United States v. Perez, 661 F.3d 189, 4th Cir. (2011)

PUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE LUIS JAIME PEREZ, a/k/a Pri,
a/k/a Canello, a/k/a Jose Luis
Jaimes Perez,
Defendant-Appellant.
No. 09-4150
Appeal from the United States District Court

for the Western District of Virginia, at Harrisonburg.
Glen E. Conrad, Chief District Judge.
(5:07-cr-00063-gec-jgw-18)
Argued: September 23, 2011
Decided: November 2, 2011
Before GREGORY and DAVIS, Circuit Judges, and
Damon J. KEITH, Senior Circuit Judge of the
United States Court of Appeals for the Sixth Circuit,
sitting by designation.
Affirmed in part, reversed in part, and remanded by published

opinion. Judge Gregory wrote the opinion, in which Judge
Davis and Senior Judge Keith joined.
UNITED STATES v. PEREZ
COUNSEL
ARGUED: Charles Michael Henter, HENTERLAW, PLC,
Charlottesville, Virginia, for Appellant. Donald Ray
Wolthuis, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF: Julia C.
Dudley, United States Attorney, Joshua Smith, Rising Third
Year Law Student, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee.
OPINION
GREGORY, Circuit Judge:
In this case, a criminal defendant challenges his sentence
for a drug conspiracy conviction, arguing that the district
court erroneously denied his request for new counsel and
improperly imposed an obstruction of justice sentencing
enhancement. For the reasons that follow, we affirm the
denial of Perezs motion for new counsel, but reverse and
remand the case for resentencing because the district court did
not find the necessary factual predicates to impose an obstruction of justice enhancement.
I.
Appellant, Jose Luis Jaime Perez, was convicted of conspiracy to manufacture, distribute, and possess with intent to
distribute more than five kilograms of cocaine in violation of
21 U.S.C. 846 (2006). After his conviction but before sentencing, Perez moved to have the district court appoint him
new counsel. The district court, which had previously
appointed him new counsel before trial, denied Perezs
motion without a hearing. At the sentencing hearing, the court
heard from Perez on his reasons for filing the motion. Perez
said that he was unhappy with his attorneys level of prepara-
tion and that his attorney did not visit him often enough. The
court found that Perezs attorneys performance was above
average and that Perez would be better off if he were represented by someone who was familiar with his case. It denied
the motion for a second time.
At the same hearing, defense counsel objected to the presentence reports recommendations, arguing that the trial testimony did not support either the drug weight attributed to
Perez or the two-level managerial role enhancement it recommended. The Government also objected to the report, contending that a two-level obstruction of justice enhancement
should be imposed. The court sustained the Governments
objection, making two comments. First:
It follows from the analysis thats just been given
that the jury disbelieved Mr. Perez. Accordingly, the
jury determined that he did not testify truthfully at
trial and under well established Fourth Circuit precedent, lack of truthfulness at trial does often constitute
obstruction of justice and I find that rule to apply
here.
Second, the court said:
[T]he fact remains that the jury decided this matter
unfavorably toward Mr. Perez. Given that fact and
given certain of Mr. Perezs actions when he was
first confronted by the police, especially in regards
to the female who was present at that scene, the
Court remains convinced that Mr. Perez did engage
in obstruction of justice. For that matter, as between
Ms. Tharp and Mr. Hernandez on the one side and
Mr. Perez on the other side, the Court agrees that the
government witnesses were more credible, from the
Courts perspective, than was Mr. Perez . . . The
Court believes that the jury reasonably accepted testimony of the government witnesses, rejected that of
Mr. Perez and the Court believes that Mr. Perezs

testimony at trial was not credible and constituted
obstruction of justice.
The court also sustained defense counsels objection to the
aggravated role enhancement, overruled the objection as to
drug weight, and sua sponte reduced Perezs criminal history
by two points. The modifications led to an advisory sentence
of 262 to 327 months, and the court sentenced Perez to 262
months. Perez timely appealed.
II.
A.
Perez argues that the district court improperly denied his
motion for new counsel. This Court reviews a district courts
ruling on a motion to substitute counsel for abuse of discretion. United States v. Reevey, 364 F.3d 151, 156 (4th Cir.
2004) (citing United States v. Corporan-Cuevas, 35 F.3d 953,
956 (4th Cir. 1994)).
The Sixth Amendment protects the right of an indigent
defendant to be represented by counsel. Gideon v. Wainwright, 372 U.S. 335 (1963). That right, however, is not absolute; it cannot "deprive courts of the exercise of their inherent
power to control the administration of justice." United States
v. Gallop, 838 F.2d 105, 107 (4th Cir. 1988). An indigent
defendant "can demand a different appointed lawyer only
with good cause." Id. In determining whether a district court
abused its discretion in denying a motion for new counsel, the
Fourth Circuit considers three factors: the "timeliness of the
motion; the adequacy of the courts inquiry into the defendants complaint; and whether the attorney/client conflict was
so great that it resulted in a total lack of communication preventing an adequate defense." Id. The appellate court then
weighs these factors against the district courts interest in the
"orderly administration of justice." Reevey, 364 F.3d at 156.
With respect to the first factor, Perez delayed in bringing

his motion. He was convicted on September 16, 2008, and
had his sentencing hearing scheduled for February 2, 2009,
but did not request new counsel until January 22. That is, he
waited for slightly over four months to bring the motion less
than two weeks before his sentencing hearing. If the district
court had granted the motion, it may have had to postpone the
sentencing hearing. The second factor also weighs in the Governments favor, albeit slightly. On the one hand, the district
court summarily denied Perezs motion without conducting a
hearing. This cuts against the Government insofar as we have
held that "[a]n inquiry into the reasons for a defendants dissatisfaction with his or her lawyer is necessary for the trial
court to determine whether good cause for substitution
exists." United States v. Mullen, 32 F.3d 891, 896 (4th Cir.
1994) (citing United States v. Welty, 674 F.2d 185, 188 (3d
Cir. 1982)). On the other hand, at the sentencing hearing the
court requested that Perez explain why he believed he should
be appointed new counsel, considered those reasons, and then
found that Perezs attorney had done an effective job representing him. The third factorwhether the conflict resulted in
a total lack of communication preventing an adequate defense
points firmly toward the Government because there was
neither a lack of communication nor an inadequate defense.
When Perez was asked to explain why he made his motion for
new counsel, he said, "[I am] sure that my lawyers have acted
according to the law." His concern was only that "[defense
counsel] has avoided my rights. He has been not paying attention to them." Perez also indicated that his attorney "didnt
come to visit [him] too often." By his own admission, then,
Perez and his attorney did speak. Similarly, the district court
found that Perezs attorney represented him effectively,
necessitating the conclusion that he was provided with an adequate defense.
Weighing these factors against the district courts interest
in efficiently administering justice, we find that the court correctly denied Perezs motion.
B.
Perez next contends that the district court improperly
applied a two-level enhancement for obstruction of justice.
We agree.
The appellate courts conduct a reasonableness inquiry coupled with an abuse-of-discretion standard of review to determine whether a sentence imposed by a district court was
proper. Gall v. United States, 552 U.S. 38, 46 (2007); United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Unreasonableness has both substantive and procedural elements. Gall,
552 U.S. at 51. Substantive unreasonableness "[e]xamines the
totality of the circumstances to see whether the sentencing
court abused its discretion . . . ." United States v. MendozaMendoza, 597 F.3d 212, 216 (4th Cir. 2010). Procedural
unreasonableness "evaluates the method used to determine a
defendants sentence." Id.
There are three elements necessary to impose a two-level
enhancement for obstruction of justice based on the defendants perjurious testimony: the sentencing court must find
that the defendant "(1) gave false testimony; (2) concerning a
material matter; (3) with willful intent to deceive . . . ." United
States v. Jones, 308 F.3d 425, 428 n.2 (4th Cir. 2002). In
United States v. Dunnigan, the Supreme Court considered
whether an enhancement based on perjury unconstitutionally
undermines the right to testify in ones own defense. 507 U.S.
87, 96 (1993). Answering in the negative, the Court noted that
"not every accused who testifies at trial and is convicted will
incur an enhanced sentence." Id. at 95. A defendant could, for
example, give false testimony about a non-material matter, or
he might lack the requisite mens rea because her false testimony was the result of "confusion, mistake, or faulty memory." Id. Therefore, the Court held, if the defendant objects to
an enhancement "resulting [from] his trial testimony, a district
court must review the evidence and make independent findings necessary to establish a willful impediment to, or
obstruction of, justice . . . ." Id. "[I]t is preferable for a district

court to address each element of the alleged perjury in a separate and clear finding." Id. It is enough, however, if "the court
makes a finding of an obstruction of, or impediment to, justice
that encompasses all of the factual predicates for a finding of
perjury." Id.; see also Jones, 308 F.3d at 428 n.2 (citations
omitted); United States v. Murray, 65 F.3d 1161, 1165 (4th
Cir. 1995).
At issue here is the degree of specificity Dunnigan requires
as to each of the elements of perjuryhow specific, in other
words, the finding that "encompasses all the factual predicates" for perjury must be. The Supreme Courts opinion in
Dunnigan stands for the proposition that a mere statement that
the defendant committed perjury is insufficient; otherwise, the
"encompassing all of the factual predicates" language would
be meaningless. Consistent with this reasoning, in United
States v. Smith, 62 F.3d 641, 647 (4th Cir. 1995), this Court
overturned a finding of perjury when the district court summarily denied the defendants objection to the sentencing
enhancement. But the application of Dunnigan in this Circuit
has not always been so clear-cut. In United States v. Quinn,
359 F.3d 666, 681 (4th Cir. 2004), we affirmed an obstruction
of justice enhancement for perjury even though the district
court did not specifically find that the false testimony was
material, but did provide sufficient explanation to permit this
Court to conclude that it was. And in United States v. Cook,
76 F.3d 596, 605-06 (4th Cir. 1996), we upheld an obstruction
of justice enhancement based on the district courts finding
that the defendant did not testify truthfully and that his testimony was "strained."
To date, we have not provided a great deal of guidance to
the district courts in applying Dunnigan, 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. With respect to
willfulness, for example, it would, in the usual case, be
enough for the court to say, "The defendant knew that his testimony was false when he gave it," but it could not simply
assert, "The third element is satisfied." While some may suggest this is little more than an empty formality, we believe it
serves a vital purpose. Factual findings are reviewed under the
deferential abuse-of-discretion standard, and requiring district
courts to clearly articulate the findings necessary to reach a
legal conclusion preserves our ability to conduct meaningful
appellate review.
Here, the district court did not make the requisite finding
to establish that Perez engaged in obstruction of justice. It is
true that the court found Perezs testimony was false when it
said, "Accordingly, the jury determined that [Perez] did not
testify truthfully at trial . . . ." However, there was no indication that the false testimony concerned a material matter or
that it was willfully given. And while one might argue that
materiality was clearly established here, the district court
made no finding as to willfulness. Even in Cookan opinion
that admittedly pushes up against the limits established in
Dunniganthe district court made a statement strongly suggesting that the defendant willfully gave false testimony.
Cook, 76 F.3d at 605-06. Here, in contrast, the district court
came closest to addressing willfulness when it said, "Given
that fact and given certain of Mr. Perezs actions when he was
first confronted by the police, especially in regards to the
female who was present at that scene, the Court remains convinced that Mr. Perez did engage in obstruction of justice."
But neither party provides any context as to what the court
meant by "Mr. Perezs actions," making it impossible to conclude that willfulness was ever established. We therefore hold
that the district court improperly applied the obstruction of
justice sentencing enhancement by failing to find the factual
predicates necessary to conclude that Perez committed perjury.*
*Because neither party raised harmless error review in their briefs, we
decline to consider that issue.
III.
For the foregoing reasons, we affirm the denial of Appellants request for new counsel, reverse the imposition of the
obstruction of justice enhancement, and remand the case for
resentencing.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

United States v. Perez, 661 F.3d 189, 4th Cir. (2011)

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PUBLISHED

UNITED STATES COURT OF APPEALS

Appeal from the United States District Court

Affirmed in part, reversed in part, and remanded by published

UNITED STATES v. PEREZ

UNITED STATES v. PEREZ

UNITED STATES v. PEREZ

Mr. Perez and the Court believes that Mr. Perezs

UNITED STATES v. PEREZ

With respect to the first factor, Perez delayed in bringing

UNITED STATES v. PEREZ

UNITED STATES v. PEREZ

obstruction of, justice . . . ." Id. "[I]t is preferable for a district

UNITED STATES v. PEREZ

UNITED STATES v. PEREZ

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