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. e du/thir dc ir c uit_2002/87NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 01-1930

____________

UNITED STATES OF AMERICA

v.

JOSE J. GAR CIA,

Appellant

____________ Appeal from the United States District Co urt For the Eastern District of Pennsylvani a D.C. No.: 00-cr-00306 District Judge: Honorable Stewart Dalzel l

____________
Submitted Under Third Circuit LAR 34.1(a) Januar y 18, 2002

Before: SCIRICA and ROSENN, Circuit Judges, and KAN E*, District Judge.

(Filed February 1, 2002 )

Richard J. Zack Suite 1250 Office of United States Attorney 615 Chestnut Street Philadelphia, PA 19106 Counsel for Appellee

David L. McColgin

*Honorable Yvette Kane, United States District Judg e for the Middle District of Pennsylvania, sitting by designation.

Defender Association of Philadelphia Federal Court Division Curtis Center, Independence Square West Suite 540 West Philadelphia, PA 19106 Counsel for Appellant

____________

MEMORANDUM OPINION____________

ROSENN, Circuit Judge. A federal grand jury sitting in the United Sta tes District Court for the Eastern District of Pennsylvania indicted Jose J. Garcia on one count. The indictment charged him with maliciously destroying or attempting to de stroy a building by fire or destructive device, in violation of 18 U.S. C.  844(i). On November 13, 2000, Garcia pled guilty pursuant to a plea agreement. The Pre-Sentence Report (PSR) recommended a tw o-point enhancement to Garcia's base offense level pursuant to United Stat es Sentencing Guidelines  3C1.1 because he obstructed justice. Garcia objected to the enhancement at sentencing. The District Court, however, overruled his objection an d sentenced Garcia to 30 months imprisonment, three years supervised release, a $15 00 fine, and a $50 special assessment. Garcia timely appealed. We affirm. Rifat Ismail was co-owner of the Roslyn Food M arket in Roslyn, Pennsylvania. Beset by severe financial difficulties, Ismail deci ded to burn down his store to collect the insurance proceeds. Ismail hired Garcia to do the torching and paid him $2000. Garcia hired three people from his neighborhood to help hi m, splitting the $2000 between them. On October 31, 1994, these three threw Molotov cock tails through the windows of the market. The attempt to burn down the market, howev er, was highly unsuccessful. The Molotov cocktails only started small fires, and the fire department arrived and quickly put them out. The market suffered very little damage a nd the owners filed no insurance claims. The local police and agents with the Bureau of Alcohol, Tobacco and Firearms interviewed Ismail. He admitted he had arranged fo r the arson and identified Garcia as the person he hired to set the fire. At the behest of the agents, Ismail met with Garcia on November 1, 1995, wearing a hidden microphone. The agents recorded the conversation between the two. During the conversation, Ismail informed Garci a that he had received a grand jury subpoena and asked Garcia several times what he sho uld do. Garcia made comments that the District Court construed as exhortations to Ism ail to lie to the grand jury about hisknowledge of the arson. On the basis of these exho rtations, the District

Court adopted the recommendation contained in the PSR and enhanced Ga rcia's base offense level two levels pursuant to the Sentencing Guidelines. On appeal, Garcia contends that the D istrict Court committed clear error when it increased the offense level by two, predicated on t he defendant's alleged attempt to suborn perjury by urging co-conspirator Ismail fals ely to inform the grand jury that Ismail knew nothing about the arson fire that the two of t hem had conspired to set. The factual dispute pertinent to the enhanceme nt of Garcia's sentence is extremely narrow but critical. Because the Distric t Court's decision to enhance is essentially factual, this Court's standard of revie w is for clear error. United States. v. Maurello, 76 F.3d 1304, 1308 (3d Cir. 1996). Garcia contends that his sentence should not h ave been enhanced for obstruction of justice because, "when all of his statements are read in context, it is clear that he was simply urging Ismail not to say anything to the gra nd jury." Garcia admits that at one time in his recorded conversation with Ismail, he t old Ismail to say that he did not "know what they [are] talking about." However, he argues that this statement should be considered in the context of Garcia's advice, repea ted eight times, that Ismail assert his Fifth Amendment right to remain silent and "say not hing." The District Court rejected this interpretation of the conversation. We have reviewed the transcript of the recorde d conversation and a fair reading of the transcript supports the District Court's interp retation and the PSR recommendation. Although Garcia does suggest several times to Ismai l not to say anything, there are other points in the conversation where Garcia appears to be telling Ismail to lie to the grand jury. At one point, Garcia tells Ismail that all h e has to say is "you don't know what they talking about." Later in the conversational exchan ge, Garcia urges Ismail to say "what are you talking about?" These statements give cred ence to the District Court's interpretation of the conversation. Moreover, as t he United States Supreme Court observed in Anderson v. City of Bessemer City, "[w] here there are two permissible viewsof the evidence, the fact finder's choice between t hem cannot be clearly

erroneous." 470 U.S. 564, 574 (1985). A District Court's finding of fact is "clearly erroneous" only when an appellate court considering the matter firmly convinced that a mistake had been committed. United States v. Bogusz, 43 F.3d 82, 85 (3d Cir. 1994). W e are convinced that the District Court made no mistake and that its factual findings are n ot clearly erroneous. The judgment and sentence of the District Cour t is affirmed.TO THE CLERK:

Please file the foregoing opinion.

/s/ Max Rose nn Circuit Judg e