PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4633

CHRISTOPHER DICKERSON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 96-4697

CHRISTOPHER DICKERSON,

Defendant-Appellee.

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-96-215)

Argued: April 10, 1997

Decided: May 28, 1997

Before WILKINSON, Chief Judge, and

HAMILTON and MOTZ, Circuit Judges.

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Affirmed in part and vacated and remanded in part by published opinion. Judge Motz wrote the opinion, in which Chief Judge Wilkinson

and Judge Hamilton joined.

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COUNSEL

ARGUED: Joseph N. Bowman, Alexandria, Virginia, for Appellant.

James David Villa, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F.

Fahey, United States Attorney, Timothy J. Shea, Assistant United

States Attorney, Alexandria, Virginia, for Appellee.

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OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Christopher Dickerson appeals, asserting that the Government presented insufficient evidence to convict him of perjury. On crossappeal, the Government maintains that the district court erred in

refusing to sentence Dickerson as an accessory after the fact and in

reducing his offense level for acceptance of responsibility. We affirm

Dickerson's convictions, but vacate his sentence and remand for

resentencing.

I.

In June 1995, the Government called Dickerson, a prisoner at Lorton Reformatory, a maximum security prison in Fairfax County, Virginia, to testify before a grand jury investigating the assault of Lorton

prisoner Edward Sparks. The prosecutor asked Dickerson what he

remembered of the November 1994 assault on Sparks. Dickerson

responded that he only remembered seeing Sparks"laying on the

ground," and did not know "how" or "why" Sparks was assaulted.

Based largely on physical evidence, the grand jury indicted another

Lorton prisoner, Jeffrey Jenkins, for assault with intent to murder

Sparks and assault resulting in serious bodily injury to Sparks.

At Jenkins's criminal trial for assaulting Sparks, Dickerson testified for the defense. Dickerson stated that he saw Sparks grab Jenkins

and then saw Jenkins beat up Sparks. Following Dickerson's testimony, the jury convicted Jenkins of assault resulting in serious bodily

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injury to Sparks, but acquitted Jenkins of the more serious offense of

assault with intent to murder.

Subsequently, the Government charged Dickerson with perjury in

violation of 18 U.S.C. § 1623 (1994). Dickerson elected a bench trial.

Dickerson admitted at trial that he had lied before the grand jury and

the court found him guilty of perjury.

The probation office submitted a presentence report recommending

that Dickerson be sentenced as an accessory after the fact, and that he

be given no credit for acceptance of responsibility. On this basis, the

probation office calculated a guideline range of 30 to 37 months

imprisonment. The district court refused to sentence Dickerson as an

accessory after the fact and found he was entitled to credit for acceptance of responsibility. These rulings resulted in a guideline range of

21 to 27 months; the court sentenced Dickerson to 24 months imprisonment.

II.

Dickerson contends that the statements he made to the grand jury

were not material to its deliberations and so the Government failed to

prove beyond a reasonable doubt that he committed perjury in violation of 18 U.S.C. § 1623.

Section 1623(a) provides in pertinent part:

 Whoever under oath . . . in any proceeding before or

ancillary to any court or grand jury of the United States

knowingly makes any false material declaration . . . shall be

fined under this title or imprisoned not more than five years,

or both.

18 U.S.C. § 1623(a) (emphasis added). Thus, materiality clearly constitutes an essential element of a § 1623(a) offense. "A statement is

material if it has a natural tendency to influence, or is capable of

influencing, the decision-making body to which it was addressed."

United States v. Littleton, 76 F.3d 614, 618 (4th Cir. 1996).

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Before the grand jury, Dickerson testified that he did not know

"why" or "how" Sparks was assaulted. Dickerson maintains that he

provided no information to the grand jury and so his testimony had

no "natural tendency to" or capability of influencing it.

The argument is meritless. Dickerson did provide information, or

rather misinformation, to the grand jury. Under oath, Dickerson told

the grand jury that he, an eyewitness, did not see"why" or "how"

Sparks was assaulted. Because Dickerson did not testify truthfully,

the grand jury did not have any eyewitness evidence as to the circumstances of the assault. Dickerson's lies weakened the Government's

case against Jenkins, forcing the Government to rely on physical evidence in obtaining an indictment. Thus, the lies had the capability of

influencing the grand jury not to indict Jenkins. Conversely, by withholding from the grand jury crucial evidence that Jenkins might have

acted in self-defense or with justification, Dickerson's testimony also

had the capability of influencing the grand jury to indict Jenkins,

when it might not have otherwise done so.

In sum, viewing the evidence in the light most favorable to the

Government, the prosecution certainly presented sufficient evidence

for the trial court to find beyond a reasonable doubt that Dickerson's

statements to the grand jury were material. Thus, the evidence of perjury was sufficient.

III.

The Government cross-appeals, asserting that the district court

erred in two respects when sentencing Dickerson.

A.

First, the Government maintains that the district court should have

sentenced Dickerson as an accessory after the fact.

The Sentencing Guidelines generally provide a base offense level

of twelve for perjury. See U.S. Sentencing Guidelines Manual § 2J1.3

(1997). However, if the defendant committed perjury"in respect to a

criminal offense," the Guidelines direct the sentencing court to use a

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cross reference and sentence him as an accessory after the fact "in

respect to that criminal offense, if the resulting offense level is greater

than [the perjury offense level.]" U.S.S.G.§ 2J1.3(c). Concededly, if

Dickerson had been sentenced as an accessory after the fact to an

assault, his offense level would have been greater than that resulting

under the perjury guideline. See U.S.S.G.§ 2A2.1 (assault with intent

to murder) and § 2A2.2 (aggravated assault).

Yet, the district court refused to sentence Dickerson as an accessory after the fact. The court seemed convinced that the accessory

after the fact cross reference did not apply because Dickerson did not

act as an accessory after the fact. The court explained:

I am not going to find that this man was an accessory. He

didn't help to cover up the crime itself. He didn't give any

kind of -- I don't have any evidence before me that he gave

succor or comfort to Jenkins.

This rationale is directly contrary to the Guidelines directive that

the cross reference applies not only when a defendant, in fact, acts as

an accessory, but also when he attempts "to assist another person to

escape punishment for an offense." U.S.S.G. § 2J1.2, comment.

(backg'd) (referenced in U.S.S.G. § 2J1.3, comment. (backg'd)); see

also United States v. Jamison, 996 F.2d 698, 701 (4th Cir. 1993)

(holding that cross reference applies when defendant perjures himself

to protect a third party). For this reason, as Dickerson concedes on

appeal, the district court erred in refusing to sentence him as an accessory after the fact because he did not act as such an accessory.

"Whether the underlying offense involved in perjury was `in

respect to a criminal offense' is a finding of fact to be resolved by the

district court during sentencing." United States v. Colbert, 977 F.2d

203, 207 (6th Cir. 1992). Here, however, the facts regarding this issue

are undisputed. The court unquestionably convicted Dickerson of perjury in "respect to a criminal offense," i.e., Jenkins' assault on Sparks.

Accordingly, on remand, the district court must apply the cross reference and sentence him as an accessory after the fact"in respect to that

criminal offense." U.S.S.G. § 2J1.3(c).

The Government urges us to provide further direction to the district

court on remand. Specifically, the Government argues that we should

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hold that whenever a sentencing court finds the§ 2J1.3(c) crossreference applicable, it must invariably sentence a defendant as an

accessory to the most serious underlying offense that was charged. In

this case, that would mean that the district court would have to sentence Dickerson as an accessory after the fact to the most serious

offense with which Jenkins was charged -- assault with intent to

commit murder -- even though Jenkins was only convicted of assault

resulting in serious bodily injury.

We cannot so hold. Determination of the proper underlying offense

under § 2J1.3(c) is a factual inquiry for the district court in the first

instance. See, e.g., United States v. Glover, 52 F.3d 283, 287 (10th

Cir. 1995) (reviewing evidence supporting district court's finding as

to proper underlying offense). Moreover, the facts with respect to

what constitutes the proper underlying offense, unlike the facts as to

whether Dickerson committed perjury in respect to a criminal offense,

have not yet been fully developed.

The presentence report in this case was prepared quickly -- during

the luncheon recess after the morning bench trial. In that report, the

probation agent recommended, without explanation, that assault

resulting in serious bodily injury be regarded as the proper underlying

offense. The probation agent did not testify at the sentencing hearing.

Thus, the record does not reveal the basis for this recommendation

which was made in the face of the fact that the court that tried Jenkins

for the assault denied his Rule 29 motion to dismiss the assault with

intent to murder charge, finding there was sufficient evidence to present that charge to the jury. On remand, the district court will have an

opportunity to explore the basis for the probation officer's recommendation and any other evidence as to the proper underlying offense. In

considering these issues, we offer the following guidance to the district court.

When determining the "underlying offense," for purposes of the

cross reference, a sentencing court need not look to the offense of

conviction. See United States v. Pierson, 946 F.2d 1044, 1047 (4th

Cir. 1991) (concluding that U.S.S.G. § 2X3.1 does not require "underlying offense" to be an offense of conviction), overruled on other

grounds by United States v. Heater, 63 F.3d 311, 329-31 (4th Cir.

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1995), cert. denied, 116 S. Ct. 796 (1996). 1 If the underlying offense

always constituted the offense of conviction, perjurers would be able

to benefit from perjury that successfully persuaded a grand jury not

to indict or a petit jury not to convict. We decline to adopt such a rule

absent an express mandate from the Sentencing Commission.

On the other hand, we refuse to hold, as the Government has urged,

that a district court must always find that the"underlying offense" is

the most serious charged offense. We recognize that when several

offenses may be applicable a defendant is "not entitled to select the

least serious offense under investigation for purposes of applying the

guidelines." United States v. McQueen, 86 F.3d 180, 184 (11th Cir.

1996) (citing U.S.S.G. § 1B1.5 comment. (n.3)-- "where crossreferencing required, and more than one offense applicable, the most

serious offense is to be used."). However, there may be occasions in

which the evidence supports a finding that the offense of conviction,

rather than the charged offense, constitutes the"underlying offense."

For example, this may be the case if a prosecutor brings "charges, not

in the good faith belief that they fairly reflect the gravity of the

offense, but rather as a harassing and coercive device in the expectation that they will induce the defendant to plead guilty." ABA Standards for Criminal Justice: Prosecution Function and Defense

Function (3rd ed. 1993) § 3-3.9 at 76; see also Brady v. United States,

397 U.S. 742, 751 n.8 (1970) (noting that a prosecutor may "employ

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1 In Pierson, we based our holding on the fact that at that time, § 2X3.1

did not "expressly require a conviction of the underlying offense." 946

F.2d at 1047. Subsequently, the Commission amended its application

note to § 2X3.1 to make clear that "`underlying offense' means the

offense as to which the defendant is convicted of being an accessory."

U.S.S.G. App. C § 401 at 291-92. However, this note clearly relates to

"the substantive crime of accessory after the fact," not to the situation

here where 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." United States v. Martinez,

106 F.3d 620, 621 (5th Cir. 1997); see also United States v. McQueen,

86 F.3d 180, 183 (11th Cir. 1996) (noting that conviction is not required

to cross reference charged offense). For this reason, the subsequent

amendment to the application note in § 2X3.1 does not require any

change in our holding.

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[her] charging and sentencing powers to induce a particular defendant

to tender a guilty plea.").

The Sentencing Commission itself has recognized the difficulty

with invariably relying on a "charged offense system." U.S.S.G. Ch.

1, Pt. A, intro. comment. 4(a). In its introduction to the Guidelines,

the Commission stated that one of the most significant drawbacks of

the charged offense system was "the potential it affords prosecutors

to influence sentences by increasing or decreasing the number of

counts in an indictment." Id. The Commission pointed out that "the

defendant's actual conduct (that which the prosecutor can prove in

court) imposes a natural limit upon the prosecutor's ability to increase

a defendant's sentence." Id. (emphasis added). If we were to mandate

that the underlying offense must always be the charged offense, as the

Government argues, we would be eliminating this important "limit"

on prosecutorial discretion.

Our holding here, of course, does not mean that a sentencing court

is free to choose whatever offense it pleases as the underlying offense.

Rather, a district court's finding as to what constitutes the underlying

offense, like any other factual finding, must be supported by the evidence. If the district court finds, by a preponderance of the evidence,

that Dickerson's perjury was in respect to both assault with intent to

murder and assault resulting in serious bodily injury, the district court

must use the offense that results in the greatest offense level as the

underlying offense. See U.S.S.G. § 1B1.5, comment.(n.3).

B.

The Government also argues the district court erred in giving credit

to Dickerson for acceptance of responsibility and for this reason,

reducing his sentencing by two levels pursuant to U.S.S.G. §3E1.1.

The Sentencing Guidelines provide that a court may reduce a sentence if a defendant "demonstrates acceptance of responsibility,"

which the Commission describes as:

truthfully admitting the conduct comprising the offense(s) of

conviction, and truthfully admitting or not falsely denying

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any additional relevant conduct for which the defendant is

accountable under §1B1.3 (Relevant Conduct). Note that a

defendant is not required to volunteer, or affirmatively

admit, relevant conduct beyond the offense of conviction in

order to obtain a reduction . . . . A defendant may remain

silent in respect to relevant conduct beyond the offense of

conviction . . . . However, a defendant who falsely denies,

or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with

acceptance of responsibility.

U.S.S.G. § 3E1.1, comment. (n.1(a)).

Because "[t]he sentencing judge is in a unique position to evaluate

a defendant's acceptance of responsibility," the Commission directs

that "the determination of the sentencing judge" on this matter "is

entitled to great deference on review." U.S.S.G.§ 3E1.1, comment.

(n.5). See also United States v. Castner, 50 F.3d 1267, 1279 (4th Cir.

1995) (sentencing court's decision on whether to grant a reduction for

acceptance of responsibility "is a factual determination that we will

not disturb on appeal unless it is clearly erroneous").

The district court based its decision to reduce Dickerson's sentence

on two grounds. First, the court found that Dickerson was entitled to

an acceptance of responsibility reduction because he had "saved both

the Court and the Government real time in not having to go through

a jury trial." The other reason the district court gave for finding Dickerson accepted responsibility was that he never"indicated [at trial]

that he doesn't accept the fact that he lied." The court clearly erred

in granting an acceptance of responsibility reduction on these bases.

The court initially erred in determining that the defendant's selection of a bench rather than a jury trial should be factored into the

acceptance of responsibility determination. The Guidelines make no

distinction between a bench and a jury trial. The relevant distinction

is between a defendant "who puts the government to its burden of

proof at trial" and a defendant who does not request a trial. U.S.S.G.

§ 3E1.1, comment. (n.2). The Commission has explained that the

acceptance of responsibility reduction "is not intended to apply" to the

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former, but nowhere suggests that if a defendant only requests a

bench trial this rule is waived. Id.

As to the district court's second reason, Dickerson did acknowledge both at Jenkins' criminal trial and at his own trial for perjury that

he had lied to the grand jury. But simply admitting perjury does not

constitute proof "by a preponderance of the evidence that [a defendant] clearly demonstrated recognitition and affirmative acceptance of

personal responsibility for his criminal conduct." United States v.

Martinez, 901 F.2d 374, 377 (4th Cir. 1990). Although a defendant

can remain eligible for a sentence reduction for acceptance of responsibility even when he demands a trial, this is only when "a defendant

goes to trial to assert and preserve issues that do not relate to factual

guilt" -- such as a constitutional challenge to a statutory provision,

or a challenge to the application of the statute to his conduct. U.S.S.G.

§ 3E1.1, comment. (n.2).

At least in part, Dickerson went to trial to attempt to prove, as he

maintains again on appeal, that his lies to the grand jury were not

"material."2 Because materiality is an essential element of a perjury

offense, in asserting his lies were not material, Dickerson challenged

his "factual guilt." Thus, although he acknowledged lying to the grand

jury he never "truthfully admitt[ed] the conduct comprising the offense(s) of conviction." U.S.S.G. § 3E1.1, comment. (n.1(a)). For this

reason, "he put[ ] the government to its burden of proof at trial by

denying [an] essential factual element[ ] of guilt" and so is not entitled to an acceptance of responsibility reduction. U.S.S.G. § 3E1.1,

comment. (n.2).

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2 Dickerson also apparently elected a trial to assert that duress -- fear

that fellow prisoners would kill him if he cooperated with the Government -- should mitigate any punishment. If this had been his only purpose in requesting a trial, he would not have forfeited the right to an

acceptance of responsibility reduction -- propounding a duress defense

does not foreclose a finding of acceptance of responsibility. See United

States v. Johnson, 956 F.2d 894, 905 (9th Cir. 1992) (claim of incomplete duress does not bar finding of acceptance of responsibility); see

also United States v. Cheape, 889 F.2d 477, 480 (3rd Cir. 1989) (finding

that district court erred in concluding that the jury's rejection of coercion

defense precluded the court from finding coercion to be a mitigating factor).

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IV.

Accordingly, we affirm Dickerson's perjury conviction but vacate

his sentence and remand to the district court so that it can resentence

Dickerson in a manner consistent with this opinion.

AFFIRMED IN PART; VACATED AND REMANDED IN PART 

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