Perjury CasesSentencing Issues
Section 2J1.3 of the Sentencing Guidelines applies to perjury and
subornation of perjury offenses and, since November 1, 1993, to witness
In adopting section 2J1.3, the United States Sentencing Commission generally
increased perjury sentences in comparison to pre-Guideline practice,
calculate them similarly to those for obstruction of justice convictions
2J1.2). If perjury or subornation of perjury occurs in a specific criminal
offense, section 2X3.1 (accessory after the fact) applies for that criminal
offense if the resulting offense level is higher than that calculated
to section 2J1.3. Section 2X3.1(a) uses a base offense level six levels
than the offense level for the underlying offense, but in no event less than
or more than thirty. Thus, application of section 2X3.1 to perjury in
with a serious drug offense may result in a higher offense level calculation
simply using section 2J1.3. See United States v. Glover, 52
283, 285-86 (10th Cir. 1995); United States v. Gay, 44 F.3d 93, 94-95
Cir. 1994); United States v. Gomez-Vigil, 929 F.2d 254, 259 (6th Cir.
1991). Unless multiple instances of perjury occur in the same case (grand
and trial level), perjury counts are not grouped.|
If perjury occurs at trial, the government should ask for
of section 3C1.1, the obstruction of justice enhancement, which increases
offense level two levels. This enhancement does not apply to the
punishment for a charged perjury offense--in which case only section 2J1.3
possibly section 2X3.1 would be used. The United States Supreme Court has
repeatedly held that the right to testify does not include a right to commit
perjury. Nix v. Whiteside, 475 U.S. 157, 173 (1986); United
Havens, 446 U.S 620, 626 (1980). It has also explicitly allowed the
sentencing judge to consider a convicted defendant's decision to commit
at trial in determining the applicable sentence. United States v.
Dunnigan, 507 U.S. 87, 93 (1993); United States v. Grayson, 438
41, 50 (1978).
In determining whether perjury occurred for purposes of this
enhancement, the Supreme Court has directed judges to look to section 1621
law. Dunnigan, 507 U.S. at 94. In imposing the enhancement, the
sentencing court should either make a separate and independent factual
to address each element of the perjurious trial testimony or make a finding
concerning an obstruction of justice that encompasses all of the factual
predicates for a finding of perjury. Id. at 95 ("The court finds
defendant was untruthful at trial with respect to material matters in this
[B]y virtue of her failure to give truthful testimony on material matters
were designed to substantially affect the outcome of the case, the court
concludes that the false testimony at trial warrants an upward adjustment by
levels.") The government need not demonstrate that the defendant's false
testimony was particularly flagrant. United States v. Thompson, 962
1069, 1071 (D.C. Cir. 1992), cert. denied, 507 U.S. 974 (1993).
testimony before the grand jury also warrants the obstruction enhancement.
United States v. Gordon, 61 F.3d 263, 270 (4th Cir. 1995).
[cited in USAM 9-69.200]