[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT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 , C ircuit 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 appea l, Garrison

Case: 17-12342 Date Filed: 08/31/2018 Page: 1 of 72 argues that : (1) the district court’s sentence was procedurally unreasonable because the district court applied a n 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.” Unit ed States v. Pugh , 515 F.3d 1179, 1189 (11th Cir. 2008) (quot ation 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 Gar rison ’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 calc ulating) 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

Case: 17-12342 Date Filed: 08/31/2018 Page: 2 of 73 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 th e 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 ne ed 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 evid ence 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 fi nding as to the allegation; or (2) determine that no such finding is

Case: 17-12342 Date Filed: 08/31/2018 Page: 3 of 74 necessary because the mat t er controverted will not be taken into account in sentencing the defendant.” Id . (quotation omitted). There is “[n]o limitation . . . on the information conce rning 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 U nited 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 tak en 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, t he district court did not procedurally err in imposing Garrison’s
sentence. As the reco rd reveals, the district court did not clearly err in finding by a

Case: 17-12342 Date Filed: 08/31/2018 Page: 4 of 75 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 , th e 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, a lthough 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,
t h e 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 r esult , 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

Case: 17-12342 Date Filed: 08/31/2018 Page: 5 of 76 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 G uidelines 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 convict ion, 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 cou rt’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, t he district court did not clearly err in denying Garrison a reduction for acceptance of responsibility. F or 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 accou ntable for additional relevant conduct for which Garrison continues to deny responsibility.

Case: 17-12342 Date Filed: 08/31/2018 Page: 6 of 77 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, w e affirm. AFFIRMED

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