UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4731
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN EDWARD VANLUE GARRETT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:07-cr-01394-JFA-l)
Submitted: August 31, 2010 Decided: September 23, 2010
Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
T. Kirk Truslow, TRUSLOW LAW FIRM, LLC, North Myrtle Beach,
South Carolina, for Appellant. Kevin F. McDonald, Acting United
States Attorney, Mark C. Moore, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Edward Vanlue Garrett pled guilty to conspiracy
to possess with intent to distribute five kilograms or more of
cocaine and fifty grams or more of cocaine base (crack), 21
U.S.C. § 846 (2006) (Count 1); attempting to traffic in cocaine
within 1000 feet of a playground, 21 U.S.C. §§ 846, 860 (2006)
(Count 2); using and carrying a firearm during and in relation
to and in furtherance of a drug trafficking crime, 18 U.S.C.A.
§ 924(c) (West 2000 & Supp. 2010) (Count 4); aiding and abetting
armed robbery, 18 U.S.C. §§ 1951, 2 (2006) (Count 5); and
possession of a firearm by a convicted felon, 18 U.S.C.
§ 922(g)(1) (Count 7). He was sentenced to a term of 276 months
imprisonment for the drug and firearm offenses, and a
consecutive five-year sentence for the § 924(c) conviction.
Garrett contends on appeal that the district court clearly erred
in finding that he obstructed justice by threatening his co-
defendant, William Holley, and clearly erred by denying him a
reduction for acceptance of responsibility. U.S. Sentencing
Guidelines Manual §§ 3C1.1, 3E1.1 (2008). We affirm.
Garrett was arrested with Holley and Rodney Pettigrew
while they were in the act of buying two kilograms of cocaine
from several Mexican drug dealers. Holley cooperated with law
enforcement authorities after his arrest and was interviewed
twice. At his second interview, Holley informed them that he
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had not been fully forthcoming in his first interview out of
fear of Garrett. According to Holley, he saw Garrett through a
glass separator when they were both being held in the county
detention center. Garrett pointed at Holley, then put his
fingers to his head and gestured as though shooting a gun.
Holley took this as a threat. He also said he and his co-
defendants intended to rob the Mexicans and that Garrett had
told him, just after their arrests, that he would likely have
shot one of the Mexicans. Both Garrett and Pettigrew were armed
when they were arrested. Based on this information, the
probation officer recommended an adjustment for obstruction of
justice, with no reduction for acceptance of responsibility.
At the sentencing hearing, both Holley and Garrett
testified. Garrett denied making any threat. His lawyer argued
that, if Garrett did make a gesture, Holley might have
misinterpreted it. The district court accepted Holley’s version
of events and his representation that he felt threatened by
Garrett’s gesture, and overruled Garrett’s objections.
The sentencing guidelines provide for a two-level
adjustment to a defendant’s offense level if the defendant
“willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense
of conviction, and . . . the obstructive conduct related to
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(i) the defendant’s offense of conviction and any relevant
conduct; or (ii) a closely related offense.” USSG § 3C1.1.
Obstructive conduct within the meaning of § 3C1.1 includes, but
is not limited to, “threatening, intimidating, or otherwise
unlawfully influencing a co-defendant, witness, or juror,
directly or indirectly, or attempting to do so.” Id., cmt.
n.4(a). Whether a defendant obstructed justice is a factual
question reviewed for clear error. United States v. Kiulin, 360
F.3d 456, 460 (4th Cir. 2004).
Garrett contends that the gesture he allegedly made to
Holley was ambiguous, and that the court decided that it was a
threat based solely on Holley’s subjective interpretation of it.
Garrett claims that, without some evidence to support Holley’s
interpretation that the gesture was a threat, and that it
related to Garrett’s instant offense or one closely related, the
adjustment was clearly erroneous.
The district court’s decision to accept Holley’s
testimony that Garrett threatened him by means of a gesture was
a credibility determination, to which the appellate court
generally defers. See United States v. Griffin, 589 F.3d 148,
151 n.1 (4th Cir. 2009) (“[I]t is the role of the district court
to observe witnesses and weigh their credibility.”) (internal
quotation and citation omitted). The district court found
Holley a credible witness. We conclude that its determination
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that Garrett had obstructed justice by attempting to intimidate
a co-defendant was not clearly erroneous.
A defendant generally is not eligible for the
acceptance of responsibility adjustment under USSG § 3E1.1 when
he receives an upward adjustment for obstruction of justice
under USSG § 3C1.1. See USSG § 3E1.1 cmt. n.4; United States v.
Hudson, 272 F.3d 260, 263-64 (4th Cir. 2001). The defendant has
the burden of showing that his circumstances are extraordinary,
in which case both adjustments might apply. USSG § 3E1.1 cmt.
n.4.
Garrett did not file a written objection to the
probation officer’s failure to recommend an adjustment for
acceptance of responsibility, but at the sentencing hearing the
government informed the court that Garrett was objecting to the
lack of a reduction for acceptance of responsibility. However,
the evidence presented and the parties’ argument focused
exclusively on Garrett’s alleged obstruction of justice. He
made no attempt to show that his case was an extraordinary one
where he might receive a reduction for acceptance of
responsibility even though the district court found that he had
obstructed justice. Moreover, the record does not disclose any
basis for such a claim. Consequently, the district court did
not clearly err in denying Garrett an adjustment under § 3E1.1.
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We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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