                          PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 00-4253
GARY DUANE GODWIN,
            Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
               Frank W. Bullock Jr., District Judge.
                            (CR-99-253)

                      Argued: April 3, 2001

                      Decided: June 14, 2001

     Before TRAXLER and GREGORY, Circuit Judges, and
   Lacy H. THORNBURG, United States District Judge for the
    Western District of North Carolina, sitting by designation.



Vacated and remanded by published opinion. Judge Traxler wrote the
opinion, in which Judge Gregory and Judge Thornburg joined.


                            COUNSEL

ARGUED: David Bernard Smith, Greensboro, North Carolina, for
Appellant. Michael Francis Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee. ON BRIEF: Walter C.
Holton, Jr., United States Attorney, Greensboro, North Carolina, for
Appellee.
2                      UNITED STATES v. GODWIN
                              OPINION

TRAXLER, Circuit Judge:

   Gary Duane Godwin appeals the sentence imposed after he pleaded
guilty to a charge of harboring a fugitive. See 18 U.S.C.A. § 1071
(West 2000). We vacate Godwin’s sentence and remand for resen-
tencing.

                                   I.

   In February 1999, Durham police officers and federal agents vis-
ited Godwin’s house in search of Harry Arliss Jordan, a fugitive with
an outstanding arrest warrant for unlawful possession of a firearm.
See 18 U.S.C.A. § 922(g)(1) (West 2000). They informed Godwin
about the outstanding arrest warrant and told Godwin that he should
contact them if he saw Jordan. A few weeks later the officers and
agents returned to Godwin’s house. Although Godwin denied that Jor-
dan was present, he consented to a search of the house, and Jordan
was discovered in a bedroom.

   Godwin pleaded guilty, and his sentencing proceeding took place
after Jordan was sentenced on his felon-in-possession charge. Pursu-
ant to section 2X3.1(a) of the United States Sentencing Guidelines
Manual, the district court determined that Godwin’s base offense
level was eighteen, reduced the offense level by three levels to reflect
Godwin’s acceptance of responsibility, and sentenced Godwin to
eighteen months imprisonment, followed by three years of supervised
release.

                                  II.

  The version of the Sentencing Guidelines in effect at the time of
Godwin’s sentencing directs sentencing courts to use the guideline
"most applicable to the offense of conviction," U.S.S.G. § 1B1.2 com-
ment. (n.1) (1998), and provides a statutory index of crimes and appli-
cable guidelines to assist in that determination, see id.; U.S.S.G. App.
A. For cases involving the harboring of a fugitive, the index refers the
sentencing court to U.S.S.G. § 2X3.1, the accessory-after-the-fact
guideline.
                      UNITED STATES v. GODWIN                        3
   Section 2X3.1 states that the base offense level is "6 levels lower
than the offense level for the underlying offense, but in no event less
than 4, or more than 30. Provided, that where the conduct is limited
to harboring a fugitive, the offense level shall not be more than level
20." U.S.S.G. § 2X3.1(a). The application notes define "underlying
offense" as "the offense as to which the defendant is convicted of
being an accessory" and explain that the court should apply "the base
offense level plus any applicable specific offense characteristics that
were known, or reasonably should have been known, by the defen-
dant." U.S.S.G. § 2X3.1, comment. (n.1).

   The "underlying offense" in this case is the unlawful possession of
a weapon by Jordan, the fugitive whom Godwin harbored. The Sen-
tencing Guidelines establish a base offense level of fourteen for a
basic charge of possession of a firearm by a prohibited person. See
U.S.S.G. § 2K2.1(a)(6). However, the offense level increases if the
firearm involved is of a specified type or if the defendant has prior
felony convictions for crimes of violence or controlled substance
offenses. See U.S.S.G. §§ 2K2.1(a)(1) - (5). Jordan had multiple prior
felony convictions for crimes of violence and controlled substance
offenses. Because of these prior convictions, Jordan was assigned a
base offense level of twenty-four on his felon-in-possession charge.
See U.S.S.G. § 2K2.1(a)(2) (providing for a base offense level of
twenty-four "if the defendant had at least two prior felony convictions
of either a crime of violence or a controlled substance offense").
When Godwin was sentenced on the harboring charge, the district
court took Jordan’s base offense level of twenty-four and reduced it
by six levels, yielding a base offense level of eighteen for Godwin.

   On appeal, Godwin argues that section 2X3.1 requires the use of
the general base offense level for the offense for which Jordan was
convicted, and not the offense level actually assigned to Jordan,
which in this case reflected Jordan’s criminal history. Godwin con-
tends that the offense for which Jordan was convicted was a straight-
forward possession-by-a-prohibited-person charge under 18 U.S.C.A.
§ 922(g). Thus, Godwin argues that the starting point for his base
offense level calculation should have been fourteen, not twenty-four.
"Because resolution of this issue turns primarily upon the legal inter-
pretation of the Sentencing Guidelines, our standard of review is de
4                       UNITED STATES v. GODWIN
novo." United States v. Kinter, 235 F.3d 192, 195 (4th Cir. 2000),
cert. denied, 121 S. Ct. 1393 (2001).

                                   III.

   Section 2X3.1 of the guidelines hinges the punishment for those
who harbor fugitives on the severity of the offense committed by the
criminal whom they harbored by using the base offense level for the
fugitive’s offense as the starting point for calculating the harborer’s
offense level. Using the base offense level for the fugitive’s crime as
the starting point reflects a rational determination that the harboring
of a murderer, for example, presents a greater danger to society than
does the harboring of a tax evader and should be punished more
severely. And while harboring a fugitive with an extensive criminal
record might also present a greater danger than harboring a fugitive
with no criminal record, the language of section 2X3.1 does not take
into account the criminal record of the fugitive. Section 2X3.1 simply
sets the harboring base offense level six levels lower than "the offense
level for the underlying offense"; it makes no mention of the offense
level that in fact was or would be assigned to the fugitive.

   In most cases, the offense level for the underlying crime will be the
same as the offense level actually assigned to the fugitive. That is
because the majority of the offense guidelines set a base offense level
that in no way takes into account the defendant’s criminal record.1 As
noted above, however, section 2K2.1 establishes a range of base
offense levels, many of which are dependent on the criminal record
of the firearm possessor. If the base offense level actually assigned to
the fugitive under section 2K2.1 is used as the starting point when
determining the harborer’s base offense level, as was done in this
case, then the harborer’s punishment is effectively enhanced by virtue
of the fugitive’s criminal history. In our view, such a result is incon-
sistent with the plain language of section 2X3.1, which requires that
    1
   Besides section 2K2.1, it appears that the only other guideline that
increases the base offense level by virtue of the defendant’s criminal his-
tory is section 2K1.3, which applies to crimes involving the receipt, pos-
session, or transportation of explosive materials. See U.S.S.G.
§ 2K1.3(a).
                       UNITED STATES v. GODWIN                         5
the district court start with the base offense level for the underlying
offense, not the base offense level ultimately assigned to the fugitive.2

   In reaching this conclusion, we are persuaded by the Sixth Circuit’s
analysis in United States v. Hendrick, 177 F.3d 547 (6th Cir. 1999).
At issue in Hendrick was the application of U.S.S.G. § 2X2.1, the
guideline for aiding and abetting. The aiding-and-abetting guideline
provides that the base offense level for the aider-and-abettor is the
"same level as that for the underlying offense," U.S.S.G. § 2X2.1, and
defines "underlying offense" as "the offense the defendant is con-
victed of aiding or abetting," id. comment. (n.1). The crime that the
Hendrick defendant aided and abetted was a violation of 18 U.S.C.A.
§ 922(g). And as in this case, the principal offender in Hendrick had
prior qualifying felony convictions, which, pursuant to U.S.S.G.
§ 2K2.1(a)(2), resulted in a base offense level of twenty-four for the
principal offender. See Hendrick, 177 F.3d at 549. The district court
interpreted the guidelines as requiring that the aider-and-abettor
receive the same offense level as the principal offender and therefore
assigned a base offense level of twenty-four to the defendant. The
Sixth Circuit reversed.

  The court explained that the underlying offense that the defendant

      aided and abetted was the violation of 18 U.S.C.A. § 922(g)
      —illegal possession of a firearm by a convicted felon. That
      statute applies to any person "who has been convicted in any
      court of a crime punishable by imprisonment of a term
      exceeding one year." The statute itself makes no distinction
      between a defendant with numerous felony convictions and
      a defendant with only a single felony conviction. Rather, a
      defendant’s record becomes relevant only at the sentencing
      phase. . . .
  2
   Because we agree with Godwin that the district court improperly
applied the Sentencing Guidelines, we do not consider Godwin’s primary
argument that sentencing one defendant based on the criminal history of
another amounts to an equal protection violation. See, e.g., Gulf Oil Co.
v. Bernard, 452 U.S. 89, 99 (1981) ("[P]rior to reaching any constitu-
tional questions, federal courts must consider nonconstitutional grounds
for decision.").
6                      UNITED STATES v. GODWIN
       . . . Nothing in either U.S.S.G. § 2X2.1 or its commentary
    suggests that the defendant’s base offense level must be the
    same as the principal’s base offense level. In fact, the sen-
    tencing guideline makes no reference to the principal
    offender at all—only to the underlying offense. This Court
    sees a clear distinction between basing an individual’s
    offense level on the underlying offense and basing it on the
    offense level applied to the principal offender.

                                  ...

       The sentencing guideline for aiding and abetting states
    that the defendant’s offense level "is the same level as that
    for the underlying offense." The guideline does not say that
    the defendant’s offense level is the same level as that for the
    principal offender.

Id. at 550-51 (citations omitted).

   While Hendrick involved application of the aider-and-abettor
guideline, we believe its analysis is equally applicable to the
accessory-after-the-fact guideline, given that sentencing under both
guidelines is dependent on the base offense level for the "underlying
offense," which is defined similarly in both guidelines. Like the
guideline at issue in Hendrick, section 2X3.1 speaks in generic terms
of the underlying offense. If the Sentencing Commission intended that
the base offense level assigned to the fugitive should be used as the
starting point when determining the harborer’s offense level, that
would have been an easy enough task to accomplish by simply refer-
ring to the offense level of the fugitive rather than the offense level
of the underlying offense. But because section 2X3.1 refers only to
the base offense level for the underlying offense, we do not believe
it is proper to use the base offense level assigned to the fugitive by
virtue of the fugitive’s criminal history when determining the base
offense level for the defendant who harbors the fugitive.

   The underlying offense here is a violation of 18 U.S.C.A. § 922(g),
which proscribes the possession of a firearm by a prohibited person.
The section 922(g) offense takes into consideration the criminal his-
tory of the offender only to the extent that the criminal history renders
                       UNITED STATES v. GODWIN                          7
the offender a prohibited person; the statute is otherwise unconcerned
with the criminal history of the offender. Whether the section 922(g)
violator has one prior felony conviction or ten, the crime he commits
is the same: possession of a firearm by a prohibited person, an offense
for which the guidelines establish a base offense level of fourteen. See
U.S.S.G. § 2K2.1(a)(6). It is only when the section 922(g) violator is
sentenced that the rest of his history becomes relevant and potentially
exposes him to a higher base offense level under the guidelines or a
mandatory minimum sentence under 18 U.S.C.A. § 924(e) (West
2000). But the fact that some section 922(g) violators may receive
higher base offense levels by virtue of their criminal records under the
guidelines does not change the conclusion that, for purposes of apply-
ing the accessory-after-the-fact guideline, the base offense level for a
violation of section 922(g) ordinarily is fourteen.

   This is not to say, however, that the base offense level will always
be fourteen when a section 922(g) violation is the "underlying
offense." Section 2K2.1 of the guidelines provides for enhanced
offense levels if the firearm involved was one of the more dangerous
weapons described in 26 U.S.C.A. § 5845(a) or 18 U.S.C.A.
§ 921(a)(30). See U.S.S.G. §§ 2K2.1(a)(4)(B) & (a)(5).3 In addition,
the commentary to section 2X3.1 specifically provides that the base
offense level for an accessory-after-the-fact should reflect "any appli-
cable specific offense characteristics [of the underlying offense] that
were known, or reasonably should have been known, by the defen-
dant." U.S.S.G. § 2X3.1 comment. (n.1).

   Unlike the enhancements based on the criminal history of the sec-
tion 922(g) violator, however, these offense level enhancements
involve the actual conduct of the offender in the context of the
charged offense, which is used throughout the Sentencing Guidelines
to determine the offense level. See, e.g., United States v. Petty, 132
  3
   While subsections 2K2.1(a)(1) and (a)(3) likewise establish enhanced
offense levels based on the type of weapon involved, enhancement under
these subsections is also dependent on the defendant’s criminal history
beyond his status as a prohibited person. For the reasons discussed
above, these enhancements would not be applicable when determining
the base offense level of one treated as an accessory-after-the-fact under
section 2X3.1.
8                      UNITED STATES v. GODWIN
F.3d 373, 381 (7th Cir. 1997) ("The Sentencing Commission decided
in the formative stages of the Guidelines to design a system that does
contain a significant number of real offense elements, meaning that
the sentencing court examines the entirety of events surrounding the
offense and not merely the facts alleged and proved at trial." (citation
and internal quotation marks omitted)); United States v. Samuels, 970
F.2d 1312, 1314 (4th Cir. 1992) ("Ordinarily the Guidelines permit a
district court to look to the actual conduct underlying a conviction.").
Using these enhancements to determine the base offense level for the
underlying offense is perfectly consistent with the language of guide-
line 2X3.1 and is likewise consistent with the policy underlying that
guideline: to punish more severely those who act as accessories-after-
the-fact to more serious crimes. Thus, if a defendant harbors a section
922(g) fugitive who would be subject to an offense level enhancement
because of the type of weapon involved, then the harborer’s offense
level would likewise reflect the enhancement for the more dangerous
weapon, whether or not the harborer knew the nature of the weapon
involved in the section 922(g) violation. Cf. United States v. Girardi,
62 F.3d 943, 945-46 (7th Cir. 1995) (explaining that because the
quantity of drugs is relevant to the determination of the initial base
offense level for drug-related offenses under U.S.S.G. § 2D1(a)(3),
the quantity-derived base offense level is the starting point under
U.S.S.G. § 2X3.1 when calculating the offense level for a defendant
convicted as an accessory-after-the-fact to the drug offense, even if
the defendant did not know the quantity of drugs involved); see also
United States v. Glover, 52 F.3d 283, 286-87 (10th Cir. 1995); United
States v. Stephens, 906 F.2d 251, 253-54 (6th Cir. 1990). And the har-
borer’s base offense level would also be increased to reflect any spe-
cific offense characteristics of the underlying offense of which the
harborer knew or reasonably should have known.

   Thus, if any of the base offense level enhancements that reflect the
actual conduct surrounding the underlying offense are applicable,
then the greatest of those offense levels should be used as the base
offense level for the underlying offense when applying section 2X3.1
of the guidelines. Nothing in the record, however, demonstrates that
any of the these enhancements are appropriate in this case, and we are
                        UNITED STATES v. GODWIN                          9
therefore left with a base offense level of fourteen for the underlying
18 U.S.C.A. § 922(g) violation. See U.S.S.G. § 2K2.1(a)(6).4

                                   IV.

   To summarize, we conclude that if the underlying offense for pur-
poses of applying the accessory-after-the-fact guideline is a violation
of 18 U.S.C.A. § 922(g), the base offense level for the underlying
offense should not be enhanced based on the criminal record of the
922(g) offender. Accordingly, the base offense level for an underlying
section 922(g) violation will be fourteen, unless an offense level
enhancement under U.S.S.G. §§ 2K2.1(a)(4)(B) or 2K2.1(a)(5) is
warranted.

   In this case, the district court erred by using a base level of twenty-
four for the underlying offense. Using fourteen as the base offense
level for Jordan’s underlying section 922(g) violation and reducing
that by six levels, as required by U.S.S.G. § 2X3.1, yields a base
offense level of eight. With the three-level acceptance-of-
responsibility adjustment and considering Godwin’s category I crimi-
nal history, the guidelines establish that the appropriate sentencing
range for Godwin is zero to six months, instead of the eighteen-to-
twenty-four-month range used by the district court. We therefore
vacate Godwin’s sentence and remand for resentencing in accordance
with this opinion.

                                         VACATED AND REMANDED

  4
   The government suggested at oral argument that this interpretation
will eviscerate section 2K2.1 of the guidelines by eliminating from con-
sideration half of the base offense levels established by that section. Our
opinion, however, is hardly so far-reaching, given that it quite obviously
has no effect on the application of section 2K2.1 to those convicted of
violating 18 U.S.C.A. § 922 or other relevant statutes. All of the many
base offense levels established by the guideline remain viable when sen-
tencing the firearm offender.
