United States of America, Plaintiff-appellee, v. Allen J. James, Defendant-appellant, 103 F.3d 142 (9th Cir. 1996)

MEMORANDUM^** 

Allen J. James, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion challenging his conviction by guilty plea to possessing with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a) (1). We have jurisdiction pursuant to 28 U.S.C. § 2255. We review de novo, Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir. 1995), and we affirm.

James contends that: (1) his sentence was improperly calculated because the government failed to prove that the substance he possessed was D-methamphetamine as opposed to L-methamphetamine and (2) that his trial counsel was ineffective for failing to raise the issue at sentencing. These contentions are foreclosed by United States v. McMullen, No. 95-36031, slip op. 14007, 14011-15 (9th Cir. Oct. 23, 1996) (holding that defendants cannot raise D-meth/L-meth claim for the first time in a section 2255 motion and concluding that trial counsel's failure to pursue the issue at sentencing did not fall below an objective standard of reasonableness).

James next contends that his conviction violated the Double Jeopardy Clause of the Fifth Amendment because of the prior administrative forfeiture of his property. This contention lacks merit. See United States v. Ursery, 116 S. Ct. 2135 (1996) (holding that civil forfeitures do not constitute "punishment" for purposes of the Double Jeopardy Clause); see also United States v. Cretacci, 62 F.3d 307 (9th Cir. 1995).

AFFIRMED.¹