IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-51090

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ERIC DAVID PISONY,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:19-CR-154-1

Before DAVIS, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Eric David Pisony pleaded guilty to possession with intent to distribute 

five grams or more of actual methamphetamine and received a withinguidelines sentence of 105 months of imprisonment and a five-year term of 

supervised release. He now contends that the district court procedurally erred 

when sentencing him using a base offense level of 24 under U.S.S.G. 

§ 2D1.1(c)(8) where the presentence report (PSR) did not include any 

* 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

FILED

July 21, 2020

Lyle W. Cayce

Clerk

 Case: 19-51090 Document: 00515496982 Page: 1 Date Filed: 07/21/2020
No. 19-51090

2

information regarding laboratory tests supporting the weight or purity of the 

methamphetamine.

Pisony correctly concedes that review is for plain error, and he must 

show a forfeited error that is clear and obvious and that affects his substantial 

rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes 

such a showing, we have the discretion to correct the error but should do so 

only if it “seriously affects the fairness, integrity or public reputation of judicial 

proceedings.” Id. (internal quotation marks, brackets, and citation omitted). 

A clear or obvious error must not be “subject to reasonable dispute.” Id.

Pisony has not shown a clear or obvious error. A district court may adopt 

a PSR finding of drug quantity “without further inquiry if those facts have an 

adequate evidentiary basis with sufficient indicia of reliability and the 

defendant does not present rebuttal evidence.” United States v. Dinh, 920 F.3d 

307, 313 (5th Cir. 2019) (internal quotation marks and citation omitted). While 

he is correct that there is nothing to indicate the pending laboratory testing 

cited in the factual basis was ever completed, Pisony explicitly agreed in the 

factual basis that the drugs seized would yield at least five grams of actual 

methamphetamine and affirmed under oath at rearraignment that the factual 

basis was correct. “[S]olemn declarations in open court carry a strong 

presumption of verity,” United States v. McKnight, 570 F.3d 641, 649 (5th Cir. 

2009) (internal quotation marks and citation omitted), and a defendant 

ordinarily may not refute testimony given under oath at a plea hearing, United 

States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). Relying on Pisony’s 

statement in the factual basis, the PSR stated that he was accountable for at 

least five grams of actual methamphetamine and calculated a base offense 

level using this agreed-upon value. See § 2D1.1(c)(8).

 Case: 19-51090 Document: 00515496982 Page: 2 Date Filed: 07/21/2020
No. 19-51090

3

Pisony’s agreement in the factual basis and reaffirmed under oath at 

rearraignment was that the methamphetamine seized would yield at least five 

grams of actual methamphetamine, but that laboratory tests as to the precise 

amount remained pending. Nowhere does the record state that his admission 

was contingent on the results of the pending laboratory tests confirming this 

value. Pisony does not cite any authority in support of his argument that the 

PSR lacks sufficient indicia of reliability absent laboratory results confirming 

the amount of drugs he actually admitted to possessing in the factual basis and 

at rearraignment. He has thus failed to demonstrate reversible plain error. 

See Puckett, 556 U.S. at 135.

AFFIRMED.

 Case: 19-51090 Document: 00515496982 Page: 3 Date Filed: 07/21/2020