Criminal Practice – Sentencing – Enhancement – Perjury – Insufficient Findings

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U.S. v. Perez (Lawyers Weekly No. 001-159-11, 9 pp.) (Gregory, J.) No. 09-4150, Nov. 2, 2011; USDC at Harrisonburg, Va. (Conrad, J.) 4th Cir. Click here for the full-text opinion.

Holding: In order to enhance a defendant’s sentence for obstruction of justice based on perjury, the sentencing court must make findings to clearly establish that a defendant gave false testimony on a material matter with willful intent to deceive. Because the trial court here failed to make the necessary findings, defendant’s enhanced sentence is reversed.

However, the trial court did not abuse its discretion in denying defendant’s motion to substitute counsel. Defendant delayed in bringing his motion. He was convicted Sept. 16, 2008, and his sentencing was scheduled for Feb. 2, 2009, but he did not request new counsel until Jan. 22, two weeks before sentencing. The trial court determined counsel had performed in an above-average manner. There was neither a lack of communication nor an inadequate defense. Defendant complained that his lawyer did not visit him “too often,” but he said he was sure his lawyers “acted according to the law.”

We find the court correctly denied defendant’s motion for substitute counsel.

However, we agree with defendant that the district court improperly applied a two-level enhancement for obstruction of justice. Three elements are necessary to impose a two-level enhancement for obstruction of justice based on defendant’s perjurious testimony: the sentencing court must find defendant gave false testimony, concerning a material matter, with willful intent to deceive.

To date, we have not provided a great deal of guidance to the district courts in applying U.S. v. Dunnigan, 507 U.S. 87 (1993), but we resolve to do so today. If a district court does not make a specific finding as to each element of perjury, it must provide a finding that clearly establishes each of the three elements.

Here, the district court did not make the requisite finding to establish that defendant engaged in obstruction of justice. There was no indication the false testimony concerned a material matter or that it was willfully given. While one might argue that materiality was clearly established here, the district court made no finding as to willfulness.

We hold the district court improperly applied the obstruction of justice sentencing enhancement by failing to find the factual predicates necessary to conclude that defendant committed perjury.

We affirm denial of defendant’s request for new counsel, reverse imposition of the obstruction of justice enhancement and remand for resentencing.