NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 10

- 2563

__________ UNITED STATES OF AMERICA

v.
RAFAEL PENA

- GONELL ,

Appellant.

__________ On Appeal from the United States District Co urt for the Eastern District of Pennsylvania (D.C. No. 2

- 08

- cr
- 00264

- 001 ) District Judge: Hon. Juan R. Sanchez

__________ Submitted under Third Circuit LAR 34.1(a)

June 21, 2011
Before: HARDIMAN and ALDISERT, Circuit Judges , and RESTANI , * Int ’ l Trade Jud ge
. (Filed June 2 2 , 2011 )

__________ OPINION OF THE COURT

__________

* Honorable Jane A. Restani, Judge of the United S tates Court of International Trade, sitting by designation.2

ALDISERT, Circuit Judge

. Appellant Rafael Pena

- Gonell pleaded guilty in the United States District Court for the E astern District of Pennsylvania t o conspiracy to distribute and act ual distribution of several kilograms of powder cocaine. He now appeals the sentence he received, contending that the District Court misapplied the United States Sentencing Guidelines ( “ U.S.S.G. ” or “ Guidelines ” ). We will affirm.
I. Rafael Pena

- Gonell plea ded guilty to one count of conspiring to distribute cocaine in excess of five k ilograms, in violation of 21 U. S.C. §§ 841(a)(1) and 846, and one count of distributi on of two kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)( 1 )(B). At sentenc ing, the District Court determined that Pena

- Gonell ’ s base offense level was 32. It then made three adjustments to that calculation. First, it found that Pena

Gonell obstructed justice by threatening a witness , and applied a two

- level upward adjustment pur suant to § 3C1.1 of the Guidelines. Second, it found that Pena

- Gonell had a supervisory or leadership role in his offense and applied a two

- level upward adjustment pursuant to § 3B1

. 1 of the Guidelines . Third, it granted a two

- level downward adjustment for acceptanc e of responsibility, pursuant to § 3E1.1(a) of the Guidelines. These adjustments yielded a final offense level of 34, which

— at Pena

- Gonell ’ s C riminal
H istory C ategory I

—

produced a sentencing range of 151 to 188 months ’ imprisonment.
Pena

- Gonell t hen requested a departure pursuant to 1 8 U.S.C. § 3553(f). T he District C ourt denied the departure and sentenced him to 168 months ’ imprisonment and 5 years of supervised release. Pena

- Gonell timely appealed.
II. The District Court had juris diction pursuan t to 18 U.S.C. § 3231. We have3

jurisdict ion pursuant to 28 U.S.C § 1291 and 18 U.S.C. § 3742. O ur review of the District Court ’ s interpretation of the Guidelines is plenary. United States v. Kulick , 629 F.3d 165, 168 (3d Cir. 2010) (citing United States v. Pena , 268 F.3d 215, 219 (3d Cir. 2001)). We review the District Court ’ s factual findings for clear error. Id. (citing United States v. Rudolph , 137 F.3d 173, 178 (3d Cir. 1998) ). We find clear error if, when reviewing t he entire record, we are “ left with the definite and firm conviction that a mistake has been committed. ” Id. ( internal quotations and citations omitted). III. Pena

- Gonell contends that the District Court made three errors at senten cing, by (1) applying an obstruction of justice adjustment , ( 2) applying a leadership or aggravating role adjustment , and (3) denying his requ est for an 18 U.S.C. § 3553(f) departure. We disagree

. First, the District Court correctly applied an obstruction of justice adjustment

. Section 3C1.1 of the Sentencing Guidel ines instructs a District Court to apply a two

- level adjustment if it finds that the defendant obstructed or attempted to obstruct the administration of justice: If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant ’ s offense of conviction and any relevant conduct; or (ii) a closely r elated offense, increase the offense level by 2 levels.

A defendant obstructs justice by , among other things, “ threatening, intimidating, or otherwise unlawfully influencing a co

- defendant, witness, or juror, directly or indirectly, or attempting to do so. ” Id. cmt. n. 4. In this case, two witnesses testified that Pena

- Gonell4

had asked his brother to kidnap and kill his codefendant, and his codefendant ’ s three

year
- old son

. There was also testimony that Pena

- Gonell threatened his codefendant ’ s wife, who was c ooperating with the government

. This testimony, which the District Court credited as truthful, fully supported its conclusion that Pena

- Gonell obstructed, or attempted to obstruct, justice. We are not “ left with the definite and firm conviction th at a mis take has been committed, ” Kulick , 629 F.3d at 168 (internal quotat ion marks and citation omitted) , and we will not reverse the District Court on this ground. Second, the D istrict Court correctly applied a two

- level upward adjustment on the basis that Pena

- Gonell had a leadership role in his crimes. Section 3B1.1(c) of the Sentencing Guidelines provides for a two

- level upward adjustment, “ If the defendant was an organizer, leader, manager, or supervisor in any criminal activity

. . . ” T o qualify for adju stme nt under § 3B1.1, “ [T] he defendant must have been the organizer, leader, manager, or supervisor of one or more other participants. ” Id. cmt

. n. 2. Two witnesses involved in the same drug organization as Pena

- Gonell testified that on multiple occasions they had seen him give orders to subordinate members of the organization. These witnesses also testified that P ena
- Gonell ’ s brother was the head of the organization, and Pena

- Gonell was second in command. This evidence fully supports the District Court’s conclu sion that he was “ an organizer, leader, manager, or supervisor in any criminal activity. ” Id. We will affirm its applica tion of a two

- level adjustment

. Third, the District Court correctly held that § 3553(f) ’ s departure provision did not apply to this case . By statute, defendants who make certain showings are entitled to be sentenced without regard to the statutory minimum sentence for their crime. See 18 U.S.C. § 3553(f). Th is is sometimes referred to as a “ safety valve ” provision. To qualify for the safet y valve, a defendant must meet five criteria, including that the defendant was5

“ not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines. ” See § 3553(f)( 4)

. The Sentencing Guidelines provide
t hat a defendant who meets the § 3553 criteria is entitled to a two

- level reduction to his or her base offense level. See U.S.S.G. § 5C1.2. Pena

- Gonell contends that he was entitled
to a two

- level adjustment pursuant t o the safety valve provision, but we di sagree. The District Court found, based on ample evidence and credible testimony, that Pena

- Gonell was an organizer and manager in his drug distribution organization. This finding disqualifies him from the safety valve provision. T he District Court therefo re correctly declined to apply a two

- level reduction to his base offense level. See U.S.S.G. § 5C1.2. We therefore affirm his sentence

. * * * * * We have considered all of the arguments advanced by the parties and conclude that no further discussion is nec essary. The judgment of the D istrict C ourt will be AFFIRMED

.