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 _______________________________________________

(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

(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,

(e) (1988 & Supp. V

1993); see also United States v. Lara-Velasquez,

(5th Cir. 1990), we resolve this question of first impression in

this Circuit and reject Dilworth's argument. In United States v.

Gonzalez,

(11th Cir. 1993), the defendant also was

convicted of harboring a fugitive who had failed to appear in court

on a drug offense.

. A warrant was issued for the

fugitive's failure to appear, and the fugitive was apprehended at

the defendant's home.

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

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.

-2- 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,

.

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