United States v. Perry ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5716
MICHAEL PERRY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CR-95-145-A)
Submitted: May 31, 1996
Decided: July 22, 1996
Before NIEMEYER and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Paul P. Vangellow, Falls Church, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Elizabeth A. Hyman, Special Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael Perry pled guilty to one count of making false statements
in violation of 18 U.S.C.A. § 1623(c) (West 1984 & Supp. 1996). He
received the maximum statutory sentence of 60 months. He appeals
this sentence, contending that the district court erred in applying a
cross-reference in the applicable sentencing guideline. United States
Sentencing Commission, Guidelines Manual§ 2J1.3(c) (Nov. 1994).
We affirm.
Perry was confined in the lower left tier of Cell Block 4 in the
Maximum Security Facility of Lorton Reformatory on March 13,
1993, when inmate Michael Martin was stabbed to death there. Martin
was outside his cell during his recreation time. The other two inmates
who were also out of their cells were James Cowan and Alphonso
White. Both were ultimately charged and convicted in the murder of
Martin. Perry and Cowan had been friends since they were juveniles.
During the investigation of the homicide, Perry was interviewed by
agents of the Federal Bureau of Investigation (FBI) and said he knew
nothing about the murder. He testified before a grand jury that he had
hung a sheet over the bars of his cell that evening and neither saw nor
heard anything. Before Cowan and White went to trial, their attorneys
interviewed Perry, who told them he had witnessed the murder and
that Martin had initiated the conflict by attacking Cowan with a knife.
Perry testified to that effect at the trial of Cowan and White, although
he was warned by FBI Agent Daniel Sparks and by his appointed
attorney and the trial judge that if his testimony was different from
that given before the grand jury he could be prosecuted for perjury.
Perry was subsequently charged with making irreconcilably contra-
dictory declarations under oath in violation of 18 U.S.C.A. § 1623(c).
He went to trial, but entered a guilty plea before the jury's verdict.
The applicable guideline was USSG § 2J1.3 (Perjury). The probation
officer recommended that the cross-reference to USSG§ 2X3.1
(Accessory After the Fact) should be applied because the offense
involved perjury in respect to a criminal offense. See USSG
§ 2J1.3(c)(1). The effect was to increase Perry's base offense level
2
from 12 to 30. The probation officer recommended a 2-level reduc-
tion for acceptance of responsibility. Because Perry was in criminal
history category III, his guideline range was 60 months, the statutory
maximum sentence for a violation of § 1623.
Perry objected that the cross-reference should not be applied
because he was not an accessory after the fact, i.e., he did not testify
falsely to hinder the trial of Cowan and White. He asserted that his
motive for lying before the grand jury was simply a desire not to get
involved and he had later decided to tell the truth when subpoenaed
by Cowan and White. See USSG § 2J1.2 (Obstruction of Justice),
comment. (backg'd) (cross-reference provided because"conduct cov-
ered by this guideline is frequently part of an effort to avoid punish-
ment for an offense that the defendant has committed or to assist
another person to escape punishment for an offense"). At the sentenc-
ing hearing, the district court found that the probation officer had
properly calculated the guideline range and sentenced Perry to 60
months imprisonment.
On appeal, Perry argues that the cross-reference should not apply
because the facts do not support the district court's conclusion that his
trial testimony was false and intended to obstruct the prosecution of
Cowan and White; in other words, he asserts that the district court's
conclusion was incorrect because he was not actually an accessory
after the fact. However, Perry pleaded guilty to having committed
perjury in one of his two contradictory statements. Both of them were
made in respect to a criminal offense. Therefore, the cross-reference
clearly applied whether or not Perry was in reality an accessory after
the fact. See United States v. Glover, 52 F.3d 283, 285-86 (10th Cir.
1995). The district court did not err in applying the cross-reference.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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