                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 October 9, 2003

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-60279
                           Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

GHAFOUR BILLY ASEMANI,

                                     Defendant-Appellant.

                         --------------------

          Appeal from the United States District Court
            for the Southern District of Mississippi
                    USDC Nos. 3:02-CV-279-LN
                       3:99-CR-121-ALL-LN
                      --------------------

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Ghafour Billy Asemani, federal prisoner #44700-83, seeks a

certificate of appealability (COA) to appeal the denial of his 28

U.S.C. § 2255 motion in which he challenged his guilty-plea

conviction for health care fraud, mail fraud, and making false

statements.    The district court dismissed Asemani’s 28 U.S.C.

§ 2255 motion finding that Asemani, as part of the memorandum of




     *
        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that this opinion should not be published and is not precedent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. 03-60279
                                  -2-

understanding, waived his right to collaterally challenge his

conviction and sentence.

     A COA may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right.”       28

U.S.C. § 2253(c)(2).   Where the district court rejects

constitutional claims on procedural grounds, the prisoner must

show that “jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.”      Slack

v. McDaniel, 529 U.S. 473, 484 (2000).

     Asemani contends that his appeal waiver does not preclude

consideration of his 28 U.S.C. § 2255 motion.    He first argues

that his plea was rendered involuntary by the Government’s

promise during plea negotiations that the forfeiture funds would

be applied to the restitution order.     In support of his argument,

he points, as he did in the district court, to a letter from

defense counsel stating that the Government agreed that

restitution would be the amount set by the court less any money

from the sale of his home.    Asemani contends that had the promise

not been made, he would not have pleaded guilty and that the

failure of the Government to fulfill this promise amounted to

breach of the plea bargain.

     Asemani argues next that he was assured by his counsel that

restitution would be offset by the forfeiture funds.      He also
                           No. 03-60279
                                -3-

contends that counsel was ineffective in failing to advise the

district court of the letter during the plea hearing.   Asemani

argues that these acts and omissions rendered his guilty plea

involuntary.

     Asemani has shown that jurists of reason would find it

debatable whether the district court was correct in finding that

the appeal-waiver provision precluded review of his 28 U.S.C.

§ 2255 motion.   Asemani has also alleged several facially valid

constitutional claims.   Slack, 529 U.S. at 484.   Accordingly, we

GRANT COA, VACATE the judgment of the district court, and REMAND

the case to the district court for further proceedings.

     COA GRANTED; JUDGMENT VACATED AND CASE REMANDED.
