                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   May 12, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-21023
                          Summary Calendar



UNITES STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

QUINCY DESHAWN BROWN,

                                     Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. 4:04-CR-58-1
                        --------------------

Before SMITH, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

     Quincy Deshawn Brown appeals his guilty-plea conviction

and sentence for being a felon in possession of a firearm.         See

18 U.S.C. §§ 922(g)(1), 924(a)(2).    As Brown acknowledges, his

challenge to the constitutionality of § 922(g)(1) is without

merit.   See United States v. Daugherty, 264 F.3d 513, 518 (5th

Cir. 2001).    His conviction is therefore AFFIRMED.

     The Government concedes that Brown preserved his claim of

Fanfan error, i.e., that the district court erred in sentencing


     *
       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this opinion should not be published and is not precedent except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. 04-21023
                                -2-

him under the then-mandatory Guidelines, in violation of United

States v. Booker, 543 U.S. 220 (2005).    The Government also

concedes that remand for resentencing may be appropriate because

aside from relating “thoughts about the appropriateness of the

guideline sentence, there was no other action by the district

court that might arguably suggest that the court would have

applied the same sentence under an advisory guideline sentencing

scheme.”   In light of the Government’s concession and the

district court’s statement at sentencing that it would impose an

alternative sentence if Blakely v. Washington, 542 U.S. 296

(2004) applied, Brown’s sentence is hereby VACATED and this case

is REMANDED to the district court for resentencing.
