Fibbing to Get a Lawyer: Circuits Split on Punishment

Fibbing to Get a Lawyer: Circuits Split on Punishment

Legal Sidebari

Fibbing to Get a Lawyer: Circuits Split on
Punishment
Updated November 27, 2017
The lower federal appellate courts do not agree on whether a defendant’s sentence may be increased
because he lied in order to become eligible for a court-appointed attorney. The United States Court of
Appeals for the Fifth Circuit (Fifth Circuit) in United States v. Iverson recently joined the Ninth and
Eleventh Circuits when it upheld a sentencing enhancement recommended in the U.S. Sentencing
Guidelines. The Second Circuit has taken a different view.
Iverson was charged with failure to register as a sex offender. In the financial statement that he filed with
the Pretrial Services office, Iverson estimated the value of his motorcycle and other vehicles at $5,500.
After his conviction, Iverson told the probation officer that he had estimated the value of his vehicles with
an eye to qualifying for appointed counsel. The probation officer’s presentence report valued the vehicles
at $18,500 and noted that Iverson “admitted to intentionally lying to U.S. Pretrial Services regarding the
value of his assets with intentions to make himself appear more destitute.” The probation officer
recommended a sentencing enhancement under U.S.S.G. § 3C1.1, the Sentencing Guidelines’ obstruction
of justice provision. The district court agreed and sentenced Iverson to prison for three years. Iverson
appealed.
The Fifth Circuit noted that Section 3C1.1 applies when the defendant (1) “willfully obstruct[s]… the
administration of justice with respect to investigation, prosecution, or sentencing … and (2) the
obstructive conduct relate[s] to (A) the defendant’s offense …or (B) a closely relate offense.” The court
held that Iverson’s conduct qualified because it obstructed the administration of criminal justice and
related to the prosecution of the charges against him. It declared that “when a false statement seeking
appointed counsel is exposed there is a more direct effect on the administrative of justice than occurs
when a defendant lies about using drugs.” The court reasoned that the “appointment of counsel affects the
entirety of the case – discovery, plea or trial, sentencing, and notice of appeal – and, among other things,
discovery of the false statement might cause delay if new counsel needs to be engaged.” It affirmed the
district court’s application of the enhancement.
The Second Circuit came to different conclusion on similar facts. It cited the list of examples that the
Sentencing Guidelines supply to explain when Section 3C1.1 should and should not be applied. One of
the examples states that the Section should not apply to “lying to a probation or pre-trial services officer
about defendant’s drug use while on supervised release…” This, the Second Circuit opined “reaffirm[s] a
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common sense definition of what constitutes obstruction of justice – conduct that willfully interferes with
… the disposition of the criminal charges against the defendant.” In the mind of the Second Circuit, the
defendant’s “swearing to a false financial affidavit in an effort to obtain court-appointed counsel could not
affect the outcome of the case, and was therefore immaterial in the context of obstruction of justice.”
Iverson’s false statement might have been prosecuted as perjury or his want of candor might have
warranted a sentencing adjustment enhancement on other grounds. Nevertheless, the fact remains that
punishment recommended under Section 3C1.1 turns on where the defendant happens to be tried.
The Supreme Court not infrequently agrees to hear cases in order to resolve splits in the circuits.
Moreover, Congress may take steps to clarify uncertainty in the law in the face of disagreement
among the lower federal courts. In this case, however, it seems more likely that the U.S.
Sentencing Commission may resolve the dispute as part of its annual cycle of sentencing
guideline amendments that become effective in the absence of congressional action.

Author Information

Charles Doyle

Senior Specialist in American Public Law

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