                                                       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this opinion should not be published and is not precedent except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.
                            No. 05-40227
                                 -2-

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
                                  -3-

     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
                             No. 05-40227
                                  -4-

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.
