UNPUBLISHED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 Decided: June 10, 2014
Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007).
“Before imposing sentence, the court must: (i) provide the
defendant’s attorney an opportunity to speak on the defendant’s
behalf.” Fed. R. Crim. P. 32(i)(4)(A)(i). The record discloses
that the district court gave defense counsel numerous
opportunities to speak on behalf of Thiam. 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
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remain silent so that Thiam could explain why his companion
identified Thiam by a fictitious name. This, however, does not
change the fact that counsel 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 testimony, in violation of his
Fifth Amendment rights. The Fifth Amendment’s self-
incrimination clause provides that no person “shall be compelled
in any criminal case to be a witness against himself.” U.S.
Const. amend. V. 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 might
incriminate him in future criminal proceedings.” Minnesota v.
Murphy, 465 U.S. 420, 426 (1984) (internal quotation marks
omitted). Indeed, a defendant retains this privilege at his
sentencing hearing. 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
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marks omitted) (emphasis in original). A witness’s answers “are
not compelled within the meaning of the Fifth Amendment unless
the witness is required to answer over his valid claim of
privilege.” United States v. Vangates, 287 F.3d 1315, 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. Thiam,
however, denied any involvement in other criminally related
activities eluded to by the court. He therefore did not make
any incriminating statements. Most 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 § 3553(a) in fashioning his sentence. In evaluating
procedural reasonableness, this court considers whether the
district court properly calculated the defendant’s advisory
Guidelines range, gave the parties an opportunity to argue for
an appropriate sentence, considered the 18 U.S.C. § 3553(a)
factors, selected a sentence supported by the record, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
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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). If the sentence is free of procedural error, the
court reviews it for substantive reasonableness, taking into
account the totality of the circumstances. Gall, 552 U.S. at
51. This court presumes that a sentence within 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. Here, defense
counsel discussed at length possible immigration consequences
for Thiam should he receive a significant sentence. Contrary to
Thiam’s claim, the district court was well aware that the
sentence could have immigration consequences. 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 so Thiam could avoid certain immigration
consequences. Furthermore, Thiam’s sentence is within the
properly calculated Guidelines range and is thus presumed
reasonable. Such a presumption is rebutted only by showing
“that the sentence is unreasonable when measured against the
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§ 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 to rebut the
presumption.
Finally, Thiam argues that the 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.” United States v. Basham, 561
F.3d 302, 330 (4th Cir. 2009) (internal quotation marks
omitted). However, “[w]hen none of the individual rulings work
any cognizable harm, it necessarily follows that the cumulative
error doctrine finds no foothold.” Id. (internal quotation
marks and alterations omitted). 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
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