For the Defense - Vol. 5, Issue 2 - 22

Subsequent case law confirms that the Fourth
Circuit's concerns were justified. The government
often seeks, and courts routinely apply an obstruction
of justice enhancement pursuant to U.S.S.G. § 3C1.1 of
the Federal Sentencing Guidelines where a defendant
testifies at trial and is convicted. As the Third Circuit
has put it, however, the "ship has sailed" on "policy
concerns that the enhancement deters defendants
from exercising their fundamental right to testify at
trial."3 As a result, it is important to understand how
U.S.S.G. § 3C1.1 operates in practice and consider the
factors that have resulted in the enhancement being
rejected by the federal trial and appellate courts, in
advising clients on the risks associated with testifying
at trial.
U.S.S.G. § 3C1.1: Obstruction of Justice Sentencing
Enhancement
The Federal Sentencing Guidelines provide for
"very precise calibration of sentences," which
depend primarily upon the "offense level" associated
with the defendant's conduct and the defendant's
criminal history.4 Although the Guidelines are no
longer mandatory, sentencing judges must consider
them when determining a criminal defendant's
sentence and, if the judge departs (or varies) from the
Guidelines, explain why such a departure/variance was
justified.
Under the Guidelines, a defendant's offense
level can be increased based upon a number of
factors, including the identity of the victim and the
defendant's role in the offense. U.S.S.G. § 3C1.1 also
allows for a two-level enhancement to a defendant's
offense level if: "(1) the defendant willfully
obstructed or impeded. . . the administration of justice
with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction, and (2)
the obstructive conduct related to (A) the defendant's
offense of conviction and any relevant conduct;
or (B) a closely related offense."5 The commentary
to U.S.S.G. § 3C1.1, in turn, confirms that offering
perjurious testimony can constitute obstruction of
justice,6 provided that the sentencing court finds
that the defendant "(1) willfully (2) and materially
(3) committed perjury, which is (a) the intentional (b)
giving of false testimony (c) as to a material matter."7
Testimony that is inaccurate because of "confusion,
mistake, or faulty memory[,]" in contrast, does
not "reflect a willful attempt to obstruct justice"
and therefore should not serve as the basis for an
obstruction of justice enhancement.8
Whether the district court may later order a twolevel sentencing enhancement may not seem like a
key consideration as a defendant weighs whether to
testify at trial. In practice, however, application of such
a sentencing enhancement to a defendant's offense
level can meaningfully impact their guidelines range
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For The Defense l Vol. 5, Issue 2

and, therefore, their ultimate sentence. A two-level
shift in offense level can easily make the difference
in whether a defendant is eligible for probation in a
particular case where probation is otherwise available
by statute, for example, or in other circumstances add
two or more years to a defendant's guidelines range.
United States v. Dunnigan and its Progeny
In Dunnigan, the Supreme Court held that
"perjured" testimony by a defendant properly can
support a sentencing enhancement for obstruction
of justice under U.S.S.G. § 3C1.1. In reaching that
decision, the Court reversed the Fourth Circuit, which
had held that application of the obstruction of justice
sentencing enhancement to a defendant's testimony
at trial would "place an intolerable burden upon a
defendant's right to testify in his own behalf."9
The Supreme Court rejected such concerns, however,
holding that "a defendant's right to testify does not
include a right to commit perjury."10 The Court further
found that a defendant should not be deterred from
testifying in her own defense because, if convicted,
the sentencing court would be required to "make
independent findings necessary to establish a willful
impediment to or obstruction of justice, or an attempt
to do the same" before applying the enhancement.11
The Court reasoned that this step would separate
inaccurate testimony due to confusion, mistake, or
faulty memory from that which is willfully given with
the intent to mislead on a material issue.
In practice, courts applying Dunnigan have placed
few substantive limitations on the ways in which a
criminal defendant may be punished for offering
evidence contrary to the government's theory of the
case. As long as a sentencing court takes the time
to satisfy Dunnigan's "independent fact finding"
requirements, and concludes that the defendant
committed perjury, any enhancement is highly likely
to be upheld.12 Courts have held that the obstruction
of justice enhancement properly may be applied, for
example, based upon alleged false statements made
as part of pretrial motions,13 offered at bail hearings,14
provided to probation officers during presentence
investigations,15 and, of course, based on any
testimony at trial that conflicts with the government's
theory of the case and results in a guilty verdict.
Indeed, a recent decision by the Third Circuit upheld
a sentencing enhancement for perjury at trial even
where the jury's verdict suggested that it had credited
the defendant's testimony, at least in part, over the
government's own witnesses.16 In United States v. Carr,
the Government alleged Andrew Carr worked as the
"muscle" for Philadelphia-area methamphetamine
dealer Andre Trombetta, and built its case against
Carr, at least in part, on Trombetta's testimony at trial.
Trombetta testified that Carr worked for him as an
For the Defense - Vol. 5, Issue 2

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