             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                                                           [DO NOT PUBLISH]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
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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


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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


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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


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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


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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.




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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.




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