The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge
Before the court are the government's objections to the Presentencing Report and Sentencing Memorandum (the "PSR") [#336], on the grounds that the PSR failed to apply certain cross-references in determining defendant's sentence. Defendant was convicted of three counts: (1) obstructing justice in violation of 18 U.S.C. § 1512(c)(2) by signing false answers to the first set of interrogatories propounded in Hobley v. Jon Burge, et al., No. 03 C 3678, a civil rights case filed in this court ("Hobley"); (2) perjury in violation of 18 U.S.C. § 1621(1) by providing false answers to the second set of interrogatories propounded in Hobley; and (3) obstructing justice in violation of 18 U.S.C. § 1512(c)(2) by signing false answers to the second set of interrogatories propounded in Hobley.*fn1 In the PSR, the probation office determined that defendant's total offense level should be 14 and declined to apply the cross-reference provisions for perjury and obstruction of justice that are included in U.S.S.G. § 2J1.2 and § 2J1.3. The government, in its objections, argues that the cross-reference provisions should be applied and that therefore defendant's correct total offense level is 40. For the following reasons, the court concludes that the cross-reference provisions do not apply.
I. The Obstruction and Perjury Cross-Reference Provisions
Both U.S.S.G. § 2J1.2, which determines the offense level for obstruction of justice, and U.S.S.G. § 2J1.3, which determines the offense level for perjury, contain cross-reference provisions that direct the court, in some circumstances, to sentence the defendant as if he were an accessory after the fact to the substantive criminal offenses about which he has lied. The cross-reference provision of § 2J1.2 of provides that "[i]f the offense involved obstructing the investigation or prosecution of a criminal offense, apply § 2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above." U.S.S.G. § 2J1.2(c)(1). The background section of the commentary to § 2J1.2 explains that the cross-reference was added "[b]ecause the conduct covered by this guideline is frequently part of an effort to avoid punishment for an offense that the defendant has committed or to assist another person to escape punishment for an offense." As stated in the commentary, "use of this cross reference will provide an enhanced offense level when the obstruction is in respect to a particularly serious offense, whether such offense was committed by the defendant or another person." Section 2J1.3, which determines the offense level for perjury, likewise provides that "[i]f the offense involved perjury, subornation of perjury, or witness bribery in respect to a criminal offense, apply § 2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above." U.S.S.G. § 2J1.3(c)(1). The background commentary to § 2J1.3 explains that "perjury should be treated similarly to obstruction of justice. Therefore, the same considerations for enhancing a sentence are applied in the specific offense characteristics, and an alternative reference to the guideline for accessory after the fact is made."
In the PSR, the probation office did not apply the cross-reference provisions based on the fact that defendant's obstructive answers and false interrogatory answers "were not made to law enforcement officials involved in a criminal investigation or prosecution, nor were the answers presented to a criminal grand jury." PSR, lines 366--75. The government argues that the cross-reference provisions should be applied for two reasons, either of which would provide independent grounds for applying the cross references. First, at the time defendant answered the written discovery requests in the Hobley lawsuit, a state Special Prosecutor had been appointed to investigate whether criminal charges could be brought against defendant for abuse of prisoners at Area 2 or Area 3. See Attachment A to Government's Objections to the PSR. Therefore, according to the government, defendant's offense involved the obstruction of justice and perjury in respect to a criminal offense because he knew that his false answers to the interrogatories in the civil lawsuit would help him escape punishment for the criminal offenses under investigation by the Special Prosecutor. Second, the government asserts that the cross-references must be applied because defendant's "relevant conduct" includes his earlier obstructive conduct in state criminal proceedings.
II. Whether the Cross-Reference Provisions Should be Applied in This Case
The court first looks to the "text of the [cross-reference] provisions and the plain meaning of the words in the text." See, e.g., United States v. Von Loh, 417 F.3d 710, 713 (7th Cir. 2005) (quoting United States v. Garcia-Lopez, 375 F.3d 586, 587 (7th Cir. 2004)). The court may also look to the commentary to interpret a guideline and its meaning. See, e.g., United States v.
Katalinic, 510 F.3d 744, 746 (7th Cir. 2007). Both provisions at issue require application of § 2X3.1 (Accessory After the Fact) if the offense "involve[d]" obstruction of justice or perjury with respect to a criminal offense. The term "involved" as used in the Guidelines has been understood to mean "to include." See United States v. Parr, 545 F.3d 491, 504 (7th Cir. 2008); United States v. Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005); United States v. Graham, 275 F.3d 490, 516 (6th Cir. 2001). The cross-reference provision for perjury also requires that the perjury occur "in respect to" a criminal offense. Courts have held that "[p]erjury is made 'in respect to' a criminal offense when it is 'related to the criminal offense in a very entwined and enmeshed way.'" United States v. Leifson, 568 F.3d 1215, 1220 (10th Cir. 2009) (quoting United States v. Renteria, 138 F.3d 1328, 1334 (10th Cir.1998)).
A. Defendant's Offense Conduct
The government first argues that defendant's offense conduct "involved" the obstruction of a criminal prosecution, see U.S.S.G. § 2J1.2(c)(1), and was made "in respect to" a criminal offense, see U.S.S.G. § 2J1.3(c)(1), because defendant must have known that the Special Prosecutor's investigation was underway when he provided false discovery responses in Hobley. In doing so, it emphasizes that courts have interpreted the cross-section provisions broadly in situations where the offense conduct clearly occurred during the course of a criminal proceeding or investigation. See, e.g., United States v. Gallimore, 491 F.3d 871, 877 (8th Cir. 2007) (obstruction of justice cross-reference not limited to conduct that actually obstructed a criminal proceeding); United States v. Leon-Reyes, 177 F.3d 816, 824 (9th Cir. 1999) (perjury cross-reference should be applied where the defendant "knew or had reason to know, at the time of the perjury, that his testimony concerned a criminal offense"); United States v. McQueen, 86 F.3d 180, 182 (11th Cir. 1996) (obstruction of justice cross-reference should be applied even where defendant has been acquitted of the "underlying offense").
The cases that examine the cross-reference provisions in factual situations analogous to the one presented here, however, are ambiguous with respect to the merits of the government's position. As the government concedes, there are at least two prior cases where a similar fact pattern existed and the courts did not apply the cross-reference provision to an obstruction of justice charge. Neither of these cases, however, addressed the precise issue raised here. In United States v. LeMoure, 474 F.3d 37 (1st Cir. 2007), the defendant police officers were convicted of obstructing justice in a civil case and in a grand jury proceeding. Both the civil suit and the grand jury proceeding were related to the same events and the grand jury investigation had begun while the civil suit was pending. Following the recommendation of the probation office, the district court applied one set of guidelines calculations for the group of offenses related to the civil case and another for the offenses related to the grand jury proceedings, noting in particular that § 2J1.2(c) did not apply to obstruction of the civil proceedings. See 474 F.3d at 44--45 & Appendix. The First Circuit affirmed the district court's calculations without addressing whether the district court's distinction between the civil and criminal proceedings was correct. In United States v. Ronda, 455 F.3d 1273 (11th Cir. 2006), the district court did not apply the cross-reference provision where the defendant officers were convicted of obstructing a civil proceeding by giving false and misleading testimony in a deposition. The civil litigation involved the wrongful shooting of a citizen and the statements in the deposition occurred after a formal investigation had been initiated regarding the same conduct that later led to an FBI investigation and a criminal prosecution. The Eleventh Circuit affirmed without considering whether this particular application of the sentencing guidelines was correct.
More relevant is United States v. Bova, 350 F.3d 224 (1st Cir. 2003), where the First Circuit considered and rejected the applicability of the perjury cross-reference provision. In Bova, the defendant was arrested for stabbing two individuals in violation of his supervised release. He was brought before a magistrate judge to determine whether he should be released on bail or detained. At the bail hearing, the defendant denied that he had committed the assaults. He was later indicted for perjury and obstruction of justice based on this testimony. The government cross-appealed and argued that the district court should have applied the cross reference in the perjury guideline because the perjury was "about" the criminal assaults, even though it did not occur in a criminal proceeding. 350 F.3d at 230. The First Circuit held that the cross-reference did not apply:
The government concedes that direct precedent is scarce but says that the cross reference language -- "in respect to a criminal offense" -- is broad and applies here because here the perjury was about the assaults. In truth, phrases like "in respect to" or "in connection with" are highly elastic and any sensible construction invites inquiry into what the drafter was trying to accomplish. See United States v. Conley, 186 F.3d 7, 25 (1st Cir.1999), cert. denied, 529 U.S. 1017, 120 S. Ct. 1417, 146 L. Ed. 2d 310 (2000). . . .
The government . . . misses the point to make the subject matter of the perjury, rather than its connection to the prosecution of a criminal offense, the decisive consideration. A material lie about any subject in a criminal trial court could sensibly trigger the cross reference; a lie in a civil or other non-criminal proceeding about a criminal act, at least if not a direct threat to ...