United States v. Sohibou Thiam , 576 F. App'x 132 ( 2014 )


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  •                               UNPUBLISHED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    Affirmed by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.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 4
    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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