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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

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 cross-
reference 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
4

(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.
6