No §3C1.1 Obstruction Enhancement on a Bare “Perjury” Label: Second Circuit Requires Discernable Dunnigan Findings in United States v. Onah

Introduction

In a summary order issued on October 21, 2025, a two-judge panel of the U.S. Court of Appeals for the Second Circuit vacated a two-level obstruction-of-justice enhancement imposed for perjury at sentencing and remanded for further proceedings in United States v. Ejembi Onah, No. 24-2804 (2d Cir. Oct. 21, 2025). The case underscores a recurring sentencing issue: what a district court must say on the record before it may impose a perjury-based obstruction enhancement under U.S.S.G. § 3C1.1.

Defendant-Appellant Ejembi Onah was convicted after trial of two counts of wire fraud (18 U.S.C. § 1343) and three counts of money laundering (18 U.S.C. § 1957). He received a sentence of 24 months’ imprisonment and two years’ supervised release, with restitution and a special assessment (the latter not challenged on appeal). On appeal, Onah challenged only the application of the obstruction enhancement. He argued that the district court did not make the case-specific findings required by United States v. Dunnigan, 507 U.S. 87 (1993), to support a finding of perjury at trial.

The central issue: whether the district court’s brief statement—that Onah “perjured [him]self on the stand” and maintained “hackers” were responsible—satisfied Dunnigan’s requirement that the court find, in substance, that the defendant willfully gave false testimony on a material matter, as opposed to being mistaken, confused, or suffering from faulty memory.

Summary of the Opinion

The Second Circuit vacated the obstruction enhancement and remanded. Applying de novo review to the adequacy of the district court’s findings, the panel concluded the sentencing court did not make findings that “encompass all of the factual predicates for a finding of perjury,” as required by Dunnigan. The district court’s statement that Onah “perjured himself” was a legal conclusion, not a factual finding, and it did not reveal:

• which testimony was false,
• why the testimony was materially false, and
• whether Onah offered that testimony willfully (as opposed to mistakenly).

Although the Second Circuit recently clarified in United States v. Orelien, 119 F.4th 217 (2d Cir. 2024), that a district court need not “painstakingly” explain each Dunnigan element if the basis is otherwise discernable, the panel held that the sparse record here did not allow the appellate court to discern the necessary elements—especially willfulness. The court therefore vacated the enhancement and remanded for further proceedings consistent with its order.

Detailed Analysis

1) Precedents Cited and Their Role

• United States v. Dunnigan, 507 U.S. 87 (1993):

  The Supreme Court established that perjury may support a § 3C1.1 obstruction enhancement but cautioned that sentencing courts must make independent, case-specific findings that the defendant committed perjury: the defendant must have willfully given false testimony under oath concerning a material matter, rather than testifying falsely because of confusion, mistake, or faulty memory. Dunnigan suggested it is “preferable” for a court to address each element explicitly, but it is sufficient if the court makes a finding that “encompasses all of the factual predicates for a finding of perjury.”

• United States v. Rosario, 988 F.3d 630 (2d Cir. 2021) (per curiam):

  Cited for the standard of review. The Second Circuit reviews de novo whether a district court’s findings in support of a perjury-based obstruction enhancement comply with Dunnigan. This frames the appellate inquiry as one focused on the procedural adequacy of the sentencing court’s findings, not merely their substance.

• United States v. Thompson, 808 F.3d 190 (2d Cir. 2015), and United States v. Agudelo, 414 F.3d 345 (2d Cir. 2005):

  These cases reflect the Second Circuit’s articulation of the Dunnigan elements and clarify that the court’s findings must cover willfulness, materiality, and falsity. The Onah panel notes a semantic “overlap” in formulations (e.g., “willfully committed perjury, which is the intentional giving of false testimony as to a material matter”) and resolves to focus on the essential inquiries: willfulness, materiality, and truthfulness.

• United States v. Orelien, 119 F.4th 217 (2d Cir. 2024):

  Orelien relaxed any misconception that Dunnigan demands a hyper-technical, element-by-element recitation in every case. Instead, the appellate court must be able to “discern the basis” for the required findings from the district court’s explanation. Onah relies on this framework but finds that the district court’s conclusory statements here did not permit such discernment, particularly as to willfulness.

2) The Court’s Legal Reasoning

The Second Circuit proceeds in three steps:

• Standard of review: The court reviews de novo whether the district court’s findings satisfy Dunnigan. This frames the question as one of procedural compliance with a legal standard.
• What Dunnigan requires: The sentencing judge must, in substance, make findings that the defendant:
  • gave false testimony,
  • on a material matter,
  • willfully (as opposed to due to confusion, mistake, or faulty memory).
  While Dunnigan permits an “encompassing” finding rather than a rigid element-by-element recitation, there must be enough on the record to allow a reviewing court to see how those predicates are satisfied.
• Application to this record: The district court said Onah “perjured [him]self” and “at no point accepted responsibility,” instead suggesting “hackers” submitted the fraudulent loans. The Second Circuit holds:
  • Calling testimony “perjury” is a legal conclusion, not a factual finding. Without identifying the specific testimony deemed false, the court cannot review falsity.
  • The district court said nothing that reveals a finding about willfulness—the linchpin for perjury. Was Onah deliberately lying, or was he mistaken? The record, as articulated, does not say.
  • Materiality is not addressed either, although the “hackers” assertion appears to go to the core of guilt. Under Dunnigan, materiality should be clear or addressed.
  Because the district court’s statements were “simply too spare,” the enhancement cannot stand on this record.

3) The Holding’s Place in Second Circuit Doctrine

Onah is consistent with the line of Second Circuit cases applying Dunnigan: the district court need not recite each element in check-the-box fashion, but it must put enough on the record to permit appellate review of falsity, materiality, and willfulness. Orelien does not dilute that requirement; it rejects only a “painstaking” recital when the basis is otherwise discernable. Onah illustrates the other side of that coin: where the record consists only of a conclusory “perjury” label and a brief reference to a theory of defense (“hackers”), the basis is not discernable.

4) Practical Impact and Guidance

While a non-precedential summary order, Onah provides practical guidance to district courts and counsel in the Second Circuit:

• For sentencing judges: When imposing a § 3C1.1 enhancement based on perjury:
  • Identify the specific statements that are false.
  • Explain why they are false with reference to record evidence (credibility findings, documentary contradictions, etc.).
  • State why the falsehoods are material (i.e., capable of influencing the jury’s or court’s determination of guilt, sentencing factors, or other significant matters).
  • Make a clear willfulness finding, distinguishing deliberate falsehood from confusion, mistake, or memory lapse.
  A concise but concrete explanation often suffices; elaborate transcripts or element-by-element incantations are unnecessary if the basis for each predicate is reasonably clear.
• For prosecutors: Request explicit Dunnigan findings at sentencing and propose language tying the record to each element. Consider submitting a short proffer or sentencing memorandum pinpointing the false statements, materiality, and willfulness evidence.
• For defense counsel: Object contemporaneously to any perjury-based enhancement lacking adequate findings. Emphasize alternative explanations (confusion, mistake, faulty memory) and contest materiality where appropriate. On appeal, argue the insufficiency of the findings de novo under Rosario.
• On remand in Onah: The district court may reimpose the enhancement if it makes the requisite findings on the existing record (or after a limited hearing if necessary), or it may decline to apply the enhancement. The order does not preclude the enhancement; it requires that it be supported by adequate, reviewable findings.

Complex Concepts Simplified

• U.S.S.G. § 3C1.1 (Obstruction of Justice): Adds 2 offense levels if the defendant willfully obstructed or impeded the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense. Examples include perjury, suborning perjury, and providing materially false information to a judge.
• Perjury at Sentencing: For sentencing purposes, perjury means deliberately giving false testimony under oath about something important to the case. It is not enough that the testimony was wrong; the falsehood must be willful, not the result of confusion or bad memory.
• Materiality: A statement is material if it could influence the outcome of an issue under consideration (e.g., guilt at trial or a sentencing factor).
• Willfulness versus Credibility: A witness can be disbelieved without being a perjurer. Perjury requires a finding that the witness deliberately lied, not merely that the testimony was implausible or unpersuasive.
• Standard of Proof at Sentencing: The government must establish the predicates for the enhancement by a preponderance of the evidence (more likely than not), not beyond a reasonable doubt.
• De Novo Review (Procedural Adequacy): On appeal, the court asks anew—without deference—whether the district court’s findings meet Dunnigan’s requirements. This is distinct from reviewing the underlying factual determinations for clear error.
• Summary Orders and Citability: Under Fed. R. App. P. 32.1 and Second Circuit Local Rule 32.1.1, summary orders (like this one) do not have precedential effect but may be cited, with a parenthetical indicating “summary order,” and must be served on unrepresented parties.
• Two-Judge Panel (IOP E(b)): The case was decided by two judges due to the unavailability of the third originally assigned judge, consistent with the Second Circuit’s internal procedures.

Key Takeaways

• A sentencing court may not impose a perjury-based § 3C1.1 enhancement on the strength of a conclusory assertion that the defendant “perjured” himself.
• Under Dunnigan, the record must allow the appellate court to discern findings on falsity, materiality, and willfulness; explicit element-by-element recitations are not mandatory if the basis is clear.
• Orelien relaxes form but not substance: courts need not be “painstaking,” but they must be sufficiently specific to enable review.
• On remand, the district court remains free to reimpose the enhancement if it makes adequate findings grounded in the record.
• Practitioners should build a clear sentencing record—identifying specific statements, proof of falsity, why the statements matter, and why they were willfully false—to avoid vacatur on appeal.

Conclusion

United States v. Onah reiterates a fundamental constraint on the powerful—and potentially chilling—perjury-based obstruction enhancement: sentencing courts must articulate enough about the who/what/why of the alleged perjury to satisfy Dunnigan and permit appellate review. Although the Second Circuit does not require rote incantation of each element, a mere label of “perjury,” coupled with a generalized observation that the defendant denied culpability (here, by invoking “hackers”), falls short. The decision thus reinforces both fairness in sentencing and the need for careful, transparent judicial factfinding when a defendant’s trial testimony is used to increase punishment.

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Case: United States v. Ejembi Onah, No. 24-2804 (2d Cir. Oct. 21, 2025) (summary order)

Panel: Circuit Judges Myrna Pérez and Sarah A. L. Merriam

Disposition: Obstruction enhancement vacated; remanded for further proceedings