NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 0 9

- 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 Ch ristopher 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, 201 1 )

_________ ____________ OPINION

_____________________ SMITH, Circuit Judge. Gabriel Rivera

- Gil appeals from the judgment of the United States District2 Court for the M iddle District of Pennsylvania

. 1

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. Af ter being

c harged in both an indictment and a superseding indictment, Rivera

- Gil pleaded guilty to a n 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 cooperat ion 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 t he government in the trial of one of his co

- conspir ators. He refused to testify , and filed a motion to withdraw his guilty plea

. Upon motion by the government, Rivera

- Gil re ceived a grant of immunity. When Rivera

- G il continued to be silent, the District Court found him in c ivil 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 For the reasons set forth b elow, we will affirm.

1 The District Court had jurisdiction under 18 U.S.C. § 323 1. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §3742(a).3 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 mon ths, 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 va lve reduction . In addition, the revised PSR e liminat ed 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 responsibili ty 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 object ed to the revised guideline calculation at sentencing. The District Court inquired whether he was makin g an objection under step one or step three in the sentencing process . 2

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 guid elines 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). Rivera

- Gil advised that the objection was under step three. As a result, the Court adopted the findings and calculations in the PSR

.4 Rivera

- Gil ar gue d 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 guide line 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

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 refus al 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 r eprisal. 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 expli cit 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. We review for an abuse of discretion

. United States v. Tomko , 562 F.3d 558, 56 7 (3d Cir. 2009) (en banc).5 Although his sentence was below the guidelines range , Rive ra - Gil contends it was “still disproportionately high considering [his] involvement in the criminal enterprise.” He submits that the Court failed to adequately con sid er his cooperation with the government and the extent to which he ac cepted responsibi li ty for his involvement in the conspi racy. The sentencing transcript belies this argument. It reveals that the District Court thoughtfully considered these factors , s ee 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.