United States v. Perez, No. 09-4150

Decided Nov. 2, 2011

Jose Perez was convicted of the manufacture, distribution, and possession with intent to distribute cocaine. After his conviction, but prior to his sentencing hearing, Perez moved to have new counsel appointed due to alleged lack of preparation and communication. After inquiry at the sentencing hearing the district court denied the motion. At the same hearing, the Government successfully moved to have Perez’s sentence enhanced for obstruction of justice. The court found that Perez’s testimony was sufficiently false and misleading to be perjurious.

The Fourth Circuit affirmed the denial of new representation. The court weighs three factors (“timeliness of the motion; the adequacy of the court’s inquiry into the defendant’s complaint; and whether the attorney/client conflict was so great that it resulted in a total lack of communication preventing an adequate defense”) against the trial court’s inherent authority to engage in the “orderly administration of justice.” Finding that the three factors did not weigh in Perez’s favor, the court found that the trial judge did not abuse his discretion by denying the motion.

To impose a two-level sentence enhancement for obstruction based on perjury, the court must find “(1) . . . false testimony; (2) concerning a material matter; (3) with willful intent to deceive . . . .” The United States Supreme Court has held that the trial court must make independent findings of facts regarding each of these elements. U.S. v. Dunnigan, 507 U.S. 87 (1993). Noting that the Fourth Circuit has not provided clear guidance to district courts to date as to the level of specificity of these findings, the court here held that “[i]f 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” (emphasis provided). Finding that the trial judge did not make these specific findings or demonstrate that all the elements were clearly met, the court reversed the obstruction charge and remanded for new sentencing.

Full Opinion

-C. Alexander Cable

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