Case: 17-12342 Date Filed: 08/31/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12342
Non-Argument Calendar
________________________
D.C. Docket No. 0:16-cr-60236-WJZ-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL OTIS GARRISON, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 31, 2018)
Before TJOFLAT, MARCUS and NEWSOM, Circuit Judges.
PER CURIAM:
Daniel Otis Garrison, Jr. appeals his 64-month sentence imposed after a jury
found him guilty of one count of possessing with intent to distribute cocaine
weighing less than 500 grams in violation of 21 U.S.C. § 841. On appeal, Garrison
Case: 17-12342 Date Filed: 08/31/2018 Page: 2 of 7
argues that: (1) the district court’s sentence was procedurally unreasonable because
the district court applied an incorrect base offense level based on the amount of
cocaine at issue; and (2) the district court clearly erred in not giving him a two-
level reduction in his guideline range for acceptance of responsibility. After
thorough review, we affirm.
We review the sentence a district court imposes for “reasonableness,” which
“merely asks whether the trial court abused its discretion.” United States v. Pugh,
515 F.3d 1179, 1189 (11th Cir. 2008) (quotation omitted). In determining
procedural reasonableness, we review a district court’s application of the
Guidelines de novo and its factual findings for clear error. United States v.
Barrington, 648 F.3d 1178, 1194-95 (11th Cir. 2011). We review the district
court’s denial of a reduction for acceptance of responsibility for clear error. United
States v. Knight, 562 F.3d 1314, 1322 (11th Cir. 2009).
First, we are unpersuaded by Garrison’s claim that his sentence is
procedurally unreasonable. In reviewing sentences for procedural reasonableness,
our task is to “‘ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence -- including an explanation for any deviation from the
2
Case: 17-12342 Date Filed: 08/31/2018 Page: 3 of 7
Guidelines range.’” Pugh, 515 F.3d at 1190 (quoting Gall v. United States, 552
U.S. 38, 51 (2007)). The § 3553(a) factors include: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the
need for the sentence imposed to afford adequate deterrence; (4) the need to protect
the public; (5) the need to provide the defendant with educational or vocational
training or medical care; (6) the kinds of sentences available; (7) the Sentencing
Guidelines range; (8) the pertinent policy statements of the Sentencing
Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the
need to provide restitution to victims. 18 U.S.C. § 3553(a).
The sentencing court’s factual findings for purposes of sentencing may be
based on evidence heard during trial, undisputed facts in the presentence
investigation report (“PSI”), or evidence presented during the sentencing hearing.
United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004). When a party
objects to a fact in the PSI, the government must present reliable and specific
evidence establishing the disputed fact by a preponderance of the evidence. United
States v. Martinez, 584 F.3d 1022, 1027 (11th Cir. 2009). “Once the [g]overnment
has presented proper evidence, the district court must either: (1) make an explicit
factual finding as to the allegation; or (2) determine that no such finding is
3
Case: 17-12342 Date Filed: 08/31/2018 Page: 4 of 7
necessary because the matter controverted will not be taken into account in
sentencing the defendant.” Id. (quotation omitted).
There is “[n]o limitation . . . on the information concerning the background,
character, and conduct of a person convicted of an offense which a court . . . may
receive and consider for the purpose of imposing an appropriate sentence.” 18
U.S.C. § 3661; accord U.S.S.G. § 1B1.4. Thus, a district court may rely on
conduct for which a defendant is not convicted in imposing a sentence, so long as
the government proves the facts underlying the conduct by a preponderance of the
evidence and the sentence imposed does not exceed the maximum sentence
authorized. See United States v. Faust, 456 F.3d 1342, 1347–48 (11th Cir. 2006)
(affirming a district court’s enhancement of a defendant’s offense level based on
conduct for which the defendant was acquitted because the government proved the
facts by a preponderance of the evidence and the sentence did not exceed the
statutory maximum); see also U.S.S.G. § 1B1.4, comment. (“For example, if the
defendant committed two robberies, but as part of a plea negotiation entered a
guilty plea to only one, the robbery that was not taken into account by the
guidelines would provide a reason for sentencing at the top of the guidelines range
and may provide a reason for an upward departure.”).
Here, the district court did not procedurally err in imposing Garrison’s
sentence. As the record reveals, the district court did not clearly err in finding by a
4
Case: 17-12342 Date Filed: 08/31/2018 Page: 5 of 7
preponderance of the evidence that Garrison was responsible not only for the
cocaine that was found on Garrison’s person when he was arrested, but also for the
cocaine found in the house of Garrison’s co-defendant, Branden Stallman. As for
the cocaine found at Stallman’s house, Garrison testified that the phone found on
his person was not assigned the same number as the number that was used to
arrange drug deals with Stallman. However, the number used to arrange drug deals
with Stallman was stored on Garrison’s phone as “me.” Further, there was no
explanation for how Garrison knew to show up at Stallman’s house with the
amount of cocaine agreed upon in the text exchanges if he had not been the one
with whom Stallman was corresponding. Thus, although the jury determined that
the government had not proven beyond a reasonable doubt that Garrison was
responsible for the conspiracy or for possessing more than 500 grams of cocaine,
the evidence outlined above was more than sufficient for the district court to find
that the government proved by a preponderance of the evidence that Garrison was
responsible for a greater amount of cocaine than was reflected in the jury’s verdict.
As a result, the district court’s factual finding was not clearly erroneous and the
sentence was procedurally reasonable.
We also find no merit to Garrison’s claim that the district court clearly erred
by denying him a reduction for acceptance of responsibility. The United States
Sentencing Guidelines provides for a two-level reduction in a defendant’s offense
5
Case: 17-12342 Date Filed: 08/31/2018 Page: 6 of 7
level if the defendant “clearly demonstrates acceptance of responsibility for his
offense. U.S.S.G. § 3E1.1(a). The commentary to that section of the Guidelines
provides a list of non-exhaustive considerations for the district court to consider
whether the defendant merits the reduction for acceptance of responsibility, which
includes “truthfully admitting the conduct comprising the offense(s) of conviction,
and truthfully admitting or not falsely denying any additional relevant conduct for
which the defendant is accountable under § 1B1.3 (Relevant Conduct).” U.S.S.G.
§ 3E1.1, comment. n.1(A) (emphasis added). We give great deference to the
district court’s determination that a defendant has not accepted responsibility, and
will not set aside that determination “unless the facts in the record clearly establish
that the defendant has accepted responsibility.” United States v. Moriarty, 429
F.3d 1012, 1022-23 (11th Cir. 2005).
In this case, the district court did not clearly err in denying Garrison a
reduction for acceptance of responsibility. For starters, although Garrison admitted
to the jury that he was responsible for the amount of cocaine he was arrested with,
it is significant that he did not actually plead guilty to that offense, or provide
probation with a statement that he accepted responsibility. Moreover, the district
court found, by a preponderance of the evidence, that Garrison was accountable for
additional relevant conduct for which Garrison continues to deny responsibility.
6
Case: 17-12342 Date Filed: 08/31/2018 Page: 7 of 7
Based on these facts, we do not find that the district court clearly erred, or that the
record clearly established that he accepted responsibility. Accordingly, we affirm.
AFFIRMED.
7