United States v. Godbolt ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-41164
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RODAFA VANDUSS GODBOLT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
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(May 25, 1995)
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:
Contending that the district court failed to consider his
mitigating role in an underlying offense, Rodafa Godbolt appeals
the sentence imposed following his plea of guilty to misprision of
a felony. We AFFIRM.
I.
While traveling in an automobile on Interstate 10, Godbolt and
Cesar Brumfield were stopped by a deputy sheriff in Jefferson Davis
Parish, Louisiana. After the deputy obtained consent to search the
vehicle, a drug-sniffing dog alerted to the spare tire. The deputy
instructed Godbolt and Brumfield to follow him to a nearby service
station where the deputy intended to break down the spare tire for
inspection.
On the way to the service station, the two suspects eluded the
deputy by exiting the highway. Shortly thereafter, the deputy
found the vehicle; the spare tire was missing. Brumfield was
arrested the next day, and disclosed the location of the spare
tire; approximately 218.74 grams of crack cocaine were discovered
in it. Subsequently, Godbolt was arrested.
Godbolt was indicted on one count of conspiracy to possess
with intent to distribute, in violation of 18 U.S.C. § 2 and 21
U.S.C. § 846, and one count of possession with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A).
Pursuant to a plea agreement, he pled guilty on a bill of
information charging him with misprision of a felony, in violation
of 18 U.S.C. § 4.1 Under section 2X4.1 of the Sentencing
Guidelines, the district court determined Godbolt's offense level
to be 16 (19, less 3 levels for acceptance of responsibility), with
a criminal history category of I, resulting in an imprisonment
range of 21 to 27 months. The district court imposed a sentence
of, inter alia, 21 months imprisonment.
II.
1
18 U.S.C. § 4 provides criminal liability for "[w]hoever,
having knowledge of the actual commission of a felony cognizable by
a court of the United States, conceals and does not as soon as
possible make known the same to some judge or other person in civil
or military authority under the United States ...."
The bill of information did not charge Godbolt with the
underlying felony. Instead, it stated that Godbolt, having
knowledge of the actual commission of a felony, concealed it by
giving investigating authorities false and misleading information.
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Guidelines § 2X4.1(a) provides that for the offense of
misprision of a felony, the base offense level shall be "9 levels
lower than the offense level for the underlying offense, but in no
event less than 4, or more than 19." At issue is whether Godbolt
was entitled to an additional downward adjustment to his offense
level on the basis that he was a minimal participant in the
underlying felony. The district court concluded that Godbolt's
reduced culpability for the underlying felony had already been
taken into consideration in determining his base offense level;
additionally, any reduction for minimal participation should be
considered with respect to the misprision offense, not the
underlying offense.
We review the interpretation of the sentencing guidelines de
novo. E.g., United States v. White, 945 F.2d 100, 101 (5th Cir.
1991). Factual findings to which the guidelines are applied are
reviewed for clear error. E.g., United States v. Ruff, 984 F.2d
635, 640 (5th Cir.), cert. denied, 114 S. Ct. 108 (1993).
Here, the defendant charged with misprision was involved also
in the underlying felony. With respect to the sentencing
guidelines, we noted in United States v. Warters, 885 F.2d 1266
(5th Cir. 1989), that
[a] misprision defendant's personal guilt of the
underlying offense is ... a circumstance not taken
into account in formulating the misprision
guidelines under section 2X4.1. Misprision is
normally not committed by one of the perpetrators
of the underlying offense.... These circumstances
strongly suggest that section 2X4.1 assumes that
the misprision defendant is not guilty of the
underlying offense. Indeed, that is obviously why
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section 2X4.1 provides for a nine point reduction
from the underlying base offense level.
Id. at 1275 (emphasis in original).
Because § 2X4.1 presupposes a defendant's lack of involvement
in the underlying offense, any adjustment based on reduced
culpability (U.S.S.G. § 3B1.2) must be based on a mitigating role
in the misprision offense. See U.S.S.G. § 2X4.1, comment. (n.2)
("[t]he adjustment from §3B1.2 (Mitigating Role) normally would not
apply because an adjustment for reduced culpability is incorporated
in the base offense level"). Accordingly, the district court did
not err in refusing to consider any mitigating role that Godbolt
may have played in the underlying offense. But see Warters, 885
F.2d at 1275 (district court may depart upward from the misprision
guideline range upon making a specific finding that the defendant
was guilty of the underlying offense).
III.
For the foregoing reasons, the sentence imposed by the
district court is
AFFIRMED.
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