UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40972
Summary Calendar
United States of America,
Plaintiff-Appellant,
versus
Jose Pedro Gonzales,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(C-93-CR-204-1)
July 9, 1997
Before POLITZ, Chief Judge, DUHE’ and STEWART, Circuit Judges.
PER CURIAM:*
The United States of America appeals the sentence Jose Pedro Gonzales
received for perjury, arguing that the district court erred by failing to utilize United
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
States Sentencing Guidelines section 2J1.3(c)(1) when sentencing Gonzales. Section
2J1.3(c)(1) provides that if a defendant is convicted of “perjury...in respect to a
criminal offense” he should be sentenced under section 2X3.1 if the resulting base
offense level is greater than the base offense level for perjury. Section 2X3.1 mandates
a base offense level of six levels lower than the base offense level for “the underlying
offense.”
Gonzales was indicted for conspiracy to posses with the intent to distribute and
possession with the intent to distribute cocaine and marihuana and perjury. Gonzales
pled guilty to perjury and the government dismissed the drug charges. When
sentencing Gonzales, the district court concluded that Gonzales could not be sentenced
under section 2X3.1 because he was not convicted of any underlying offense. However
after the district court sentenced Gonzales, we held that a defendant need not be
convicted of any underlying offense to be sentenced under section 2X3.11 We
therefore vacate Gonzales’s sentence and remand this case to the district court for
sentencing consistent with this opinion.
VACATED AND REMANDED.
1
United States v. Martinez, 106 F.3d 620 (5th Cir. 1997).
2