[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-12342

Non-Argument Calendar

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D.C. Docket No. 0:16-cr-60236-WJZ-2

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

DANIEL OTIS GARRISON, JR., 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(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 twolevel 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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