Section 2X3.1 specifies a level six levels below that level, or 37, but also specifies a maximum offense level of 30. Although the Sentencing Commission defined "underlying offense" in section 2X3.1 to mean "the offense as to which the defendant is convicted of being an accessory," id. (emphasis added), the defendant need not have been convicted for participating in the underlying offense for section 2J1.3(c)(1) to apply, see United States v. Gay, 44 F.3d 93, 95 (2d Cir. 1994); see also United States v. Renteria, 138 F.3d 1328, 1335 (10th Cir. 1998) (failure to charge defendant in underlying offense did not preclude application of section 2J1.3(c)(1)). By treating a defendant convicted of perjury "in respect to" a criminal offense as if he were convicted as an accessory after-the-fact to that criminal offense, section 2J1.3(c)(1) increases a defendant's sentence for perjury by roughly the same degree as the degree of seriousness of the criminal offense "in respect to" which the defendant committed perjury (up to the statutory maximum).
We now find as a fact that none of defendant's concededly false statements were uttered "in respect to a criminal offense." The government's letter brief cites seven cases which it claims establish the contrary: United States v. Gay (2d Cir. 1994) 44 F.3d 93; United States v. Glover (10th Cir. 1994) 52 F.3d 283; United States v. Salinas (5th Cir. 1992) 956 F.2d 80; United States v. Rude (9th Cir. 1996) 88 F.3d 1538; United States v. Martinez (5th Cir. 1997) 106 F.3d 620; and United States v. Perry (4th Cir. 1996) 91 F.3d 135 (Table), 1996 WL 406244. Those cases establish several things: that a defendant need not act as an accessory in order to be sentenced under the cross-reference to section 2J1.3(c) of the sentencing guidelines, see Gay, Perry; that the perjury need not have been committed in respect to the defendant's own offense, see Salinas, Rude; and that the defendant need not have been convicted of the underlying offense, see Martinez.
Application of the cross reference, however, only imposes § 2X3.1's sentencing formula. It does not require that the defendant be found in any degree to be an accessory to the underlying crime. United States v. Gay, 44 F.3d 93, 94-95 (2d Cir. 1994); cf. United States v. Russell, 234 F.3d 404, 409-410 (8th Cir. 2000) (applying § 2X3.1 enhancement in case of § 2J1.2 cross reference). The Ninth Circuit has held that a perjurious statement "is in respect to a criminal offense where `the defendant knew or had reason to know, at the time of his perjury, that his testimony concerned such a criminal offense.'"
Consistent with this purpose, the application of the cross-reference does not depend on the defendant's actual conviction as an accessory after the fact to the offense under investigation. See United States v. Martínez, 106 F.3d 620, 621-22 (5th Cir. 1997); United States v. Dickerson, 114 F.3d 464, 467 (4th Cir. 1997); United States v. Gay, 44 F.3d 93, 95 (2d Cir. 1994). Indeed, application of this cross-reference does not even depend on the defendant's specific knowledge of the underlying offense:
e was eventually convicted of, we decline to interpret Section(s) 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 Section(s) 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 Section(s) 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 (10th Cir. 1995) (stating that Section(s) 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.
In support of its position that the cross-reference may be applied to conduct occurring before the 1991 amendment, the government relies on the Tenth Circuit's decision in United States v. Glover, 52 F.3d 283 (10th Cir. 1995) and the Second Circuit's decision in United States v. Gay, 44 F.3d 93 (2d Cir. 1994). Neither of these cases helps us to answer the question before us.
This reading of the Guidelines is consistent with the application of the § 2J1.3 cross-reference by some of our sister circuits. See United States v. Gay, 44 F.3d 93 (2d Cir. 1994); United States v. Bertoli, 40 F.3d 1384, 1402 (3d Cir. 1994) (in dicta, the court notes an identical cross-reference from § 2J1.2(c) to § 2X3.1 applies even though the declarant was obstructing investigations into his own unlawful activities). Mr. Glover claims § 2X3.1 can only be used if the declarant is an accessory after the fact because the application notes of § 2X3.1 define "underlying offense" as the offense "as to which the defendant is convicted of being an accessory."
This is not a case in which the ALJ failed to elicit testimony from an unrepresented plaintiff who did not have the benefit of further questioning by a representative. See Brown, 44 F.3d 93. Instead, plaintiff's representative was present and declined to question the plaintiff and inquire further about his subjective complaints. Thus, the ALJ had sufficient evidence before him regarding plaintiff's allegations of disabling pain and functional limitations, and the record also contains evidence of plaintiff's daily activities.