UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 94-50278
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YVONNE DILWORTH,
Defendant-Appellant.
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Appeal from the United States District Court
For the Western District of Texas
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(April 10, 1995)
Before REAVLEY and EMILIO M. GARZA, Circuit Judges, and PRADO,*
District Judge.
PER CURIAM:
Yvonne Dilworth asks us to decide that the "underlying
offense" upon which she was sentenced for harboring her fugitive
son should have been his failure to appear for judicial proceedings
and not his initial drug offense. Dilworth's son, Frederick
Nickles, had pled guilty to distributing crack cocaine within 1,000
feet of an elementary school, and Nickles failed to appear for
subsequent court proceedings. After officers found Nickles in
hiding at Dilworth's home, she was convicted of harboring a
*
District Judge of the Western District of Texas, sitting by
designation.
fugitive, see 18 U.S.C. § 1071 (Supp. V 1993). The district court
applied § 2X3.1 of the Sentencing Guidelines1 and, using Nickles'
drug conviction as the underlying offense,2 sentenced Dilworth to
twenty-seven months in prison and three years of supervised
release.3 Dilworth argues that the district court should have used
her son's failure-to-appear offense as the underlying offense for
purposes of sentencing.
Reviewing the district court's interpretation of the
Sentencing Guidelines de novo, 18 U.S.C. § 3742(e) (1988 & Supp. V
1993); see also United States v. Lara-Velasquez, 919 F.2d 946, 953
(5th Cir. 1990), we resolve this question of first impression in
this Circuit and reject Dilworth's argument. In United States v.
Gonzalez, 2 F.3d 369 (11th Cir. 1993), the defendant also was
convicted of harboring a fugitive who had failed to appear in court
on a drug offense. Id. at 370. A warrant was issued for the
fugitive's failure to appear, and the fugitive was apprehended at
the defendant's home. Id. When the district court used the
fugitive's failure-to-appear charge as the underlying offense in
sentencing under U.S.S.G. § 2X3.1, the government argued that the
defendant primarily was an accessory to the drug offense and thus
should have been sentenced on that basis. Id. at 371. The
1
§ 2X3.1 provides that the base offense level for a conviction under
18 U.S.C. § 1071 is "6 levels lower than the offense level for the underlying
offense . . . ." United States Sentencing Commission, Guidelines Manual § 2X3.1
(Nov. 1993).
2
Under § 2X3.1, the "underlying offense" is "the offense as to which
the defendant is convicted of being an accessory." U.S.S.G. § 2X3.1, comment.
(n.1).
3
Under § 2X3.1, Dilworth's base offense level was limited to 20.
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Eleventh Circuit agreed with the government's contention, holding
that the fugitive's "primary goal" had been fleeing punishment for
the drug offense, not the failure-to-appear offense. Id. at 373.
The bond jumper commits a second offense when he fails to
appear for judicial proceedings and it [would be] odd,
indeed, to impose what is in this and will be in most
cases a significantly lighter penalty on one who harbors
the dual offender than on one who hides a suspect from
initial arrest.
Id. at 372.4 We agree with the Eleventh Circuit's analysis of this
issue. The district court used Nickles' drug offense correctly as
the underlying offense in determining Dilworth's base offense level
under U.S.S.G. § 2X3.1. Accordingly, we AFFIRM Dilworth's
sentence.
4
Moreover, the guidelines instruct generally that, "where two or more
guideline provisions appear equally applicable, but the guidelines authorize the
application of only one such provision, use the provision that results in the
greater offense level." U.S.S.G. § 1B1.1, comment. (n.5); see also Gonzalez, 2
F.3d at 371-2.
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