                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                                FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                          AUGUST 25, 2006
                                     No. 05-13375                        THOMAS K. KAHN
                               ________________________                      CLERK


                           D. C. Docket No. 04-00212-CR-CB

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellant,

                                            versus

CLAUDINA BENITEZ,
a.k.a. Claudina Campo,

                                                                  Defendant-Appellee.


                               ________________________

                      Appeal from the United States District Court
                         for the Southern District of Alabama
                            _________________________

                                      (August 25, 2006)

Before HULL and WILSON, Circuit Judges, and DUPLANTIER,* District Judge.




       *
        Honorable Adrian G. Duplantier, United States District Judge for the Eastern District of
Louisiana, sitting by designation.
WILSON, Circuit Judge:

      This case involves the interpretation of the United States Sentencing

Guidelines Manual, Section 2J1.3(c), which deals with sentencing for perjury

committed “in respect to” a criminal offense. The Government appeals Claudina

Benitez’s sentence, arguing that the district court misapplied the Guidelines. The

Government argues that Benitez’s perjury was “in respect to” her sister’s drug

conspiracy trial. Benitez argues that the perjury was “in respect to” her sister’s

failure to appear for the drug conspiracy trial. The district court agreed with

Benitez, adopted the probation officer’s presentence investigation report (“PSI”),

and sentenced Benitez to a year and a day followed by three-years supervised

release. Because Benitez admitted in her plea that she made material lies about a

matter before the court, and because the matter before the court was the drug

conspiracy trial, we find that the perjury was “in respect to” the drug conspiracy.

                                  I. B ACKGROUND

      Benitez’s sister, Maria Garcia, was charged with conspiracy to distribute 100

kilograms of cocaine. Garcia was released on the condition that she attend the trial

with Benitez acting as third party custodian. Both Garcia and Benitez traveled by

bus from Houston, Texas to Mobile, Alabama for the trial. They also attended the

first day of trial together, although Benitez was excluded from the courtroom



                                           2
because she was to testify at the trial.

       The night before the trial’s second day, Garcia fled from Mobile to Houston

via a taxi cab. Benitez, when questioned the next day about Garcia’s whereabouts,

stated that she did not know where Garcia was. She made these statements under

oath to the judge before trial commenced that morning and again later in both her

direct and cross examination, while testifying as a Government witness. The trial

continued in Garcia’s absence because the trial judge determined from Benitez’s

statements that Garcia left voluntarily. Before testifying about Garcia’s

whereabouts as a Government witness, Benitez testified truthfully for the defense

about issues having a direct bearing on the drug conspiracy offense.

       Garcia was later arrested in Houston. When the authorities interviewed the

taxi cab driver who drove Garcia from Mobile to Houston, he identified Benitez as

helping Garcia negotiate the Houston fare the night that Garcia fled Mobile. A

grand jury later indicted Benitez on five counts: perjury (Counts 1-3), aiding and

abetting failure to appear (Count 4), and accessory after the fact (Count 5), in

violation of 18 U.S.C. §§ 1623(a), 3146(a), 2, and 3, respectively. Benitez pled

guilty to all of the charges.

       At sentencing, the counts were grouped together in the PSI because they

involved “two or more acts or transactions connected by a common criminal



                                           3
objective or constituting part of a common scheme or plan.” U.S. Sentencing

Guidelines Manual § 3D1.2(b) (2004). The PSI noted that, pursuant to § 3D1.3(a),

the offense level applicable to the group was the offense level for the most serious

of the grouped counts, or in other words, the count which provided for the highest

offense level. Count 4 (aiding and abetting failure to appear) yielded the highest

offense level of the counts in the group and was used for the group’s offense level.

After making the appropriate adjustments, the total offense level was 13, which

yielded a sentencing range of 12-18 months after accounting for Benitez’s

Category I criminal history.

      The Government objected to the offense level calculation arguing that the

perjury counts yielded the highest offense level. The Government argued that the

perjury occurred “in respect to” the underlying drug conspiracy trial, not Garcia’s

failure to appear. It reasoned that although the perjury concerned the failure to

appear, Benitez’s sworn denial of prior knowledge of Garcia’s flight made her a

more credible witness and thus bolstered her testimony that directly related to

Garcia’s drug conspiracy offense. According to the Government, the correct

offense level should have been 28 which would have yielded a sentence ranging

from 78 to 97 months after accounting for her criminal history.

      The district court rejected the Government’s arguments and found that



                                          4
Benitez’s denial of knowledge about her sister’s flight did not enhance her

credibility. The district court also found that, except for the testimony about the

flight, Benitez’s testimony was true and that false testimony about flight could not

have led to a miscarriage of justice.

                             II. S TANDARDS OF R EVIEW

      We review de novo the sentencing court’s choice of the appropriate

guideline to apply to a factual scenario and its legal conclusions interpreting the

Guidelines. See United States v. Miranda, 348 F.3d 1322, 1330 (11th Cir. 2003)

(per curiam). “We review the district court’s findings of fact in sentencing for

clear error.” United States v. DeVegter, 439 F.3d 1299, 1303 (11th Cir. 2006).

                                   III. D ISCUSSION

      Section 2J1.3 of the Guidelines gives the base offense level for perjury. “If

the offense involved perjury, subornation of perjury, or witness bribery in respect

to a criminal offense, apply § 2X3.1 (Accessory After the Fact) in respect to that

criminal offense, if the resulting offense level is greater than that determined

[otherwise under § 2J1.3].” U.S. Sentencing Guidelines Manual § 2J1.3(c) (2004).

According to § 2X3.1(a)(1), the base offense level is “6 levels lower than the

offense level for the underlying offense.” “For purposes of this guideline,

‘underlying offense’ means the offense as to which the defendant is convicted of



                                           5
being an accessory . . . .” Id. § 2X3.1 cmt. n.1 (2004). For the purpose of

determining the appropriate offense level for perjury, the Government argues that

the underlying offense was the drug conspiracy and further argues that the perjury

was “in respect to” the drug conspiracy trial.

      Although there are no Eleventh Circuit cases interpreting the phrase “in

respect to a crime,” other circuits have examined the phrase. See United States v.

Bova, 350 F.3d 224 (1st Cir. 2003); United States v. Suleiman, 208 F.3d 32 (2d

Cir. 2000). Although these cases are factually distinguishable from the present

case, their statements on the Sentencing Commission’s policy and intent are

instructive.

      In Bova, the defendant lied during a bail hearing about two assaults for

which he was trying to secure bail. 350 F.3d at 226. The issue was whether the

perjury was in respect to the assaults. The bail hearing was a proceeding to

determine whether supervised release should be revoked. Id. at 230-31. The

decisive consideration for the court was the connection of the perjury to the

prosecution of a criminal offense. Id. at 230-31. The court concluded, “[t]he cross

reference is based on the potential to derail or miscarry a judicial or similar

proceeding directed to another crime . . . . [The defendant’s] lies had little potential

to interfere with prosecution of the crimes lied about which is why their



                                            6
seriousness is not a suitable measure of Bova’s perjury . . . .” Id. at 230-31.

      In Suleiman, the defendant lied during a grand jury investigation about

associating with individuals involved in the 1993 World Trade Center bombing.

208 F.3d at 34-35. The district court did not apply § 2J1.3's cross reference,

because the case was one “where neither the questions asked nor the answers given

referenced any criminal offense.” Id. at 36 (internal quotations and citations

omitted). Disagreeing with the district court, the Second Circuit held, “The

purpose of the ‘in respect to’ enhancement is to treat more severely perjuries that

risk an incomplete or an inaccurate investigation or trial of a criminal offense.” Id.

at 39 (internal citations omitted). Suleiman dealt with perjury before a grand jury,

which the Second Circuit concluded “will almost always merit enhanced

punishment” because of a grand jury’s broad investigatory scope. Id.

      The Sentencing Commission has taken a similar approach in likening

perjury to obstruction of justice. “The Commission believes that perjury should be

treated similarly to obstruction of justice. Therefore, the same considerations for

enhancing a sentence are applied in the specific offense characteristics, and an

alternative reference to the guideline for accessory after the fact [§ 2X3.1] is

made.” U.S. Sentencing Guidelines Manual § 2J1.3 cmt. Background (2004).

      We hold in this case that for perjury to be “in respect to” the drug



                                           7
conspiracy, the perjury would have to have had the potential to disrupt the

government’s investigation or prosecution of that crime. Benitez’s perjury had

this potential. For a false statement given under oath in a court proceeding to rise

to the level of perjury, it must be a “material” statement. 18 U.S.C. § 1623(a). A

false statement is material if “it was capable of influencing the tribunal on the issue

before it.” United States v. Roberts, 308 F.3d 1147, 1155 (11th Cir. 2002) (per

curiam); Blackmon v. United States, 108 F.2d 572, 573-74 (5th Cir. 1940).

       At first glance it is difficult to see how Benitez’s false statements could have

“influenced the tribunal on the issue before it,” (namely, the issue of Garcia’s

guilt).1 Benitez only testified falsely on the issue of her own participation in aiding

her sister’s flight–Benitez testified truthfully in all other matters. Telling the truth

would not have significantly lessened her credibility because (1) the jury already

knew that Benitez had failed her duty as a third-party custodian; (2) Benitez would

have been more credible if she had told the truth; (3) Benitez lied to protect herself,

not to prevent Garcia from being punished; (4) Benitez testified truthfully on

behalf of Garcia about matters related to the drug conspiracy and about the

voluntariness of Garcia’s flight; and (5) the government was able to use Benitez’s

testimony about Garcia’s disappearance as affirmative evidence of Garcia’s guilt.


       1
        Indeed, the district court based its holding on the idea that the perjury did not impact the
drug conspiracy trial because it did not lessen Benitez’s credibility.

                                                 8
Furthermore, the trial proceeded in Garcia’s absence, and the government was able

to use her flight as further evidence of guilt.

       Despite the difficulty of discerning the perjury’s impact on Garcia’s trial,

such an analysis basically goes to whether or not the statements were material to

the drug conspiracy trial and is thus unnecessary because Benitez has pled guilty to

perjury. In so doing, Benitez has legally acknowledged that her false statements

influenced the district court on some matter before the court. The only matter

before the court during Garcia’s trial was whether Garcia was guilty of drug

conspiracy. Therefore, because we are bound by Benitez’s concession of her

statements’ material effect on the drug conspiracy trial, we must hold that her

perjury was “in respect to” the drug conspiracy. To hold otherwise and say that her

statements did not have a material affect on the drug conspiracy trial would be to

hold that the statements were not perjurious at all.2


       2
          We note that our holding is consistent with United States v. Bova, 350 F.3d 224 (1st Cir.
2003). In Bova, the perjurious statements were not given in the trial itself but at the bail hearing.
Id. at 226. Therefore, they were material to the bail hearing rather than the trial. Accordingly,
the First Circuit held that the perjury was not in respect to the underlying assaults. Id. at 230-31.
In the instant case, the perjury was given in the criminal trial itself, and is therefore material to
that trial, which existed to determine Garcia’s guilt or innocence.
         Our holding is also consistent with United States v. Leon-Reyes, 177 F.3d 816, 824 (9th
Cir. 1999) (testimony regarding legitimate source of business at trial for money laundering and
drug trafficking might have benefitted the defense to drug trafficking but would only have had a
significant effect on the money laundering and was therefore only “in respect to” the money
laundering). In Leyon-Reyes, the perjury was only material to one of the charges in a trial of
multiple, discrete charges. In the instant case, the statement was material to the underlying
proceeding which was solely determining Garcia’s guilt of drug conspiracy.

                                                  9
      We therefore vacate Benitez’s sentence and remand for re-sentencing. In so

doing, we note that we merely hold that the district court did not properly calculate

Benitez’s sentence under the Guidelines. The district court is free to give any

reasonable sentence on remand as long as it considers the Guidelines’

recommendation and the other factors set forth in 18 U.S.C. § 3553(a).

      VACATED AND REMANDED.



HULL, Circuit Judge, specially concurring:

      I concur only in the judgment reversing the district court, vacating Benitez’s

sentence, and remanding for resentencing. My reasons are as follows.

      Benitez, the perjury defendant here, is the sister of Garcia, who was tried and

convicted for her role in a drug conspiracy. Benitez testified for the defense in

Garcia’s drug-conspiracy trial about issues having a direct bearing on the charged

drug-conspiracy offense. Garcia was accused of having traveled to Mobile,

Alabama, with her husband, Jose Nieves, to pick up a load of cocaine. Garcia’s

knowledge of and participation in the drug conspiracy were at issue in the criminal

trial. Benitez’s testimony undermined the government’s theory that certain travels,

contacts, and money deposits by Garcia and her family were suspicious.

      For example, Benitez identified certain names and addresses that emerged in

the evidence, and her testimony suggested innocent explanations – including

                                          10
ordinary contact and visits with family members – for much of the travel and

contact that the government viewed as suspicious. Benitez also denied knowing an

indicted co-conspirator and several alleged drug contacts in New York and denied

knowing how her niece, Maria Giraldo, came to possess $51,000 in cash in August

2001.1 In addition, Benitez identified the black Isuzu Montero in which Garcia

was arrested as Garcia and Nieves’s car, but testified that Nieves drove the Isuzu

all the time. Benitez’s testimony related to her sister’s relationship to people,

places, and events associated with the cocaine conspiracy and thus was highly

relevant to her sister’s knowledge of and involvement in the charged cocaine

conspiracy.

      During the same criminal trial, Benitez also testified about her sister’s flight

from trial, and in so doing, perjured herself by denying her own involvement in her

sister’s flight. Benitez told the jury that she had no part in her sister’s

disappearance, when in fact she was complicit in it. Had the jurors known of

Benitez’s complicity in her sister’s absconding during the trial, they might well

have concluded that Benitez would do other unlawful things – including testifying

untruthfully – to protect her sister, and Benitez’s credibility would have been

undermined, if not eviscerated. Because Benitez’s perjury in her sister’s trial



      1
          Giraldo apparently was identified as having made a money drop around that time.

                                                11
protected her own credibility in testifying about matters relevant to the drug-

conspiracy charge against her sister, the perjury easily could have affected the

outcome of the trial. Benitez parses her testimony too finely in arguing that her

perjury about her sister’s fleeing her drug-conspiracy trial is about only a collateral

matter of flight and not related to her drug-conspiracy trial. My view is that

Benitez’s distancing herself from her sister’s flight, and especially not telling the

jury she had helped her sister flee during the actual trial itself, was crucial to give

her other testimony credibility. Thus, in my view, a plain reading of U.S.S.G. §

2J1.3(c) compels the conclusion that Benitez’s perjury was “in respect to” the

drug-conspiracy charge against Garcia. See United States v. Bova, 350 F.3d 224,

230 (1st Cir. 2003) (“The [§ 2J1.3] cross reference is based on the potential of the

perjury to derail or miscarry a judicial or similar proceeding directed to another

crime.”); United States v. Suleiman, 208 F.3d 32, 39 (2d Cir. 2000) (“The purpose

of the ‘in respect to’ enhancement is to treat more severely perjuries that risk an

incomplete or an inaccurate investigation or trial of a criminal offense.”).2


       2
         Because Benitez was a material witness in the drug-conspiracy trial and her perjury had
the potential to derail justice in that trial, I need not reach the government’s argument that
Benitez’s perjury was also “in respect to” the drug-conspiracy charge because it enabled Garcia
to avoid capture for those charges. Although the trial against Garcia proceeded in her absence,
Benitez’s perjury possibly allowed Garcia to escape justice longer than she otherwise would
have, and could have allowed her to escape indefinitely. Thus, the government argues, Benitez’s
perjury risked a miscarriage of justice in allowing Garcia to elude justice “in respect to” the
drug-conspiracy charge.


                                               12
      Nor do the cases relied upon by Benitez suggest otherwise, as they involve

perjury in separate proceedings and not in the actual trial of the other crime itself.

The only case cited by Benitez that involves perjury in a criminal trial is United

States v. Leon-Reyes, 177 F.3d 816 (9th Cir. 1999). Leon-Reyes is easily

distinguished from Benitez’s case. Defendant Leon-Reyes, an accountant, testified

perjuriously in a criminal trial in which Heriberto Garcia Sr. and Heriberto Garcia

Jr. were charged with drug trafficking, money laundering, and money structuring.

Id. at 818-19. Leon-Reyes testified about the financial affairs of Garcia Sr. in

relation to the money-laundering charges and did not testify about the Garcias’

drug activities. Id. at 824. As a result, the Ninth Circuit concluded that Leon-

Reyes’s perjury was “in respect to” the money-laundering charges but not the drug-

trafficking charges. Id. Here, Benitez’s testimony was clearly material to the

drug-conspiracy charge against Garcia. Thus, Leon-Reyes does not support

Benitez’s position.

      For these reasons, I conclude that Benitez’s perjury in her sister’s drug-

conspiracy trial was “in respect to” that drug-conspiracy offense and thus concur in

the judgment vacating Benitez’s sentence and remanding for resentencing.




                                           13
