                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 08-4323



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


TSOMORLIG BATJARGAL, a/k/a Somoun,

                Defendant - Appellant.



                               No. 08-4324



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


LLOYD W. MINER, a/k/a Rico,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District Judge.
(1:07-cr-00190-LO-2; 1:07-cr-00190-LO-1)


Submitted:   August 25, 2008                 Decided:   December 8, 2008
Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Cristin Traylor, MCGUIREWOODS, LLP, Richmond, Virginia; Mark
Diamond, Richmond, Virginia, for Appellants.     Chuck Rosenberg,
United States Attorney, Ronald L. Walutes, Jr., Assistant United
States Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

             In these consolidated appeals, Tsomorlig Batjargal and

Lloyd W. Miner challenge their convictions.                        Miner also challenges

his sentencing. After a jury trial, Batjargal was convicted of one

count   of       conspiracy    to   commit        fraud      with    an    identification

document, in violation of 18 U.S.C.A. § 1028(a)(1), (b)(1)(A)(ii)

and (f) (West 2000 & Supp. 2008), and Miner was convicted of one

count of concealing, harboring or shielding from detection an

illegal alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and

(a)(1)(B)(ii) (2006) and one count of encouraging an illegal alien

to enter and reside in the United States, in violation of 8 U.S.C.

§ 1324(a)(1)(A)(iv) and (a)(1)(B)(ii) (2006).                             Both Appellants

challenge        the     sufficiency     of       the     evidence        supporting   the

convictions.           Batjargal also claims the district court erred by

denying    her     motion     for   a   mistrial        or    in    the   alternative,   a

severance, based on remarks made by Miner’s counsel during his

opening and closing statements.                   Miner claims the court erred by

admitting photographic evidence of trips he took with a friend. He

also challenges remarks made by the prosecutor during the closing

argument.         In addition, he claims the district court erred by

applying     a    two-level     enhancement         for      obstruction     of   justice.

Finding no error, we affirm.

             We review the district court’s denial of a motion for

judgment of acquittal de novo, and its ruling on a motion for a new


                                              3
trial for abuse of discretion.                 See United States v. Smith, 451

F.3d 209, 216 (4th Cir. 2006); United States v. Ryan-Webster, 353

F.3d 353, 359 (4th Cir. 2003).                    A defendant challenging the

sufficiency of the evidence faces a heavy burden. United States v.

Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).                       “[A]n appellate

court’s    reversal      of   a   conviction      on    grounds    of   insufficient

evidence should be confined to cases where the prosecution’s

failure is clear.”        United States v. Jones, 735 F.2d 785, 791 (4th

Cir. 1984).      A jury’s verdict must be upheld on appeal if there is

substantial evidence in the record to support it.                          Glasser v.

United States, 315 U.S. 60, 80 (1942).                 In determining whether the

evidence   in    the   record      is    substantial,     this     court   views   the

evidence   in    the   light      most    favorable     to   the   government,     and

inquires whether there is evidence that a reasonable finder of fact

could accept as adequate and sufficient to support a conclusion of

a defendant’s guilt beyond a reasonable doubt.                     United States v.

Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).                     In evaluating

the sufficiency of the evidence, this court does not review the

credibility of the witnesses and assumes that the jury resolved all

contradictions in the testimony in favor of the government. United

States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).

            We    find    there     was     sufficient       evidence      supporting

Batjargal’s conviction.             The evidence showed she traveled to

Washington State because it was easier to get a driver’s license


                                           4
there than it would have been to renew her license in Virginia.

Batjargal never lived in Washington State, nor did she intend on

living there in the future.           In addition, in order to get her

Washington State driver’s license, she used a friend’s Washington

State address as her place of residence.          In addition to allowing

her to use her address, her friend took her to the DMV so she could

get her license.

             With respect to Miner, we find sufficient evidence shows

that he knew Batjargal was no longer in the United States legally

because she was no longer attending school as was required under

her student visa.     The evidence further shows Miner encouraged her

to stay in the United States despite her illegal status and that he

harbored her by providing her with a place to live, an automobile,

a cell phone, auto insurance and gym membership.           We find Miner’s

argument that the statute is unconstitutional because it is vague

to be without merit.        See United States v. Terrazas-Carrasco, 861

F.2d   93,   96-97   (5th    Cir.   1988);   United   States   v.   Gonzalez-

Hernandez, 534 F.2d 1353, 1354 (9th Cir. 1976); United States v.

Cantu, 501 F.2d 1019, 1021 (7th Cir. 1972).

             Batjargal claims that Miner’s counsel’s statement during

his opening remarks violated her right against self-incrimination

because he stated she would testify.           The Fifth Amendment right

against self-incrimination protects a defendant’s decision not to

testify.     Comments made during a trial regarding a defendant’s


                                       5
decision not to testify may be harmful if the comments invite the

jury to infer guilt from the defendant’s decision not to testify.

See Lakeside v. Oregon, 435 U.S. 333, 338-39 (1978). The inference

of guilt may compel a defendant to testify.         Id. at 339.       We find

Batjargal was not prejudiced by counsel’s remark.             The statement

did not violate her Fifth Amendment right not to testify.             Nor did

the statement infer that she was guilty if she chose not to

testify.    Moreover,     the   evidence    establishing    her    guilt   was

overwhelming. Thus, we find the court did not abuse its discretion

by denying the motion for a mistrial.         United States v. Wallace,

515 F.3d 327, 330 (4th Cir. 2008) (stating standard of review).

           We further find the district court did not abuse its

discretion by denying the motion for severance.            Zafiro v. United

States, 506 U.S. 534, 541 (1993); United States v. Khan, 461 F.3d

477, 490 (4th Cir. 2006). Batjargal was not unfairly prejudiced by

the joinder.   We also find Miner’s counsel’s statement during the

summation was not improper.         The evidence supported counsel’s

argument   that   Batjargal     conspired    with   another       individual.

Furthermore,   the    indictment   charged    Batjargal    and    Miner    with

conspiring and agreeing to together and “with other persons known

to the grand jury” unlawfully produce an identification document.

We also find the defenses put forth by Batjargal and Miner were not

irreconcilable.      Their defenses did not rely on accusing the other

of the offense.


                                     6
           Miner challenges the district court’s decision to admit

certain photographs showing him on vacation with a Government

witness who was testifying with hope of getting a lower sentence

for convictions, none of which involved Miner.                   We review the

district court’s admission of evidence for an abuse of discretion.

See United States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004).                An

abuse of discretion occurs “only when it can be said that the trial

court acted arbitrarily or irrationally in admitting evidence.”

United States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006)

(internal quotation marks and citation omitted).                    Evidentiary

rulings are subject to harmless error analysis.              United States v.

Brooks, 111 F.3d 365, 371 (4th Cir. 1997).             We find the district

court did not abuse its discretion by finding the photographs were

relevant   and    that   the   probative    value    was   not    substantially

outweighed by the danger of unfair prejudice.

           We further find that the prosecutor’s closing remarks

were not improper. A claim of prosecutorial misconduct is reviewed

to determine whether the conduct complained of so infected the

trial with unfairness as to make the resulting conviction a denial

of due process.      United States v. Scheetz, 293 F.3d 175, 185 (4th

Cir. 2002).      To prevail under this standard, Miner must show that

“the   prosecutor’s      remarks    or     conduct    were       improper   and,

second . . . that such remarks or conduct prejudicially affected

his substantial rights” so as to deprive him of a fair trial.                Id.


                                      7
Whether prejudice exists is in turn established by the following:

(1) the degree to which the prosecutor’s remarks had a tendency to

mislead   the    jury;   (2)    whether    the   remarks    were   isolated   or

extensive; (3) the strength of competent proof introduced to

establish defendant’s guilt; (4) whether the prosecutor’s remarks

were invited by the improper conduct of defense counsel; and

(5) whether curative instructions were given.              Id. at 186.     No one

factor is dispositive.         United States v. Wilson, 135 F.3d 291, 299

(4th Cir. 1998).         Even if the statements were improper, Miner

failed to show he was prejudiced.

              Miner also challenges the district court’s decision to

enhance his offense level by two for obstructing justice under U.S.

Sentencing Guidelines § 3C1.1 (2007). The district court’s factual

findings supporting the obstruction of justice enhancement are

reviewed for clear error.         United States v. Kiulin, 360 F.3d 456,

460 (4th Cir. 2004).           Questions of law regarding the district

court’s application of the Sentencing Guidelines are reviewed de

novo.   United States v. Green, 436 F.3d 449, 456 (4th Cir. 2006).

Pursuant to the remedial portion of United States v. Booker, 543

U.S.    220    (2005),    district    courts      continue    to    make    this

determination based on the preponderance of the evidence, taking

into account that the resulting guidelines range is advisory only.

United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005).                  Thus,

the conduct for which Miner received the enhancement was not


                                       8
required to be charged in the indictment or proven beyond a

reasonable doubt.   We further find the obstructive conduct, which

was supported by a preponderance of the evidence, was related to

the convictions. Accordingly, the district court did not abuse its

discretion by applying the two level enhancement.

          Accordingly, we affirm the convictions and sentences. 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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