US v. Sohibou Thiam, No. 13-4700 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4700 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SOHIBOU THIAM, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard M. Gergel, District Judge. (2:12-cr-00691-RMG-1) Submitted: May 20, 2014 Before AGEE and Circuit Judge. FLOYD, Decided: Circuit Judges, and June 10, 2014 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Cameron J. Blazer, Assistant Federal Public Defender, Charleston, South Carolina, for Appellant. William N. Nettles, United States Attorney, Dean H. Secor, Assistant United States Attorney, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Sohibou Thiam pled guilty to one count of possessing, knowingly and with the intent to defraud, fifteen or more counterfeit and unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3), (c)(1)(a)(i) (2012). He now appeals his resulting twelve-month sentence on the grounds that the district court committed procedural error by (1) denying his counsel an opportunity to speak on his behalf; (2) compelling Thiam to make self-incriminating statements in violation of his Fifth Amendment rights; and (3) failing to adequately consider Thiam s immigration status as a factor under 18 U.S.C. § 3553(a) (2012). Thiam further argues the cumulative prejudicial effect of these procedural errors warrant remand. We affirm. Appellate courts review a sentence for procedural and substantive standard. Before reasonableness Gall imposing v. under United sentence, an States, the abuse 552 court of U.S. 38, must: (i) discretion 51 (2007). provide the defendant s attorney an opportunity to speak on the defendant s behalf. that Fed. R. Crim. P. 32(i)(4)(A)(i). the district court gave The record discloses defense opportunities to speak on behalf of Thiam. counsel numerous In fact, the court asked defense counsel multiple times whether she wanted to add anything further. Thiam simply seizes on one point in the proceedings where the district court asked defense counsel to 2 remain silent so that Thiam could explain identified Thiam by a fictitious name. change the fact that counsel why his companion This, however, does not availed herself of the many opportunities to offer arguments for a mitigated sentence for her client. We therefore conclude this claim is without merit. In a related argument, Thiam argues the district court compelled self-incriminating Fifth Amendment rights. testimony, The in Fifth violation of Amendment s his self- incrimination clause provides that no person shall be compelled in any criminal case to be a witness against himself. Const. amend. V. U.S. This prohibition not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers incriminate him in future criminal proceedings. Murphy, 465 omitted). U.S. Indeed, 420, a 426 (1984) defendant sentencing hearing. (internal retains this might Minnesota v. quotation privilege marks at his See Mitchell v. United States, 526 U.S. 314, 321 (1999). The Supreme Court has clarified that the Fifth Amendment s Self-Incrimination Clause guarantees only that the witness not be compelled to give self-incriminating testimony. McKune v. Lile, 536 U.S. 24, 35-36 (2002) (internal quotation 3 marks omitted) (emphasis in original). A witness s answers are not compelled within the meaning of the Fifth Amendment unless the witness is privilege. required United to States answer v. over Vangates, his 287 valid F.3d claim 1315, of 1320 (11th Cir. 2002) (quoting Murphy, 465 U.S. at 427). The district court clearly questioned Thiam on the substantive facts of the offense as well as facts of a prior investigation in which Thiam was charged, but not prosecuted. During this time, counsel was not permitted to speak. however, denied any involvement in activities eluded to by the court. any incriminating statements. Most other criminally Thiam, related He therefore did not make importantly, Thiam never asserted his Fifth Amendment right against self-incrimination. For these reasons, we conclude the district court s questions did not violate Thiam s protection against self incrimination. Thiam also contends the district court erred when it failed to adequately consider his immigration status as a factor under § procedural district 3553(a) in fashioning reasonableness, court properly his this sentence. court calculated considers the In evaluating whether defendant s the advisory Guidelines range, gave the parties an opportunity to argue for an appropriate factors, sentence, selected a considered sentence the 18 U.S.C. supported by the sufficiently explained the selected sentence. 4 § 3553(a) record, and Gall, 552 U.S. at 49-51; see also United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (sentencing court must make an individualized assessment based on the facts presented ) (citation and emphasis omitted). court If the sentence is free of procedural error, the reviews it for substantive reasonableness, taking into account the totality of the circumstances. Gall, 552 U.S. at 51. within This court presumes that a sentence a properly calculated Guidelines range is substantively reasonable. United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). We conclude that the district court sufficiently articulated an individual application of the § 3553(a) factors to Thiam and adequately explained its sentence. counsel immigration consequences for Thiam should he receive a significant sentence. Contrary to Thiam s discussed claim, at the length possible Here, defense district court was well sentence could have immigration consequences. aware that the Our review of the record confirms that the district court adequately considered Thiam s argument in fashioning Thiam s sentence. The court simply concluded that a significantly shorter sentence was not warranted just consequences. properly so Thiam Furthermore, calculated reasonable. Such a could avoid Thiam s Guidelines presumption sentence range is certain and is is rebutted immigration within thus only by the presumed showing that the sentence is unreasonable when measured against the 5 § 3553(a) factors. United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). Thiam has failed to establish any basis that the to rebut the presumption. Finally, Thiam argues court s errors constituted cumulative error entitling him to a resentencing. The cumulative error doctrine recognizes that two or more errors that are individually harmless may cumulatively warrant reversal if they so fatally infect the trial that they violated the trial s fundamental fairness. F.3d 302, omitted). 330 (4th Cir. United States v. Basham, 561 2009) (internal quotation marks However, [w]hen none of the individual rulings work any cognizable harm, it necessarily follows that the cumulative error doctrine finds no foothold. marks and alterations omitted). Id. (internal quotation Because no error, harmless or otherwise, occurred here, we conclude Thiam s cumulative error claim must fail. Accordingly, we affirm Thiam s sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 6

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