United States v. Garrity, Daniel , 196 F. App'x 431 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 12, 2006
Decided September 20, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-1642
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of Wisconsin
v. No. 05-CR-108
DANIEL GARRITY, Charles N. Clevert, Jr.,
Defendant-Appellant. Judge.
ORDER
Daniel Garrity pleaded guilty to distributing more than 50 grams of cocaine
base, 21 U.S.C. § 841(a)(1). The district court determined that he was a career
offender under U.S.S.G. § 4B1.1 and, applying the guidelines as advisory, sentenced
him to 262 months’ imprisonment, at the bottom of the guidelines range. On appeal
Garrity concedes his status as a career offender, but nonetheless argues that the
district court incorrectly calculated the drug quantity attributable to him and
erroneously imposed a two-level enhancement for possessing a dangerous weapon
pursuant to U.S.S.G. § 2D1.1(b)(1). Garrity also challenges his sentence as
unreasonable. We affirm.
No. 06-1642 Page 2
I.
In March 2005, Garrity brokered a sale of approximately 4.5 ounces of crack
cocaine between a supplier and an informant of the Drug Enforcement Agency.
Garrity met the informant in a parking lot and the two waited in Garrity’s car,
along with his girlfriend and infant son, for the supplier to arrive with the drugs.
While they were waiting, Garrity reached under the front driver’s seat, partially
displayed the black handle of an object he referred to as a “45,” and told the
informant that if anything happened he would take care of it. In reality the object
under the seat was the black handle of a window squeegee, but the car was dark
inside and the informant believed the object to be the handle of a gun. The supplier
called with instructions on where to meet and Garrity took the informant to meet
him. When they arrived, the supplier delivered 99.8 grams of crack to the
informant. A week later, Garrity again attempted to broker a sale of 4.5 ounces of
crack between the informant and the supplier, but this time Garrity was arrested
when he arrived at the meeting place before any transaction could occur. Garrity
subsequently pleaded guilty to distributing more than 50 grams of cocaine base in
violation of 21 U.S.C. § 841(a)(1).
In calculating Garrity’s imprisonment range, the district court began with a
base offense level of 34 based on the amount in the first sale and the attempted
second sale, see U.S.S.G. § 2D1.1(c)(3), and added two offense levels under
§ 2D1.1(b)(1) because Garrity made the informant believe he possessed a gun, see
U.S.S.G. § 2D1.1(b)(1); id. § 1B1.1 cmt. n.1(D)(ii)(II); see also United States v. Hart,
226 F.3d 602, 605 (7th Cir. 2000). The district court then granted Garrity a three-
level downward adjustment for acceptance of responsibility, see id. § 3E1.1,
resulting in a total offense level of 33. However, the court went on to find that
Garrity’s previous convictions for burglary, armed robbery, solicitation to commit
burglary, and conspiracy to manufacture or deliver drugs rendered him a career
offender under U.S.S.G. § 4B1.1, which raised his offense level to 37. Subtracting
three levels for acceptance of responsibility under U.S.S.G. § 3E1.1 yielded a
sentencing range of 262 to 327 months. The court next examined the factors in
18 U.S.C. § 3553(a) and determined that a sentence in the advisory range was
appropriate for Garrity to account for “the seriousness of the offense, the need to
promote respect for the law, the age of the crimes which contributed to [Garrity’s]
career offender status, coupled with the need to deter others from committing
similar crimes, and to protect the public.” The court also found that Garrity’s
remorse and work in the community were redeeming factors that warranted a
sentence at the bottom of the sentencing range.
No. 06-1642 Page 3
II.
On appeal Garrity first argues, as he did in the district court, that the
quantity of drugs attributable to him should be only the 99.8 grams of crack from
the first sale because he was not reasonably capable of making the second delivery
of 4.5 ounces of crack. Further, Garrity argues that the district court erroneously
applied the firearm enhancement under § 2D1.1 because he never actually
possessed a weapon during the sales, and the black handle of the squeegee that he
displayed to the informant did not “closely resemble” a weapon, as required in
U.S.S.G. § 1B1.1 application note 1(D).
Garrity’s arguments are frivolous because the district court’s conclusion that
Garrity was a career offender under § 4B1.1 mandated an increased offense level
without regard for any specific offense characteristics and rendered the drug
quantity and firearm enhancement irrelevant. See, e.g., United States v. King, 356
F.3d 774, 780 (7th Cir. 2004). Garrity did not contest the validity of any of the
predicate offenses in the district court and does not do so on appeal. The district
court correctly calculated his sentencing range at 262 to 327 months’ incarceration.
The remainder of Garrity’s arguments are not entirely clear from his brief.
He appears to argue that the district court, by refusing to impose a below-range
sentence, created unwarranted sentencing disparities in violation of 18 U.S.C.
§ 3553(a)(6). Garrity cites three district court cases in which defendants, who he
claims have similar characteristics, received downward departures or sentence
reductions. See United States v. Hammond, 240 F. Supp. 2d 872 (E.D. Wisc. 2003);
United States v. Noriega, 40 F. Supp. 2d 1378 (S.D. Fla. 1999); United States v.
Ayers, 971 F. Supp. 1197 (N.D. Ill. 1997). But we have held that “it is not enough
for a defendant to argue that a few cases from any particular circuit seem to cast
doubt on his sentence.” United States v. Newsom, 428 F.3d 685, 689 (7th Cir. 2005).
In order to evaluate disparities we must know “the specific facts of the crimes and
the defendant’s individual characteristics” because district courts are entitled to
conclude that these factors justify more severe sentences. Id. Moreover, there are
significant differences between Garrity and the three defendants he cites–the most
glaring being that only Garrity was determined to be a career offender.
To the extent that Garrity is attempting to challenge his sentence under
§ 3553(a)(1) by arguing that the district court did not adequately consider his
“history and characteristics,” he is also unsuccessful. Garrity appears to contend
that a lesser sentence was warranted because his prior offenses mostly occurred
long ago during his youth when he struggled with an alcohol and drug problem;
because he suffered serious mental and physical abuse as a child at the hands of his
father; and because he currently struggles with “significant mental and emotional
conditions.” Under § 3553(a) the district court must weigh a defendant’s history
No. 06-1642 Page 4
and characteristics, but it is not required to weigh one § 3553(a) factor more heavily
than the others. United States v. Laufle, 433 F.3d 981, 988 (7th Cir. 2006). The
district court here chose to give more weight to other factors in § 3553(a), such as
the seriousness of the offense and the need to promote respect for the law, 18 U.S.C.
§ 3553(a)(2)(A), Garrity’s career offender status, id. § 3553(a)(1), and the need to
protect the public, id. § 3553(a)(2)(C). We will not instruct the district court to
lower Garrity’s sentence just because a shorter sentence may also be reasonable.
See Laufle, 433 F.3d at 988; Newsom, 428 F.3d at 686-87.
AFFIRMED.