United States v. Burgess

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS January 21, 2004 FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-20168 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RANDY BURGESS,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (H-02-CR-393-1)

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges

PER CURIAM:*

Randy Burgess pleaded guilty to being a felon in possession of

a firearm; he was sentenced to 48 months in prison and a three-year

term of supervised release. Burgess appeals his conviction and

sentence.

Burgess claims that the statute of conviction violates the

Second Amendment and the Commerce Clause. These claims are

foreclosed by Fifth Circuit precedent. See United States v.

Darrington, No. 03-20052, 2003 WL 22706079, __ F.3d __ (5th Cir. 18

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Nov., 2003); United States v. Daugherty, 264 F.3d 513, 518 & n.12

(5th Cir. 2001), cert. denied, 534 U.S. 1150 (2002).

Concerning the sentence, a district court’s interpretation of

the sentencing guidelines is reviewed de novo; its factual

findings, for clear error. See United States v. Sharpe, 193 F.3d

852, 873 (5th Cir. 1999). Burgess contends that the district court

clearly erred in finding that he possessed a firearm in connection

with the commission of an aggravated robbery and concomitantly

increasing his base offense level in accordance with U.S.S.G.

§ 2K2.1(b)(5).

Along this line, Burgess contends that his rights under the

Due Process and Confrontation Clauses were violated when, to assess

this adjustment, the district court relied on the victim’s

statement contained in a police report. These contentions are

unavailing. See United States v. Young, 981 F.2d 180, 187 (5th

Cir. 1992), cert. denied sub nom. Allman v. United States, 508 U.S.

955 (1993), cert. denied sub nom. Crow v. United States, 508 U.S.

980 (1993); United States v. Rodriguez, 897 F.2d 1324, 1328 (5th

Cir.), cert. denied, 498 U.S. 857 (1990).

Burgess’ alternate contention that the victim’s statement is

unreliable is likewise unavailing. The information contained in

the Presentence Investigation Report provided a sufficient basis

for the district court to assess this adjustment. See United

States v. Brown, 54 F.3d 234, 242 (5th Cir. 1995). Further, the

2 district court’s decision on this matter was based at least

partially on a credibility determination that this court will not

second guess. See United States v. Garza, 118 F.3d 278, 283 (5th

Cir. 1997).

AFFIRMED