UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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 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. The boys reported that they observed semen on
Guild’s penis. 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. To shave properly, Guild explained, one must be
nude. 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. They then
contacted Agent Lynn Falanga of the Office of Professional
Responsibility in Washington, D.C., who instructed them to
interrogate Guild. 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. Pursuant to that order, Agent
Walsh was to implement a medical evacuation of Guild the
following day. That evening, USAID Mission Director Earl Gast
4
and Agents Walsh and Catipon interviewed Guild again. Guild was
informed of his Miranda rights. 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 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 Falanga later met with Assistant U.S. Attorney
Michael Pauze of the office of the U.S. 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 concluded that his office and Falanga were
“tainted.” He instructed her to transfer the case to other
agents and to explain to those agents that they should pursue
the matter with the U.S. Attorney’s Office for the Eastern
District of Virginia. Falanga did so, advising 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 Allen then spoke with Assistant U. S. Attorney
Patricia Haynes of the office of the U.S. Attorney for the
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. Later that day, Allen was
6
contacted by Joseph Hannon, who informed Allen that he was
representing Guild. Allen continued to demand Guild’s
passports. The next morning, agents arrested Guild at Reagan
airport. As the investigation proceeded, Haynes and the
investigating officers were in contact with Health 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. He also
sought prosecutor Haynes’s testimony on the issue 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 certain topics and prohibited her from addressing
others. The parties disputed the propriety and interpretation
of the letter. The jury convicted Guild of two counts of
assault and a count of sexual abuse related to his conduct with
Ousmane. He was acquitted of his alleged abuse of Nathan.
At 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, the allegations that Guild also sexually
assaulted Nathan. 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, fifty-
one months in prison followed by five years of supervised
release.
Guild challenges his conviction and sentence. We have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 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). But use immunity “only protects against
the government’s use of compulsory testimony as a source of
8
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. In a thorough
analysis, the court stressed that Ousmane “was initially
interviewed before [Guild] made his statement, and [Ousmane’s]
statement [was] what prompted the investigation.” J.A. 953.
After the taint was discovered, the court found, “[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 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 Br. 23.) But the district court saw matters
differently. It found that Haynes’s prosecution was shaped by
the victims’ statements, not by oblique references to the
existence of Guild’s immunized interview. And after hearing
testimony on this issue, the district 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.) 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
limited to questions of fact.” (Id. at 955.) Lastly, the
State-side investigators and prosecutors shaped Guild’s
10
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 that his victims’ testimony was
tainted by his statements. “Ousmane, Nathan, their mothers and
Ousmane’s stepfather did not have direct knowledge of” his
statements, Guild concedes. (Appellant’s Br. 24.) 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.” (Id. at
25.) We have already rejected Guild’s argument that Haynes was
influenced by tangential commentary pertaining to Guild’s
immunized statements. As to Prekup, the district court found
that while she did 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.” (Id.) In short, Prekup’s
“knowledge of [the immunized interview] was 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. More specifically, he argues
that (i) the district court’s conclusion that no ethical
violation occurred was erroneous and (ii) dismissal of his
indictment was the proper remedy for this purported ethical
violation. The district court thoroughly considered 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.” Id. at 362.
During their meeting, the agents “disparaged [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 “visited [her] again in the absence of
counsel.” Id. The 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. “[R]ecogniz[ing] the necessity
for preserving society’s interest in the administration of
criminal justice,” id. at 667, the Court explained that the
“extraordinary relief” of dismissal is not “appropriate in the
absence of some adverse consequence to the representation [the
defendant] received or to the fairness of the proceedings
leading to [his] conviction,” id. at 363-64. “[A]bsent
demonstrable prejudice,” the Court held, “dismissal of [an]
indictment is plainly inappropriate, even though the violation
may have been deliberate.” Id. at 365. It found no such
prejudice. The Court found compelling that Morrison, like
Guild, “declined to cooperate and immediately 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
attorney whom she had retained.” Id. at 363.
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 the Sixth
Amendment right at issue in the Morrison case. At worst, the
law enforcement agent “intended to lure Mr. 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. After the single, brief phone conversation
at issue, Guild, like Morrison, immediately spoke with his
lawyer, who interposed himself between Guild and the law
enforcement agent well before Guild travelled to Virginia. As
in Morrison, Guild’s brief “contain[s] no allegation that” the
claimed ethical violation “prejudiced the quality or
effectiveness of [his] legal representation,” nor does 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.” Morrison,
14
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, Guild makes repeated reference to a “litany of
discovery violations committed by the prosecution.”
(Appellant’s Br. 36; see, e.g., id. at 35 (referring to a
“continuing pattern of misconduct by the investigators and
prosecutor in this case”); id. at 34 (“Throughout the
investigation and prosecution the Government skirted ethical
rules and violated constitutional principles[.]”).) He
postulates that various of his constitutional rights were
violated as a result of the Government’s “shocking and
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 or that its provision [of
15
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. Venue
A defendant charged with a crime committed “out of the
jurisdiction of any particular State or district” must 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. Guild’s challenge to the
propriety of the venue for his trial derives from his
fundamental misunderstanding of the governing statute. He
concedes that “the Government arrested [him] in the Eastern
16
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 it is the intended destination of the
flight returning the defendant from overseas, triggers the
‘first brought’ option” (some internal quotation marks
omitted)).) The statute is disjunctive—it provides for venue
where a defendant “is arrested or is first brought.” 18 U.S.C.
§ 3238 (emphasis added). Because Guild was arrested in
Virginia, venue was proper there under the 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
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. (See J.A. 106) (“There is no dispute
that Defendant was arrested in the Eastern District of
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.) Specifically, he
17
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.” (Id.) We reject both of these contentions.
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, a failure to disclose information under Touhy only
18
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). In
order to overcome the exclusion of evidence pursuant to a
claimed Touhy privilege, a defendant must demonstrate his need
for that evidence, and “the showing of necessity which is made
will determine how far the court should probe in satisfying
itself that the occasion for invoking the privilege is
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 plea discussions. Boente memorialized these
restrictions in a so-called “Touhy letter,” upon which the
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
objected to Haynes’s refusal to answer the question: “Would you
tell the Court what discussions you had with Agent Allen and
Agent Griffin about how to arrest Mr. Guild in Virginia?”
Without making any reference to this question—or any other
19
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 at issue during the trial would have been
material or favorable to his case. The law enforcement
discussions about the plans to arrest Guild in Virginia were
wholly peripheral to the matter of his guilt. See Soriano-
Jarquin, 492 F.3d at 504. Moreover, Guild has failed to
establish his need for the testimony. Other witnesses, such as
Agent Allen, had already testified 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
reveals that Guild presented his case at his own pace. Indeed,
Guild’s counsel remarked that he was “ahead of [his] schedule”
and ended several examinations early. (J.A. 2736; see also J.A.
2720.) The remainder of Guild’s examples similarly fail to
stand up to scrutiny. Our review of the record of proceedings
assures us that the district court acted well within its
discretion, working diligently to keep on track a trial
threatened by frequent diversions and unhelpful tactics.
Certainly, none of the court’s actions to that end compromised
Guild’s constitutional rights.
D. Sentencing Issues
When considering a challenge to a sentence, we first
“examine whether the district court committed a 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.” Id. See generally Gall v.
United States, 552 U.S. 38 (2007). Guild argues that the
district court erred by imposing both of the sentencing
enhancements used to calculate his Guidelines range—one for
obstruction of justice, the other based on 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. These arguments lack merit.
The supervisory relationship enhancement was properly
applied. The Sentencing Guidelines mandate a four-level
sentence enhancement for Guild’s crime if Ousmane “was in
[Guild’s] custody, care, or supervisory control.” U.S.S.G.
§ 2A3.2(b)(1). This enhancement “is intended to have broad
application and is to be applied whenever the 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.” Id. There can be no doubt
that Ousmane was entrusted to Guild; Ousmane was in Guild’s
custody, care, and supervisory control. The enhancement was
thus properly applied.
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.” (Appellant’s Br.
54.) This argument also lacks merit. 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 custody, care, or 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 flaw: Even his version of the enhancement would
apply in the instant case because Guild served as Ousmane’s
teacher. It was Guild’s plan to tutor Nathan in math and
English that led Ousmane’s stepfather to entrust Ousmane to
Guild. And it was the pretense of academic instruction that
repeatedly justified Guild’s assumption of Ousmane’s custody.
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. The Guidelines provide for a sentence enhancement if a
defendant “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.” U.S.S.G. § 3C1.1. This enhancement
applies if “the obstructive conduct 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,
or attempting to suborn perjury.” Id. n.4(b); see United States
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 son.” (Id.) The court also found that Guild
committed perjury by “consistently assert[ing] that he
considered himself to have behaved in the boys’ best interests
24
at all times, in the role of a father figure.” (Id. at 1171.)
In the court’s view, the record established that “[Guild]’s
motives were other than fatherly.” (Id.) Lastly, the court
found that Guild committed perjury by denying that he (i)
described to Nathan sexual encounters Guild 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. The Supreme
Court has rejected this contention. United States v. Watts, 519
U.S. 148 (1997); see also United States v. Martinez, 136 F.3d
972, 979 (4th Cir. 1998) (a sentencing court may enhance a
defendant’s sentence based on its findings of conduct by a
preponderance of the evidence, even where the jury acquitted the
defendant of that conduct). Rejection of the argument makes
good sense. 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 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 was not credible. Rather, it reflects the jury’s
inability to find Guild’s guilt beyond a reasonable doubt.
Moreover, as we have explained, the court was not bound by the
jury’s conclusions as to Nathan’s credibility. The court was
obliged to make its own findings by a preponderance of the
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.”).) The court’s
conclusion was not clearly erroneous.
Before us, Guild does not contest the district court’s
conclusions that he lied by: (1) denying that he touched
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 understand Guild’s implicit argument that notwithstanding
these instances of willful, material perjury the sentence
enhancement was erroneously applied. We find no merit in that
argument.
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. After properly
calculating the range, 51—63 months’ imprisonment, the court
carefully considered the sentencing factors set forth at 18
U.S.C. § 3553(a), as it was obliged to do. See United States v.
Hughes, 401 F.3d 540, 546 (4th Cir. 2005). The court stressed
the seriousness of the offense: “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.” (Id.)
27
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
Range,” which was the sentence urged by the Government. (Id. at
1178.) Instead, the court imposed the minimum Guidelines
sentence of 51 months. This minimum sentence, the court
reasoned, “reflect[ed] the seriousness of the 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. Guild’s argument to the contrary
is meritless. Guild asks 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. He also argues that “[t]he outcome of the trial is more
a 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 additional arguments are suggested throughout
Guild’s brief. 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