# 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. *

### -2- ___________ 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 Sole r, and Wil liamGonzalez-Gonzalez of conspiracy to possess with intent t o distribute cocaine, a nd also convicted Soler and Gonzalez-Gonzalez of two counts of aiding and abetting the distribution of cocaine, all in violatio n 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 th e conspiracycount, and erred in admitting into evidence a letter he sen t fromjail. Soler and Gonzalez-Gonzalez appeal arguing that the district court e rred in computing their sentences. We affirm all of th e convictions, and the sentences imposed on Guerrero-Cortez and Gonzalez

Gonzalez, but reverse Soler's sentence and remand to the district court fo r reconsideration of Soler's argument that he is e ntitled to a reduction for acceptance of responsibility.

In lat e spring or early summer of 1994, Saul Acosta approache d Michael Hood in Miami, Florida and asked him if he knew of any out-of-stat e individuals who desir ed 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 th e Federal Bureau

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of Investigation.

Hood told Special Agent Joseph Twardowski that he knew individual s in Miami that desired to distribute cocaine in the Midwest. Based upo n this i nformation, 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 t o purchase cocaine from them.

Hood then informed Acosta that he ha d 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 wit h cocaine, and that the re was a strong possibility that he could supply the necessary amounts of cocaine. Acosta contacted Hood and verified that he had a supp lier for the sale and that he and his associates wanted t o 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. Befor e departing, Acosta spo ke 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 Tong ate agreeing to purchase one kilogram of cocaine from Acosta fo r $26,000. After thi s 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 fe igned 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.

Acost a then returned to Miami. When the money did not arrive , however, Acosta attempted to return to Kansas City. When he arrived at th e Miami airport to fly to Kansas City, Special Age nts Tongate and Twardowski confronted Acosta. Acosta then agreed to cooperate in the investigation by arranging the delivery of a second kilogram o f cocaine and by recording
con versations with Soler, Guerrero-Cortez, and Gonzalez-Gonzalez, th e others that were to be involved in the transaction.

Acosta then contacted Soler to ask him to send another kilogram o f cocaine. Soler agreed to send the cocaine. Gon zalez-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, Aco sta recorded Guerrero-Cortez reciting cocaine prices and m aking several statements concerning his involvement in cocain e trafficking activities, including that he had attempted to locate supply sources for more cocaine. Authorities charged Soler, Gonzalez-Gonzalez, and Guerrero-Corte z with one count of con spiracy to possess with intent to distribute five or
more kilograms of cocaine, and two counts of aiding and abetting th e distribution of cocaine. Acosta originally was charged as a co-defendant, but he plead guilty to the conspiracy count. At trial, the jury convicted Sole r and Gonzalez-Gonzalez on all three counts. The district cour t entered a judgment of acquittal as to the distribution charges agains t Guerrero-Cortez, but the jury found him guilty on the conspiracy count.

### -5- I.

A.

Guerrero- Cortez argues that the district court erred in denying his motion fo r a judgment of acquittal on the conspiracy charge. He argue s that the evidence bas ed on the testimony of cooperating witnesses was not sufficient to prove beyond a reasonable doubt that he entered into a n agreement to possess cocaine with the intent to distribute. The governmen t asserts that the testimony of Acosta, the corrob orating testimony of Hood, and the incriminating statements of Guerrero-Cortez recorded by Acost a provide more than enough evidence to support the conviction.

In reviewing the sufficiency of the evidence to support a guilt y verdict, we view the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict

. We t hen uphold the conviction only if it is supported by substantia l 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 pro ve that a conspiracy exists "the government must show a n agreement between at least two people and that the agreement's objective was a violation of the law." United States v. J enkins , 78 F.3d 1283, 1287 (8th C ir. 1996)(quotation omitted). The government can use direct o r 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 t o prove the defendant's involvement and support the conviction." Id.

### -6- There is enough evidence to support the jury's conclusion that a n agreement existed between Guerrero-Cortez, Soler, Gonzalez-Gonzalez, an d Acosta to supply coca ine to Tongate. Acosta, who was heavily involved in the drug trafficking and served as a link between Soler, Gonzalez-Gonzalez , Guer rero-Cortez, and Tongate, described the roles of each conspirator , including Guerrero-Cortez, in the trafficking scheme. Acosta als o testif ied that Guerrero-Cortez agreed to supply him with cocaine fo r Tongate
. It is not our duty to judge the credibility of a witness, thi s 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 b e
rever sed unless no reasonable juror could believe the incriminatin g testimony." Id. Because a reasonable juror coul d believe the testimony of Acosta, sufficient evidence exists to uphold the conviction. In addition, Hoo d's testimony generally corroborated Acosta's testimony. Finally , Guerre ro-Cortez himself made several statements during a recorde d conversation with Acosta concerning his involvem ent in cocaine trafficking activities.

Areasonable juror could believe that an agreement existed betwee n Guerrero-Cortez and at least one of the other drug conspirators. We affir m the district court's denial of Guerrero-Cortez's motion for acquittal on the conspiracy count.

B.

Guerre ro-Cortez next contends that the district court erred i n admitting a letter he sent to a friend, Maria Navarro, while he wa s imprisoned. The letter requested that Navarro inform Acosta's employer, Pattatuchi, that Acosta was an FBI informant. G uerrero-Cortez argues that the letter was not relevant and inadmissible

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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 o f 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 erroneou s evidentiar yruling 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 th is case the government argued that the letter was admissibl e because i t was a threat that showed consciousness of guilt. Courts ma y consider evidence of threats or intimidation to government witnesses. See United States v. Maddox , 944 F.2d 1223, 1230 (6t h 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.2 d 1222, 1223 (11th Cir. 1983)(per curiam); United States v. Mickens , 926 F.2 d 132 3, 1328-29 (2d Cir. 1991), cert. denied , 502 U.S. 1060 (1992). A n effort to intimidate a witness tends to show consciousness of guilt. See Maddox , 944 F.2d at 1 230; 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 n o evidence was presented that showed Pattatuchi was criminally prone to carr y out threats or violence against Acosta. The threshold of relevance , howe ver, is quite minimal. Relevant evidence is defined as evidenc e "ha ving any tendency to make the existence of any fact that is o f consequence to the determination

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of the action more pr obable or less probable than it would be without the evidence. " Fed. R. Evid. 401. We cannot say that the district cour t abu sed its discretion in admitting the letter into evidence because th e trial court could hav e viewed the letter as evidence of Guerrero-Cortez's guilt, and thus relev ant 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 prejudi cial under Rule 403 of the Federal Rules of Evid ence. Rule 403 allows the district court to exclude relevant evidence if its probative value is substantially outweighed by th e 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 an d
rev erse only for a clear abuse of discretion. See id. (citing Unite d 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 decla ring guilt on a ground different from proof specific to the offense charge d." Old Chief v. United States , 117 S. Ct. 644, 650 (1997). Unfair prejudice, however, does not inc lude damage that occurs to
a de fendant's case because of the "legitimate probative force of th e evidence; rather it r efers 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 fin d no abuse of discretion. Evidence introduced in a trial , ins ofar as it has probative force, may be prejudicial to at least on e party. T he critical issue, however, is the degree of unfairness of th e prejudicial evidence and whether it tends to

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support a decision on an improper basis. We do not view the prejudice her e
as unfair. The letter was simply read to the jury. It was not excessivel y inflammatoryor likely to provoke an emotional jury reaction because the lette r does not encourage Pattatuchi to take action at all, instead i t
serves only to inform Pattatuchi of Acosta's involvement with the FBI. Se e Mendez-Ortiz , 810 F.2d at 79. We cannot say the district court abused its discretion in admitting the letter.

II.

Go nzalez-Gonzalez asserts that the district court erred by denyin g him a reduction for b oth his acceptance of responsibility and for being a minor or minimal participant in the conspiracy, and thus violated Rul e 32(c)(1) of the Rules of Criminal Procedure. Th e government responds that the statutory mandatory minimum sentence moots the issue because even if the district court ha d granted both reductions to which Gonzalez-Gonzalez claims he i s entitled, it would have had no affect on the length o f Gonzalez-Gonzalez's sentence. Gonzalez-Gonzalez urges that we nonetheless must review the erroneous sentencing computationbecause of the importance of the d istrict court's findings related to the information in th e Presentence Investigation Report to the Bureau of Prisons.

We hold that we do not have the authority to review the distric t court's denial of either reduction. Rule 32(c)(1) requires that at th e sentencing hearing the court must allow the defendant and the government to comment on the probation officer's determinations and must ru le on any unresolved objections to the presentenc e report. . . . For each matter controverted, the court

### -10- must make either a finding on the allegation or a d etermination that n o finding is necessary because the controverted matte r wi ll not be taken into account in, or will not affect , sentencing. A written record of these findings an d determinations must be a ppended to any copy of the presentence report made available to the Bureau of Prisons.

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

Here, t he district court complied with Rule 32. During th e sentencing hearing, the district court first considered the presentenc e report and asked counsel for both parties to present their objections to the report. After he aring the opposing arguments on the issue of whether Gonzalez-Gonzalez sho uld get a reduction for acceptance of responsibility and for being a minor or minimal participant, the court summarily denied bothrequests. The court then ruled that a statutory minimum punishment of t en years applied and overrode the punishment of seventy-eight t o ninety-eight months as computed under the Senten cing Guidelines. Thus the allegedly erroneous sentencing computation under the guidelines would have
no affect on Gonzalez-Gonzalez's sentence. In this circuit we require onl y 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 i s identic al to Rule 32(c)(1), except for the fact that Rule 32(c)(3)(D ) applies to crimes committed before November 1, 1 987, whereas Rule 32(c)(1) app lies to crimes committed on or after November 1, 1987). Here, th e dist rict court heard objections to the presentence report and made a finding on all controverted matters, thus satisf ying Rule 32. There is no need to address an allegedly erroneous computati on where a correction will not affect a defendant's sentence. See United States v. Sepulveda , 15 F.3 d 1161, 1199-1200 (1st Cir. 1993), cert. denied , 512 U.S. 1223 (1994); Unite d States v.

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Saccoccia , 58 F.3d 75 4, 790-91 (1st. Cir. 1995), cert. denied , 116 S. Ct. 1322 (1996) (no need to address allegedly errone ous sentencing computation if correcting it will neither change the defendant's sentence nor relieve him from some unfair collateral consequence).

III.

Rober to Soler argues that the district court erred in denying hi s request for a sentencing-level reduction for acc eptance of responsibility. We reverse a sentencing court's factual finding with respect to a denial of a moti on for acceptance of responsibility only for clear error. Se e United States v. Skor niak , 59 F.3d 750, 757 (8th Cir.), cert. denied , 116 S. Ct. 487 (1995).
The federal sentencing guidelines allow for a two-level reducti on for acceptance of responsibility when a defendant "clearly demonstrate s 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 addit ional one-level reduction if the defendant has provided timel y 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 acce ptance of responsibility because his uncontradicted testimony indicates tha t shortly after indictment he twice attempted to plead guilty for hi s involve ment with two kilograms of cocaine. The government refused t o accept the plea offer, however, because Soler

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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 guil tyon all counts. Before the court instructed the jury, Soler' s attorney r equested that the court instruct the jury to make a factua l finding on the amount of cocaine with which the conspiracy was involved, in the event the jury found that a cocaine consp iracy existed. The court, however, denied this request, and instead instru cted the jury only to find that a conspiracy existed. As a result, the jury returned a genera l verdict of guilty, bu t was not required to make a specific finding on the amount of cocaine with which Soler was involved.
During th e sentencing hearing Soler's counsel argued that since the court had refused to instruct the jury to make this finding, the court mus t
nowmake this finding, and that the six-kilogram amount mentioned in the presen tence investigation report was based on nothing more than a n allegation based on Soler's indictment. In making the finding on th e amount of cocaine, the court found that Gonzalez-Gonzalez was the mos t culpable o f all of the defendants. Observing that the government ha d conceded that Gonzale z-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 dist rict court then considered Soler's motion for a reduction based on acceptance of responsibility, and den ied it because the timing of the acceptance was at the time o f sentencing and not at the time of trial. The district court, however, erred in ignoring evidence that Sole r attempted to plead guilty before trial. Soler's

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uncontradicted testimony shows that almost immed iately after indictment he tw ice attempted to enter into a plea agreement. Soler's counse l 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 s tating that shortly after indictment he twice attemptedto plead guilty to counts II and III, both of which involved aiding and ab etting in the distribution of one kilogram of co caine. The report then described details of the two one-k ilogramtransactions which Soler himself provided. The repor t concluded that "[Soler] has demonstrated an acceptance of responsibility for his involvement in Counts 2 and 3, however, [Soler] has no t demons trated an acceptance of responsibility for Count 1 involving 5 kilograms or more of cocaine. Therefore, a downward adjustment fo r acceptance of responsibility is not applicable."

Soler's counsel prepared written objections to the presentenc e investigation report and the government prepared responses, both of which were made a part of t he report. Soler objected that "taking the evidence in a light most favorable to the defendant would support that the defendan t is accountable for only 2 kilograms of cocaine in this conspiracy." The probation officer responded that the quantity of cocaine for which th e defendant was accountable was a determination to be made by the court. Fi nally, Soler objected to the probation officer's conclusion tha t
a redu ction for acceptance of responsibility was not applicable becaus e Soler had offered to plead guilty to two kilograms of cocaine, and ha d candidly discussed his role in the

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offense with the probation office. The probation officer responded that the probation office understood that Soler had a ccepted responsibility for his beh avior involving two kilograms of cocaine. The officer stated , however, that because Soler was convicted of a conspiracy to possess with in tent to distribute five kilograms or more and had not accepte d responsibility for that conduct, no reduction for acceptance o f respon sibilityapplied. The response concluded that a reduction fo r acceptance of responsibility was not warranted b ut 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 presentenc e investigation report, and the objections and responses made to it, tw o facts spring out. The first is that Soler consistently and repeatedl y admitted t hat 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 refuse d to accept Soler's gui lty plea, however, because he would not plead guilty for involvement with five of more kilograms of cocaine. The second fact is tha t the probation office acknowledged that Soler had accepte d respon sibilityfor his involvement with two kilograms of cocaine, bu t objec ted to the reduction only because Soler had failed to accep t responsibility for five kilograms. Nothing in the record contradicts th at Soler offered to plead guilty to two k ilograms of cocaine. Indeed, the record only supports it. I n 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 th e time of t rial." At the October 2, 1995 sentencing hearing the distric t court had

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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 t hat the government refused to accept because Soler would not plead guilty to being involved with a greater amount of coc aine; 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 inves tigation report that provided a clear statement that the probation office understood that Soler had a ccepted responsibility for his involvement with two kilograms of cocaine, b ut 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 fo ur months, or at the very least nearly three months.

After the district court made a find ing that Soler was only involved with two kilograms of cocaine, the court had squarely before it the issue of Sol er's acceptance of responsibility. The district court, however , fail ed to fully consider the issue, but instead summarily denied th e 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 fo r
a redu ction for acceptance of responsibility. One consideration i s truthfully admitting the conduct comprising the conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the

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defendant is accountable. The commentary continues: "[A] defendant is no t required to volunteer, or affirmatively admit, r elevant 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 wa s involved with two kilograms, but denied involvement with a five-kilogram quantity. The distri ct 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 th e essent ial factual elements, and only then admits guilt and expresse s
remorse. We emphasize, however, that conviction by trial does no t automatically prevent a defendant from receiving a reduction for acceptanc e of responsibility. See , e.g. United States v. M cKinney , 15 F.3d 849, 851- 54 (9th Cir. 1994), cert. denied , 116 S. Ct. 162 (1995) (defendant granted
a r eduction for acceptance of responsibility even though he had alread y been convicted at trial where district court thw arted defendant's attempts to plead guilty). A defendant may demonstrate acceptance o f responsibilityeven though he goes to trial and is convicted, which ma y occur when he asserts and preserves issues that did not relate to factual guilt. Se e 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 with in this commentary and case law. Soler was a t all times ready to plead guilty to two kilograms. Th e government, however, refused to accept his plea unless he would admit to his involvement with five kilograms. By refusin g to accept Soler's guilty plea, the government gave Soler

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no choice but to go to trial. Ultimately, however, the district cour t found Soler responsible for only two kilograms, the amount for which Soler
was at all times willing to plead guilty. Given these facts, it wa s clearl yerroneous for the district court to conclude that Soler' s acceptance of responsibility came at sentencing, and not at the time o f trial.
Accordingly, because we conclude that the district court clearl y erred and that therefore Soler's sentence was the result of an incorrect application of the sentencing guidelines, we vacate his sentence and reman d the cas e to the district court for further proceedings. On remand th e dist rict court should reconsider a reduction for acceptance o f responsibility based on Soler's willingness to e nter a guilty plea for his involve ment with two kilograms of cocaine before trial and during th e 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 hea ring the probation officer incorrectly stated that the base offense for dis tributing two kilograms of
coc aine was 26. The correct level, however, is 28. See U.S.S.G
. § 2D1.1(c).

We thus a ffirm all of the convictions, and the sentences imposed on Guerr ero-Cortez and Gonzalez-Gonzalez, but reverse Soler's sentence an d 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.