178 F. App'x 389
5th Cir.
2006

Johnnie R. PROPES v. Debora WOLF

United States Court of Appeals, Fifth Circuit

May 2, 2006

389

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Johnnie R. Propes, Texas state prisoner number 1178904, appeals the district court‘s dismissal with prejudice of his pro se, in forma pauperis, 42 U.S.C. § 1983 civil rights complaint for failure to state a claim. Liberally construed, Propes reiterates his claim that, on June 23, 2003, in the 366th District Court, Officer Debora Wolf, a Plano, Texas, police officer, knowingly falsely testified at a trial that in 1999 he threatened her with a gun.

A district court shall dismiss an IFP complaint at any time if it determines that the complaint fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). Such a dismissal is reviewed de novo under the standard of Fed. R. Civ. P. 12(b)(6). Hart v. Hairston, 343 F.3d 762, 763-64 (5th Cir. 2003).

Police officers are absolutely immune from liability for their allegedly perjurious testimony. Enlow v. Tishomingo County, Miss., 962 F.2d 501, 511 (5th Cir. 1992). As such, Propes‘s claims against Officer Wolf are barred.

The district court denied Propes‘s motion to supplement his complaint with claims that challenged an unspecified conviction and sentence. Because Propes did not contest the district court‘s ruling on appeal, he arguably has waived the right to challenge the denial of his motion to amend. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Assuming that Propes‘s reassertion on appeal of the claims raised in his motion to supplement constitutes an implicit challenge to the denial of his motion to supplement, the claims still fail as they are not cognizable under § 1983. See Heck v. Humphrey, 512 U.S. 477, 486 (1994). Accordingly, Propes‘s appeal is frivolous and therefore is dismissed. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir. R. 42.2.

In Propes v. Dretke, 130 Fed. Appx. 654 (5th Cir. 2005), we imposed the 28 U.S.C. § 1915(g) bar against Propes. We warn Propes that further filing of frivolous complaints or pleadings may result in additional sanctions against him.

APPEAL DISMISSED; SANCTION WARNING ISSUED.

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Lynn COFFMAN, Jr, Defendant-Appellant.

No. 05-40227

United States Court of Appeals, Fifth Circuit

May 2, 2006

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney‘s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Margaret Christina Ling, Assistant Federal Public Defender, Federal Public Defender‘s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

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 court en banc. 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.

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 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.

Notes

*
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. 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.