United States v. Coffman , 178 F. App'x 389 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 2, 2006
Charles R. Fulbruge III
No. 05-40227 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD LYNN COFFMAN, JR,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:03-CR-13-1
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Ronald Lynn Coffman, Jr., appeals his guilty-plea conviction
and sentence for possession of a firearm by a convicted felon.
Coffman first argues that the district court erred by finding
that his prior Texas felony conviction for burglary of a
habitation was a crime of violence under U.S.S.G. §§ 4B1.2(a).
The district court did not err. See United States v. Hornsby, 88
F.3d 336, 339 (5th Cir. 1996); United States v. Garcia-Mendez,
420 F.3d 454, 456-57 (5th Cir. 2005). This court must follow the
precedent set by a prior panel unless there is a contrary
intervening opinion by the Supreme Court or this court en banc.
*
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this opinion should not be published and is not precedent except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.
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See Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir.
1999).
While Coffman acknowledges that the district court imposed
a non-guideline sentence pursuant to United States v. Booker, 543
U.S. 220 (2005), he argues that the district court erred by
making an upward deviation from the guidelines sentence range to
the statutory maximum of 120 months of imprisonment because of
his prior criminal history without considering the guidelines
rules for upward departures based upon criminal history. He
contends that had the sentence been an upward departure under the
Guidelines, the district court would have abused its discretion
because it did not give an adequate reason for making an upward
departure of that magnitude and because the extent of the
departure was unreasonable.
The district court followed the proper procedure for
imposing a non-guideline sentence by calculating Coffman’s
guidelines sentence range, using the guidelines range as a frame
of reference, and making an upward deviation based upon Coffman’s
prior criminal history without making an upward departure within
the Guidelines. See United States v. Smith, 440 F.3d 704, 708
(5th Cir. 2006). Whether an upward departure would have been
warranted in this case is immaterial as the district court made
an upward deviation outside of the guidelines range instead of an
upward departure pursuant to the Guidelines. See id. at 708 n.3.
No. 05-40227
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Coffman asserts that the application of the remedial opinion
in Booker to him violates the Due Process Clause and Ex Post
Facto Clause. He acknowledges that this court rejected a similar
argument in United States v. Scroggins, 411 F.3d 572, 575-76 (5th
Cir. 2005), but asserts that Scroggins is distinguishable because
the defendant in Scroggins wished to receive the benefit of the
merits opinion in Booker without the application of the remedial
opinion while he simply wishes to be sentenced under the pre-
Booker sentencing scheme. Coffman’s argument is without merit.
See United States v. Austin, 432 F.3d 598, 599-600 (5th Cir.
2005).
Coffman additionally states that his sentence is
unreasonable. However, beyond his arguments regarding upward
departures under the Guidelines and his due process and ex post
facto arguments, he offers no further argument as to why his
sentence is unreasonable. To the extent that Coffman is seeking
to argue that his sentence is unreasonable for reasons beyond
those discussed above, he has failed to properly brief his
arguments and waived them. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Both Coffman and the Government correctly assert that the
judgment which provides that Coffman be awarded credit for the
time he was in custody on a related state sentence prior to the
federal sentencing is ineffectual. See United States v. Wilson,
503 U.S. 329, 333-37 (1992); 18 U.S.C. § 3585(b). To award
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Coffman credit for this time, the district court should reduce
Coffman’s sentence accordingly and note the reason for the
reduction in the judgment. See U.S.S.G. § 5G1.3, comment. (n.2).
However, when Coffman raised this point at sentencing and in a
motion to correct sentence, the district court denied the
requests. As the district court sentenced Coffman on the
erroneous belief that it could effectively order that Coffman
receive credit for this period and the record does not
conclusively show that the district court intended to adjust
Coffman’s sentence, we vacate the sentence and remand the case
for the limited purpose of determining whether the sentence
should be reduced to award Coffman credit for the time he spent
in state custody prior to his sentencing in federal court.
See United States v. Barrera-Saucedo, 385 F.3d 533, 536-37 (5th
Cir. 2004).
For the first time on appeal, Coffman contends that the
felon-in-possession-of-a-firearm statute, 18 U.S.C. § 922(g),
is unconstitutional under the Commerce Clause because it
criminalizes the possession of firearms that do not substantially
affect interstate commerce. Coffman correctly concedes that this
argument is foreclosed by circuit precedent. See United States
v. Daugherty, 264 F.3d 513, 518 & n.12 (5th Cir. 2001). He
raises the issue to preserve it for further review.
CONVICTION AFFIRMED; SENTENCED VACATED AND REMANDED WITH
INSTRUCTIONS.