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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-58-1
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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this opinion should not be published and is not precedent except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
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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.