                                                 NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                No. 09-4716
                               _____________

                        UNITED STATES OF AMERICA

                                       v.

                           GABRIEL RIVERA-GIL,
                                           Appellant
                             ______________

               On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                      District Court No. 1-06-cr-00199-002
             District Judge: The Honorable Christopher C. Conner
                                 ______________

              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                             November 8, 2011

           Before: SCIRICA, SMITH, and JORDAN, Circuit Judges

                          (Filed: November 10, 2011)
                           _____________________

                                  OPINION
                           _____________________

SMITH, Circuit Judge.

     Gabriel Rivera-Gil appeals from the judgment of the United States District
Court for the Middle District of Pennsylvania.1 For the reasons set forth below, we

will affirm.

      Rivera-Gil was arrested when Pennsylvania law enforcement authorities

conducted a search of a hotel room pursuant to a warrant and found, inter alia, two

duffel bags containing approximately forty kilograms of cocaine. After being

charged in both an indictment and a superseding indictment, Rivera-Gil pleaded

guilty to an information, charging him with conspiring to possess and to distribute

cocaine in violation of 21 U.S.C. § 846 and criminal forfeiture. Although the plea

agreement contained a provision referencing Rivera-Gil’s cooperation with the

government, that provision was eliminated because of concerns by Rivera-Gil

about retribution upon him and his family if he cooperated. Thereafter, Rivera-Gil

was called as a witness by the government in the trial of one of his co-conspirators.

He refused to testify, and filed a motion to withdraw his guilty plea. Upon motion

by the government, Rivera-Gil received a grant of immunity. When Rivera-Gil

continued to be silent, the District Court found him in civil contempt, explained

that he could purge the contempt if he testified before the end of the trial, and,

when he failed to do so, sentenced him for criminal contempt to six months of

imprisonment consecutive to any other sentence. The Court denied his motion to


1
     The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §3742(a).
                                         2
withdraw his plea. Nonetheless, Rivera-Gil was intransigent and the contempt

conviction stood.

      Thereafter, Rivera-Gil’s presentence investigation report (PSR), which

initially calculated a guidelines range of 87 – 108 months, was revised to account

for his criminal contempt conviction. This increased his criminal history category

from I to II because of the addition of two points for the contempt conviction,

thereby resulting in the loss of his eligibility for a safety valve reduction. In

addition, the revised PSR eliminated the three point downward adjustment he had

received for his acceptance of responsibility by pleading guilty to an information.

The rationale for stripping Rivera-Gil of the acceptance of responsibility

adjustment was that he had continued to engage in criminal conduct while awaiting

sentencing. As a result, his guidelines range almost doubled to 168 – 210 months.

      Rivera-Gil objected to the revised guideline calculation at sentencing. The

District Court inquired whether he was making an objection under step one or step

three in the sentencing process.2 Rivera-Gil advised that the objection was under

step three. As a result, the Court adopted the findings and calculations in the PSR.



2
     See United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (setting out the
“three-step sentencing process,” which requires district courts to correctly calculate
the guidelines range, to rule on any motions by the parties, and finally, to exercise
its discretion under 18 U.S.C. § 3553(a)); see also Gall v. United States, 552 U.S.
38, 49-50 (2007).
                                          3
Rivera-Gil argued for a downward variance on the basis that the revised

calculation overstated his offense level and failed to take into account his fear of

reprisal. The Court concluded that there was “some merit to that argument” and

departed downward from the guideline range, imposing a sentence of 138 months.

This timely appeal followed.

      Rivera-Gil asserts that the District Court erred because his sentence is

substantively unreasonable.3 We review for an abuse of discretion. United States

v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).



3
     Rivera-Gil does not contend that the District Court procedurally erred at
sentencing by eliminating the acceptance of responsibility adjustment he received
for pleading guilty to an information, thereby resulting in a significant increase in
his guideline range. For that reason, we need not resolve whether Rivera-Gil’s
refusal to testify under a grant of immunity because of a fear of reprisal and a
finding of criminal contempt warrants the elimination of his adjustment for an
acceptance of responsibility. Nonetheless, we note that a contempt conviction
arising out of safety concerns for oneself and one’s family is different than a
contempt conviction arising out of an effort to assist the defense of a co-
conspirator. As a result, the revocation of an acceptance of responsibility
adjustment might be warranted if the District Court’s findings indicated that the
contempt conviction was based on continuing criminal conduct. See United States
v. Ceccarani, 98 F.3d 126, 129 (3d Cir. 1996). The same might not be warranted if
the criminal contempt conviction arises out of a fear of reprisal. Although this
distinction was not addressed by the District Court, we will not disturb the District
Court’s judgment as plain error review applies. See Olano v. United States, 507
U.S. 725, 732, 734 (1993). Assuming the failure to make an explicit finding in this
regard was an error, it was by no means obvious, as we have been unable to find
any case law addressing a similar scenario. Moreover, we cannot ignore that
Rivera-Gil sought to withdraw his guilty plea, which implicitly suggests he was no
longer willing to accept responsibility for his actions.
                                         4
      Although his sentence was below the guidelines range, Rivera-Gil contends

it was “still disproportionately high considering [his] involvement in the criminal

enterprise.”   He submits that the Court failed to adequately consider his

cooperation with the government and the extent to which he accepted

responsibility for his involvement in the conspiracy. The sentencing transcript

belies this argument. It reveals that the District Court thoughtfully considered

these factors, see United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en

banc) (reiterating that the “touchstone of ‘reasonableness’ is whether the record as

a whole reflects rational and meaningful consideration of the factors enumerated in

18 U.S.C. § 3553(a)”), and credited Rivera-Gil’s prayer for a downward variance.

Furthermore, the Court explained that the 138 month sentence was warranted given

the large quantity of drugs involved, the fact that Rivera-Gil was a trusted member

of the conspiracy, “the brazen nature of this drug trafficking organization,” and the

need for deterrence. Accordingly, we conclude that there is no basis for disturbing

the District Court’s judgment and we will affirm.




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