IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-40483

 

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

ALBERTO MARTINEZ,

also known as Alfredo Martinez,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Southern District of Texas

 

February 13, 1997

Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

The government appeals the sentence given to Alberto Martinez

stating that the district court incorrectly applied the sentencing

guidelines to determine the base offense level for perjury in

relation to a criminal offense. We conclude that a conviction on

the underlying offense is not required, vacate the sentence and

remand for resentencing consistent with this opinion. 

I.

At an initial hearing on charges of possession with intent to

distribute 1,000 kilograms of marijuana, Alberto Martinez

identified himself as Alfredo Martinez, his brother, in order to

conceal his past criminal record. He later pled guilty to perjury

in exchange for the dismissal of the possession charges. At his
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sentencing hearing, the government objected to the pre-sentencing

report’s recommendation that Martinez be sentenced under §

2J1.3(a), which provides a base offense level of 12 for perjury.

The government argued that the court should have followed §

2J1.3(c)(1), which provides that “[i]f the offense involved perjury

. . . in respect to a criminal offense,” the court should apply §

2X3.1. Under § 2X3.1, Martinez’ base offense level would have been

“six levels lower than the offense level for the underlying

offense,” or 26. Note 1 to § 2X3.1 defines “underlying offense” as

“the offense as to which the defendant is convicted of being an

accessory.” The district court found that Martinez committed

perjury and that his perjury was related to the offense of

possession, but refused to calculate his sentence under § 2X3.1

because it believed that § 2X3.1 required that the defendant be

convicted of the underlying offense. 

II.

In United States v. Salinas, 956 F.2d 80 (5th Cir. 1992), a

panel of this court held that the defendant was properly sentenced

under § 2X3.1 even though he was not charged with committing or

being an accessory after the fact to the underlying offense. The

panel in Salinas stated that “[s]ection 2J1.3(c)(1) does not

require that the defendant actually be convicted of the underlying

offense or as an accessory to the underlying offense.” 956 F.2d at

83.

Martinez argues that because note 1 to § 2X3.1 has been

amended since this court’s decision in Salinas, we should revisit
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our holding in that case. The 1989 amendment to § 2X3.1 changed

the definition of “underlying offense” from “the offense as to

which the defendant was an accessory” to “the offense as to which

the defendant is convicted of being an accessory.” Martinez’

argument fails. The Salinas panel’s reasoning did not depend on

the language in the notes of § 2X3.1. Instead, the panel looked to

the unambiguous language of § 2J1.3(c)(1), which states that 2X3.1

should apply “if the offense involved perjury or subornation of

perjury in respect to a criminal offense,” to determine that the

district court properly calculated the defendant’s sentence under

§ 2X3.1. The 1989 amendment to § 2X3.1 did not change the

precedential value of Salinas.

The reasoning in Salinas not only controls, it is sound. The

application notes of § 2X3.1 relate to the substantive crime of

accessory after the fact. The unambiguous language of § 2X3.1 note

1 states that the underlying offense means “the offense as to which

the defendant is convicted of being an accessory.” This note

clearly directs the court to the proper base offense level to use

if the defendant has been convicted of being an accessory under §

2X3.1. In this case, however, the guidelines merely borrow the

formula in § 2X3.1 to treat a defendant who has perjured himself in

relation to a criminal offense as if he was convicted of being an

accessory.

Further, § 2X3.1 should not be interpreted to require a

conviction on the underlying offense in order for the crossreference to apply because the scenario of a defendant convicted of
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a crime who also perjured himself during his trial has been

addressed separately by the guidelines. Section 2J1.3 note 3

states that “[i]n the event that the defendant is convicted under

this section as well as for the underlying offense,” the sentencing

judge should refer to the chapter on obstruction. Section 3C1.1 in

that chapter provides that “[i]f the defendant willfully obstructed

or impeded . . . the administration of justice,” the court should

“increase the offense level by 2 levels.” Section 3C1.1 note 3

describes the types of conduct to which this enhancement applies,

and includes, “committing, suborning, or attempting to suborn

perjury.” Because the guidelines already provide a method for

calculating the total offense level where a defendant has perjured

himself in relation to an offense he was eventually convicted of,

we decline to interpret § 2X3.1 to duplicate it. The result would

be two different ways to sentence the same defendant, a frustration

of the guidelines’ mission of consistency in sentencing.

Other circuits agree with Salinas. See, e.g., United States

v. Perry, 1996 WL 406244, at **2 (4th Cir. July 22,

1996)(unpublished)(stating that § 2J1.3(c)(1) applied regardless of

whether the prisoner was in reality an accessory after the fact);

United States v. Rude, 88 F.3d 1538, 1543 (9th Cir. 1996), cert.

denied, 117 S. Ct. 690 (1997)(stating that § 2J1.3(c)(1) does not

require that perjury be committed “in respect to an adjudicated

offense . . . so long as the defendant knew or had reason to know,

at the time of his perjury, that his [perjury] concerned such a

criminal offense”); United States v. Glover, 52 F.3d 283, 285-86
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(10th Cir. 1995)(stating that § 2J1.3(c)(1) does not require a

conviction on the underlying charge); United States v. Gay, 44 F.3d

93, 94-95 (2d Cir. 1994)(stating that defendant’s acquittal of

being an accessory did not prevent sentencing under 2J1.3(c)(1)).

Martinez also argues that 2J1.3(c)(1) is vague and therefore

this court should apply the rule of lenity and interpret the

guidelines in his favor. As we have shown, 2J1.3(c)(1) is not

hopelessly ambiguous and therefore this court need not apply the

rule of lenity stated in Ladner v. United States, 358 U.S. 169, 178

(1958).

Finally, Martinez urges that there was insufficient evidence

to support a finding that his perjury was “in respect to a criminal

offense.” The district court found that if Martinez successfully

masqueraded as his brother, he would have been able to secure bond

and “obtain the advantages of flight” and he would avoid the use of

his own criminal history at trial and at sentencing. This, it

held, was enough to find that the perjury was related to the

criminal offense in a “very entwined and enmeshed way.” Martinez

would have us read into 2J1.3(c)(1) the requirement of “a

particularly serious offense” or limit its application to where a

defendant perjured himself in relation to his guilt. Martinez does

not support these arguments, however, and they fall before the

plain meaning of “related to a criminal offense.”

III.
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For the foregoing reasons, Martinez’ sentence below is vacated

and this case remanded to the district court for sentencing

consistent with this opinion.