United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 24, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20806
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATILDA BONILLA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-94-CR-162-1
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Matilda Bonilla appeals her sentence following her conviction
for failure to appear for trial to face a 1991 indictment charging
her with drug offenses. She argues that the district court erred
in upwardly departing pursuant to U.S.S.G. § 5K2.21 for conduct
allegedly already accounted for under U.S.S.G. § 2J1.6(b)(2)(A).
Bonilla did not object to the upward departure on the basis now
*
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that this opinion should not be published and is not precedent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.
No. 03-20806
-2-
argued on appeal; therefore, our review is for plain error only.
See United States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000).
Bonilla’s double-counting argument fails because the district
court based its upward departure on the conduct underlying the
dismissed charge, i.e., her drug activity and the fact that she
successfully evaded prosecution, factors that did not enter into
the determination of the applicable guideline range under § 2J1.6.
See U.S.S.G. § 2J1.6 (2002), comment. (backg’d); United States v.
Harper, 932 F.2d 1073, 1077 (5th Cir. 1991).
We also reject Bonilla’s alternative argument that the
evidence was insufficient to justify an upward departure.
First, Bonilla’s contention that her actions had no bearing on the
Government’s decision to dismiss the 1991 indictment is meritless
given that her status as a fugitive for nearly eleven years
directly caused the evidence against her to become stale. Second,
absent any rebuttal evidence from Bonilla at sentencing, the
district court was entitled to rely on the findings in the
presentence report concerning the charged drug offenses. See
United States v. Heurta, 182 F.3d 361, 364-65 (5th Cir. 1999).
AFFIRMED.