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 t he district court failed to consider his

mitigating role in an underlying offense, R odafa 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.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 i nformation 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 - 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 ind icted 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

d istribute, 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.- 3 -

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 entit led 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 und erlying felony had already been

taken into consideration in determining his bas e offense level;

additionally, any red uction for minimal participation should be

considere d 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 er ror. E.g.

, U nited 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

n ormally not committed by one of the perpetrator s of the underlying offense.... These circumstances

strongly suggest that section 2X4.1 assumes that

the misp rision defendant is n ot guilty of the

underlying offense. Indeed, that is obviously why- 4 - se ction 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 redu ced

culpability (U.S.S.G. § 3B1.2) must be based on a mitigating role

in the misprision offense. S ee 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. B ut 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 reaso ns, the sentence imposed by the

district court is

AFFIRMED

.