judgment is AFFIRMED.