A criminal defendant has a right to testify in his own defense. But exercising that right carries risks. He could make a bad impression. The government could conduct a damaging cross-examination. And if the jury’s verdict necessarily reflects a flat rejection of his testimony, he could be deemed to have sought to obstruct justice through perjury, triggering a sentence enhancement under Section 3C1.1 of the Sentencing Guidelines. But if that enhancement is too readily applied, it could “chill” defendants from giving even non-perjurious testimony, and thereby unduly infringe upon their right to testify. To guard against this, the Ninth Circuit held, in United States v. Castro-Ponce, 770 F.3d 819 (9th Cir. 2014), that the enhancement may not be applied unless the district court expressly finds that: (1) the defendant gave false testimony, (2) on a material matter, (3) with willful intent. In Mr. Herrera-Rivera’s meth-possession sentencing the district court imposed the enhancement without making these findings, instead merely noting that it found his version of events “tenuous at best.” Finding that the clear rule of Castro-Ponce was breached, the Ninth Circuit found plain error and vacated Mr. Herrera-Rivera’s sentence. Notably, the court rejected the government’s argument that Mr. Herrera-Rivera’s substantial rights were not affected because the sentence fell below the Guidelines range, noting that the Supreme Court recently stated, in Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016), that “[w]hen a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.”(Congratulations to Thomas P. Matthews, Law Office of Thomas P. Matthews, San Diego, CA)
(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)
