                            UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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.




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