United States v. Arthur Garrison ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4696
ARTHUR GARRISON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-97-83)
Submitted: March 9, 1999
Decided: September 14, 1999
Before ERVIN, NIEMEYER, and MICHAEL,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Roy D. Bradley, BRADLEY LAW FIRM, P.C., Madison, Virginia,
for Appellant. Robert P. Crouch, Jr., United States Attorney, Ray B.
Fitzgerald, Jr., Assistant United States Attorney, Charlottesville, Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Arthur Henry Garrison appeals his conviction and 130-month sen-
tence imposed after a jury found him guilty of conspiracy to distribute
cocaine base in violation of 21 U.S.C. § 846 (1994). He asserts on
appeal that he was not timely tried as required by the Speedy Trial
Act, 18 U.S.C. §§ 3161-3174 (1994), the Government failed to prove
at sentencing that the drugs were crack cocaine, the district court
erred by not applying the "safety valve" provision in 18 U.S.C.A.
§ 3553(f) (West Supp. 1998), and the court should have awarded him
a reduction for acceptance of responsibility under U.S. SENTENCING
GUIDELINES MANUAL § 3E1.1 (1997). Finding no reversible error, we
affirm.
I.
Garrison first asserts that his rights under the Speedy Trial Act
were violated because he was not tried within seventy days after he
was indicted. See 18 U.S.C. § 3161(c)(1). We review de novo legal
conclusions of the district court related to its interpretation of the
Speedy Trial Act, see United States v. Jarrell , 147 F.3d 315, 317 (4th
Cir.), cert. denied, ___ U.S. ___, 67 U.S.L.W. 3271 (U.S. Oct. 19,
1998) (No. 98-6105), and review for clear error the underlying factual
findings. See United States v. Stoudenmire, 74 F.3d 60, 63 (4th Cir.
1996).
Specifically, Garrison contends that his trial should not have been
delayed by the continuance granted in a co-defendant's case because
the Speedy Trial Act governs co-defendants joined for trial--not
merely co-defendants named in the same indictment. Because his co-
defendant, Fred T. Morgan, pled guilty, Garrison asserts that Morgan
was not joined for trial and that the time Morgan's trial was continued
should not have been excluded from the speedy trial calculation. Gar-
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rison, however, was timely tried under the Speedy Trial Act.* His
claim that Morgan's continuance should have been excluded must fail
because there was never a motion for severance granted. See 18
U.S.C. § 3161(h)(7). We also reject Garrison's attempt to distinguish
the language in 18 U.S.C. § 3161(h)(7) and (8) that refers to "the
defendant" rather than "any defendant," which appears in other sub-
sections of § 3161, and his argument that Morgan's continuance
should not be excluded because it was not a continuance granted for
Garrison--the defendant. Therefore, the district court properly
excluded the time granted for Morgan's continuance from the speedy
trial calculation. See United States v. Sarno , 24 F.3d 618, 622 (4th
Cir. 1994).
II.
Garrison next contends that the Government failed to prove at sen-
tencing that the drugs were crack cocaine because there was no evi-
dence presented that the drugs were processed with sodium
bicarbonate. Contrary to Garrison's assertion, however, the guidelines
state that crack cocaine "usually" possesses sodium bicarbonate. See
USSG § 2D1.1(c), note (D). Garrison relies on United States v.
James, 78 F.3d 851 (3d Cir. 1996), to support his claim that the Gov-
ernment failed to prove that the drugs were crack cocaine, but his reli-
ance is misplaced. Here, unlike in James, the evidence is
unambiguous--the record discloses no indication that the cocaine
attributed to Garrison was any form of cocaine base other than crack.
See United States v. Hall, 109 F.3d 1227, 1235-36 (7th Cir.), cert.
denied, ___ U.S. ___, 66 U.S.L.W. 3258 (U.S. Oct. 6, 1997) (No. 96-
9561).
The indictment in this case indicated that Garrison was charged
with conspiracy to distribute "cocaine base, or``crack'." While the
indictment alone is not sufficient to prove the type of drugs involved,
_________________________________________________________________
*Twenty-three days elapsed between Garrison's arraignment and Mor-
gan's motion for a continuance. Once the court granted the 120-day con-
tinuance from the February 18, 1998, trial date, the speedy trial clock
restarted on June 18. Garrison had to be tried by August 4, 1998--the
expiration of the 70-day period. Garrison's trial commenced on June 10,
1998.
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see United States v. Fletcher, 74 F.3d 49, 53 (4th Cir. 1996), it is fur-
ther evidence that the drugs are "crack." In addition, the drugs were
introduced into evidence, giving the jurors an opportunity to examine
the drugs themselves, and the presentence report specifically identi-
fies the drugs as crack cocaine. The jurors also heard numerous users
testify that they purchased crack cocaine from Garrison in his garage
and that they never purchased powder cocaine from Garrison. Most
importantly, trained narcotic agents testified that the Government
exhibits, which were the drugs seized from Garrison's garage,
appeared to be crack cocaine. See United States v. Dolan, 544 F.2d
1219, 1221 (4th Cir. 1976) (holding that lay testimony and circum-
stantial evidence is sufficient, in and of itself, to establish the identity
of controlled substances); United States v. Boissoneault, 926 F.2d
230, 233 (2d Cir. 1991) ("Agents may also offer their interpretations
of any physical evidence that is properly before the jury.") (citations
omitted). Finally, Garrison offered no proof that the drugs were any
other form of cocaine base. Therefore, the district court did not
clearly err in sentencing Garrison under the enhanced penalties for
crack cocaine. See United States v. Blake, 81 F.3d 498, 503 (4th Cir.
1996) (stating standard of review).
III.
Garrison next asserts that the district court erred in failing to apply
the "safety valve" provision under 18 U.S.C.§ 3553(f) and to award
a reduction for acceptance of responsibility under USSG § 3E1.1.
Garrison does not appear to have met the requirements for a departure
under § 3553(f) because he failed to provide all information concern-
ing the offense to the Government prior to or at sentencing. Garrison
objected to the probation officer's characterization of the drugs as
crack cocaine, thereby continuing to deny that the drugs involved in
the conspiracy were crack. Because Garrison does not meet all of the
requirements set forth in § 3553(f), he is ineligible for a reduction
under the "safety valve" provision. See United States v. Withers, 100
F.3d 1142, 1147 (4th Cir. 1996) (stating that defendants must
acknowledge responsibility for actions before qualifying for safety
valve reduction), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3631 (U.S.
Mar. 17, 1997) (No. 96-7884).
As for Garrison's claim that the district court should have awarded
a reduction for acceptance of responsibility, Garrison required the
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Government to prove at trial that the drugs were crack cocaine. The
issue he sought to raise by means of a trial therefore related to factual
guilt. See United States v. Dickerson, 114 F.3d 464, 470 (4th Cir.
1997). In this circumstance, the district court did not clearly err in
finding that the reduction should not apply. See USSG § 3E1.1, com-
ment. (n.2); United States v. Castner, 50 F.3d 1267, 1279-80 (4th Cir.
1995).
IV.
Accordingly, we affirm Garrison's conviction and sentence. We
deny Garrison's motion for 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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