     Case: 15-10962   Document: 00513893436        Page: 1   Date Filed: 03/01/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals

                                    No. 15-10962
                                                                      Fifth Circuit

                                                                    FILED
                                                                March 1, 2017

UNITED STATES OF AMERICA,                                      Lyle W. Cayce
                                                                    Clerk
             Plaintiff - Appellee

v.

JULIE GRANT, also known as Juliana Jacobs Grant, also known as Juliana
Okwue Jacobs Grant, also known as Julianna Okwuenu,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before JOLLY, SMITH, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Defendant-Appellant Julie Grant was charged with four counts of
making false statements under penalty of perjury in a bankruptcy proceeding
in violation of 18 U.S.C. § 152(3). She moved to dismiss Counts Two and Four
of the indictment for failure to state an offense. The district court denied the
motion. At trial, the jury found Defendant guilty on Counts Two through Four.
In determining Defendant’s sentence, the district court calculated Defendant’s
guideline range using the perjury guideline, U.S.S.G. § 2J1.3.                 Defendant
timely appealed, challenging (a) the district court’s failure to dismiss Counts
Two and Four; (b) the sufficiency of the evidence on Counts Two and Four; and
    Case: 15-10962     Document: 00513893436      Page: 2    Date Filed: 03/01/2017



                                  No. 15-10962
(c) the district court’s decision to use the perjury guideline, instead of the fraud
guideline, to calculate Defendant’s sentence. We AFFIRM.
                                         I.
      After filing five bankruptcy petitions between 2008 and 2011, Defendant
was indicted on October 8, 2014, and charged with four counts of bankruptcy
fraud under 18 U.S.C. § 152(3). Defendant moved to dismiss the indictment.
The Government then filed a superseding indictment that, relevantly here,
was identical to the original indictment.
      Count One of the superseding indictment alleges that in her December
2009 bankruptcy filing, Defendant knowingly and fraudulently failed to
disclose her prior October 2008 and March 2009 bankruptcy filings. Count
Two alleges that in the same filing, Defendant knowingly and fraudulently
disclosed only her social security number ending in 5571 (the “5571 number”)
when Defendant knew that she had also used another social security number
ending in 3167 (the “3167 number”). Count Three alleges that in her August
2011 bankruptcy filing, Defendant knowingly and fraudulently failed to
disclose her prior October 2008 and March 2009 bankruptcy filings. Finally,
Count Four alleges that in the same filing, Defendant knowingly and
fraudulently disclosed only the 5571 number when Defendant knew that she
had also used the 3167 number.
      The district court treated Defendant’s motion to dismiss the indictment
as one to dismiss the superseding indictment. Regarding Counts Two and
Four, Defendant asserted that both Counts rested upon an erroneous
statement of federal law because they alleged that Form B-21 (an official
bankruptcy form that requires disclosure of the debtor’s social security
numbers) required the disclosure of every social security number “ever used”
by the debtor. She argued that Form B-21 does not require a debtor to disclose
every social security number that the debtor has ever used, instead arguing
                                         2
       Case: 15-10962   Document: 00513893436   Page: 3   Date Filed: 03/01/2017



                                 No. 15-10962
that she needed to disclose only the social security numbers that she “has.”
She contended that the offense required an affirmative false statement and
asserted that her statement listing only one social security number was not
false. The district court denied the motion. Before trial, the district court
reexamined Defendant’s motion to dismiss Counts Two and Four. The court
denied the motion, stating that the case would proceed with “the indictment as
is.”
        At trial, the Government presented extensive evidence that Defendant
had the 3167 number from 1996 until at least 2008. In April 2008, Defendant
applied for a new social security number and, in July 2008, she was issued the
5571 number. In a bankruptcy petition filed in December 2009, Defendant
listed only the 5571 number on her Form B-21 filed in the bankruptcy
proceeding. In August 2011, she filed another Form B-21 in a new bankruptcy
proceeding and listed only the 5571 number. In both instances, the Forms B-
21 required the debtor to list her social security number. Both Forms B-21
further directed the debtor to “state all” social security numbers if the debtor
“has” more than one. Defendant declared both Forms B-21 true under penalty
of perjury. Defendant presented no evidence and moved for a judgment of
acquittal on all counts. The district court denied the motion. The jury found
Defendant guilty of Counts Two through Four. She was found not guilty on
Count One.
        Defendant’s presentence report determined that her total offense level
was 14, applying U.S.S.G. § 2J1.3 (perjury). With an offense level of 14 and a
Category I criminal history score, Defendant faced a guidelines range of 15 to
21 months. Defendant objected to the use of the perjury guideline, arguing
that her offense was a fraud offense and therefore, that the offense level should
be calculated under U.S.S.G. § 2B1.1 (theft, embezzlement, receipt of stolen
property, property destruction, and offenses involving fraud or deceit)
                                       3
    Case: 15-10962     Document: 00513893436      Page: 4    Date Filed: 03/01/2017



                                  No. 15-10962
(relevant here “fraud”). The district court found that perjury was the correct
guideline and accordingly sentenced Defendant to three concurrent terms of 15
months of imprisonment, followed by a total of one year of supervised release.
Defendant timely appealed.
                                        II.
                                        A.
      Defendant argues that “Counts two and four of the superseding
indictment are legally deficient because they rest on an erroneous statement
of federal law.” Specifically, she argues that “Form B-21 does not require
disclosure of any number previously ‘used.’ It merely requires disclosure of the
number the debtor currently ‘has.’” Defendant therefore reasons that the
superseding indictment does not allege a false statement because it states that
Form B-21 required that she “truthfully state all social security numbers ever
used” by her when the Form did not actually require such disclosure.
      This court reviews a preserved challenge to the sufficiency of an
indictment de novo. United States v. Hoover, 467 F.3d 496, 498 (5th Cir. 2006).
      “An indictment is intended to provide notice to the defendant that allows
[her] to intelligently consider [her] defense or plea.” United States v. Angeles-
Mascote, 206 F.3d 529, 532 (5th Cir. 2000) (citing United States v. Chappell, 6
F.3d 1095, 1099 (5th Cir. 1993)). “Therefore, ‘[t]o be sufficient, an indictment
must allege each material element of the offense; if it does not, it fails to charge
that offense.’” United States v. Berrios-Centeno, 250 F.3d 294, 297 (5th Cir.
2001) (quoting United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th Cir.
1999), overruled on other grounds by United States v. Cotton, 535 U.S. 625,
630–31 (2002)); see also United States v. Gordon, 780 F.2d 1165, 1169 (5th Cir.
1986) (“An indictment is sufficient if it contains the elements of the offense
charged, fairly informs the defendant what charge [s]he must be prepared to
meet, and enables the accused to plead acquittal or conviction in bar of future
                                         4
    Case: 15-10962    Document: 00513893436     Page: 5   Date Filed: 03/01/2017



                                 No. 15-10962
prosecutions for the same offense.” (citations omitted)). Nonetheless, “[t]he
test of the validity of the indictment is not whether the indictment could have
been framed in a more satisfactory manner, but whether it conforms to
minimal constitutional standards.” United States v. Fitzgerald, 89 F.3d 218,
222 (5th Cir. 1996) (citation omitted).
      Counts Two and Four of the superseding indictment allege every element
of Defendant’s offense. The elements of Section 152(3) are “(1) there was a
bankruptcy proceeding; (2) defendant made a declaration or statement under
penalty of perjury in relation to the proceeding; (3) the declaration concerned
a material fact; (4) the declaration was false; and (5) defendant made the
declaration knowingly and fraudulently.” United States v. Spurlin, 664 F.3d
954, 962 (5th Cir. 2011). Both Counts Two and Four allege each element. (1)
Each count alleges that there was a bankruptcy proceeding, namely cases 09-
38525-hdh7 and 11-35094-bjh13. (2) Each count alleges that Defendant made
a statement under penalty of perjury in relation to that proceeding. (3) Each
count alleges that Defendant’s false statement was “material.” (4) Each count
alleges that Defendant made a “false statement” by submitting a “false
Statement of Social Security Number(s) (Official Form B-21).” And (5) each
count alleges that Defendant “knowingly and fraudulently made a material
false statement.”
      Even if Defendant is correct that the indictment misstated what Form
B-21 requires, the indictment was not defective.      This court “treat[s] the
allegation of additional facts beyond those which comprise the elements of the
crime as ‘mere surplusage.’” United States v. Valencia, 600 F.3d 389, 432 (5th
Cir. 2010) (quoting United States v. Robinson, 974 F.2d 575, 578 (5th Cir.
1992)). The indictment here—even without the description of what Form B-21
requires—alleges every element of the offense. Accordingly, the additional
factual description of Form B-21 is surplusage.     “Surplusage . . . may be
                                          5
     Case: 15-10962       Document: 00513893436          Page: 6     Date Filed: 03/01/2017



                                       No. 15-10962
disregarded provided it neither broadens the indictment nor misleads the
accused.” United States v. Thompson, 990 F.2d 625, at *3 (5th Cir. 1993)
(unpublished).
       The description of what Form B-21 requires does not broaden the
indictment because the indictment required the Government to prove a
knowingly made false statement to secure a conviction. The indictment alleges
that “Grant falsely represented and stated that Grant only had one social
security number XXX-XX-5571, when Grant then well knew that she had used
at least one other social security number in other bankruptcy petitions which
Grant knew she was obligated to disclose.” By including the phrase “which
Grant knew she was obligated to disclose,” the Government alleged that
Defendant had an obligation to disclose her second social security number.
Because Form B-21 requires only the disclosure of social security numbers that
the debtor “has,” the obligation language limits the indictment to what Form
B-21 requires—disclosure of all social security numbers that the debtor “has.”
       Nor did the indictment mislead Defendant. By outlining each element
of the offense, the indictment notified Defendant of the charges against her.
See United States v. Griffin, 800 F.3d 198, 203 (5th Cir. 2015) (holding that an
indictment gave sufficient notice when the defendant “knew before trial” the
theory of criminality on which the Government would proceed); United States
v. Trice, 823 F.2d 80, 89 n.8 (5th Cir. 1987) (holding that an indictment gave
sufficient notice when the indictment charged the elements of the offense).
       Accordingly, we hold that the indictment was not defective. 1



       1The authority Defendant cites is not to the contrary. Defendant cites two cases in
support of her claim that the indictment is insufficient: McVay v. Perez (In re Perez), 415 B.R.
445 (Bankr. D. Colo. 2009), and United States v. Good, 326 F.3d 589 (4th Cir. 2003).
      In Perez, a debtor purchased and then used a social security number to obtain credit.
415 B.R. at 447. The debtor filed for bankruptcy using the purchased social security number.
Id. The Trustee alleged that “[b]y listing a false Social Security number on his Petition and
                                               6
     Case: 15-10962        Document: 00513893436           Page: 7      Date Filed: 03/01/2017



                                         No. 15-10962




Statement of Social Security Numbers, the Debtor/Defendant knowingly and fraudulently
made a false oath or account which is material to his bankruptcy case.” Id. at 449. Defendant
claims that Perez indicates that debtors are “damned if you do, damned if you don’t” because
debtors can be charged with making false statements both if they disclose social security
numbers that they used but did not have (as Perez did) or if they fail to disclose a social
security number that they use (as Defendant did). However, the prosecution in Perez is only
in conflict with the prosecution here if Defendant is correct that the bankruptcy rules “only
require[] a debtor to disclose his current, actual social security number.” But that is not what
the bankruptcy rules require. Instead, a debtor is required to disclose all numbers that they
have. This rule flows from the plain meaning of Form B-21. The Form recognizes that a
debtor can have more than one social security number and requires debtors who have more
than one number to disclose all of them. This reading of Form B-21 also harmonizes this case
with Perez: Perez made a false statement by listing a number that he did not have, Defendant
made a false statement by failing to list a number that she did have. And, as explained above,
this theory of Defendant’s prosecution, although not artfully charged in the indictment, was
inherent in the allegation that Defendant made a false statement on Form B-21.
        In Good, the defendant applied for a Security Identification Display Area badge at the
Norfolk Airport. 326 F.3d at 590. The application form asked, “Have you ever been convicted
or found not guilty by reason of insanity of the following listed crimes . . . 22. Burglary, Theft,
Armed robbery, Possession or Distribution of Stolen Property . . . 26. Dishonesty, Fraud, or
Misrepresentation . . . .” Id. (alterations in original). The defendant, who had previously
been convicted of embezzlement, answered “no.” Id. Because of the embezzlement conviction,
the Government charged the defendant with making a false statement on her application
when she indicated that she had not been previously convicted of the listed crimes. Id. The
defendant moved to dismiss the indictment, and the district court granted the motion. Id.
The Fourth Circuit affirmed. Id. It reasoned that “[t]he defendant’s response to the question
was literally true [because the form did not ask about embezzlement], and thus, her
indictment . . . was properly dismissed.” Id. at 592. Here, however, unlike in Good,
Defendant’s responses on the Forms B-21 were not “literally true.” That is, the failure to list
an embezzlement conviction could never be false on the form at issue in Good because the
form simply did not call for the disclosure of embezzlement convictions. The Forms B-21 call
for the disclosure of a second social security number if the debtor has more than one. The
indictment alleges that Defendant made a false statement on her Forms B-21. True, the
Government’s explanation in the indictment of why Defendant’s statements were false was
inartful. But the Government still alleges that Defendant made a false statement—and
unlike in Good, the forms here could have required the disclosure that the Government
demands. As the Fourth Circuit itself has explained, Good’s reasoning “does not apply in
cases in which the focus is on the ambiguity of the question asked. Nor does it apply to an
answer [that] would be true on one construction of an arguably ambiguous question but false
on another.” United States v. Sarwari, 669 F.3d 401, 407 (4th Cir. 2012) (citations and
quotation marks omitted, alteration in original). Defendant was certainly free to argue at
trial—and did argue—that she did not “have” multiple social security numbers. But if the
Government’s allegations are taken as true, as they must be when assessing the sufficiency
of the indictment, then Defendant did not make a literally true statement on her Forms B-
21, and thus Good does not apply.
                                                7
    Case: 15-10962    Document: 00513893436     Page: 8   Date Filed: 03/01/2017



                                 No. 15-10962
                                       B.
      Defendant next argues that she was prejudiced by the indictment
because “[t]he jury received an indictment which assumed a duty which does
not exist—that when answering a question which asks for all social security
numbers a person ‘has’, she in fact has a duty to list all numbers she ‘has’ AND
ones she has ever used, whether or not she still ‘has’ them.” We disagree.
      When allegedly prejudicial surplusage is shown to the jury and then
challenged on appeal, this court will not “invalidate” a conviction unless it is
“convinced that the allegedly excessive language was irrelevant, inflammatory
and prejudicial.” United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971).
This standard is “strict[,]” United States v. Solomon, 273 F.3d 1108, at *1 (5th
Cir. 2001) (unpublished), and “exacting[.]” United States v. Wood, 248 F.3d
1143, at *4 (5th Cir. 2001) (unpublished).
      Generally, correct jury instructions cure deficiencies in the indictment.
See, e.g., United States v. Coppin, 569 F. App’x 326, 334–35 (5th Cir. 2014)
(unpublished) (“The conviction under valid instructions creates a presumption
that there was no harm arising from the failure of a grand jury to charge that
missing element of the necessary intent.” (citation omitted)); United States v.
Mauskar, 557 F.3d 219, 227 (5th Cir. 2009) (unanimity instruction sufficient
to cure alleged duplicity in indictment); United States v. Dentler, 492 F.3d 306,
311–312 (5th Cir. 2007) (no prejudice where indictment excluded an element
of the crime because the instructions included the element).
      Here, the jury was warned that the indictment was “merely an
accusation, nothing more[.]” The jury was further instructed that it was their
duty “to follow all of the rules of law as” the district court explained them and
that the instructions contained all of the law that applied to the case. The
district court then proceeded to give the jury an extensive outline of
bankruptcy law principles.       These bankruptcy instructions specifically
                                       8
    Case: 15-10962    Document: 00513893436     Page: 9   Date Filed: 03/01/2017



                                 No. 15-10962
described Form B-21 and informed the jury that “[o]n the [Form B-21], below
the line on which the debtor lists his or her social security number, the form
states: ‘If more than one, state all.’” Defendant did not object to those
instructions. Moreover, because the jury is presumed to follow its instructions,
see United States v. Webster, 162 F.3d 308, 324 (5th Cir. 1998), we presume
that the jury followed the instructions with regard to what Form B-21 requires.
Accordingly, we hold that Defendant was not prejudiced by the jury receiving
the indictment.
      In any event, even if the jury instructions did not cure the error, we hold
that any error was harmless.      Defendant’s prejudice argument is that by
receiving the indictment, the jury received an incorrect statement of the law.
Specifically, Defendant complains that the indictment allowed the jury to
convict on a theory (that Defendant “used” but did not “have” more than one
social security number) that was not unlawful (because Defendant’s Forms B-
21 could only have been false if Defendant has more than one social security
number). Defendant’s prejudice theory therefore functions like the prejudice
theory related to an overly broad jury instruction—both potentially allow a
jury to convict based on conduct that is not unlawful. Jury instructions that
misstate the law are subject to harmless error review. See, e.g., Neder v. United
States, 527 U.S. 1, 9–10 (1999) (collecting cases). Harmless error analysis is
appropriate here as well. Indeed, this court has previously analogized errors
in indictments to errors in jury instructions for the purposes of determining
susceptibility to harmless error analysis. See, e.g., United States v. Robinson,
367 F.3d 278, 286 (5th Cir. 2004) (“We need not diminish the importance of the
Fifth Amendment right to a grand jury indictment to conclude that the error
at issue in Neder—the failure to include an element of the crime in petit jury
instructions—is difficult to distinguish from the present one, and we find no
compelling reason to carve out an exception to Neder’s harmless error rule for
                                       9
    Case: 15-10962     Document: 00513893436      Page: 10   Date Filed: 03/01/2017



                                   No. 15-10962
such an analytically similar claim.”). And the analogy is especially apt here
because Defendant’s prejudice theory is essentially that the indictment gave
the jury an erroneous instruction.
      “Erroneous jury instructions are harmless if a court, ‘after a thorough
examination of the record, is able to conclude beyond a reasonable doubt that
the jury verdict would have been the same absent the error.’” United States v.
Cessa, 785 F.3d 165, 186 (5th Cir. 2015) (quoting United States v. Skilling, 638
F.3d 480, 482 (5th Cir. 2011)). We hold that any error related to the jury
viewing the indictment was harmless.
      First, the jury was given the Forms B-21 and received extensive
instruction on what the Forms required. The jury could therefore see for itself
what the Forms B-21 required. And the jury was also instructed that to
convict, it had to find a false statement on the Forms B-21. See, e.g., United
States v. Green, 246 F.3d 433, 437 (5th Cir. 2001) (considering the jury charge
as a whole when conducting harmless error analysis).
      Second, at trial Defendant vigorously argued that she did not “have” the
3167 number (or, indeed, more than one social security number at all) at the
time that the Forms B-21 were signed. That the jury convicted, despite the
argument, indicates that any instructional error was harmless.           See, e.g.,
United States v. Montgomery, 747 F.3d 303, 311 (5th Cir. 2014) (“Finally, the
[defendants] have not shown that the district court’s jury instruction prevented
them in any way from presenting the full breadth of their good-faith defense
to the jury. In fact, the [defendats’] good-faith defense was central to defense
counsel’s closing argument[.] Thus, . . . we are convinced that the erroneous
jury instruction had no bearing . . . .”).
      Third, and most importantly, the Government presented overwhelming
evidence that Defendant continued to have the 3167 number even after being
issued the 5571 number. The Government provided ample evidence that before
                                         10
   Case: 15-10962     Document: 00513893436    Page: 11   Date Filed: 03/01/2017



                                No. 15-10962
2008, Defendant had the 3167 number. In 2008, Defendant applied for a
second social security number and was issued the 5571 number. Defendant’s
theory at trial was that once she received the 5571 number, she ceased to have
the 3167 number. But the Government submitted overwhelming evidence to
the contrary.
      The Government demonstrated that in October 2008—after receiving the
5571 number—Defendant filed for bankruptcy using the 3167 number.
Moreover, in 2009, a Bankruptcy Judge told Defendant that “there are going
to be issues that have to be sorted through with respect to why you have two
social security numbers . . . .” Finally, the Government submitted evidence
that the Social Security Administration did not know that Defendant had the
3167 number when it issued her the 5571 number and that it would not have
issued Defendant a new number had it known that she already had one.
Together this evidence indicated that Defendant continued to use both of her
social security numbers—that is, that she had two numbers. Additionally, it
would have been unreasonable for the jury to conclude that the Social Security
Administration cancelled the 3167 number when Defendant was issued the
5571 number because the uncontroverted testimony demonstrated that the
Social Security Administration did not even know that Defendant had been
issued two numbers.
      Taking together the facts that (1) the jury had before it the Forms B-21
and could see for itself what the Form required; (2) Defendant was free to
argue—and did vigorously argue—that she did not have more than one social
security number at the time she signed the Forms; and (3) the overwhelming
evidence that Defendant did in fact have two social security numbers when she
signed the Forms, we hold any prejudice introduced to the jury by the
indictment’s “used” language was harmless.


                                     11
   Case: 15-10962     Document: 00513893436     Page: 12      Date Filed: 03/01/2017



                                 No. 15-10962


                                      III.
      Defendant next argues that the evidence was insufficient to support her
convictions on Counts Two and Four.          Specifically, she argues that the
Government did not prove that she continued to “have” the 3167 number after
she received the 5571 number and, accordingly, the Government did not prove
that she had two social security numbers on the respective dates that she
signed the Forms B-21. We disagree.
      Defendant preserved her challenge to the sufficiency of the evidence.
Therefore, this court’s review is de novo. See United States v. Frye, 489 F.3d
201, 207 (5th Cir. 2007) (citation omitted). “When reviewing the sufficiency of
the evidence, this Court views all evidence, whether circumstantial or direct,
in the light most favorable to the [g]overnment[,] with all reasonable inferences
to be made in support of the jury’s verdict.” United States v. Terrell, 700 F.3d
755, 760 (5th Cir. 2012) (quoting United States v. Moser, 123 F.3d 813, 819 (5th
Cir. 1997)). “[R]eviewing courts must affirm a conviction if, after viewing the
evidence and all reasonable inferences in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747
F.3d 299, 301 (5th Cir. 2014) (en banc) (citation omitted).
      As explained above, the Government presented evidence from which the
jury could have inferred that Defendant continued to have the 3167 number
after receiving the 5571 number.      Specifically, the Government submitted
evidence showing that Defendant continued to use the 3167 number after
receiving the 5571 number and that the Social Security Administration would
have had no reason to cancel the 3167 number. From this evidence, the jury
could have reasonably concluded that Defendant continued to “have” two social


                                       12
   Case: 15-10962     Document: 00513893436      Page: 13   Date Filed: 03/01/2017



                                  No. 15-10962
security numbers when she signed the Forms B-21. Accordingly, we reject
Defendant’s sufficiency challenge.
                                       IV.
      Defendant argues that the district court erred by applying U.S.S.G. §
2J1.3 (perjury) to her offense.      Instead, she argues that the appropriate
guideline is U.S.S.G. § 2B1.1 (fraud). This court reviews a district court’s
selection of the applicable sentencing guideline de novo. United States v.
Principe, 203 F.3d 849, 851 (5th Cir. 2000). “When sentencing a defendant,
the district court must first determine which offense guideline section is most
applicable to the offense of conviction, generally by reference to the guidelines’
statutory index found at Appendix A thereto.” Id. (citing U.S.S.G. § 1B1.2(a),
cmt. 1).   “If more than one offense guideline section is referenced for a
particular statute, the district court must select the most appropriate section
based upon the nature of conduct charged in the count for which the defendant
was convicted.” Id. (citing U.S.S.G. § 1B1.2(a), cmt. 1).
      The guidelines’ statutory index lists three possible guidelines for
violations of 18 U.S.C. § 152: U.S.S.G. § 2B1.1 (fraud); U.S.S.G. § 2B4.1
(bribery); and U.S.S.G. § 2J1.3 (perjury). See U.S.S.G. App’x A. Circuit courts
are divided over which of these three provisions applies to a conviction under
Section 152(3). Broadly, two approaches have emerged. Some courts look at
the defendant’s conduct to determine whether the crime more closely
resembles fraud, bribery, or perjury. See, e.g., United States v. Turner, 182
F.3d 934, at *2 (10th Cir. 1999) (unpublished) (applying the fraud guideline
because the defendant’s “false statement under bankruptcy petition was made
for purposes relating to fraudulent activity”); United States v. Kaster, 139 F.3d
902, at *3 (7th Cir. 1998) (unpublished) (applying the perjury guideline
because evidence indicated that the defendant did not have a pecuniary
interest for making the false statement).        Other courts look only to the
                                        13
    Case: 15-10962        Document: 00513893436          Page: 14      Date Filed: 03/01/2017



                                        No. 15-10962
allegations in the indictment to determine whether the alleged offense more
closely resembles fraud, bribery, or perjury.                 See, e.g., United States v.
Boulware, 604 F.3d 832, 836 (4th Cir. 2010) (applying the perjury guideline
when “[t]he indictment did not characterize [the defendant’s] failure to disclose
the prior bankruptcies as being part of a plan to avoid making payment to
specific creditors.      Rather, the indictment focused on the fact that her
nondisclosure constituted a false declaration”); United States v. Lewis, 161 F.
App’x 322, 324 (4th Cir. 2006) (unpublished) (applying the perjury guideline
when “the indictment concentrated on the gravity of the [the defendant’s]
misrepresentation to the bankruptcy court”).
       Under either approach, 2 the district court did not err in using the perjury
guideline. First, the Defendant’s conduct more closely aligns with perjury. The
Government did not attempt to prove fraud at trial. More specifically, the
Government introduced no evidence showing that creditors lost money because
of Defendant’s conduct. And Defendant’s false statements could not have had
an economic impact because both bankruptcy petitions were dismissed for
procedural reasons independent of Defendant’s false statements. Accordingly,
the conduct that Defendant was prosecuted for was not defrauding creditors,
but was instead making false statements to the court. Second, the indictment


       2 Respectfully, we believe that the latter view is more in line with both the text of the
guidelines and this court’s jurisprudence. The guidelines instruct courts to “[r]efer to the
Statutory Index . . . to determine the . . . offense guideline, referenced in the Statutory Index
for the offense of conviction.” U.S.S.G. §1B1.2. The Commentary to Section 1B1.2 then
provides that when the Statutory Index specifies more than one offense guideline “the court
will determine which of the referenced guideline sections is most appropriate for the offence
conduct charged in the count of which the defendant was convicted.” U.S.S.G. §1B1.2, cmt.
1. Interpreting these provisions, this court has noted that, in determining the offense
guideline section, courts should look only to the offense conduct charged in the indictment or
information, not to the defendant’s specific conduct as proven at trial or at sentencing. See,
e.g., United States v. Goldfaden, 959 F.2d 1324, 1329 (5th Cir. 1992), superseded on other
grounds as recognized by United States v. Puckett, 505 F.3d 377, 384–85 (5th Cir. 2007);
United States v. Brunson, 882 F.2d 151, 156 (5th Cir. 1989); United States v. Heli-Mejia, 239
F. App’x 938, 938 (5th Cir. 2007) (unpublished).
                                              14
    Case: 15-10962       Document: 00513893436          Page: 15     Date Filed: 03/01/2017



                                       No. 15-10962
charges that Defendant made false statements under the penalty of perjury; it
does not focus on defrauding creditors at all. Put differently, “the indictment
focused on the fact that [Defendant’s] nondisclosure constituted a false
declaration made to the bankruptcy court under penalty of perjury. Thus, the
gravamen of the charge was that [Defendant] interfered with the bankruptcy
court’s administration of justice, not that she defrauded any creditors.”
Boulware, 604 F.3d at 836. Accordingly, the proper guideline was the perjury
guideline. 3
                                             V.
       Finding no reversible errors, we AFFIRM.




       3We note that this court previously held that the fraud guideline (then Section 2F1.1),
rather than the perjury guideline, was appropriately applied to a conviction under Section
152. United States v. Beard, 913 F.2d 193, 197–98 (5th Cir. 1990). But Beard was decided
before the Sentencing Commission added the perjury guideline to the statutory index for
Section 152. Hence other Circuit Courts have observed that Beard’s analysis of the
applicability of the perjury guideline to Section 152 may be superseded because of the
subsequent amendment to the Guidelines. See Kaster, 139 F.3d 902, at *3 n.4.
                                             15
