United States v. Purdy

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 1, 2024
• Docket: 23-10502
• Status: Unpublished

Opinion

Case: 23-10501 Document: 83-1 Page: 1 Date Filed: 05/01/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 23-10501 FILED May 1, 2024 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

George Henry Purdy, III,

Defendant—Appellant,

consolidated with _____________

No. 23-10502 Summary Calendar _____________

United States of America,

George Henry Purdy,

Defendant—Appellant. Case: 23-10501 Document: 83-1 Page: 2 Date Filed: 05/01/2024

No. 23-10501 c/w No. 23-10502

______________________________

Appeals from the United States District Court for the Northern District of Texas USDC Nos. 4:22-CR-302-1, 4:16-CR-196-1 ______________________________

Before Smith, Higginson, and Engelhardt, Circuit Judges. Per Curiam:* George Purdy, III, pleaded guilty of possessing a firearm after a felony conviction in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He appeals, raising a claim of sentencing error and urging that § 922(g)(1) is unconsti- tutional. Purdy also appeals the judgment revoking his supervised release in a separate matter, but, because he does not brief any challenge to the revoca- tion or the revocation sentence, he has abandoned those issues. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). For the first time on appeal, Purdy contends that § 922(g)(1) violates the Second Amendment in light of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). Our review is for plain error. See United States v. Snarr, 704 F.3d 368, 382 (5th Cir. 2013). Because it is not clear that Bruen or other existing precedent dictates that § 922(g)(1) is unconstitutional, Purdy cannot show plain error. See United States v. Jones, 88 F.4th 571, 573–74 (5th Cir. 2023), cert. denied, 2024 WL 1143799 (U.S. Mar. 18, 2024) (No. 23-6769). Purdy also contends that, as interpreted by this court, § 922(g)(1) is unconstitutional because it exceeds Congress’s authority to regulate com- merce. As he concedes, that argument is foreclosed. See United States v. Perryman, 965 F.3d 424, 426 (5th Cir. 2020).

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

2 Case: 23-10501 Document: 83-1 Page: 3 Date Filed: 05/01/2024

Finally, Purdy maintains that the district court erred in relying on statements in the presentence report (“PSR”) that a domestic partner told police he threatened her with a pistol. A sentencing court “may consider any information which bears sufficient indicia of reliability to support its probable accuracy.” United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (inter- nal quotation marks and citation omitted). Whether this standard is met in a given instance is a factual finding reviewed for clear error. United States v. Ortega-Calderon, 814 F.3d 757, 760 (5th Cir. 2016). “Bald, conclusionary statements do not acquire the patina of reliabil- ity by mere inclusion in the PSR.” United States v. Elwood, 999 F.2d 814, 817- 18 (5th Cir. 1993). Here, however, the statements are part of a “detailed and specific” account. United States v. Parkerson, 984 F.3d 1124, 1129 (5th Cir. 2021). The PSR indicates this account was corroborated in part by the pres- ence of marks on the victim’s body, Purdy’s admission that a dispute oc- curred, and the discovery of a pistol and ammunition in his apartment. Purdy fails to show that consideration of the victim’s allegations, as summarized in the PSR, was clearly erroneous. In turn, because he did not present rebuttal evidence or otherwise demonstrate that the allegations were unreliable, the district court was entitled to accept them. See Harris, 702 F.3d at 230. Purdy criticizes the reasoning employed in Harris and Parkerson with respect to burden-shifting and information based on police investigations. We reject his criticisms under the rule of orderliness. See United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014). The judgments are AFFIRMED.