US v. Paul Guild

Filing 920090825

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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 We find none meritorious and

to his conviction and sentence.

consequently affirm the judgment of the district court.

I. Guild served as a Regional Supervisory Executive Officer for the U.S. Agency for International Development ("USAID")

stationed in Kiev, Ukraine.

When one of his colleagues was

transferred from Kiev to the United States, Guild agreed to take in her fourteen-year-old son, Nathan, so that Nathan could

complete orthodontic treatments.

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 Lynn in Falanga of the Office who of They then

Professional them to

Responsibility

Washington,

D.C.,

instructed

interrogate Guild.

They did so later that day and determined Prekup and

that Guild was a danger to his wife and children.

the agents then met with the U.S. Ambassador, who issued an order of involuntary curtailment. Walsh was to implement a Pursuant to that order, Agent evacuation of Guild the

medical

following day.

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. 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 The two That evening, Prekup took Nathan into her home

first class seat, leaving Agent Walsh behind in coach.

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 vehicle, using flashing lights to

avoid traffic delays.

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 of later the met with of the Assistant U.S. U.S. Attorney for the

Pauze

office

Attorney

District of Maryland in order to discuss Guild's prosecution. 5

Pauze reviewed the file, discovered the purported use immunity agreement, "tainted." and 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 of with the U.S. Attorney's Falanga did Office so, for the Eastern the new

District

Virginia.

advising

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 then of the spoke office with of Assistant the U.S. U. S. Attorney for the

Haynes

Attorney

Eastern District of Virginia.

Haynes ostensibly knew that Guild

was represented by an attorney from the American Foreign Service Association, an organization that represents foreign-service

officers in employment matters.

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 his daughter to Reagan

Airport in Virginia the next morning. 6

Later that day, Allen was

contacted

by

Joseph Guild.

Hannon, Allen

who

informed

Allen to

that

he

was

representing passports. airport.

continued

demand

Guild's

The next morning, agents arrested Guild at Reagan As the investigation were in proceeded, contact with Haynes Health and the

investigating Prekup.

officers

Officer

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 He also of venue.

objected to Officer Prekup's involvement in the case. sought prosecutor Haynes's testimony on the issue

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 certain topics and prohibited her from addressing

others. of the

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 namely, the allegations that Guild also sexually

analysis,

assaulted Nathan.

Finally, the court denied Guild's motion for The court sentenced Guild to the lowest

a downward departure.

sentence in the applicable Sentencing Guidelines range, fiftyone months in prison followed by five years of supervised

release. Guild challenges pursuant his to conviction 18 U.S.C. and sentence. and 28 We have

jurisdiction

§ 3742(a)

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 that Guild's

prosecution was not tainted by that evidence. analysis, the court stressed that Ousmane

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. We review the

Guild challenges these factual findings.

"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

factual

arguments

fall

into

three

general categories.

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 differently. the victims' Br. 23.) But the district court saw matters

It found that Haynes's prosecution was shaped by statements, not by oblique references to the

existence of Guild's immunized interview. testimony on this issue, the district

And after hearing concluded that

court

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.) The district court made contrary

factual findings.

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 (Id. at 955.) prosecutors Lastly, the Guild's

limited to questions of fact." State-side investigators and 10

shaped

prosecution on the basis of his victims' statements, not on any insights as to Guild's interview they may have inadvertently gleaned from Prekup. conclusions. Third, Guild contends that his victims' testimony was We perceive no error in these factual

tainted by his statements. Ousmane's stepfather Guild did

"Ousmane, Nathan, their mothers and not have direct knowledge Br. 24.) of" But his he

statements,

concedes.

(Appellant's

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.) (Id. at

We have already rejected Guild's argument that Haynes was by tangential commentary pertaining to Guild's

influenced

immunized statements. that while she did

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.) was In short, Prekup's not conveyed to

interview]

other witnesses or investigators to shape the investigation or

11

other evidence." that finding.

(Id.)

Guild has offered no basis to undermine

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) the district was court's erroneous remedy court More specifically, he argues conclusion and for (ii) this that no ethical of his

violation indictment violation.

occurred was the

dismissal purported

proper district

ethical the

The

thoroughly

considered

overlapping federal and state authorities governing the inquiry whether an ethical violation occurred. And it made detailed No error is

factual findings when applying those authorities. 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. counsel,"

[her]

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 Id. "visited The [her] again in the absence of

counsel."

Third

Circuit

dismissed

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 society's id. at "[R]ecogniz[ing] the necessity in the administration explained of

interest 667, the

criminal

justice,"

Court

that the

"extraordinary relief" of dismissal is not "appropriate in the absence of some adverse consequence to the representation [the defendant] leading to received [his] or to the fairness id. at held, of the proceedings "[A]bsent of [an]

conviction," the

363-64. "dismissal

demonstrable

prejudice,"

Court

indictment is plainly inappropriate, even though the violation may have been deliberate." Court to found Id. at 365. It that found no such like her

prejudice. Guild,

The

compelling and

Morrison, notified

"declined

cooperate

immediately

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 attorney whom she had retained." Guild's case falls short Id. at 363. of Morrison's. The law

enforcement conduct he alleges is less egregious and the ethical violation he postulates is less significant than the Sixth

Amendment right at issue in the Morrison case. law enforcement agent "intended to lure Mr.

At worst, the Guild into

Virginia," (Appellant's Br. 13), without success.

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, Guild, After the single, brief phone conversation like Morrison, himself immediately between spoke and with the his law As

lawyer,

who

interposed

Guild

enforcement agent well before Guild travelled to Virginia.

in Morrison, Guild's brief "contain[s] no allegation that" the claimed ethical of violation [his] legal "prejudiced the quality nor does or he

effectiveness

representation,"

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). Dismissal

of the indictment is thus inappropriate.

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, discovery (Appellant's "continuing prosecutor Guild makes repeated committed see, of e.g., id. by at reference by at to a "litany of

violations Br. 36;

the 35

prosecution." (referring to a

pattern in this and

misconduct id. the

the 34

investigators ("Throughout skirted

and the

case");

investigation rules and

prosecution

Government

ethical He were and

violated that

constitutional of of his the

principles[.]").) rights

postulates violated

various result

constitutional Government's

as

a

"shocking

egregious" conduct during the course of discovery.

(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 Again, we nonetheless affirm its

district court's findings.

judgment on the simpler basis that Guild has failed entirely to demonstrate that dismissal would be an appropriate remedy.

B. A defendant of charged any with

Venue a crime State committed or "out of must the be

jurisdiction

particular

district"

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." 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, Guild's challenge to the trial derives from his He United States v. Burns, 990

we find no fault in its decisions. propriety fundamental concedes of the venue for of his the

misunderstanding "the

governing [him]

statute. in the

that

Government

arrested 16

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 flight `first of whether the it is the intended from destination of the the marks

returning brought'

defendant (some

overseas,

triggers

option"

internal

quotation

omitted)).)

The statute is disjunctive--it provides for venue 18 U.S.C. in

where a defendant "is arrested or is first brought." § 3238 (emphasis venue added). proper Because there Guild the was

arrested

Virginia,

was

under

arrest

"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 For

construction and application of the phrase "first brought."

our purposes, it is sufficient that he was arrested where he was tried, as he concedes. that Defendant was (See J.A. 106) ("There is no dispute in the Eastern District of

arrested

Virginia.").

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." In (Id.) United We reject both of these contentions. 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 Pursuant

v. Soriano-Jarquin, 492 F.3d 495, 504 (4th Cir. 2007).

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." Thus, a Smith v. Cromer, 159 F.3d 875, 880 (4th Cir. 1998). failure to disclose 18 information 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 to In a

claimed Touhy privilege, a defendant must demonstrate his need for that evidence, and "the showing of necessity which is made will determine that how the far the occasion court for should invoking probe the in satisfying is

itself

privilege

appropriate."

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 restrictions plea in a discussions. so-called Boente memorialized upon these the

"Touhy

letter,"

which

district court and the parties relied.

At trial, the Government

made ten objections on the basis of the Touhy letter, and the district court sustained four of those objections. Guild

challenged only one of those four rulings.

Specifically, Guild "Would you

objected to Haynes's refusal to answer the question:

tell the Court what discussions you had with Agent Allen and Agent Griffin making about any how to arrest to 19 Mr. Guild in Virginia?" any other

Without

reference

this

question--or

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 or at issue to during his the trial The would law have been

material

favorable

case.

enforcement

discussions about the plans to arrest Guild in Virginia were wholly peripheral to the matter of his guilt. Jarquin, 492 F.3d at 504. Moreover, Guild See Sorianohas failed to

establish his need for the testimony. Agent Allen, had already testified

Other witnesses, such as in detail about those

discussions.

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, and object[ing] sua sponte to

counsel's examination."

(Appellant's Br. 49.)

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 government's presentation of 12

witnesses over five days."

(Id.)

An examination of the record case at his own pace. Indeed,

reveals that Guild presented his

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. similarly fail to

examples

stand up to scrutiny. assures us that the

Our review of the record of proceedings district diligently court to acted on well within a its trial

discretion, threatened

working by

keep and

track

frequent

diversions

unhelpful

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 to a sentence, a we first

district

court

committed

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, court 552 U.S. by 38 Id. See generally Gall v. Guild both of argues the that the

(2007).

district

erred to

imposing his

sentencing for

enhancements obstruction

used of

calculate the

Guidelines based on

range--one

justice,

other

his

supervisory

relationship to the victim.

He also argues that the district

court abused its discretion when it elected not to grant him a downward departure. The applied. sentence [Guild's] These arguments lack merit. relationship enhancement mandate if was a properly four-level "was in

supervisory The

Sentencing for

Guidelines Guild's crime

enhancement custody,

Ousmane

care,

or

supervisory "is

control." to the

U.S.S.G. have broad is

§ 2A3.2(b)(1). application and

This is

enhancement to be

intended whenever

applied

victim

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. There can be no doubt Ousmane was in Guild's

Guild;

custody, care, and supervisory control. thus properly applied.

The enhancement was

22

Guild argues that the enhancement is inapplicable because he "was not a teacher, day care provider, baby-sitter or

temporary caretaker for Ousmane as required." 54.) This argument also lacks merit.

(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." § 2A3.2(b)(1) n.2(a). of custody, care, or U.S.S.G.

It is meant to illustrate relationships supervisory control, not to exempt any

relationship that is not included in the short list.

Guild's

untenable construction of the sentencing enhancement suffers an additional apply in flaw: the It that Even his version because plan to of the enhancement as in would

instant was led

case

Guild tutor to

served Nathan

Ousmane's math and to

teacher. English Guild.

Guild's Ousmane's

stepfather

entrust

Ousmane

And it was the pretense of academic instruction that justified Guild's assumption of Ousmane's custody.

repeatedly

Guild protests, insisting that Ousmane was not his student, but was merely "being provided work papers on occasion."

(Appellant's Br. 54.)

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. conduct This enhancement to (i) the

obstructive

related

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, or attempting to suborn perjury." v. Dunnigan, 507 U.S. 87 (1993). Id. n.4(b); see United States "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 son." perjury (Id.) by The court also found that Guild he

committed

"consistently

assert[ing]

that

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 (Id.) by

(Id. at 1171.) that "[Guild]'s

motives were other than fatherly." found that Guild to committed sexual perjury

Lastly, the court that he (i) at

denying Guild

described

Nathan

encounters

experienced

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 It was legally erroneous, Guild contends, The

factually erroneous.

because the district court considered "acquitted conduct."

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 Cir. 1998) based (a on sentencing its court of may enhance by a a

defendant's

sentence

findings

conduct

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 But the sentencing court must consider only 25

reasonable doubt.

whether the preponderance of the evidence establishes the facts pertinent to the calculation of the advisory Sentencing

Guidelines range. (4th Cir. 2007).

United States v. Benkahla, 530 F.3d 300, 312 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 in credibility and that Mr. Guild testified

credibly."

(Appellant's Br. 55.)

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 inability was to not find credible. Guild's Rather, guilt it reflects a the jury's doubt.

beyond

reasonable

Moreover, as we have explained, the court was not bound by the jury's conclusions as to Nathan's credibility. obliged to make its own findings by a The court was of the

preponderance

evidence.

It did just that.

(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 by a preponderance of the

26

evidence that Defendant gave false testimony.").) conclusion was not clearly erroneous. Before conclusions us, that Guild he does not contest (1) the

The court's

district that he

court's touched

lied

by:

denying

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. to understand Guild's of implicit argument material that perjury It is difficult notwithstanding the sentence

these

instances

willful,

enhancement was erroneously applied. argument.

We find no merit in that

Finally, we reject Guild's argument that the district court abused its discretion by declining to grant him a downward

departure from the advisory Guidelines range. calculating carefully the range, 51--63 months'

After properly the court at 18

imprisonment, factors set

considered

the

sentencing

forth

U.S.C. § 3553(a), as it was obliged to do. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). the seriousness of the offense:

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 sentence within the Guideline Range [was]

appropriate."

(Id. at 1178.)

"[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 (Id. at

Range," which was the sentence urged by the Government. 1178.) sentence reasoned, Instead, of 51 the months. court imposed the minimum sentence, of the

Guidelines the court

This the

minimum

"reflect[ed]

seriousness

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 its sentence not only

reasonable, but also generous. is meritless. Guild asks us

Guild's argument to the contrary 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 than is [his] sentence." (Appellant's Br. 57.)

deterrent

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 Others

Some take the form of thematic emphasis.

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