United States v. Olaniyi-Oke

* 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that this opinion should not be published and is not precedent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.
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.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-98-CR-81-1-SS
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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).

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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.

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