United States v. Leifson, ___F.3d ___, 2009 WL 1758766 (10th Cir. 2009)
The COA holds that the accessory-after-the-fact perjury cross reference guideline, U.S.S.G. § 2X3.1, applied to Defendant’s conviction of perjury in front of the grand jury. The cross reference perjury guideline starts at 6 levels lower than the crime involved–in this case, second degree murder, so higher than plain perjury. The operative guideline language is “in respect to” and perjury is made “in respect to” a criminal offense when it is “related to the criminal offense in a very entwined and enmeshed way.” Defendant did not need to have been charged with second degree murder for the cross reference to apply. Defendant agreed in his plea bargain that his perjury was material to the grand jury investigation, so his argument that the perjury did not actually obstruct is to no avail.

There must be a showing that Defendant knew the grand jury investigation was for second degree murder for the cross reference to apply, and there was that showing. Defendant’s argument that the underlying cross reference crime should be kidnaping–lower than murder 2–also is to no avail. He was on notice that murder was being investigated because he was asked of the disappearance, murder and death of the girl before making his first perjured statement. It did not matter that his perjury–that he did not recall having been angry at the main suspect years earlier–was of less materiality in a murder investigation than the main suspect’s perjury that denied knowledge of what happened to the missing girl. As above, he had admitted during his guilty plea that his perjury was material.