Tuesday, February 09, 2016

United States v. Johnson, No. 14-10113 (Rosenthal, DJ (S.D. Tex.) with Kozinski and Tallman) --- The Ninth Circuit vacated a sentence for false statements and perjury and remanded for resentencing because the sentencing judge failed to make express findings of willfulness and materiality to support the obstruction-of-justice enhancement under U.S.S.G. ยง 3C1.1.

The defendant, a retired cop, ran a private business training drug- and bomb-sniffing dogs.  Some Hells Angels had hired him to ensure that their property wasn't tainted, and was heard on a wiretap alerting his clients to the presence of federal agents.  During his interviews with federal agents, he denied tipping his clients off, and was charged with conspiracy, making false statements, and perjury before the grand jury.  In a prior appeal, his conspiracy conviction was reversed, and the court remanded for resentencing.  The sentencing judge computed his new advisory Guidelines range using an upward adjustment for obstruction of justice, based on the defendant's supposedly perjured testimony at trial.  He received a below-Guidelines sentence of 15 months, and appealed.

Before a judge can impose the obstruction enhancement, he must find that the defendant willfully gave material false testimony.  The defendant here argued that his trial testimony simply repeated his testimony before the grand jury, which was the basis for some of the charges for which he stood trial.  The court said that there was no double counting here, because the enhancement penalized him for lying to the petit jury, not the grand jury that was the basis for the charges against him.  But because the sentencing judge did not make express findings about whether his trial testimony was willful or material, the court remanded for resentencing.  It declined his request to reassign the case to a new judge.

The decision is here:


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