United States v. Guerrero-Cortez

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. *
___________
Submitted: September 12, 1996
Filed: April 14, 1997
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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 Gonzalez-
Gonzalez, 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.
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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
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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 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
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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
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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
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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
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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
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
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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
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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
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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 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
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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
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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.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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