Obstruction of justice enhancement not a foregone conclusion when a defendant takes the stand

US v. Perez: Perez challenged the denial of his request for new counsel, as well as an obstruction of justice imposed on his sentence. The Fourth Circuit affirmed the denial of his request for new counsel, but reversed and remanded on the sentencing enhancement, holding that the district court failed to make the necessary factual findings to support the imposition of the enhancement.

Prior to trial, Perez moved for new counsel, which request the district court denied. After trial and prior to sentencing, Perez moved for new counsel a second time, which the district court denied again (without a hearing), deciding that it would be better for Perez to be represented at sentencing by an attorney familiar with his case. On appeal, the Fourth Circuit found that there had been neither a lack of communication nor an inadequate defense, despite Perez’s complaint that counsel had "avoided my rights. He has not been paying attention to them." In the balance with the district court’s interest in efficiently administering justice, the Fourth Circuit found the district court correctly denied Perez’s request for new counsel.

In considering Perez’s obstruction of justice enhancement, the Fourth Circuit discusses the irregular application of United States v. Dunnigan by its district courts. In that case, the Supreme Court said that an enhancement based on perjury does not unconstitutionally undermine the right to testify in one’s own defense, as "not every accused who testifies at trial and is convicted will incur an enhanced sentence." If a defendant receives the enhancement and object to it, the district court is supposed to conduct a review of the evidence and make "independent findings necessary to establish a willful impediment to, or obstruction of, justice..."

District courts, after Dunnigan, are also supposed to make separate and clear findings to address each element of the alleged perjury, but it will suffice if they make a finding that encompasses all of the factual predicates for perjury. It is this sufficiency that has apparently caused some problems, and the Fourth Circuit gives a little mea culpa, stating, "[t]o date, we have not provided a great deal of guidance to the district courts in applying Dunnigan..." and resolves to remedy the situation by holding that "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...and requiring district courts to clearly articulate the findings necessary to reach a legal conclusion preserves our ability to conduct meaningful appellate review."