United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 95-3615

No. 95-3621

No. 95-3624

___________

United States of America, *

*

 Plaintiff-Appellee, *

*

v. * 

*

Giovanny Armando Guerrero *

-Cortez, a/k/a Gil, *

*

*

 Defendant-Appellant. *

*

*

United States of America, * Appeals from the United States

* District Court for the 

 Plaintiff-Appellee, * Western District of Missouri.

*

v. *

*

Roberto Soler, a/k/a Robert, *

a/k/a Bob, *

*

 Defendant-Appellant. *

*

*

United States of America, *

*

 Plaintiff-Appellee, *

*

*

v. *

*

William Gonzalez-Gonzalez, *

*

 Defendant-Appellant. *
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___________

 Submitted: September 12, 1996

 Filed: April 14, 1997

___________

Before LOKEN, HEANEY, and JOHN R. GIBSON, Circuit Judges.

___________

JOHN R. GIBSON, Circuit Judge.

A jury convicted Giovanny Armando Guerrero-Cortez, Roberto Soler, and

William Gonzalez-Gonzalez of conspiracy to possess with intent to

distribute cocaine, and also convicted Soler and Gonzalez-Gonzalez of two

counts of aiding and abetting the distribution of cocaine, all in violation

of 21 U.S.C. §§ 841(a)(1), 846 (1994). Guerrero-Cortez appeals arguing

that the district court erred in denying his motion for acquittal as to the

conspiracy count, and erred in admitting into evidence a letter he sent

from jail. Soler and Gonzalez-Gonzalez appeal arguing that the district

court erred in computing their sentences. We affirm all of the

convictions, and the sentences imposed on Guerrero-Cortez and GonzalezGonzalez, but reverse Soler's sentence and remand to the district court for

reconsideration of Soler's argument that he is entitled to a reduction for

acceptance of responsibility.

In late spring or early summer of 1994, Saul Acosta approached

Michael Hood in Miami, Florida and asked him if he knew of any out-of-state

individuals who desired to purchase cocaine. Acosta told Hood that Soler

and Guerrero-Cortez would probably supply the cocaine for the transactions.

Sometime thereafter, Acosta introduced Hood to Soler and Guerrero-Cortez.

Unknown to Acosta, Hood previously had served as an informant for the

Federal Bureau 
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of Investigation.

Hood told Special Agent Joseph Twardowski that he knew individuals

in Miami that desired to distribute cocaine in the Midwest. Based upon

this information, Special Agents Twardowski and Larry Tongate devised a

plan in which Hood would introduce Tongate, who would portray himself as

a midwestern cocaine distributor, to the Miami individuals in order to

purchase cocaine from them. 

Hood then informed Acosta that he had a cocaine buyer in Kansas City

named Larry. Larry was Special Agent Tongate. Because Hood had located

a buyer, Acosta asked Guerrero-Cortez to supply cocaine for the sale.

Guerrero-Cortez replied that he was waiting for a source to supply him with

cocaine, and that there was a strong possibility that he could supply the

necessary amounts of cocaine. Acosta contacted Hood and verified that he

had a supplier for the sale and that he and his associates wanted to

establish a long-term relationship with the Kansas City buyer that would

involve regular monthly sales of multi-kilogram amounts of cocaine. 

Hood and Acosta flew to Kansas City on September 8, 1994. Before

departing, Acosta spoke to Soler and Guerrero-Cortez to ensure they could

supply cocaine for the Kansas City buyer. They agreed to do so.

Discussions between Acosta, Hood, and Tongate in Kansas City resulted in

Tongate agreeing to purchase one kilogram of cocaine from Acosta for

$26,000. 

After this discussion, Acosta contacted his associates in Miami and

told them to send the cocaine, which soon arrived in Kansas City. After

receiving it, Tongate showed Acosta the $26,000 he owed for the cocaine.

Tongate next went to the post office where he feigned mailing the money to

Miami, after which Acosta 
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told Tongate that he, Soler, Gonzalez-Gonzalez, and Guerrero-Cortez could

continue their cocaine trafficking relationship, and agreed to send more

cocaine to Tongate. 

Acosta then returned to Miami. When the money did not arrive,

however, Acosta attempted to return to Kansas City. When he arrived at the

Miami airport to fly to Kansas City, Special Agents Tongate and Twardowski

confronted Acosta. Acosta then agreed to cooperate in the investigation

by arranging the delivery of a second kilogram of cocaine and by recording

conversations with Soler, Guerrero-Cortez, and Gonzalez-Gonzalez, the

others that were to be involved in the transaction. 

Acosta then contacted Soler to ask him to send another kilogram of

cocaine. Soler agreed to send the cocaine. Gonzalez-Gonzalez then mailed

one kilogram of cocaine to Kansas City. 

Acosta next met with Guerrero-Cortez at Acosta's home in Miami.

During the visit, Acosta recorded Guerrero-Cortez reciting cocaine prices

and making several statements concerning his involvement in cocaine

trafficking activities, including that he had attempted to locate supply

sources for more cocaine. 

Authorities charged Soler, Gonzalez-Gonzalez, and Guerrero-Cortez

with one count of conspiracy to possess with intent to distribute five or

more kilograms of cocaine, and two counts of aiding and abetting the

distribution of cocaine. Acosta originally was charged as a co-defendant,

but he plead guilty to the conspiracy count. At trial, the jury convicted

Soler and Gonzalez-Gonzalez on all three counts. The district court

entered a judgment of acquittal as to the distribution charges against

Guerrero-Cortez, but the jury found him guilty on the conspiracy count.
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I.

A.

Guerrero-Cortez argues that the district court erred in denying his

motion for a judgment of acquittal on the conspiracy charge. He argues

that the evidence based on the testimony of cooperating witnesses was not

sufficient to prove beyond a reasonable doubt that he entered into an

agreement to possess cocaine with the intent to distribute. The government

asserts that the testimony of Acosta, the corroborating testimony of Hood,

and the incriminating statements of Guerrero-Cortez recorded by Acosta

provide more than enough evidence to support the conviction. 

In reviewing the sufficiency of the evidence to support a guilty

verdict, we view the evidence in the light most favorable to the verdict

and accept as established all reasonable inferences supporting the verdict.

We then uphold the conviction only if it is supported by substantial

evidence. See United States v. Black Cloud, 101 F.3d 1258, 1263 (8th Cir.

1996); see also Glasser v. United States, 315 U.S. 60, 80 (1942). 

To prove that a conspiracy exists "the government must show an

agreement between at least two people and that the agreement's objective

was a violation of the law." United States v. Jenkins, 78 F.3d 1283, 1287

(8th Cir. 1996)(quotation omitted). The government can use direct or

circumstantial evidence to prove the existence of an agreement. See id.

Further, once the government proves that a drug conspiracy exists, "only

slight evidence linking the defendant to the conspiracy is required to

prove the defendant's involvement and support the conviction." Id. 
-6-

There is enough evidence to support the jury's conclusion that an

agreement existed between Guerrero-Cortez, Soler, Gonzalez-Gonzalez, and

Acosta to supply cocaine to Tongate. Acosta, who was heavily involved in

the drug trafficking and served as a link between Soler, Gonzalez-Gonzalez,

Guerrero-Cortez, and Tongate, described the roles of each conspirator,

including Guerrero-Cortez, in the trafficking scheme. Acosta also

testified that Guerrero-Cortez agreed to supply him with cocaine for

Tongate. It is not our duty to judge the credibility of a witness, this

task instead rightfully belongs to the jury. See United States v. Jackson,

959 F.2d 81, 82 (8th Cir.), cert. denied, 506 U.S. 852 (1992). "A

conviction resting on the testimony of a co-conspirator will not be

reversed unless no reasonable juror could believe the incriminating

testimony." Id. Because a reasonable juror could believe the testimony of

Acosta, sufficient evidence exists to uphold the conviction. In addition,

Hood's testimony generally corroborated Acosta's testimony. Finally,

Guerrero-Cortez himself made several statements during a recorded

conversation with Acosta concerning his involvement in cocaine trafficking

activities. 

A reasonable juror could believe that an agreement existed between

Guerrero-Cortez and at least one of the other drug conspirators. We affirm

the district court's denial of Guerrero-Cortez's motion for acquittal on

the conspiracy count. 

B.

Guerrero-Cortez next contends that the district court erred in

admitting a letter he sent to a friend, Maria Navarro, while he was

imprisoned. The letter requested that Navarro inform Acosta's employer,

Pattatuchi, that Acosta was an FBI informant. Guerrero-Cortez argues that

the letter was not relevant and inadmissible 
-7-

because Acosta's employer had no real connection to the drug conspiracy.

In addition, Guerrero-Cortez argues that even if the letter was relevant,

the admission of the letter was unfairly prejudicial in violation of

Federal Rule of Evidence 403. 

We review evidentiary rulings for an abuse of discretion. See United

States v. Hamell, 931 F.2d 466, 469 (8th Cir.), cert. denied, 502 U.S. 928

(1991). We will not reverse a conviction on the basis of an erroneous

evidentiary ruling where the error is harmless. See United States v.

Byler, 98 F.3d 391, 394 (8th Cir. 1996); United States v. Carper, 942 F.2d

1298, 1301-02 (8th Cir.), cert. denied, 502 U.S. 993 (1991). 

In this case the government argued that the letter was admissible

because it was a threat that showed consciousness of guilt. Courts may

consider evidence of threats or intimidation to government witnesses. See

United States v. Maddox, 944 F.2d 1223, 1230 (6th Cir.), cert. denied, 502

U.S. 992 (1991); United States v. Gatto, 995 F.2d 449, 454-55 (3d.Cir.),

cert. denied, 510 U.S. 948 (1993); United States v. Gonzalez, 703 F.2d

1222, 1223 (11th Cir. 1983)(per curiam); United States v. Mickens, 926 F.2d

1323, 1328-29 (2d Cir. 1991), cert. denied, 502 U.S. 1060 (1992). An

effort to intimidate a witness tends to show consciousness of guilt. See

Maddox, 944 F.2d at 1230; Gatto, 995 F.2d at 454-55; Mickens, 926 F.2d at

1328-29. 

Guerrero-Cortez argues that the letter is not relevant both because

Pattatuchi had no connection to the drug conspiracy, and because no

evidence was presented that showed Pattatuchi was criminally prone to carry

out threats or violence against Acosta. The threshold of relevance,

however, is quite minimal. Relevant evidence is defined as evidence

"having any tendency to make the existence of any fact that is of

consequence to the determination 
-8-

of the action more probable or less probable than it would be without the

evidence." Fed. R. Evid. 401. We cannot say that the district court

abused its discretion in admitting the letter into evidence because the

trial court could have viewed the letter as evidence of Guerrero-Cortez's

guilt, and thus relevant to making his involvement in the conspiracy more

probable.

Guerrero-Cortez further argues that the evidence, even if relevant,

was inadmissible because it was unfairly prejudicial under Rule 403 of the

Federal Rules of Evidence. Rule 403 allows the district court to exclude

relevant evidence if its probative value is substantially outweighed by the

danger of unfair prejudice. See United States v. Rabins, 63 F.3d 721, 726

(8th Cir. 1995), cert. denied, 116 S. Ct. 1031 (1996). We give deference

to a district court's decision under the Rule 403 balancing test and

reverse only for a clear abuse of discretion. See id. (citing United

States v. Mitchell, 31 F.3d 628, 631 (8th Cir. 1994)). Unfair prejudice

"speaks to the capacity of some concededly relevant evidence to lure the

factfinder into declaring guilt on a ground different from proof specific

to the offense charged." Old Chief v. United States, 117 S. Ct. 644, 650

(1997). Unfair prejudice, however, does not include damage that occurs to

a defendant's case because of the "legitimate probative force of the

evidence; rather it refers to evidence which tends to suggest decision on

an improper basis." United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th

Cir. 1986) (citing Wade v. Haynes, 663 F.2d 778, 783 (8th Cir. 1981), aff'd

461 U.S. 30 (1983)), cert. denied, 480 U.S. 922 (1987); accord Old Chief,

117 S. Ct. at 650. 

We find no abuse of discretion. Evidence introduced in a trial,

insofar as it has probative force, may be prejudicial to at least one

party. The critical issue, however, is the degree of unfairness of the

prejudicial evidence and whether it tends to 
-9-

support a decision on an improper basis. We do not view the prejudice here

as unfair. The letter was simply read to the jury. It was not excessively

inflammatory or likely to provoke an emotional jury reaction because the

letter does not encourage Pattatuchi to take action at all, instead it

serves only to inform Pattatuchi of Acosta's involvement with the FBI. See

Mendez-Ortiz, 810 F.2d at 79. We cannot say the district court abused its

discretion in admitting the letter.

II. 

Gonzalez-Gonzalez asserts that the district court erred by denying

him a reduction for both his acceptance of responsibility and for being a

minor or minimal participant in the conspiracy, and thus violated Rule

32(c)(1) of the Rules of Criminal Procedure. The government responds that

the statutory mandatory minimum sentence moots the issue because even if

the district court had granted both reductions to which Gonzalez-Gonzalez

claims he is entitled, it would have had no affect on the length of

Gonzalez-Gonzalez's sentence. Gonzalez-Gonzalez urges that we nonetheless

must review the erroneous sentencing computation because of the importance

of the district court's findings related to the information in the

Presentence Investigation Report to the Bureau of Prisons. 

We hold that we do not have the authority to review the district

court's denial of either reduction. Rule 32(c)(1) requires that at the

sentencing hearing the court must allow the defendant and the government

to comment on the probation officer's determinations and 

must rule on any unresolved objections to the presentence

report. . . . For each matter controverted, the court 
-10-

must make either a finding on the allegation or a determination

that no finding is necessary because the controverted matter

will not be taken into account in, or will not affect,

sentencing. A written record of these findings and

determinations must be appended to any copy of the presentence

report made available to the Bureau of Prisons. 

Fed. R. Crim. P. 32(c)(1).

Here, the district court complied with Rule 32. During the

sentencing hearing, the district court first considered the presentence

report and asked counsel for both parties to present their objections to

the report. After hearing the opposing arguments on the issue of whether

Gonzalez-Gonzalez should get a reduction for acceptance of responsibility

and for being a minor or minimal participant, the court summarily denied

both requests. The court then ruled that a statutory minimum punishment

of ten years applied and overrode the punishment of seventy-eight to

ninety-eight months as computed under the Sentencing Guidelines. Thus the

allegedly erroneous sentencing computation under the guidelines would have

no affect on Gonzalez-Gonzalez's sentence. In this circuit we require only

that district courts comply with Rule 32. See Bayless v. United States,

14 F.3d 410, 412 (8th Cir. 1994)(applying Rule 32(c)(3)(D), which is

identical to Rule 32(c)(1), except for the fact that Rule 32(c)(3)(D)

applies to crimes committed before November 1, 1987, whereas Rule 32(c)(1)

applies to crimes committed on or after November 1, 1987). Here, the

district court heard objections to the presentence report and made a

finding on all controverted matters, thus satisfying Rule 32. There is no

need to address an allegedly erroneous computation where a correction will

not affect a defendant's sentence. See United States v. Sepulveda, 15 F.3d

1161, 1199-1200 (1st Cir. 1993), cert. denied, 512 U.S. 1223 (1994); United

States v. 
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Saccoccia, 58 F.3d 754, 790-91 (1st. Cir. 1995), cert. denied, 116 S. Ct.

1322 (1996) (no need to address allegedly erroneous sentencing computation

if correcting it will neither change the defendant's sentence nor relieve

him from some unfair collateral consequence). 

III. 

Roberto Soler argues that the district court erred in denying his

request for a sentencing-level reduction for acceptance of responsibility.

We reverse a sentencing court's factual finding with respect to a denial

of a motion for acceptance of responsibility only for clear error. See

United States v. Skorniak, 59 F.3d 750, 757 (8th Cir.), cert. denied, 116

S. Ct. 487 (1995).

The federal sentencing guidelines allow for a two-level reduction for

acceptance of responsibility when a defendant "clearly demonstrates

acceptance of responsibility for his offense." U.S.S.G. § 3E1.1(a) (1994).

Where the offense level is greater than sixteen, a defendant can earn an

additional one-level reduction if the defendant has provided timely

information to the government concerning his or her own involvement in the

offense or by timely informing the government of an intent to plead guilty

to allow the government to avoid preparing for trial. See U.S.S.G.

§ 3E1.1(b). 

Soler argues he is entitled to a three-level reduction for acceptance

of responsibility because his uncontradicted testimony indicates that

shortly after indictment he twice attempted to plead guilty for his

involvement with two kilograms of cocaine. The government refused to

accept the plea offer, however, because Soler 
-12-

would not accept responsibility for a conspiracy with intent to distribute

five or more kilograms of cocaine. 

After the failed attempt to enter a plea bargain, a jury found Soler

guilty on all counts. Before the court instructed the jury, Soler's

attorney requested that the court instruct the jury to make a factual

finding on the amount of cocaine with which the conspiracy was involved,

in the event the jury found that a cocaine conspiracy existed. The court,

however, denied this request, and instead instructed the jury only to find

that a conspiracy existed. As a result, the jury returned a general

verdict of guilty, but was not required to make a specific finding on the

amount of cocaine with which Soler was involved.

During the sentencing hearing Soler's counsel argued that since the

court had refused to instruct the jury to make this finding, the court must

now make this finding, and that the six-kilogram amount mentioned in the

presentence investigation report was based on nothing more than an

allegation based on Soler's indictment. In making the finding on the

amount of cocaine, the court found that Gonzalez-Gonzalez was the most

culpable of all of the defendants. Observing that the government had

conceded that Gonzalez-Gonzalez was only involved with two kilograms, the

court made a factual finding that Soler's involvement was limited to two

kilograms of cocaine as well, not the five or more kilograms in that the

government alleged Soler was involved. The district court then considered

Soler's motion for a reduction based on acceptance of responsibility, and

denied it because the timing of the acceptance was at the time of

sentencing and not at the time of trial. 

The district court, however, erred in ignoring evidence that Soler

attempted to plead guilty before trial. Soler's 
-13-

uncontradicted testimony shows that almost immediately after indictment he

twice attempted to enter into a plea agreement. Soler's counsel

consistently argued that this was a two-kilogram case, and that his client

had tried to plead guilty to two kilograms from the beginning of the case.

Finally, during sentencing Soler admitted that he had been involved with

two kilograms of cocaine and that he was very sorry for his acts. 

Further, the presentence investigation report quoted Soler as stating

that shortly after indictment he twice attempted to plead guilty to counts

II and III, both of which involved aiding and abetting in the distribution

of one kilogram of cocaine. The report then described details of the two

one-kilogram transactions which Soler himself provided. The report

concluded that "[Soler] has demonstrated an acceptance of responsibility

for his involvement in Counts 2 and 3, however, [Soler] has not

demonstrated an acceptance of responsibility for Count 1 involving 5

kilograms or more of cocaine. Therefore, a downward adjustment for

acceptance of responsibility is not applicable."

Soler's counsel prepared written objections to the presentence

investigation report and the government prepared responses, both of which

were made a part of the report. Soler objected that "taking the evidence

in a light most favorable to the defendant would support that the defendant

is accountable for only 2 kilograms of cocaine in this conspiracy." The

probation officer responded that the quantity of cocaine for which the

defendant was accountable was a determination to be made by the court. 

Finally, Soler objected to the probation officer's conclusion that

a reduction for acceptance of responsibility was not applicable because

Soler had offered to plead guilty to two kilograms of cocaine, and had

candidly discussed his role in the 
-14-

offense with the probation office. The probation officer responded that

the probation office understood that Soler had accepted responsibility for

his behavior involving two kilograms of cocaine. The officer stated,

however, that because Soler was convicted of a conspiracy to possess with

intent to distribute five kilograms or more and had not accepted

responsibility for that conduct, no reduction for acceptance of

responsibility applied. The response concluded that a reduction for

acceptance of responsibility was not warranted but stated that this was an

issue to be decided by the court. 

Based on this record, including not only the statements of Soler and

his attorney at sentencing, but also the contents of the presentence

investigation report, and the objections and responses made to it, two

facts spring out. The first is that Soler consistently and repeatedly

admitted that he was involved with two kilograms of cocaine. Soler's

counsel consistently pointed out that Soler had offered to plead guilty to

the two one-kilogram offenses following indictment. The government refused

to accept Soler's guilty plea, however, because he would not plead guilty

for involvement with five of more kilograms of cocaine. The second fact

is that the probation office acknowledged that Soler had accepted

responsibility for his involvement with two kilograms of cocaine, but

objected to the reduction only because Soler had failed to accept

responsibility for five kilograms.

Nothing in the record contradicts that Soler offered to plead guilty

to two kilograms of cocaine. Indeed, the record only supports it. In

light of this record, we can only conclude that the district court clearly

erred when it denied a reduction for acceptance of responsibility because

Soler's acceptance "is now coming at the time of the sentencing, not at the

time of trial." At the October 2, 1995 sentencing hearing the district

court had 
-15-

before it the following facts from the presentence investigation report,

which was prepared on June 9, 1995, and revised and finalized on July 6,

1995: (1) Soler's statement that he had attempted to plead guilty on two

occasions shortly following indictment, a plea that the government refused

to accept because Soler would not plead guilty to being involved with a

greater amount of cocaine; and (2) Soler's acknowledgment and description

of his involvement with two one-kilogram cocaine transactions. Further,

the district court had before it the objections, dated July 6, 1995, to

the presentence investigation report that provided a clear statement that

the probation office understood that Soler had accepted responsibility for

his involvement with two kilograms of cocaine, but recommended against the

reduction only because of the five-kilogram issue, which it left for the

court to decide. Thus, when the district court sentenced Soler on October

2, 1995, the information as to Soler's position on the two kilograms was

in the record some four months, or at the very least nearly three months.

 

After the district court made a finding that Soler was only involved

with two kilograms of cocaine, the court had squarely before it the issue

of Soler's acceptance of responsibility. The district court, however,

failed to fully consider the issue, but instead summarily denied the

reduction because Soler's acceptance came at the time of sentencing, not

at the time of trial. 

The commentary to section 3E1.1 on acceptance of responsibility,

further clarifies our analysis. Application note 1(a) lists examples of

appropriate considerations in determining whether a defendant qualifies for

a reduction for acceptance of responsibility. One consideration is

truthfully admitting the conduct comprising the conviction, and truthfully

admitting or not falsely denying any additional relevant conduct for which

the 
-16-

defendant is accountable. The commentary continues: "[A] defendant is not

required to volunteer, or affirmatively admit, relevant conduct beyond the

offense of conviction in order to obtain a reduction under subsection (a)."

U.S.S.G. § 3E1.1 comment. (n.1(a)). In our case, Soler admitted he was

involved with two kilograms, but denied involvement with a five-kilogram

quantity. The district judge, moreover, found Soler only responsible for

two kilograms. 

 

Application note 2 states that the adjustment does not apply to a

defendant who puts the government to its burden of proof by denying the

essential factual elements, and only then admits guilt and expresses

remorse. We emphasize, however, that conviction by trial does not

automatically prevent a defendant from receiving a reduction for acceptance

of responsibility. See, e.g. United States v. McKinney, 15 F.3d 849, 851-

54 (9th Cir. 1994), cert. denied, 116 S. Ct. 162 (1995) (defendant granted

a reduction for acceptance of responsibility even though he had already

been convicted at trial where district court thwarted defendant's attempts

to plead guilty). A defendant may demonstrate acceptance of

responsibility even though he goes to trial and is convicted, which may

occur when he asserts and preserves issues that did not relate to factual

guilt. See U.S.S.G. § 3E1.1, comment. (n.2). In such a situation a

determination that a defendant has accepted responsibility will be based

primarily on pre-trial statements and conduct. See id. 

We conclude that this case fits within this commentary and case law.

Soler was at all times ready to plead guilty to two kilograms. The

government, however, refused to accept his plea unless he would admit to

his involvement with five kilograms. By refusing to accept Soler's guilty

plea, the government gave Soler 
-17-

no choice but to go to trial. Ultimately, however, the district court

found Soler responsible for only two kilograms, the amount for which Soler

was at all times willing to plead guilty. Given these facts, it was

clearly erroneous for the district court to conclude that Soler's

acceptance of responsibility came at sentencing, and not at the time of

trial. 

Accordingly, because we conclude that the district court clearly

erred and that therefore Soler's sentence was the result of an incorrect

application of the sentencing guidelines, we vacate his sentence and remand

the case to the district court for further proceedings. On remand the

district court should reconsider a reduction for acceptance of

responsibility based on Soler's willingness to enter a guilty plea for his

involvement with two kilograms of cocaine before trial and during the

preliminary proceedings to sentencing. See 18 U.S.C. § 3742 (f)(1) (1994).

Finally, we instruct the district court to correct the base offense

level given to Soler. During the sentencing hearing the probation officer

incorrectly stated that the base offense for distributing two kilograms of

cocaine was 26. The correct level, however, is 28. See U.S.S.G.

§ 2D1.1(c). 

We thus affirm all of the convictions, and the sentences imposed on

Guerrero-Cortez and Gonzalez-Gonzalez, but reverse Soler's sentence and

remand to the district court for reconsideration of a reduction for Soler's

acceptance of responsibility and to correct the base level offense given

to Soler. 
-18-

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.