UNITED STATES COURT OF APPEALS Filed 8/6/96 TENTH CIRCUIT

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-2064 (D.C. No. CIV-95-929-JC) HAROLD JOE ROMERO, (D. N.M.)

Defendant-Appellant. _____________________

ORDER AND JUDGMENT * _____________________

Before BRORBY, EBEL and HENRY, Circuit Judges. _____________________

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Harold Joe Romero, pursuant to 28 U.S.C. § 2255, filed a motion in the

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. district court attacking his federal conviction for distribution of heroin in

violation of 21 U.S.C. § 841(a)(1). Mr. Romero argued that his criminal

prosecution was barred by the Double Jeopardy Clause because the United States

had already punished him by forfeiting several items of his personal property

pursuant to 21 U.S.C. § 881. Following the recommendations of a federal

magistrate, the district court denied Mr. Romero's § 2255 motion. Mr. Romero

appealed. We exercise jurisdiction under 28 U.S.C. §§ 1291 and 2253. 1 We

affirm.

Though the issue Mr. Romero raises might have been a difficult one at the

time he filed his brief, it is difficult no longer. According to the Supreme Court's

recent decision in United States v. Ursery, 116 S. Ct. 2135 (1996), civil forfeiture

pursuant to 21 U.S.C. § 881 does not amount to punishment for the purposes of

the Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution. Accordingly, Mr. Romero's contention that he was put under double

1 Though neither Mr. Romero nor the United States has addressed the issue, there is a question as to whether Mr. Romero is required to secure a certificate of appealability under the changes made to 28 U.S.C. § 2253 by section 102 of the newly enacted Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996). Given that Mr. Romero's claim so clearly fails on its merits, we see no reason to explore whether he should have applied for a certificate of appealability. Assuming such a certificate is required, we grant it.

-2- jeopardy must fail.

The judgment of the district court is AFFIRMED.

Entered for the Court

WADE BRORBY United States Circuit Judge

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