     Case: 15-51197   Document: 00513680376    Page: 1    Date Filed: 09/15/2016




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

                                No. 15-51197                     FILED
                              Summary Calendar           September 15, 2016
                                                            Lyle W. Cayce
                                                                 Clerk
UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

JEREMIAH GRIEGO, also known as Jeremiah Greigo,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas
                          USDC No. 6:15-CR-150-2


Before KING, DENNIS, and COSTA, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
      Jerimiah Griego and two others were indicted on one count of aiding and
abetting each other in making false statements. Griego pleaded guilty to the
charge and was sentenced to ten months in prison and a three year term of
supervised release. On appeal, Griego argues that his sentence is procedurally
flawed and substantively unreasonable because the district court misapplied
the sentencing guidelines. Because we find that the district court committed
a significant procedural error in the application of the guidelines’ cross-
reference provision, we VACATE and REMAND for resentencing.
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                                           I.
      By grand jury indictment, Griego was charged with aiding and abetting
the making of a false statement to the United States Marshal’s Service, in
violation of 18 U.S.C. §§ 1001(a)(2) and (2).        Griego entered a plea of guilty
without a plea agreement. The presentence report (PSR) prepared by the
probation office assigned a base offense level of fourteen pursuant to U.S.S.G.
§ 2J1.2, Obstruction of Justice. Griego objected to the application of § 2J1.2,
arguing that the facts alleged in his indictment did not satisfy the
requirements of any of the statutory offenses covered by the obstruction of
justice guideline. He argued that § 2B1.1(a)(2), which sets forth a base offense
level of six, was the guideline that appropriately covered his criminal conduct.
The probation officer responded to the objection, agreed that the guideline to
be used in calculating the sentencing range should be § 2B1.1, and filed an
addendum to the PSR and revised the PSR. While the probation officer agreed
that § 2J1.2 did not apply on its own terms, the revised PSR still calculated the
base offense level as fourteen, pursuant to the cross-reference provision in §
2B1.1(c)(3). That provision provides that if “the defendant was convicted under
a   statute   proscribing   false,    fictitious,   or   fraudulent   statements   or
representations generally (e.g., 18 U.S.C. § 1001 . . .)” and “the conduct set forth
in the count of conviction establishes an offense specifically covered by another
guideline,” that other guideline should apply. U.S.S.G. § 2B1.1(c)(3).
      At sentencing Griego again objected to the PSR, arguing that the facts
alleged in the indictment did not warrant the application of § 2J1.2. The
district court overruled the objection and adopted the statements in the PSR
and the response to Griego’s objection. The PSR calculated Griego’s guidelines
range as ten to sixteen months, with a statutory maximum of five years. Had
§ 2B1.1(a)(2) applied, Griego’s guidelines range could have been zero to six
months. The district court sentenced Griego to ten months in prison and a
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                                  No. 15-51197
three year term of supervised release.        Griego objected to a condition of
supervised release, but did not object to the sentence as substantively
unreasonable. Griego timely filed a notice of appeal.
                                       II.
      Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), we engage in
a bifurcated review of the sentence imposed by the district court. United States
v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, we consider
whether the district court committed a “significant procedural error,” such as
miscalculating the advisory guidelines range. Id. If there is no error or the
error is harmless, we may proceed to the second step and review the
substantive reasonableness of the sentence for an abuse of discretion. Id. at
751-53. We review the district court’s factual findings for clear error and its
interpretation and application of the guidelines, including any cross-reference
provisions, de novo. United States v. Arturo Garcia, 590 F.3d 308, 312 (5th Cir.
2009).
                                       III.
      Griego argues that the district court reversibly erred by overruling his
objection to the application of § 2B1.1(c)(3), which provides a cross reference to
§ 2J1.2. He asserts that the Government did not specify and the district court
did not find that the facts alleged in the indictment supported any offense other
than a violation of 18 U.S.C. § 1001(a)(2), and argues that the facts alleged in
the indictment could not support any other offense. We agree.
      In Garcia, we held that a district court may apply a cross-reference
provision pursuant to § 2B1.1(c)(3) only if the facts alleged in the indictment
establish the elements of another offense for which the other guideline is
applicable. 590 F.3d at 315-16. In Garcia, the district court had not identified
a specific statutory offense to which the cross-reference provision applied. We
addressed the four criminal statutes that could have supported the application
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                                 No. 15-51197
of the guidelines and ultimately affirmed the district court, concluding that one
of the statutes “expressly cover[ed]” the conduct alleged in the count of
conviction. Id. at 316.
      The Government argues that the facts alleged in Griego’s indictment
would support a conviction under 18 U.S.C. § 1505, which is covered by § 2J1.2
and prohibits, inter alia, “corruptly . . . obstruct[ing], or imped[ing] or
endeavor[ing] to influence, obstruct, or impede the due and proper
administration of the law under which any pending proceeding is being had
before any department or agency of the United States.”         Specifically, the
Government asserts that the indictment shows that Griego:
      knew there was a pending proceeding . . . ; being conducted by
      officers from the U.S. Marshal’s Service (who interviewed [Griego]
      more than once); and [Griego] willfully and knowingly made a false
      statement which impeded the investigation.
Yet while the Government acknowledges that the relevant portion of 18 U.S.C.
§ 1505 requires proof that the defendant acted “corruptly,” it wholly fails to
explain how the facts alleged in Griego’s indictment satisfy this requirement.
      We have explained that “corruptly” in the context of § 1505 means
“knowingly and dishonestly, with the specific intent to subvert or undermine
the due administration of justice.” United States v. Kay, 513 F.3d 432, 454 (5th
Cir. 2007). By contrast, under 18 U.S.C. § 1001, “[t]he requirement that the
false representation be made ‘knowingly and willfully’ is satisfied if the
defendant acts deliberately and with the knowledge that the representation is
false.” United States v. Guzman, 781 F.2d 428, 431 (5th Cir. 1986). The
generalized mens rea required to violate § 1001 is not sufficient to prove the
more specific mens rea required to violate § 1505. See United States v. Kim,
95 F. App’x 857, 862 (9th Cir. 2004). Griego’s indictment for violation of § 1001
alleged that Griego “did knowingly and willfully make a false, fraudulent and
fictitious material statement and representation”; it did not allege that he
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                                 No. 15-51197
specifically intended to subvert or undermine the due administration of justice.
Because the facts alleged in the indictment do not support the application of
U.S.S.G. § 2J1.2, the district court erred in applying the cross-reference
provision under U.S.S.G. § 2.B1.1(c)(3). See Garcia, 590 F.3d at 315-16.
      Accordingly, we VACATE the sentence and REMAND for resentencing.




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