United States v. Olsen

FILED
United States Court of Appeals
Tenth Circuit

March 11, 2008
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 06-4307
v.

TIMMY BRENT OLSEN,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:06-CR-312-JTG)

Jeremy M. Delicino (Stephen R. McCaughey, with him on the briefs), Salt Lake
City, Utah, for the Defendant-Appellant.

Diana Hagen, Assistant United States Attorney (Brett L. Tolman, United States
Attorney, with her on the brief), Salt Lake City, Utah, for the Plaintiff-Appellee.

Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Timmy Brent Olsen appeals his conviction and sentence on fifteen counts

of perjury in violation of 18 U.S.C. § 1623(a). He contends that the district court
abused its discretion by declining to sever three of the perjury counts, and that it

violated his due process rights by finding a sentencing fact by only a

preponderance of the evidence. We disagree. We do not discern an abuse of

discretion in refusing to sever the counts, and any constitutional error is harmless

beyond a reasonable doubt. We therefore AFFIRM Olsen’s conviction and

sentence.

I

A

Olsen’s perjury conviction arises from a federal grand jury’s investigation

into the 1995 disappearance of Kiplyn Davis, a 15-year-old high school student

from Spanish Fork, Utah, last seen on May 2, 1995. After learning that Davis had

not attended her afternoon classes that day, her parents began a frantic search to

locate her. Despite the subsequent efforts of the local police and the FBI, Davis

has not yet been found. Statements by various witnesses and potential suspects,

however, suggest that Davis may have disappeared in the area near Spanish Fork

Canyon.

During the months following Davis’ disappearance, the FBI interviewed

Olsen on six different occasions. In these interviews, Olsen gave differing

statements regarding when he had last seen Davis—on the day of her

disappearance, or two months prior. Olsen also provided agents with two

inconsistent alibis, first claiming that he had spent May 2, 1995, installing

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sprinklers at a local reception center, but later stating that he had been shingling a

shed with a friend, Scott Brunson. Brunson later corroborated the second alibi,

and the police never charged Olsen with a crime during the initial investigation.

In the years following Davis’ disappearance, the investigation hit what her

father, Robert Davis, described as a “dead end.” In 2003, however, Robert Davis

learned that the government had convened a federal grand jury to investigate the

high-profile disappearance of another Utah teenager, Elizabeth Smart. After

Robert Davis wrote a letter to the United States Attorney for the District of Utah,

the government agreed to open a grand jury investigation into Davis’ case as well.

The grand jury ultimately heard testimony from a substantial number of

witnesses, including over twenty who would later testify at Olsen’s federal

perjury trial. Among the grand jury witnesses was Olsen himself, who was

questioned extensively about statements he had made to friends, acquaintances,

and law enforcement officials regarding Davis and the events of May 2, 1995.

Following his testimony before the grand jury, Olsen was indicted on

September 22, 2005, on sixteen counts of perjury in violation of 18 U.S.C.

§ 1623(a). Although the trial court later dismissed one count as duplicative, the

remaining fifteen counts alleged that Olsen had lied during his grand jury

testimony. We briefly summarize these counts and the testimony presented by the

government on each.

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 Counts One through Five charge Olsen with denying to the grand jury that

he had previously made various statements regarding Davis’ disappearance.

Count One arose from Olsen’s explanation to the grand jury of certain statements

he made to an FBI polygraph examiner during the initial investigation. In

October 1996, Olsen agreed to submit to a polygraph examination administered

by FBI Agent Ronald Homer. At trial, Homer testified that during a pretest

interview, 1 Olsen initially stated that he had no recollection of the events

occurring on the afternoon of May 2, 1995. After Homer encouraged Olsen to be

completely forthcoming, however, Olsen recounted that he had driven to Spanish

Fork Canyon that day, where he saw a Ford Ranger that belonged to “Rucker” and

then saw Rucker with Kiplyn Davis.

At Homer’s request, Olsen wrote down his recollection that

[o]n May 2nd, 1995 I (Tim Olsen) saw Kiplyn [Davis] and Rucker up
Spanish Fork Canyon in Rucker’s Ranger, and I know it was Rucker.
I followed Rucker out of the canyon and down Center Street. I
remember Rucker and Kiplyn talking because I was there.

Olsen told Homer that after he saw Rucker and Davis talking, both walked away

but only Rucker returned, at which point Rucker told Olsen not to worry about

where Davis went. Homer testified at trial that he did not tell Olsen what to

1
According to Homer, he conducted a pretest interview in order to answer
Olsen’s questions about the polygraph procedure and to elicit a consistent story,
which would increase the accuracy of the test. Although pretest interviews
normally last around 45 minutes, Olsen’s continued for roughly five hours.
Following the pretest interview, Olsen terminated the session with Homer and
declined to submit to the actual polygraph test.

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write, and lacked the familiarity with Spanish Fork evident in Olsen’s written

statement. By contrast, Olsen testified to the grand jury that Homer tried to “put

stuff in [his] head” and that Homer told him specifically what to write. Count

One charges that this statement was untrue.

Count Two also involved Olsen’s pretest account to Homer. Before the

grand jury, Olsen stated that he had never told the story he wrote down for Homer

to anyone other than law enforcement. At Olsen’s perjury trial, the government

presented three civilian witnesses, each of whom recalled Olsen telling them a

story similar to what Olsen later recounted to Homer.

Olsen’s sister, Corri Olsen Hanks, testified that Olsen spoke to her after the

interview with Homer. Olsen told Hanks that he had written down “exactly what

happened”: he saw Rucker and Davis at the canyon, and both walked over a hill

but only Rucker returned. Robert Gilner, who worked with Olsen in July 1995,

testified that Olsen told him and other coworkers that Rucker and Davis were

together in Spanish Fork Canyon on the day of Davis’ disappearance. According

to Gilner, Olsen also told him that “Rucker had pulled out a flashlight and beat

[Davis] over the head and buried her in a blanket.” Finally, Shauna Mansfield

testified that she confronted Olsen about Davis’ disappearance in mid-1996.

Olsen responded by telling Mansfield that he and Rucker took Davis to Spanish

Fork Canyon, and Rucker took her away while Olsen remained in the truck.

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Rucker then came back to the truck for a flashlight, disappeared again, and later

returned to tell Olsen, “I did her in. I hurt her.”

Count Three alleged that Olsen perjured himself when he denied vomiting

in Heath Robinson’s car at a party in 1998. It also contended that Olsen perjured

himself when he denied having told people at that same party that he saw a man

and a woman leave his campsite at Spanish Fork Canyon on the day Davis

disappeared, but only saw the man return. At trial, Robinson testified that Olsen

indeed vomited in his car. Another attendee, Kevin Johnson, testified that he

heard a “very emotional” Olsen say: “I didn’t get out. I stayed in the truck.

They was gone for a while. He came back, got in the truck and sped down the

canyon.”

In Count Four, the indictment charged that Olsen lied when he told the

grand jury that he last saw Davis two to three months before she disappeared.

Three witnesses testified at trial that Olsen told them he and Davis skipped school

together on the afternoon of her disappearance. Olsen further told one of these

witnesses that he had gone up to the mountains with Davis, engaged in an

argument with her, and then “took care of her.”

Count Five alleged that Olsen committed perjury before the grand jury

when he stated that he “absolutely” never asked Brunson to provide him with a

false alibi for the day of Davis’ disappearance. Brunson testified to the contrary

at trial, stating that Olsen “asked [him] for an alibi.” Although he initially

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refused Olsen’s request, Brunson eventually told FBI agents that he and Olsen

spent the day building a shed together on May 2, 1995. 2

Counts Six through Nine charged Olsen with repeatedly perjuring himself

when asked about his history of sexual violence. Count Six stated that Olsen

committed perjury when he told the grand jury that he had never committed rape

or forced a woman to have sex with him against her will. During Olsen’s trial,

the government presented testimony from two women, both of whom recounted

that Olsen had raped them. In addition, three other witnesses gave testimony

recalling, with varying degrees of specificity, that Olsen told them he had raped

Davis.

Count Seven alleged that Olsen lied before the grand jury when he denied

assaulting and raping Amber Payne, a former girlfriend, after she asked him about

his role in Davis’ disappearance. Payne also testified at Olsen’s trial. She told

the jury that after she asked Olsen about Davis, he hit her in the stomach, threw

her against a wall, and took her to Spanish Fork Canyon, where he raped her.

Count Eight charged Olsen with perjuring himself by telling the grand jury

that he never became sexually aggressive with a woman in Oak City Canyon and

never hit her over the head with a flashlight. Olsen told the grand jury that the

government’s question about this incident was “the most absurd thing [he’d] ever

2
Brunson later pleaded guilty to perjury and making false statements to an
FBI agent.

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heard in [his] entire life.” At trial, however, the government called a witness who

testified that Olsen had indeed tried to kiss her and that when she refused, he then

hit her over the head with a flashlight. The witness further stated that the hit

“was like a reflex [for Olsen]. It was just instantly.”

Count Nine alleged that Olsen committed perjury when he denied “get[ting]

violent” with his two ex-wives, specifically denying that he had pushed Brandi

Olsen (“Brandi”), one of his ex-wives, up against a wall. Brandi testified at trial

that approximately two weeks after she and Olsen married, he accused her of

cheating on him. He then threw her down to the ground, grabbed her wrists, and

pinned her there, making it difficult for her to breathe. Brandi also recounted a

subsequent incident where, after she told Olsen that she wanted a divorce, he

slammed her against a wall hard enough to knock down a picture which landed on

her head.

Counts Ten through Fourteen charged Olsen with perjury based on his

disavowals when asked in the grand jury proceeding whether he had made a series

of statements claiming that he killed Davis. Count Ten declared that Olsen lied to

the grand jury when he denied that, after playing football with some friends, he

said about Davis: “I know that fucking bitch, I killed her.” The government

called two witnesses, both present at a party following a football game in the

summer of 1999, to testify that Olsen had indeed made the statement. One

witness recounted Olsen’s statement as “I know where that fucking bitch is, I

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killed her,” and the other testified that Olsen said, “I know where she is at, I

killed her.”

In Count Eleven, the indictment stated that Olsen committed perjury when

he denied telling Shawn Pierce that he had killed Davis. At trial, Pierce testified

that during a party, Olsen told him that he “took [Davis], beat her, killed her and

disposed of her body.”

Count Twelve charged Olsen with perjury for telling the grand jury that he

never told Chris Butterfield, or anyone else, that the FBI was after him because he

had killed someone. Butterfield testified at trial, telling the jury that Olsen

indeed made such statements, including that “I did it, I did it, I killed her, I raped

her.” In addition, a number of other witnesses for the government testified to

hearing Olsen say that he had killed Davis.

Count Thirteen stated that Olsen lied when he denied to the grand jury that

he told a group of people that “we all know who did it” and “we all did it,” in

reference to Davis’ disappearance. At trial, a government witness testified that

Olsen said exactly that during a party in February 1999.

Count Fourteen charged perjury in relation to Olsen’s statement to the

grand jury that he never told anyone that he had buried Davis in the sand. During

Olsen’s trial, the government presented testimony from Don Meadows, who

employed Olsen during the early half of 2002. Meadows testified that one day

while he and Olsen were framing a house, he asked Olsen, “what did you do with

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her,” without specifically naming Davis. Olsen replied that he “wished he knew

so he could tell her parents what happened to her.” Meadows then asked the same

question again, and this time Olsen stated that “we buried her in the sand,” adding

that “bodies sink in the sand.”

Finally, Count Fifteen of the indictment alleged that Olsen lied when, in his

grand jury testimony, he denied telling anyone that he had “any information or

[was] in any way involved with Kiplyn Davis’s disappearance or death or burial.”

The government presented testimony from a number of witnesses, in addition to

those testifying in relation to other counts of the indictment, who remembered

Olsen telling various stories about his role either participating in, or witnessing,

Davis’ disappearance and death.

B

Prior to trial, Olsen moved to sever three counts of the indictment from the

remaining twelve counts. 3 He contended that these counts involved issues

unrelated to the Davis investigation and that including them would prejudice his

ability to receive a fair trial on any of the fifteen counts. After the court denied

Olsen’s motion, the case proceeded to trial, and the jury found Olsen guilty on all

fifteen counts.

Following his conviction, Olsen’s Presentence Report (“PSR”)

recommended applying a United States Sentencing Guideline (“Guideline”) cross

3
Olsen sought to sever Counts Six, Eight, and Nine.

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reference that would significantly increase Olsen’s advisory sentencing range.

Normally, the Guidelines dictate a base offense level of 14 for perjury. U.S.S.G.

§ 2J1.3(a). For an individual such as Olsen with a criminal history category of II,

this would result in an advisory Guidelines range of 18 to 24 months’

imprisonment. Id. Ch 5, Pt. A. When perjury occurs “in respect to a criminal

offense,” however, the offense level must be computed by reference to § 2X3.1

(“the cross reference”), the guideline for a conviction of being an “Accessory

After the Fact.” § 2J1.3(c)(1).

Under the cross reference, the offense level calculation is tied to the

offense level of the crime underlying the perjury. Once the district court

determines the nature of the underlying offense, § 2X3.1 sets the base offense

level for perjury at six levels below that of the underlying offense, but with a

maximum level of 30. § 2X3.1(a). Olsen’s PSR noted an underlying offense of

second-degree murder, which carries a base offense level of 38, see § 2A1.2, and

set Olsen’s total adjusted offense level at 30 in accordance with § 2X3.1(a)(3)(A).

Taking that offense level together with Olsen’s criminal history category of II, the

PSR recommended a Guidelines sentencing range of 108 to 135 months.

Olsen filed timely objections to the PSR, taking issue with the application

of the cross reference based on an underlying offense of second-degree murder.

He first argued that the government had not demonstrated by a preponderance of

the evidence that he “committed, or was a party to, a homicide.” He also

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contended that the preponderance of the evidence standard applicable to the

Guidelines calculation failed to afford him with adequate due process, and moved

for a heightened standard of proof. Finally, in a separate motion, he requested an

evidentiary hearing to determine whether the cross reference should apply.

The district court denied Olsen’s motions for an evidentiary hearing and for

application of a heightened evidentiary standard. On the motion for a heightened

standard of proof, the court concluded that the preponderance of the evidence

standard governs all matters involving Guidelines calculations. Observing “a

great abundance of evidence” on the issue of whether the cross reference applied,

it also denied Olsen’s motion for an evidentiary hearing, and found that the grand

jury’s investigation related to the kidnapping and murder of Kiplyn Davis. 4 It

thus concluded, by a preponderance of the evidence, that Olsen’s perjury was

committed in respect to the crime of second-degree murder and adopted the

findings within the PSR.

Finding that no other adjustments applied, the district court calculated an

advisory Guidelines range of 108 to 135 months. See U.S.S.G. Ch 5, Pt. A. It

ultimately varied upward, under the sentencing considerations set forth in 18

4
The court also denied the government’s requests for enhancements beyond
those recommended in the PSR, and rejected its request for a sentence of 405
months’ imprisonment.

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U.S.C. § 3553(a), to impose a total sentence of 150 months’ imprisonment. 5

Olsen now appeals his conviction and sentence, urging that the district court

abused its discretion in denying his motion to sever Counts Six, Eight, and Nine,

and that the court erred in applying a preponderance of the evidence standard to

the sentencing cross reference. We have jurisdiction pursuant to 28 U.S.C.

§ 1291.

II

We first address Olsen’s motion to sever. He contends that the trial court

should have severed: (1) Count Six, regarding his statement that he never forced

a woman to have sex with him; (2) Count Eight, relating to his statement that he

never hit a woman over the head with a flashlight; and (3) Count Nine, alleging

that he lied when he denied assaulting his ex-wives. We disagree.

Federal Rule of Criminal Procedure 8(a) allows offenses to be joined

together for a single trial when those offenses “are based on the same act or

transaction, or are connected with or constitute parts of a common scheme or

plan.” On appeal, Olsen does not contend that the counts were improperly joined

5
The court reached the 150 month sentence as follows: (1) 60 months on
Counts One through Five, to run concurrently to one another and consecutively to
the other counts; (2) 30 months on Counts Six through Nine, to run concurrently
to one another and consecutively to the other counts; and (3) 60 months on
Counts Ten through Fifteen, to run concurrently to one another and consecutively
to the other counts.

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under Rule 8, as all fifteen counts of perjury arose from a single transaction:

Olsen’s grand jury testimony on April 28, 2005.

Even if the requirements of Rule 8(a) are met, however, Federal Rule of

Criminal Procedure 14(a) permits a trial court to conduct separate trials if the

joinder of separate offenses “appears to prejudice a defendant or the government.”

We have long recognized that the decision “to grant severance under Rule 14 rests

within the discretion of the district court and the burden on [the] defendant to

show an abuse of discretion in this context is a difficult one.” United States v.

Johnson, 130 F.3d 1420, 1427 (10th Cir. 1997) (quotation omitted). To make this

showing of prejudice, the defendant must demonstrate that his “right to a fair trial

is threatened or actually deprived.” Id. at 1427; see also United States v.

Valentine, 706 F.2d 282, 290 (10th Cir. 1983).

On appeal, Olsen avers that he was prejudiced because, although the

government’s evidence on twelve of the counts was overwhelming, the

government only presented single witnesses to testify on each of Counts Six,

Eight, and Nine. As a result, he argues, the highly corroborated testimony on the

twelve other counts influenced the jury’s conclusions regarding these three

counts. Olsen contends that this spillover effect was substantial and prejudiced

his defense.

This argument is foreclosed by circuit precedent. We have repeatedly held

that simply because “the government’s evidence was stronger on some counts

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than on others does not mandate severance under Rule 14.” United States v.

Wiseman, 172 F.3d 1196, 1212 (10th Cir. 1999) (quoting United States v. Cox,

934 F.2d 1114, 1120 (10th Cir. 1991)); see also United States v. Furman, 31 F.3d

1034, 1037 (10th Cir. 1994). For each of the three counts on which Olsen moved

for severance, the government presented testimony that directly contradicted

Olsen’s grand jury statements and that adequately supported the jury’s guilty

verdict. Given this fact, we cannot agree that Olsen was unduly prejudiced

simply because the government may have proffered more evidence on some

counts of the indictment than others.

Olsen also claims that by denying the motion to sever the three counts, the

jury heard inflammatory evidence that would have been otherwise inadmissible in

a trial on the other twelve counts. We do not doubt that the evidence presented

on these counts, in which several women testified that Olsen raped or beat them,

would have left an impression on the jury. But we have been reluctant to find

prejudice where “the relationship of the charges [grows] out of the defendant’s

own conduct.” Valentine, 706 F.2d at 290; see also United States v. Jones, 213

F.3d 1253, 1260-61 (10th Cir. 2000). Moreover, the trial court issued a limiting

instruction, specifically admonishing the jury that it was to “consider [the]

evidence [of other acts] only as it is offered to show the truthfulness or falsity of

the defendant’s statements.” Our review of the record also reveals that the trial

court repeatedly reminded both counsel and the jury that Olsen’s trial was one for

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perjury and not assault, rape, or murder. See Valentine, 706 F.2d at 290 n.7

(recognizing the important role of limiting instructions in reducing the potential

prejudice suffered by a defendant whose motion for severance has been denied).

Finally, even if the trial court had granted severance, the jury in both trials would

have heard substantial evidence involving violence against women. 6

The district court had compelling reasons to deny severance, rooted in

judicial efficiency. Jury selection alone took two full days of the court’s time. In

addition, those witnesses who testified to background matters such as the nature

of the grand jury investigation and the materiality of the perjured statements

would have been required to testify in two different trials. See United States v.

Martin, 18 F.3d 1515, 1518 (10th Cir. 1994) (“In establishing real prejudice, the

defendant must demonstrate that the alleged prejudice he suffered outweighed the

expense and inconvenience of separate trials.” (quotation omitted)); United States

v. Janus Indus., 48 F.3d 1548, 1557-58 (10th Cir. 1995) (concluding that a district

court did not abuse its discretion in denying a motion to sever where the evidence

on the disputed counts would have been otherwise relevant and material to the

remaining counts). Considering that the government’s evidence on the three

counts was not aberrantly or unfairly prejudicial to Olsen, we hold that the district

6
For example, Amber Payne’s testimony that Olsen raped her would still
have been admissible to show perjury on Count Seven, a count which Olsen did
not move to have severed.

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court did not abuse its broad discretion in refusing to grant Olsen’s motion for

severance.

III

A

With respect to his sentence, Olsen contends that the district court violated

his due process rights by failing to apply a heightened evidentiary standard to its

finding that U.S.S.G. § 2X3.1, the cross reference, applied in this case.

According to Olsen, where the application of a particular guideline causes a large

impact on the resulting advisory sentencing range, as occurred in this case, due

process requires the application of a standard of proof greater than the

preponderance standard generally required for factual findings supporting a

sentence. He points out that his advisory range was more than six times what it

would have been absent application of the cross reference. Olsen also argues that

the preponderance of the evidence standard is inappropriate as applied to his case

because the cross reference transformed his perjury sentence into the “functional

equivalent of a murder sentence.”

With regard to the essential elements of a criminal conviction, it is well-

settled that the government must prove its case beyond a reasonable doubt. See,

e.g., In re Winship, 397 U.S. 358, 364 (1970). In the sentencing context, by

contrast, the Supreme Court has held that a preponderance of the evidence

standard is generally sufficient to satisfy due process concerns. See McMillan v.

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Pennsylvania, 477 U.S. 79, 91-92 (1986); see also United States v. Watts, 519

U.S. 148, 156 (1997). We have since hewn to this standard, especially in light of

United States v. Booker, 543 U.S. 220 (2005), which relegated the Guidelines to

an “effectively advisory” status. 7 Id. at 245. Because “[u]nder an advisory

Guidelines regime, a conviction, by itself, authorizes a sentence up to the

statutory maximum,” in ordinary cases, due process is not implicated by factual

findings that result in a sentence below that statutory maximum. 8 United States v.

Crockett, 435 F.3d 1305, 1319 (10th Cir. 2006).

As primary support for his due process argument, Olsen points us to several

cases from the Ninth Circuit, which hold that sentencing facts must be supported

by clear and convincing evidence if they have an “extremely disproportionate

effect on the sentence relative to the offense of conviction.” 9 United States v.

7
Olsen’s arguments, which invoke the Due Process Clause of the Fifth
Amendment, are conceptually distinct from, but not entirely unaffected by, the
Sixth Amendment holding of Booker. In Booker, the Court held that the then-
mandatory Sentencing Guidelines violated the Sixth Amendment’s guarantee of a
jury trial, and relegated the Guidelines to an advisory status. 543 U.S. at 244-45.
8
Title 18 U.S.C. § 1623(a), the statute of Olsen’s conviction, authorizes a
maximum sentence of 75 years’ imprisonment in this case, five years for each of
the fifteen separate counts of conviction.
9
The Ninth Circuit continues to apply this rule following Booker, and has
required a heightened standard of proof for enhancements of lesser magnitude
than that in Olsen’s case. See United States v. Staten, 466 F.3d 708, 717-20 (9th
Cir. 2006) (requiring findings by clear and convincing evidence when the
defendant’s sentence was increased by four offense levels, resulting in a doubling
of the guidelines range). We also note that the Third Circuit previously applied
(continued...)

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Peyton, 353 F.3d 1080, 1088 (9th Cir. 2005) (quotations omitted); see also Staten,

466 F.3d at 717-20. But our circuit has never adopted the clear and convincing

standard in so-called disproportionate impact cases. While recognizing “strong

arguments that relevant conduct causing a dramatic increase in sentence ought to

be subject to a higher standard of proof,” we have long held that sentencing facts

in the “ordinary case” need only be proven by a preponderance. United States v.

Washington, 11 F.3d 1510, 1516 (10th Cir. 1993); see also United States v.

Frederick, 897 F.2d 490, 492 (10th Cir. 1990); Crockett, 435 F.3d at 1318-19.

Nonetheless, we have reserved the question of whether, in some extraordinary or

dramatic case, due process might require a higher standard of proof. See United

States v. Espinoza, 67 Fed App’x 555, 561 (10th Cir. 2003) (unpublished)

(characterizing United States v. Mendez-Zamora, 296 F.3d 1013 (10th Cir. 2002),

as “apparently leaving open the possibility that a more dramatic increase in

sentence might warrant a heavier burden of proof”).

B

Olsen asks us to take the Ninth Circuit’s approach, characterizing this as an

“extraordinary case,” one in which he was convicted of perjury but sentenced for

9
(...continued)
an approach similar to the Ninth Circuit’s, see United States v. Kikumura, 918
F.2d 1084 (3rd Cir. 1990), but has discontinued the practice following Booker.
See United States v. Fisher, 502 F.3d 293, 305-08 (3d Cir. 2007) (overruling
reasoning in Kikumura following the Supreme Court’s remedial decision in
Booker).

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murder, and as to which a higher burden of proof should apply to the Guidelines

cross reference. We need not engage today in the debate surrounding the

appropriate standard of proof, however. As we will explain, the cross reference

only required the judge to find that the perjury interfered with a murder

investigation, not that Olsen committed a murder. Because the record would have

compelled the district court to make this finding under any conceivable standard

of proof, any due process error here in the standard of proof is harmless.

When perjury is committed “in respect to” another crime, the perjury

guideline requires sentencing under the Accessory After the Fact cross reference,

which generally leads to higher offense levels. § 2J1.3(c)(1). In interpreting the

phrase “in respect to,” we have always afforded the text its plain meaning. We

have adopted the view that the government neither must charge the defendant

with the underlying offense in order for the cross reference to apply, see United

States v. Renteria, 138 F.3d 1328, 1334-35 (10th Cir. 1998), nor must it

demonstrate that the defendant committed the underlying crime. It need only

show that the perjury was “related to the criminal offense in a ‘very entwined and

enmeshed way.’” Id. (quoting United States v. Martinez, 106 F.3d 620, 622 (5th

Cir. 1997)); accord United States v. Arias, 253 F.3d 453, 461 (9th Cir. 2001)

(“[W]e conclude that § 2J1.3(c)(1) requires cross referencing without regard to

whether the underlying offense whose prosecution was obstructed was or is

provable.”); United States v. Suleiman, 208 F.3d 32, 38 (2d Cir. 2000) (“The

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purpose of the ‘in respect to’ enhancement is to treat more severely perjuries that

risk an incomplete or an inaccurate investigation or trial of a criminal offense.”);

United States v. Dickerson, 114 F.3d 464, 468 (4th Cir. 1997) (“If the underlying

offense always constituted the offense of conviction, perjurers would be able to

benefit from perjury that successfully persuaded a grand jury not to indict . . . .”);

United States v. McQueen, 86 F.3d 180, 182-83 (11th Cir. 1996) (“The language

of the cross-referencing provision [applies] . . . without regard to whether

defendant or anybody else was convicted of the underlying offense, or whether an

offense could be shown to have been committed at all.”). In other words, the text

of the perjury guideline, combined with the cross reference, requires perjury

which obstructs an investigation into a criminal offense to be punished more

severely than other sorts of perjury; the more serious the subject matter of the

affected investigation, the greater the resulting sentence.

In light of the rationale supporting application of § 2X3.1 in perjury cases,

this is not a case, as Olsen suggests, in which the government obtained a murder

conviction by proving mere perjury. Rather, it is a serious case of perjury in its

own right, where, at sentencing, the district court made the unremarkable factual

finding that the perjury related to a grand jury investigation into the

disappearance and possible death of Kiplyn Davis. 10

10
Not only does the cross reference not require proof of guilt for murder,
but, as a practical matter, it does not sentence Olsen as if he had committed
(continued...)

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 Thus, even if our precedents do not fully foreclose the possibility that, in

the drastic case of a six-fold Guidelines range increase, something more than a

preponderance of the evidence is required, any constitutional error that occurred

here would be harmless beyond a reasonable doubt. See United States v. Pearson,

203 F.3d 1243, 1262-63 (10th Cir. 2000). A plain application of the cross

reference to the uncontroverted facts in the record compels the conclusion that

Olsen’s testimony before the grand jury related, beyond any reasonable doubt, to

an investigation into whether a murder had occurred. The grand jury was

convened after Davis had been missing for a decade. During his day of testimony

before the grand jury, Olsen was questioned extensively about prior statements he

had made indicating that Davis had been murdered. And during the government’s

lengthy presentation of evidence at trial, witness upon witness testified that Olsen

had spoken of Davis as if she were deceased as the result of foul play.

Under any standard of proof—whether it be a preponderance of the

evidence, clear and convincing evidence, or proof beyond a reasonable

doubt—the evidence showed that Olsen perjured himself before a grand jury that

was investigating Davis’ disappearance and attempting to determine whether that

10
(...continued)
murder. In fact, Olsen’s advisory sentencing range for perjury was less—by
half—than his advisory sentencing range for a hypothetical conviction of second-
degree murder in the federal system. See U.S.S.G. § 2A1.2 (specifying an offense
level of 38 for second-degree murder); id. Ch. 5, Pt. A (establishing an advisory
range of 262-327 months for an offense level of 38 and a criminal history
category of II).

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disappearance resulted from a murder. In other words, Olsen’s perjury related to

the crime of murder in a “very entwined and enmeshed way,” Renteria, 138 F.3d

at 1334 (quotation omitted), and the district court did not err in applying the cross

reference. In light of this conclusion, we have no occasion today to decide

whether any exceptions exist to the usual preponderance standard for the finding

of sentencing facts, and we hold that the district court did not err in applying the

challenged cross reference to Olsen’s sentence. 11

IV

For the reasons set forth above, we AFFIRM Olsen’s conviction and

sentence.

11
Considering the relatively large impact of the cross reference applied in
this case, we emphasize that the Guidelines are indeed advisory and constitute but
one of many sentencing considerations. See Gall v. United States, 128 S. Ct. 586,
596 (2007); Kimbrough v. United States, 128 S. Ct. 558, 570 (2007). Although
the district court here found Olsen’s perjury to be both severe and centrally
related to important aspects of the grand jury’s investigation, this may not be so
in every case. If application of the cross reference should significantly increase
the Guidelines range in a case where the perjury interfered only marginally with a
grand jury’s investigation, the district court has well-established discretion to
vary from the Guidelines range and fashion a reasonable sentence “sufficient, but
not greater than necessary, to comply” with the purposes of sentencing set forth in
§ 3553(a)(2). 18 U.S.C. § 3553(a).

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