NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

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No. 14-3177

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UNITED STATES OF AMERICA

v. RAFAEL CORDERO, Appellant

On Appeal from the United States District Court for the Eastern Distri ct of Pennsylvania (District Court No.: 2-12-cr-00385-001) District Judge: Honorable Paul S. Diamond

Submitted under Third Circuit LAR 34.1(a) On March 16, 2015

Before: RENDELL, FUENTES a nd BARRY, Circuit Judges
(Opinion filed: April 29, 2015)2 O P I N I O N *

RENDELL , Circuit Judge: Appellant Rafael Cordero appeals from the District Court’s sentence of 180 months incarceration followed by a three year term of probation, a $5,000 fine and a $400 mandatory assessment. Cordero was a 22-year veteran of the Philadelphia Police Department when he was charged and convicte d of two counts of obstruction of justice and two counts of false statements within a fe deral matter. He argues that the District Court abused its discretion by imposing an ab ove-guidelines sentence in his case based on a clearly erroneous factual conclusion—name ly, that he assisted his half-brother, David Garcia, in the major drug traffick ing organization he was working with. Additionally, he argues that th e totality of the circumstances did not justify the extent to which the District Court deviated from the gui delines range in imposing his sentence. Thus, he argues, we should vacate his se ntence and remand for resentencing. We review the District Court’s sent encing order for abuse of discretion. Gall v.
U.S. , 552 U.S. 38, 51 (2007). In doing so, we first ensure that the District Court committed no a significant procedural e rror in arriving at its decision. United States v.
Wise , 515 F.3d 207, 217 (3d Cir. 2008). If the sentence is procedurally sound, we determine its substantive reasonableness by look ing at the totality of the circumstances.

* This disposition is not an op inion of the full Court and pu rsuant to I.O.P. 5.7 does not constitute binding precedent.3 Gall 552 U.S. at 50. Because the District Court’s ruling was pro cedurally sound and substantively reasonable, we will affirm. Facts and Procedural History In 2010, the DEA Philadelphia Division began an investigation into a heroin trafficking organization which revealed that Edwin Medina (aka “June”) was distributing large quantities of prepack aged heroin with in the 25th Police District . It further revealed that Medina and his associates, including Ga rcia, his “right-hand” man, were using a garage located at 538 East Indiana Avenue in Philadelphia to store narcotics and guns, count money, and hold meetings regarding th e drug distribution business. At the time that Garcia joined Medina’s enterprise, he had been servi ng as a confidential informant for the FBI, primarily working with FBI Task Force Officer R obert Clark. Upon learning of Garcia’s criminal behavi or and duplicity, however, the FBI discreetly deactivated Garcia as a source, and thereafter provided him with misinformation regarding their investigation into Medina. The DEA obtained authorization to wi retap Garcia’s and Medina’s phones. Intercepted calls and texts revealed severa l incriminating contacts between Garcia and Cordero. On June 3, 2011, the DEA installe d a service camera on a light pole to monitor activities occurring at Medina’s garage. On that same day, Garcia called Cordero and told him that he was concerned that a pole camera had been mounted at that location. Cordero asked Garcia if “June knows” about the camera, and promised Garcia that he would “check it out.” (App. 58-59). The next day, while on duty, Cordero went to investigate the camera, and after doing so, called Garcia to provide him information4 regarding its location, the direction it was poi nted, its technical capabilities and strengths. Garcia passed the information to Medina, w ho then removed three cars and three guns from the garage. After listening to thes e conversations, the FBI then obtained authorization to wiretap Cordero’s phone. On July 21, 2011, the DEA and FBI a rrested a number of targets within the Medina drug trafficking organi zation. On that night, Garcia informed Cordero about the arrests, and notified him that law enforcement were at the ga rage. Cordero then went to the garage, parked his vehicle and peered into it through a window to investigate. DEA Special Agent Mark Koss, who was inside, observed Cordero’s acti ons and confronted him, causing Cordero to hold up his police radio and state that he was “on the job.” (App. 235-36). Immediately after leaving th e scene, Cordero called Garcia and provided him with information about th e law enforcement activities he had just observed in the garage. Cordero then called his supervisor Sergeant James Muller to report that he had been driving by the garage a nd had seen the police activity when he stopped to see what was going on, and that he had been pulled as ide by law enforcement. He mentioned nothing about Garcia. Later in the day, Corder o told Garcia to lie to Officer Clark about whether Garcia knew about where any money or drugs were located. Over the next several days, when Cordero and Garcia spok e over the phone, Cordero learned that Garcia had removed items from the garage after the search, including a DVR tape that showed Cordero’s presence at the search. Du ring one call, Cordero instructed Garcia to tell law enforcement that Garcia’s truck was in the garage at the time of the search because Garcia was paying rent to keep it there.5 On July 26, 2011 , FBI Agent Brian Monahan and Philadelphia Police Task Force Officer Joseph Chilutti interviewe d Cordero. At the trial, Agent Monahan testified that Cordero explained that he went to the garage because he knew it was used to facilitate the storage and sale of narcotics and firearms. He denied knowing anyone associated with the garage. Cordero also stated that he wa s at the garage because he had seen police activity in the area, and the only person he called after he left the search was his supervisor, Sergeant Muller. However, there wa s evidence that after these conversations, Cordero spoke with his brother Enrique Corder o, who asked Cordero, in code, whether he should come to Cordero’s hous e to retrieve the money that Garcia was storing there. Enrique Cordero testified that shortly after that call, he called Cordero’s wife and arranged to meet discreetly do wn the street from Cordero’ s home, where he received a bag containing $20,000 in cash. At trial, Cordero denied any knowle dge of Garcia’s involvement in drug distribution and insisted that his actions on behalf of Garcia were because he believed that Garcia was an FBI informan t. He testified that he did not know Medina. He testified that he never told Agents Monahan or Koss th at he believed the garage was used for the storage and sale of narcotics, and insisted that their testimony to the contrary was false. On July 31, 2012, a jury found Cordero guilty of two counts of obstruction of justice and two counts of false statements wi thin a federal matter. The Probation Office submitted a Presentence Inves tigation Report (“PSR”) that determined a base level offense of 30. As the offense involved at least 3 but less than 10 kilograms of heroin, the use of a dangerous weapon, and the obstruction of an investigation of a drug trafficking6 organization, the base level offense was de termined to be 36. Pursuant to U.S. Sentencing Guideline § 2J1.2(c), which prov ides that if the offense involves the obstruction of an investigation or prosecution of a criminal, U.S.S.G. 2X3.1 (accessory after the fact) should be applied to that crimin al offense, 6 levels were subtracted for an adjusted base offense level of 30. The Prob ation Office further de termined that Cordero had abused a position of trus t, and therefore applied a 2-level enhancement under U.S.S.G. § 3B1.1. Finally, the Probation Office found that Cordero had obstructed justice by testifying falsely at trial, and ap plied a 2-level enhancement under U.S.S.G. 3C1.1, which resulted in a total offense leve l of 34. Cordero was in criminal history category I, and therefore his guideline range wa s determined to be 151-188 months. At the sentencing hearing on June 25, the partie s agreed that the guideline calculation as determined by the Probation Office was corr ect. The Court, at the request of the government, granted a 2-level reduction to re flect an impending am endment to the drug guidelines. Thus, the amended guideline range was determined to be 121-151 months. Cordero argued for a downward variance from this range. The Court rejected Cordero’s contention that he did nothing to aid a drug trafficking organization, and only attempted to help his brother, who he believe d was a federal informant. The Court noted that the evidence overwhelmingly showed that Cordero was trying to help his brother sell drugs and defeat a federal investigation of a major drug traffick ing organization. Additionally, the Court noted the seriousness of the offense he had committed, and that Cordero, captured on tape, had come acro ss as arrogant, defiant, and completely contemptuous of federal authority. The Cour t concluded that an upward variance was7 warranted under the facts and circumstance s, and imposed a total sentence of 180 months’ imprisonment, 29 months above th e top of the advisory guideline range. Discussion
1. Procedural Error In reviewing a challenge to the reasonablen ess of a sentence, this Court “must first ensure that the district court committe d no significant procedural error.” Gall , 552 U.S. at 51. In United States v. Goff , this Court held laid out a th ree-step process for district courts to follow in making sentencing determin ations: (1) the district court must calculate a defendant’s Guidelines sentence, (2) it must formally rule on the departure motions of both parties, and state on the record whethe r they are granting a departure motion and how that departure affects the Guidelines calculation, and (3) it must exercise its discretion by considering the relevant factors laid out in 18 U.S.C. § 3553(a). 501 F.3d 250, 254 (3d Cir. 2007). 1 If a district court commits procedural error, the case is remanded for resentencing. Id. at 214 (citing United States v. Ausburn , 502 F.3d 313, 328 (3d Cir. 2007). As an initial matter, there is no doubt th at the District Court followed the threestep process laid out in Goff. The parties agreed to th e Guideline calculation as determined by the Probation Office. The Co urt then granted Cordero a 2-level reduction to reflect an impending amendment to the drug guidelines. The Court considered the

1 The § 3553(a) factors are statutory factors that a district court must consider in tailoring a sentence. United States v. Merced , 603 F.3d 203, 213 (3d Ci r. 2010). Among others, these include: the seriousness of the offense, pr omoting respect for the law, providing just punishment for the offense, affording adeq uate deterrence to criminal conduct, and protecting the public from furthe r crimes. 18 U.S.C. § 3553(a).8 defense’s request for downward departures , and concluded that a departure was not warranted. Finally, the Court co nsidered the factors set fort h in § 3553(a), and concluded that a sentence 29 months above th e guideline range was appropriate. However, imposing a sentence based on cl early erroneous facts is procedural

error. United States v. Merced , 603 F.3d 203, 214 (3d Cir. 2 010). Cordero urges that the District Court’s sentence was procedurally unsound because it primarily relied on the erroneous factual conclusion that his acti ons were intended to aid Garcia’s drug trafficking activities on behalf of the Medina drug trafficking organi zation. A finding of fact is deemed “clearly errone ous” when, “although there is evidence to support it, the reviewing body on the entire ev idence is left with the defin ite and firm conviction that a mistake has been committed.” Wise , 515 F.3d at 218 (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal. , 508 U.S. 602, 622 (1993)). This argument is unavailing. Cordero’s ac tions indicate that he was well aware of Garcia’s role in the Medina drug organiza tion, that he knew wh o Medina was, and, moreover, that by using his pos ition of public trust to help Garcia avoid law enforcement detection, he was helping the organization its elf. Moreover, Cordero’s protracted efforts to make fraudulent statements when asked about Garcia and his activities to help Garcia reveal that he knew that his actions were illegal. When confronted by law enforcement while he was at the garage, Cordero lied, fa iling to reveal the information he had about the garage’s role in the Medina drug organization. Cordero al so instructed Garcia to lie to Officer Clark about Garcia’s knowledge of where guns or drugs were located. Cordero lied both times he was intervie wed about the purpose of his presence at the garage, and9 told the same story to the jury at trial. Based on these facts, any reasonable factfinder could reach the conclusion that Cordero knew Garcia was a drug trafficker employed by the Medina drug organization, and that he en deavored to protect Garcia from detection by law enforcement. Therefore, the District Cour t’s finding of fact that Cordero acted to aid a drug trafficking organization was not “clearly erroneous.” 2. Substantive Reasonableness If the district court’s sentence is proced urally sound, the appellate court must examine the substantive reasona bleness of the sentence. Merced , 603 F.3d at 214. The substantive reasonableness inquiry is highly deferential to the district court. U.S. v. Tomko , 562 F.3d 558, 568 (3d Cir. 2009). Th e fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal. Gall , 552 U.S. at 51. “[I] f the district court’s sentence is procedurally sound, we will affirm it unle ss no reasonable sentencing c ourt would have imposed the same sentence on that particular defendant fo r the reasons the district court provided.” Tomko, 562 F.3d at 568. “The touchstone of reasonableness is whether the record as a whole reflects rational and meaningful consid eration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier , 475 F.3d 556, 571 (3d Cir. 2007). Cordero cannot demonstrate that “no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Tomko , 562 F.3d at 568. In explaining its decision to impose a sentence 29 months higher than the Guidelines range, the Court considered the arguments of both parties, including a letter from Police Co mmissioner Charles Ramsey, who urged the10 Court to impose the highest sentence permissi ble. The Court noted the seriousness of Cordero’s crime – as a police officer, not on ly did he defy the law he was sworn to protect, but he abused the privileges of his law enforcement position to subvert and frustrate a federal investigation. The Court considered and rejected, as it was entitled to do, Cordero’s pleas for leniency – includi ng the significance of Cordero’s length of public service, noting that he had in fact abus ed his position of public service in order to commit crime and violate the public trust. Th e Court also rejected the significance of Cordero’s awards and honors, the argument that his behavior was allegedly aberrant in this case, the fact that he had lost his pens ions, that he did not pr ofit from the crimes, and that as a police officer he faced a greater dang er in prison. Cordero’s mere disagreement with the weight the Court gave to the senten cing factors set forth in § 3553(a) does not demonstrate that he has met his burden to show that the District Court abused its discretion. We conclude that the District Court’s sentence was substantively reasonable. Conclusion The District Court’s sentencing de cision was procedurally sound, and substantively reasonable. Therefore, we will affirm.