United States v. Godbolt

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 26, 1995
• Docket: 94-41164
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 94-41164 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RODAFA VANDUSS GODBOLT,

Defendant-Appellant.

____________________________________________________

Appeal from the United States District Court for the Western District of Louisiana _____________________________________________________

(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.

- 2 - 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

- 3 - 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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