NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

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No. 09-4716

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UNITED STATES OF AMERICA

v.

GABRIEL RIVERA-GIL,

 Appellant

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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

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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) 

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 OPINION

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SMITH, Circuit Judge.

Gabriel Rivera-Gil appeals from the judgment of the United States District 
2

Court for the Middle 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. 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 

 For the reasons set forth below, we 

will affirm.

 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).
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 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

 

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).

 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 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

 

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 coconspirator. 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. 

 We review for an abuse of discretion. United States 

v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). 
5

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.