US v. Paul Guild, No. 08-4562 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4562 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PAUL DOUGLAS GUILD, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:07-cr-00404-JCC-1) Argued: May 15, 2009 Decided: August 25, 2009 Before Sandra Day O CONNOR, Associate Justice (Retired), Supreme Court of the United States, sitting by designation, and NIEMEYER and GREGORY, Circuit Judges. Affirmed by unpublished opinion. Associate Justice O Connor wrote the opinion, in which Judge Niemeyer and Judge Gregory joined. ARGUED: Joseph Michael Hannon, Jr., HANNON LAW GROUP, LLP, Washington, D.C., for Appellant. Benjamin L. Hatch, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Sarah R. Bagley, HANNON LAW GROUP, LLP, Washington, D.C., for Appellant. Chuck Rosenberg, United States Attorney, Patricia Haynes, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 O CONNOR, Associate Justice (Retired): Defendant-appellant Paul Guild sexually assaulted two boys entrusted to his care by their respective parents on his promise that he would tutor them and arrange for their participation in music lessons and team sports. He presents a host of challenges to his conviction and sentence. We find none meritorious and consequently affirm the judgment of the district court. I. Guild served as a Regional Supervisory Executive Officer for the U.S. Agency for International stationed in Kiev, Ukraine. Development ( USAID ) When one of his colleagues was transferred from Kiev to the United States, Guild agreed to take in her fourteen-year-old son, Nathan, complete orthodontic treatments. so that Nathan could Guild agreed to arrange for music lessons, team sports, and summer jobs for Nathan, and also to tutor Nathan in math and English. When another member of the Kiev diplomatic community learned of these planned activities, he asked if his fifteen-year-old stepson, Ousmane, could participate as well, and Guild agreed. One night when Ousmane was sleeping over, Guild called the two boys to his room, where he was seated with a towel over his lap, otherwise naked. Guild told the boys that he had been 3 spanked as a child, made each take off his pants and underwear, and spanked them. Guild s penis. The boys reported that they observed semen on Approximately one month later, Guild brought Ousmane to Guild s home under the pretense of tutoring the boy. Guild ordered Ousmane to take a shower and entered the bathroom while the shower was in progress. Later, Guild, who was nude, approached Ousmane and told the boy he was going to teach him how to shave. nude. To shave properly, Guild explained, one must be Guild then pulled down Ousmane s boxer shorts, touched the boy s penis, hugged him, kissed him on the lips, and told Ousmane that he loved him. Ousmane described the episode to his mother, and his family ultimately contacted USAID Health Officer Marilyn Prekup to report the incident. Prekup and two Department of State Diplomatic Security Agents David Walsh and Ronnie Catipon visited Ousmane s home and interviewed the boy for approximately thirty minutes. contacted Agent Responsibility Lynn in interrogate Guild. Falanga Washington, of the D.C., Office who They then of Professional instructed them to They did so later that day and determined that Guild was a danger to his wife and children. Prekup and the agents then met with the U.S. Ambassador, who issued an order of involuntary curtailment. Walsh was to following day. implement a Pursuant to that order, Agent medical evacuation of Guild the That evening, USAID Mission Director Earl Gast 4 and Agents Walsh and Catipon interviewed Guild again. informed of his Miranda rights. Guild was By mistake, he was also offered for his signature a form that purported to grant his statements use immunity. That evening, Prekup took Nathan into her home for the night. The next morning, Agent Walsh took Guild to the airport, where they boarded a flight to Kennedy Airport in New York. Guild was not restrained. In fact, he upgraded his ticket to a first class seat, leaving Agent Walsh behind in coach. The two arrived at Kennedy with little time to get to La Guardia airport in order to catch their next flight. As a professional courtesy, local law enforcement drove the pair from Kennedy to La Guardia in an official avoid traffic delays. vehicle, using flashing lights to Walsh and Guild made their flight to Reagan Airport in Washington, D.C. Agent Falanga met them at Reagan, told Guild that she was investigating his case, and advised him to retain an attorney. She informed him that he was not required to speak to her, but that he was required to be available by telephone at all times. Guild was then taken to a hotel, where he stayed for two days. He subsequently moved in with a friend in Takoma Park, Maryland. Agent Michael Falanga Pauze of later the met office with of the Assistant U.S. U.S. Attorney Attorney for the District of Maryland in order to discuss Guild s prosecution. 5 Pauze reviewed the file, discovered the purported use immunity agreement, and tainted. concluded that his office and Falanga were He instructed her to transfer the case to other agents and to explain to those agents that they should pursue the matter District with of the U.S. Virginia. Attorney s Falanga Office did so, for the advising Eastern the new investigators including Agent Edward Allen that they were not to communicate with recused personnel such as herself. Agent Allen later sent Falanga an email voicing his concern that there was no jurisdiction for a Virginia investigation and inquiring whether other, non-tainted Maryland personnel might pursue the matter. Pauze responded, explaining to Allen that there would be jurisdiction if Guild were arrested in Virginia. Agent Patricia Allen Haynes then of spoke the with office Eastern District of Virginia. of Assistant the U.S. U. S. Attorney Attorney for the Haynes ostensibly knew that Guild was represented by an attorney from the American Foreign Service Association, an organization that officers in employment matters. represents foreign-service She authorized Allen to make contact with Guild in order to try to get Guild to come to Virginia. To that end, Allen called Guild and directed him to turn in his passports to Allen s office in Rosslyn, Virginia. Guild responded that he was taking Airport in Virginia the next morning. 6 his daughter to Reagan Later that day, Allen was contacted by Joseph representing passports. Hannon, Guild. who Allen informed continued Allen to that he demand was Guild s The next morning, agents arrested Guild at Reagan airport. As investigating the investigation officers were in proceeded, contact Haynes with and Health the Officer Prekup. Guild was subsequently indicted on three counts of sexual abuse of a minor, three counts of abusive sexual contact, and two counts of misdemeanor assault. At trial, he unsuccessfully objected to Officer Prekup s involvement in the case. sought prosecutor Haynes s testimony on the issue He also of venue. Pursuant to United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and applicable regulations, Haynes s supervisor, Dana Boente submitted a Touhy letter, which authorized Haynes to speak on others. of the certain topics and prohibited her from addressing The parties disputed the propriety and interpretation letter. The jury convicted Guild of two counts of assault and a count of sexual abuse related to his conduct with Ousmane. At He was acquitted of his alleged abuse of Nathan. sentencing, the district court imposed a four-point enhancement based on Guild s supervision of Ousmane at the time he was abused. The district court also imposed a two point enhancement for obstruction of justice based in part on Guild s testimony, rejected by the jury, that he did not touch Ousmane s 7 penis. The court considered acquitted conduct in its sentencing analysis, namely, assaulted Nathan. the allegations that Guild also sexually Finally, the court denied Guild s motion for a downward departure. The court sentenced Guild to the lowest sentence in the applicable Sentencing Guidelines range, fiftyone months in prison followed by five years of supervised release. Guild challenges jurisdiction his pursuant to conviction 18 U.S.C. and sentence. § 3742(a) and We 28 have U.S.C. §§ 1291, and affirm. II. A. Use Immunity When the Government grants a defendant use immunity, it cannot use the immunized testimony or any evidence derived from it either directly or indirectly. United States v. Harris, 973 F.2d 333, 336 (4th Cir. 1992) (discussing Kastigar v. United States, 406 U.S. 441 (1972)). This total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an investigatory lead, and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures. Kastigar, 406 U.S. at 460 (footnote omitted). the government s use of But use immunity only protects against compulsory 8 testimony as a source of evidence, leaving the government free to use any other evidence to prosecute. Harris, 973 F.2d, at 336. Thus, the Government can prosecute a previously use-immunized defendant if it can demonstrate that all its evidence came from sources independent of the compelled testimony. Id. Guild moved to dismiss his indictment, arguing that the Government s case was impermissibly derived from the testimony it secured from him under the grant of use immunity. The district court held a Kastigar hearing and concluded that the Government met its burden of demonstrating prosecution was not tainted by that evidence. analysis, the court stressed that Ousmane that Guild s In a thorough was initially interviewed before [Guild] made his statement, and [Ousmane s] statement [was] what prompted the investigation. After the taint was discovered, the court found, J.A. 953. [t]he new agents and prosecutors had no knowledge of the contents of the immunized interview, which was never available to them. Id. And [t]he Government s primary trial witnesses were the two victims, . . . their mothers, and [Ousmane] s stepfather, all of whom testified that they had no knowledge as to the contents of the immunized statement. Id. at 954. Guild challenges these factual findings. We review the findings on the independent nature of the allegedly untainted evidence for clear error, Harris, 973 F.2d at 337, and reject 9 his challenge. Guild s general categories. factual arguments fall into three First, he argues that Haynes was fortified in her pursuit of this case by her knowledge that Mr. Guild gave a statement consistent with that of Ousmane and by Officer Falanga s comment to her that the case was a strong one. (Appellant s Br. 23.) But the district court saw matters differently. It found that Haynes s prosecution was shaped by the statements, victims not by oblique references existence of Guild s immunized interview. testimony on this issue, the district to the And after hearing court concluded that Officer Falanga s communications with Haynes in no way shape[d] the investigation or illuminate[d] the specific contents of the [immunized] statement. (J.A. 953.) We see no reason to disturb the court s well-supported conclusions. Second, in light of her knowledge of Mr. Guild s statements, Guild argues, Prekup should not have been allowed to contribute to the Government s prosecution or presentation at trial (Appellant s Br. 26.) factual findings. The district court made contrary It explained that Prekup s knowledge of the [immunized] statement was very vague and limited, came the day after that statement was given, . . . and was not refreshed in any manner. (J.A. 954-55.) And [h]er testimony at trial was limited to questions of fact. State-side investigators and 10 (Id. at 955.) prosecutors Lastly, the shaped Guild s prosecution on the basis of his victims statements, not on any insights as to Guild s interview they may have inadvertently gleaned from Prekup. We perceive no error in these factual conclusions. Third, Guild contends tainted by his statements. Ousmane s stepfather statements, Guild did that his victims testimony was Ousmane, Nathan, their mothers and not have concedes. direct (Appellant s knowledge Br. 24.) of his But he argues that the victims were interviewed by people with direct (Prekup) or indirect (Haynes) knowledge of the statement and that the teenagers were influenced by these adults. 25.) We have already rejected Guild s argument that Haynes was influenced by tangential immunized statements. that (Id. at while she did commentary pertaining to Guild s As to Prekup, the district court found participate in one interview of Ousmane, there [was] no indication that she was there as anything other than a medical support, nor that she participated in the substantive questioning in any way that could [have] shape[d] his testimony. (J.A. 955.) And while she spoke with [Ousmane] s stepfather by phone on several occasions, she did not tell him of [Guild s] statement. knowledge of [the immunized (Id.) interview] was In short, Prekup s not conveyed to other witnesses or investigators to shape the investigation or 11 other evidence. (Id.) Guild has offered no basis to undermine that finding. In sum, Guild has fallen far short of demonstrating clear error. He presents his conclusory view of the facts, but offers us no reason to ignore the district court s contrary findings. B. Unethical Communication with Guild Guild contends that his indictment should have been dismissed because he was represented by counsel when Agent Allen called him directly to request that he turn in his passport to Allen s Rosslyn, Virginia, office. that (i) violation the district occurred indictment violation. was the The was court s erroneous proper district remedy court More specifically, he argues conclusion that no ethical and (ii) dismissal of for this purported ethical thoroughly considered his the overlapping federal and state authorities governing the inquiry whether an ethical violation occurred. And it made detailed factual findings when applying those authorities. No error is readily apparent in its careful analysis. We do not affirm the court s judgment on this basis, though, because dismissal of Guild s indictment would in any event have been an unwarranted remedy. We need look no further than the Supreme Court s unanimous opinion in United States v. Morrison, 449 U.S. 361 (1981), to illustrate the point. In Morrison, two agents of the Drug Enforcement Agency, aware that 12 [Morrison] had been indicted and had retained counsel, sought to obtain her cooperation in a related investigation. During their meeting, the agents disparaged Id. at 362. [her] counsel, suggested that she could be better represented by the public defender, told her that [she] would gain various benefits if she cooperated but would face a stiff jail term if she did not, and subsequently counsel. visited The Id. [her] Third again Circuit in the absence dismissed of Morrison s indictment with prejudice, reasoning that the blatant violation of Morrison s Sixth Amendment right to counsel was alone a sufficient ground for dismissal. The Supreme Court reversed. for preserving criminal society s justice, id. [R]ecogniz[ing] the necessity interest at 667, in the the Court administration explained that of the extraordinary relief of dismissal is not appropriate in the absence of some adverse consequence to the representation [the defendant] leading received to demonstrable [his] or to the fairness conviction, prejudice, the id. Court at held, of the proceedings 363-64. [A]bsent dismissal of [an] indictment is plainly inappropriate, even though the violation may have prejudice. Guild, been deliberate. The declined Court to Id. found at 365. compelling cooperate and It that immediately found no such Morrison, like notified her attorney and that at no time did [she] agree to cooperate with 13 them, incriminate herself, or supply any information pertinent to her case. Id. at 362-63. Instead, [c]ontrary to the agents advice, [she] continued to rely upon the services of the Id. at 363. attorney whom she had retained. Guild s case falls short of Morrison s. The law enforcement conduct he alleges is less egregious and the ethical violation he postulates is less significant than Amendment right at issue in the Morrison case. law enforcement agent intended to lure the Sixth At worst, the Mr. Virginia, (Appellant s Br. 13), without success. Guild into Guild did not travel to Virginia to surrender his passports to Agent Allen, as was the plan. This purported scheme was advanced pre- indictment, in an effort to make a lawful arrest in a chosen jurisdiction, not to interfere in any way with Guild s ability to defend himself. at issue, with his the law enforcement agent well before Guild travelled to Virginia. As lawyer, Guild, After the single, brief phone conversation who like interposed Morrison, himself immediately between spoke Guild and in Morrison, Guild s brief contain[s] no allegation that the claimed ethical effectiveness of violation [his] prejudiced legal the representation, quality nor does or he credibly assert that the behavior of the agents . . . resulted in the prosecution having a stronger case against [him], or had any other adverse impact on [his] legal position. 14 Morrison, 449 U.S., at 363. Instead, his argument is based solely upon the [purportedly] egregious behavior of the agents, which [he] describe[s] as having interfered in some unspecified way with his defense. Id. (internal quotation marks omitted). of the indictment is thus inappropriate. Dismissal As dismissal is the only remedy Guild sought below, and the only remedy he seeks before us, we need discuss his argument no further. In an effort to bolster his quest for the dismissal of his indictment, Guild discovery violations (Appellant s Br. makes 36; continuing pattern prosecutor in investigation rules and postulates violated this and as a reference committed see, of e.g., by id. misconduct case ); prosecution the result of of his the a the at 35 litany of prosecution. (referring to a the investigators and at 34 ( Throughout the Government constitutional various to by id. violated that repeated skirted ethical principles[.] ).) constitutional Government s egregious conduct during the course of discovery. rights shocking He were and (Id. at 35.) The district court is to be commended for its careful treatment of each of these allegations and for its balanced conclusion. Although . . . it may have been possible for the Government to have provided some [discovery] information more quickly than it did, the court explained, Guild produced no evidence that the Government acted in bad faith 15 or that its provision [of evidence] was outside the time frame established by law or by [the] Court. (J.A. 945.) We have no reason to doubt the district court s findings. Again, we nonetheless affirm its judgment on the simpler basis that Guild has failed entirely to demonstrate that dismissal would be an appropriate remedy. B. A defendant jurisdiction of charged any Venue with a particular crime committed State or out the must district of be brought to trial in the district in which the offender . . . is arrested or is first brought. 18 U.S.C. § 3238. On appeal, we ask whether any rational trier of fact could have concluded that the Government met its burden of establishing venue, constru[ing] the evidence in the light most favorable to the government, assuming its credibility, drawing all favorable inferences from it, and taking into account all the evidence, both direct and circumstantial. United States v. Burns, 990 F.2d 1426, 1431 (4th Cir. 1993). The district court three times rejected Guild s challenge to the venue of his trial. Because he was arrested in Virginia, we find no fault in its decisions. propriety of fundamental concedes the venue for misunderstanding that the his of Government the Guild s challenge to the trial governing arrested 16 derives [him] from statute. in the his He Eastern District of Virginia but vigorously argues that he was first brought to New York. (Appellant s Br. 43; see, e.g., id. at 42 (arguing that even an incidental stop in the United States, regardless of whether flight returning first brought omitted)).) it the is the defendant option intended from (some destination overseas, internal of the triggers the quotation The statute is disjunctive it provides for venue where a defendant is arrested or is first brought. § 3238 Virginia, marks (emphasis venue added). was proper Because there Guild under the was 18 U.S.C. arrested arrest in option, (Appellant s Br. 42) whether or not he was first brought to New York. We thus need not address Guild s arguments as to the construction and application of the phrase first brought. For our purposes, it is sufficient that he was arrested where he was tried, as he concedes. that Defendant Virginia. ). was (See J.A. 106) ( There is no dispute arrested in the Eastern District of Guild s challenge to the jury instruction on venue is similarly premised on his erroneous reading of the statute, and we reject it for that reason. C. Right to Present a Defense Guild argues that his constitutional right to present a defense was repeatedly violated by actions of the government and the district court. (Appellant s Br. 46.) 17 Specifically, he contends that (i) the Government interposed unauthorized and baseless Touhy objections to [his] effort to examine . . . Haynes, and (ii) the District Court compromised the trial by repeatedly intruding on defense counsel s examination of witnesses and admonishing defense counsel to hurry along its case. We reject both of these contentions. (Id.) In United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), the Supreme Court upheld a refusal by a subordinate of the Department of Justice to testify in response to a subpoena on the ground that the subordinate [was] prohibited from making such submission by his superior through Department of Justice regulations. Id. at 467. Since Touhy, the Department of Justice has routinely promulgate[d] so-called Touhy regulations to govern the conditions and procedures by which [its] employees may testify about work-related issues at trial. United States v. Soriano-Jarquin, 492 F.3d 495, 504 (4th Cir. 2007). Pursuant to these regulations, an applicant makes a formal request for testimony or for the production of documents and the Department of Justice provides a response. The regulations do not purport to grant any right of access to applicants . . . and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States. Smith v. Cromer, 159 F.3d 875, 880 (4th Cir. 1998). Thus, failure a to disclose information 18 under Touhy only violates the defendant s Sixth Amendment rights to present a defense where the defendant can show that the excluded testimony would have been both material and favorable to his defense. United States v. Valenzuela-Bernal, 458 U.S. 858 (1982). order to overcome the exclusion of evidence pursuant In to a claimed Touhy privilege, a defendant must demonstrate his need for that evidence, and the showing of necessity which is made will determine itself that how the appropriate. far the occasion court for should invoking probe the in satisfying privilege is United States v. Reynolds, 345 U.S. 1, 11 (1953). Guild sought to have Haynes testify as to the issue of venue. Haynes s supervisor, Boente authorized Haynes to speak on certain topics but did not allow testimony she deemed to be covered by the deliberative process privilege or that disclosed inadmissible plea discussions. restrictions in so-called a Boente Touhy memorialized letter, district court and the parties relied. upon these which the At trial, the Government made ten objections on the basis of the Touhy letter, and the district court sustained four of those challenged only one of those four rulings. objections. Guild Specifically, Guild objected to Haynes s refusal to answer the question: Would you tell the Court what discussions you had with Agent Allen and Agent Griffin Without making about any how to reference arrest to 19 Mr. this Guild in question or Virginia? any other specific invocation of the Touhy privilege Guild now argues that the Government s Touhy objections unconstitutionally undermined his right to present a defense. We disagree. Guild has failed to establish that Haynes s response to the single question material or at issue favorable during to his the trial case. would The law have been enforcement discussions about the plans to arrest Guild in Virginia were See Soriano- wholly peripheral to the matter of his guilt. Jarquin, 492 F.3d at 504. Moreover, Guild has failed to establish his need for the testimony. Other witnesses, such as Agent in Allen, discussions. had already testified detail about those Guild has not explained why Haynes s answer would have shed additional light on his tangential line of questioning or why the description of the law enforcement discussions would have gained greater significance if uttered by Haynes. Guild has not developed a coherent argument as to any of the other invocations of the Touhy privilege at trial, and we will thus not address them. Guild next argues that [a] fair reading of the transcript demonstrates that the district court deprived him of his right to present his defense by frequently interrupt[ing] counsel, tak[ing] over questioning, counsel s examination. and object[ing] (Appellant s Br. 49.) sua sponte to He contends that his trial [was] rife with these incidents, (id. at 50) and he 20 presents a string of dramatic allegations, each paired with a list of record citations without elaboration. For example, Guild argues that the district court constantly admonish[ed] the defense to hurry along the proceedings, despite the fact that [he] moved through the presentation of his 25 witnesses in three days, relative to the witnesses over five days. government s (Id.) reveals that Guild presented his presentation of 12 An examination of the record case at his own pace. Indeed, Guild s counsel remarked that he was ahead of [his] schedule and ended several examinations early. 2720.) The remainder of Guild s (J.A. 2736; see also J.A. examples similarly fail to stand up to scrutiny. Our review of the record of proceedings assures district us discretion, that threatened the working by court diligently frequent to acted keep diversions and well on within track unhelpful a its trial tactics. Certainly, none of the court s actions to that end compromised Guild s constitutional rights. D. When examine considering whether the a Sentencing Issues challenge district to court a sentence, committed a we first significant procedural error in calculating the advisory sentencing range under the U.S. Sentencing Guidelines. United States v. Curry, 523 F.3d 436, 439 (4th Cir. 2008) (internal quotation marks and 21 citations omitted). If no such error was committed, we can only vacate [the] sentence if it was substantively unreasonable in light of all relevant facts. United States, district 552 court enhancements erred used obstruction of U.S. 38 by Id. (2007). Guild imposing to calculate justice, the relationship to the victim. See generally Gall v. both his other argues of the Guidelines based that on sentencing range one his the for supervisory He also argues that the district court abused its discretion when it elected not to grant him a downward departure. The supervisory applied. sentence [Guild s] These arguments lack merit. The Sentencing enhancement custody, § 2A3.2(b)(1). application for care, This and relationship is Guidelines Guild s or be mandate crime supervisory enhancement to enhancement is applied if was properly a four-level Ousmane control. intended whenever to the was in U.S.S.G. have broad victim is entrusted to the defendant, whether temporarily or permanently. Id. n.2(a). For example, teachers, day care providers, baby- sitters, or other temporary caretakers are among those who would be subject to th[e] enhancement. that Ousmane was entrusted to Id. Guild; There can be no doubt Ousmane custody, care, and supervisory control. thus properly applied. 22 was in Guild s The enhancement was Guild argues that the enhancement is inapplicable because he was not a teacher, day care provider, temporary caretaker for Ousmane as required. 54.) This argument also lacks merit. baby-sitter or (Appellant s Br. The positions listed in the application note do not embody an exhaustive list; the list is provided [f]or example and it includes relationships among those [that] would be subject to th[e] enhancement. U.S.S.G. § 2A3.2(b)(1) n.2(a). It is meant to illustrate relationships of supervisory custody, care, or control, not to exempt relationship that is not included in the short list. any Guild s untenable construction of the sentencing enhancement suffers an additional apply in flaw: the teacher. It Even instant was case Guild s version because plan Ousmane s to of the enhancement would Guild served as Ousmane s tutor Nathan in math and Ousmane to English that Guild. And it was the pretense of academic instruction that repeatedly led his justified Guild s stepfather assumption to of entrust Ousmane s custody. Guild protests, insisting that Ousmane was not his student, but was merely being (Appellant s Br. 54.) provided work papers on occasion. This assertion ignores the record. The obstruction of justice enhancement was also properly applied. defendant The Guidelines provide for a sentence enhancement if a willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect 23 to the investigation, prosecution, or sentencing of the instant offense of conviction. applies if the U.S.S.G. § 3C1.1. obstructive conduct This enhancement related to (i) the defendant s offense of conviction and any relevant conduct; or (ii) a closely related offense. Id. Critical for our purposes, obstructive conduct includes committing, suborning, Id. n.4(b); see United States or attempting to suborn perjury. v. Dunnigan, 507 U.S. 87 (1993). An obstruction of justice enhancement based on perjured trial testimony is proper when the defendant . . . (1) gave false testimony; (2) concerning a material matter; (3) with the willful intent to deceive (rather than as a result of confusion, mistake or faulty memory). United States v. Hammoud, 381 F.3d 316, 357 (4th Cir. 2004) (internal quotation marks and citation omitted). Here, the district court found that Guild several times committed willful perjury as to material facts. For example, the court concluded that Guild testified falsely that he never touched the penis of [Ousmane] and in his continu[ous] denial[s] that he was guilty of sexual assault. (J.A. 1172.) Similarly, Guild willfully perjured himself, the court concluded, when he testified that he had permission from [Ousmane] s mother to spank her committed son. perjury (Id.) by The court consistently also found assert[ing] that Guild that he considered himself to have behaved in the boys best interests 24 at all times, in the role of a father figure. In the court s view, the record established motives were other than fatherly. (Id.) found by that described Guild to committed Nathan perjury sexual encounters (Id. at 1171.) that [Guild] s Lastly, the court denying Guild that he (i) experienced at Nathan s age and (ii) encouraged Nathan to be sexually active. (Id. at 1172.) Guild ignores all but the last instance of perjury relied upon by the district court. He challenges only the finding that he committed perjury when he denied encouraging Nathan to be sexually active. In Guild s view, this finding was legally and factually erroneous. It was legally erroneous, Guild contends, because the district court considered acquitted conduct. The jury acquitted Guild of the charges pertaining to Nathan and thus, Guild s argument goes, the district court should not have considered the conduct underlying those charges. Court has rejected this contention. The Supreme United States v. Watts, 519 U.S. 148 (1997); see also United States v. Martinez, 136 F.3d 972, 979 (4th defendant s Cir. sentence 1998) (a based on sentencing its court findings of may enhance conduct by a a preponderance of the evidence, even where the jury acquitted the defendant of that conduct). good sense. Rejection of the argument makes The jury must find each element of guilt beyond a reasonable doubt. But the sentencing court must consider only 25 whether the preponderance of the evidence establishes the facts pertinent to the calculation of the advisory Sentencing Guidelines range. United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2007). The Government s failure to meet the greater burden of proof does not foreclose its opportunity to meet the lesser. Here, the district court did not err by giving the Government such an opportunity. Nor were the court s factual findings clearly erroneous. Arguing to the contrary, Guild posits that his acquittal of the charges pertaining to Nathan sugges[ts] that the jury found Nathan lacked credibly. in credibility and (Appellant s Br. 55.) that Mr. Guild testified By implication the district court was in Guild s view obliged to endorse this suggestion. The jury s verdict does not necessarily suggest that Nathan s testimony was not credible. inability to find Guild s Rather, guilt it beyond reflects a the jury s reasonable doubt. Moreover, as we have explained, the court was not bound by the jury s conclusions as to Nathan s credibility. obliged to evidence. make its own findings It did just that. by a The court was preponderance of the (E.g., J.A. 1171 ( [C]onsidering the demeanor, manner, and tone of the testimony, [Nathan] is a credible witness and his testimony on this issue is believable. For that reason, the Court finds 26 by a preponderance of the evidence that Defendant gave false testimony. ).) The court s conclusion was not clearly erroneous. Before conclusions us, Guild that he does lied not by: contest (1) the district that denying court s touched he Ousmane s penis; (2) claiming that he had permission to spank Ousmane; or (3) testifying that at all times he acted in the best interests of the boys, as a father would. It is difficult to notwithstanding understand these Guild s instances of implicit willful, argument material enhancement was erroneously applied. that perjury the sentence We find no merit in that argument. Finally, we reject Guild s argument that the district court abused its discretion by declining to grant departure from the advisory Guidelines range. calculating carefully the range, considered 51 63 the months sentencing a factors Hughes, 401 F.3d 540, 546 (4th Cir. 2005). downward After properly imprisonment, U.S.C. § 3553(a), as it was obliged to do. the seriousness of the offense: him set the forth court at 18 See United States v. The court stressed Sexual abuse has a significant and long-term impact on the victim and the victim s family. (J.A. 1175.) The harm was exacerbated in this case by the Defendant s presentation of himself as a father-figure who could be trusted as a role-model for and caretaker of children, trust that he then betrayed by abusing children in his care. 27 (Id.) The court also considered Guild s successful employment history, his philanthropy, and his good reputation in the international community. While Guild was praised for act[ing] as a surrogate parent for other troubled teenagers, the court noted, the very characteristic for which [he was] lauded opening his home to children was the setting that allowed him to perpetrate [his] crimes. (Id. at 1176.) [T]he egregiousness of betraying children s trust by sexually abusing them le[d] the Court to conclude that a appropriate. sentence within (Id. at 1178.) the Guideline Range [was] [G]iven Guild[] s history of service and charity, however, the district court declined to impose a sentence at the very top or above the Guideline Range, which was the sentence urged by the Government. 1178.) Instead, sentence of reasoned, 51 the court months. reflect[ed] imposed This the the minimum minimum sentence, seriousness of the (Id. at Guidelines the court offense, promote[d] respect for law, and provide[d] just punishment for the offense. (Id.) We perceive no error in the court s consideration of the sentencing factors, and we find reasonable, but also generous. is meritless. Guild asks its sentence not only Guild s argument to the contrary us to accord greater weight to mitigating factors that were considered by the district court and cited in its decision to sentence Guild to the bottom of the 28 range. a He also argues that [t]he outcome of the trial is more deterrent than is [his] sentence. (Appellant s Br. 57.) Guild fails entirely to demonstrate that his 51 month sentence the bottom of the applicable Guidelines range was substantively unreasonable. * * * * * Numerous Guild s brief. additional arguments are suggested throughout Some take the form of thematic emphasis. Others can be derived from case citations that appear irrelevant in context. Few are stated in full. To the extent we have not heretofore rejected these arguments as meritless, we do so now. III. For the foregoing reasons, Guild s conviction and sentence are hereby AFFIRMED. 29
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