*Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-10003

Summary Calendar

 

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

MICHAEL ANTHONY JACKSON

Defendant-Appellant.

 

Appeal from the United States District Court

For the Northern District of Texas

(5:95-CR-012-C)

 

December 19, 1996

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Defendant Michael Anthony Jackson appeals his conviction and

sentence for receipt of money stolen from a bank, giving false

statements to an agent of the United States, harboring a fugitive,

and being an accessory after the fact to a bank robbery. 

I.

Originally, Jackson’s indictment also included a count for

aiding and abetting bank robbery. While the jury was deliberating,
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the district court granted Jackson’s unopposed motion and dismissed

the robbery count. After consulting with the parties, the court

instructed the jury to infer nothing from the fact that the robbery

count was no longer before them. The jury found Jackson guilty on

the remaining counts.

Jackson argues that the district court committed plain error

by not sua sponte declaring a mistrial after dismissing the robbery

count. Because Jackson did not object to the dismissal or the

court’s instructions to the jury, we review for plain error. We

will correct a forfeited error only if (1) there was error (2) that

was clear or obvious and (3) the error affects Jackson’s

substantial rights. United States v. Calverley, 37 F.3d 160, 162-

64 (5th Cir. 1994) (en banc). Initially, we find nothing to

support his assertion that “the jury was deluged with gory, violent

evidence of a robbery that involved a cold-blooded murder.”

Rather, although the bank president and one of the robbers

testified to the details of the bank robbery, no “gory details”

were given regarding the subsequent murder, and the record contains

no photographic or other evidence as a trial exhibit. Furthermore,

Jackson was charged with and convicted of receiving money stolen

from a bank--a charge that, like the accessory charge, required

proof that the money was stolen from a bank. Since the evidence

was relevant to both charges, Jackson has not shown the district

court committed any error, plain or otherwise, by not declaring a

mistrial following Jackson’s motion to dismiss the robbery charge.
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II.

Jackson argues that his conduct under all the counts, properly

grouped under U.S.S.G. § 3D1.2 because they involve the same harm,

should have been limited to a base level of 20 under § 2X3.1.

Under § 3D1.3, the base offense level for grouped counts is

determined by the highest offense level for the counts in the

group. Jackson was convicted of being an accessory-after-the-fact,

the base offense level of which is 

6 levels lower than the offense level for the underlying

offense, but in no event less than 4, or more than 30.

Provided, that where conduct is limited to harboring a

fugitive, the offense level shall not be more than level

20.

§ 2X3.1 (emphasis original). The underlying offense for which

Jackson was convicted for being an accessory--bank robbery

involving a murder--carries a base level of 43. § 2B3.1 (bank

robbery); § 2A1.1 (murder). The base level was thus appropriately

30, unless Jackson’s “conduct is limited to harboring a fugitive.”

The evidence supporting Jackson’s conviction for being an accessory

after the fact also supports his harboring conviction. However,

Jackson did more than merely house the fugitive, he also lied to

Agent Powell about the fugitive’s whereabouts and the last time he

saw the fugitive, and he received a box of stolen money from the

robbery. Jackson ignores his convictions for these acts, which

involve conduct outside that contemplated by “harboring a

fugitive.” The district court did not err in finding that
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Jackson’s conduct constituted more than mere harboring a fugitive

under § 2X3.1.

III.

Finally, Jackson protests the two-level increase applied to

his offense level at sentencing for obstruction following the

district court’s finding that he committed perjury during the

trial. Section 3C1.1 of the guidelines provide a two-level

enhancement “[i]f the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice

during the investigation, prosecution, or sentencing of the instant

offense.” It is proper for the sentencing court “to enhance a

defendant’s sentence for obstruction of justice where the defendant

committed perjury by giving false testimony at trial.” U.S. v.

Laury, 985 F.2d 1293, 1308 (5th Cir. 1993); § 3C1.1 comment n.3(b).

We review the district court’s finding for clear error. Id.; U.S.

v. Storm, 36 F.3d 1289, 1295 (5th Cir. 1994). Perjury requires a

witness testifying under oath or affirmation giving false testimony

concerning a material matter with the willful intent to provide

false testimony. United States v. Cabral-Castillo, 35 F.3d 182,

186 (5th Cir. 1994), cert. denied, 115 S.Ct. 1157 (1995); U.S. v.

Dunnigan, 113 S.Ct. 1111, 1116 (1993). The district court enhanced

the sentence for Jackson’s testimony “concerning the telephone

conversation he had with Agent Powell.” Jackson testified that he

told Powell he thought he knew where the fugitive was, while Powell

testified that Jackson told him he had a phone number for
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“Fettner”--supposedly a friend of the fugitive’s the agent might

want to contact. In fact, the fugitive had been at Jackson’s house

until he was arrested by Powell several hours before this

conversation. Putting aside the question of whether this conflict

in testimony constitutes a falsehood sufficient for a perjury

conviction, it was not material to the trial as required by CabralCastillo. Since the district court did not analyze how this

“false” testimony was material, we examine the issue anew assuming

the district court implicitly determined the issue of materiality.

False testimony is “‘material’ if it is ‘designed to substantially

affect the outcome of the case.’” Cabral-Castillo, 35 F.3d at 187.

If the “false” testimony is such that, even if the jury believed

it, it could not influence or affect the outcome of the case

because it has no bearing on the defendant’s guilt or innocence, it

is not material. Id. Jackson’s testimony concerning what he was

or was not going to tell Agent Powell about the fugitive’s

whereabouts was not the subject of the lying-to-the-United-Statesagent charge, or any other charge in the indictment. Thus, it did

not have a bearing on Jackson’s guilt or innocence. As the

testimony was not “designed to substantially affect the outcome of

the case,” it was not material, and can support no sentence

enhancement. Id. 

For the reasons set forth above, Jackson’s convictions for

receipt of money stolen from a bank, giving false statements to an

agent of the United States, harboring a fugitive, and being an
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accessory after the fact to a bank robbery are in all respects

AFFIRMED. However, Jackson’s sentence is VACATED and this case is

REMANDED to the district court for resentencing.