           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          March 13, 2008
                                     No. 07-20653
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

EDWARD ANTHONY RYLANDER,

                                                  Defendant-Appellant.


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:07-CR-76-1


Before HIGGINBOTHAM, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
       Edward Anthony Rylander challenges his guilty plea conviction and
sentence for being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g). He first argues that this court should reconsider its jurisprudence
regarding the statute’s constitutionality in light of United States v. Lopez, 514
U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000). Rylander’s
arguments are foreclosed by this court’s precedent.                 See United States v.
Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-20653

      Rylander also challenges as plainly erroneous the district court’s
imposition of a special condition of his supervised release that he “not ingest any
artificial stimulants,” contending that the condition is vague and overbroad. The
Government concedes the error and requests that the special condition be
vacated.
      We agree that the district court’s imposition of this special condition,
which could be interpreted to prohibit Rylander’s use of a broad range of legal
substances, including soft drinks, cough syrup, and tobacco, was plain error.
The district court made no findings regarding Rylander’s use of “artificial
stimulants.” The condition is unrelated to his firearms-possession offense and
involves a greater deprivation of liberty than is reasonably necessary to deter
criminal conduct and protect the public. See United States v. Ferguson, 369 F.3d
847, 853-54 (5th Cir. 2004). And although Rylander has a history of drug
possession, the district court adequately addressed the concerns this history
raises by prohibiting him from possessing or using controlled substances and
requiring him to submit to periodic drug tests during the term of his supervised
release.
      Accordingly, the special condition of supervised release that Rylander not
ingest any artificial stimulants is VACATED. See United States v. Hernandez-
Guevara, 162 F.3d 863, 878 (5th Cir. 1998) (“[W]e need not waste judicial
resources by remanding for what [] would be a rote resentencing.”). The district
court’s judgment is otherwise AFFIRMED.




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