United States v. Burgess

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
January 21, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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

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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

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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

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