                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           May 24, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                             No. 03-20806
                           Summary Calendar



                     UNITED STATES OF AMERICA,

                          Plaintiff-Appellee,

                                versus

                           MATILDA BONILLA,

                       Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-94-CR-162-1
                      --------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Matilda Bonilla appeals her sentence following her conviction

for failure to appear for trial to face a 1991 indictment charging

her with drug offenses.    She argues that the district court erred

in upwardly departing pursuant to U.S.S.G.      § 5K2.21 for conduct

allegedly already accounted for under U.S.S.G. § 2J1.6(b)(2)(A).

Bonilla did not object to the upward departure on the basis now




     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                No. 03-20806
                                     -2-

argued on appeal; therefore, our review is for plain error only.

See United States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000).

     Bonilla’s double-counting argument fails because the district

court based its upward departure on the conduct underlying the

dismissed charge, i.e., her drug activity and the fact that she

successfully evaded prosecution, factors that did not enter into

the determination of the applicable guideline range under § 2J1.6.

See U.S.S.G. § 2J1.6 (2002), comment. (backg’d); United States v.

Harper, 932 F.2d 1073, 1077 (5th Cir. 1991).

     We    also   reject    Bonilla’s       alternative       argument    that   the

evidence    was    insufficient       to    justify      an   upward     departure.

First, Bonilla’s contention that her actions had no bearing on the

Government’s decision to dismiss the 1991 indictment is meritless

given that her status as a fugitive for nearly eleven years

directly caused the evidence against her to become stale.                   Second,

absent any rebuttal evidence from Bonilla at sentencing, the

district   court    was    entitled    to    rely   on    the   findings    in   the

presentence report concerning the charged drug offenses.                         See

United States v. Heurta, 182 F.3d 361, 364-65 (5th Cir. 1999).

     AFFIRMED.
