Peo v. Acevedo

22CA0107 Peo v Acevedo 08-15-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0107

Araphoe County District Court No. 21CR81

Honorable Kenneth M. Plotz, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel Acevedo,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division II

Opinion by JUDGE SULLIVAN

Fox and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 15, 2024

Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

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¶ 1 Defendant, Daniel Acevedo, appeals the judgment of conviction

entered on jury verdicts finding him guilty of retaliation against a

judge and menacing with a deadly weapon. We affirm the judgment

of conviction, reverse the sentence, and remand with directions.

I. Background

¶ 2 The jury heard evidence from which it could reasonably find

the following facts.

¶ 3 In 2019, Judge Anne M. Ollada oversaw two of Acevedo’s

criminal cases. She accepted plea agreements that Acevedo agreed

to in both. In 2021, Acevedo called Judge Ollada’s chambers,

where her clerk answered the telephone. Acevedo, unprompted,

introduced himself as “Daniel Ortega” and stated that he would

come to the courthouse and kill Judge Ollada and blow up the

courthouse.

¶ 4 The clerk contacted the Arapahoe County Sheriff’s office and

provided a statement to one of the deputies. Out of caution, the

deputies evacuated the courthouse. Before initiating the

evacuation, the deputy called the number that Acevedo had used

and asked for “Daniel Ortega.” Acevedo responded, “Fuck you —

you’re trying to get me to stay on the line. Fuck your bitch ass

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Judge Anne Marie Ollada. Fuck that bitch, she knows who I am,”

and then hung up. After staff evacuated the building, law

enforcement commenced a K-9 sweep of the courthouse and

provided additional security to Judge Ollada. Law enforcement

located no threats after sweeping the courthouse premises.

¶ 5 Sergeant Bruce Peterson began investigating the threatening

telephone call the same day. He prepared a warrant requesting a

GPS location of the telephone number Acevedo used to call the

courthouse. Initially, Peterson couldn’t obtain GPS information for

the cell phone because it had been turned off. While waiting for a

ping, however, Peterson and other law enforcement officers

researched a police database for names associated with the

telephone number that Acevedo had called from and discovered a

high level of association between the number and a “Daniel

Acevedo.”

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The database also contained a picture of Acevedo, which

Peterson reviewed.

¶ 6 A few days later, Peterson received a ping that the cell phone

had been turned on near East Colfax and South I-225. Peterson

1

A “ping” refers to the location information a cell phone provider

gives to law enforcement in real time when a phone is active.

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and two other officers headed to that location the same day to

investigate. When they arrived, the officers noticed an encampment

nearby. Upon entering the encampment, Peterson observed a

person walking toward them while wielding a hatchet. As the

person got closer, Peterson recognized, based on the photograph he

had reviewed, that it appeared to be Acevedo. Acevedo began to

shout about Judge Ollada, saying that the officers were Judge

Ollada’s hit crew and had come to ruin his and his family’s life. The

officers drew their weapons to make Acevedo drop the hatchet,

brought him to the ground, and placed him in handcuffs.

¶ 7 During the struggle, a cell phone fell out of Acevedo’s pocket.

One of the investigators used her cell phone to dial the number

used to call the courthouse; the cell phone that fell out of Acevedo’s

pocket began to ring and displayed the investigator’s number on its

screen.

¶ 8 When the officers transported Acevedo to their patrol cars,

Acevedo identified himself as “Daniel Acevedo.” He then confirmed

that he called the courthouse, but stated that he meant that he

would drop an “information bomb” by revealing that Judge Ollada

intended to “nuke” the United States as part of a terrorist group.

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¶ 9 At trial, Judge Ollada testified that she isn’t involved with

nuclear weapons, nor has she ever been. The jury found Acevedo

guilty of retaliation against a judge and menacing with a deadly

weapon. The court sentenced Acevedo to a concurrent prison term

of two years for retaliation against a judge and one year for

menacing.

¶ 10 Acevedo now appeals. He contends that the district court

erred by (1) omitting the mens rea requirement from the retaliation

jury instruction; (2) declining to give a supplemental jury

instruction defining the phrase “as retaliation or retribution against

a judge”; and (3) considering Acevedo’s silence as a lack of remorse

when imposing its sentence. We disagree with Acevedo’s first two

contentions but agree with the third.

II. Mens Rea Jury Instruction

¶ 11 Acevedo first seeks plain error review of the district court’s

jury instruction identifying the elements of retaliation against a

judge, arguing that the instruction failed to properly explain that

the mental state of “knowingly” applied to the act of making a

credible threat against Judge Ollada. We perceive no plain error.

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A. Standard of Review

¶ 12 We review unpreserved challenges to jury instructions for

plain error. People v. Garcia, 28 P.3d 340, 344 (Colo. 2001). Plain

error is error that is both obvious and substantial. Hagos v. People,

2012 CO 63, ¶ 14. An error is obvious if it contravenes (1) a

statute; (2) a well-settled legal principle; or (3) Colorado case law.

People v. Pollard, 2013 COA 31M, ¶ 40. An error is substantial if it

so undermines the fundamental fairness of the trial as to cast

serious doubt on the reliability of the conviction. Hoggard v. People,

2020 CO 54, ¶ 13. With respect to jury instruction challenges, the

defendant must show not only that the erroneous instruction

affected a substantial right, but also that the record reveals a

reasonable possibility that the error contributed to his conviction.

Id.; People v. Miller, 113 P.3d 743, 750 (Colo. 2005).

¶ 13 While the trial court enjoys “substantial discretion in

formulating the jury instructions,” People v. Gallegos, 226 P.3d

1112, 1115 (Colo. App. 2009), we review de novo whether a

particular jury instruction correctly states the law, People v. Maloy,

2020 COA 71, ¶ 54.

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B. Analysis

1. The Instructional Error Was Obvious

¶ 14 As relevant here, an individual commits retaliation against a

judge if the individual knowingly makes a credible threat against a

judge who has served in a legal matter involving the individual. See

§ 18-8-615(1)(a)-(b), C.R.S. 2023. To constitute retaliation, the

threat must be made directly to the judge, or to another person if

(1) the individual making the threat intended that it be relayed to

the judge or (2) the other person is required by statute or ethical

rule to report the threat to the judge. § 18-8-615(1)(b).

¶ 15 Here, the district court instructed the jury on the elements of

retaliation against a judge but omitted the “knowingly” mens rea

requirement. The instruction identified the elements as follows:

(1) That Mr. Acevedo,

(2) in the State of Colorado, at or about the

date and place charged,

(3) made a credible threat directly to a judge,

or to another person if the defendant intended

that the communication would be relayed to

the judge, or to a person whom the defendant

knew was required by statute or ethical rule to

report the communication to the judge; or

committed an act constituting the crime of

harassment, or an act of harm or injury upon

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a person or property, which action was

directed against or committed upon the judge,

a member of the judge’s family, a person in

close relationship to the judge, or a person

residing in the same household with the judge,

(4) as retaliation or retribution against a

judge who was serving in a legal matter

assigned to the judge that involved Mr.

Acevedo.

¶ 16 In People v. Berry, 292 P.3d 954, 958 (Colo. App. 2011), a

division of this court, interpreting section 18-8-615, concluded that

the “General Assembly did not intend to limit the application of the

mens rea of ‘knowingly’ to any particular element.” Because

“knowingly” was absent from the court’s instruction, and because

Berry is directly on point, we conclude that the instruction’s

deviation from the statute constitutes an obvious error. See People

v. Walker, 2022 COA 15, ¶ 59 (an obvious error is one that

“contravene[s] . . . Colorado case law”); see also § 18-1-503(4),

C.R.S. 2023 (“When a statute defining an offense prescribes as an

element thereof a specified culpable mental state, that mental state

is deemed to apply to every element of the offense unless an intent

to limit its application clearly appears.”).

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¶ 17 We disagree with the People’s arguments to the contrary.

First, the “intended” mental state in the court’s instruction doesn’t

subsume the “knowingly” mental state. Section 18-8-615(1)(b)

states that an individual commits retaliation against a judge by

knowingly making a credible threat, while section 18-8-

615(1)(b)(II)(A) provides that the threat can be made to “another

person” besides the judge, but only if the individual making the

threat intends for the other person to relay the threat to the judge.

These mental states apply to separate acts, with “knowingly”

applying to the act of making the credible threat and “intended”

applying to relaying the threat to the judge.

¶ 18 Next, although the district court’s instruction generally tracks

the pattern jury instruction for retaliation against a judge, see

COLJI-Crim. 8-6:16 (2023), the error is still obvious. A pattern

instruction isn’t “a safe harbor that insulates instructional error

from reversal.” Garcia v. People, 2019 CO 64, ¶ 22. Pattern

instructions are simply a guide, and it remains the duty of the trial

court to instruct the jury accurately on all matters of law. People v.

Mattas, 645 P.2d 254, 257 (Colo. 1982).

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¶ 19 Having concluded the error was obvious, we next turn to the

substantiality prong of the plain error analysis.

2. The Instructional Error Wasn’t Substantial

¶ 20 A court’s failure to instruct the jury properly doesn’t constitute

plain error if the subject of the error isn’t contested at trial. Miller,

113 P.3d at 751; Auman v. People, 109 P.3d 647, 665 (Colo. 2005).

¶ 21 In Hoggard, ¶ 19, our supreme court addressed an argument

similar to Acevedo’s — that a jury instruction improperly explained

the required mens rea for the charged crime. The court concluded

that any error in the instruction didn’t prejudice the defendant

since her theory of defense centered on identity rather than intent.

Id.

¶ 22 Acevedo’s theory of the defense at trial was that he made the

call to Judge Ollada based on his “delusions” about her as a person,

not out of retaliation for her actions as a judicial officer. After the

first sentence of defense counsel’s opening statement — “[d]elusions

are not retaliations” — the prosecution objected because Acevedo

hadn’t pleaded insanity or provided notice of a defective mental

health condition. At the bench conference that followed, defense

counsel clarified that Acevedo wasn’t “running an insanity defense,”

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but rather intended to argue that Acevedo’s delusional beliefs about

Judge Ollada that motivated his call — including that “she’s a

member of a secret government organization, [and] that she has

plans on her desk to detonate a nuclear bo[mb]” — were unrelated

“to her service as a judicial officer.”

¶ 23 The prosecution countered by stating that, if defense counsel

meant to suggest that Acevedo “was incapable of forming the proper

mens rea,” then his defense is “by definition” a “plea of insanity.”

Defense counsel responded, “That’s not at all what I’ve just said,

Judge.” The district court ruled in Acevedo’s favor, agreeing that

his theory of defense didn’t “go[] to mental health” but instead “to

whether or not the statements made were in retaliation or

retribution against Judge Ollada.”

¶ 24 In closing argument, defense counsel again emphasized that

Acevedo’s call to Judge Ollada had “[n]othing to do with [her] being

a judge” and “absolutely nothing to do” with her judicial role in his

criminal cases. Defense counsel argued that Acevedo had

committed only the lesser offense of harassment because he placed

the call based on his delusions regarding Judge Ollada as a person,

disconnected from her judicial role.

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¶ 25 On this record, we conclude that this case is like Hoggard

because Acevedo’s mens rea wasn’t contested. Acevedo’s theory of

defense didn’t depend on his failure to form the requisite mens rea

of “knowingly.” Indeed, had that been Acevedo’s defense, he

wouldn’t have conceded during closing that he committed

harassment. See § 18-9-111(1), C.R.S. 2023 (harassment requires

that the defendant act “with intent to harass, annoy, or alarm

another person”) (emphasis added); People v. Founds, 631 P.2d

1166, 1168 (Colo. App. 1981) (“[I]ntentional conduct represents

a higher degree of culpability than the culpable mental state of

‘knowing’ conduct.”). Instead, Acevedo’s theory of defense was that

he didn’t retaliate against Judge Ollada based on her position as a

judge.

¶ 26 Accordingly, no reasonable possibility exists that the district

court’s omission of “knowingly” from the retaliation instruction

contributed to Acevedo’s conviction.

III. Supplemental Jury Instruction

¶ 27 Acevedo next argues that the district court reversibly erred by

rejecting his requested supplemental jury instruction regarding the

meaning of “retaliation or retribution against a judge.” We disagree.

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A. Standard of Review

¶ 28 We review a district court’s decision to give or not give a jury

instruction for an abuse of discretion. People v. Dinapoli, 2015 COA

9, ¶ 9. A court abuses its discretion when its ruling is manifestly

arbitrary, unreasonable, or unfair. People v. Cox, 2023 COA 1,

¶ 38.

¶ 29 The parties agree Acevedo preserved this issue, requiring that

we review this alleged instructional error for nonconstitutional

harmless error. See People v. Koper, 2018 COA 137, ¶ 9.

B. Applicable Law

¶ 30 The district court shoulders the responsibility to instruct the

jury correctly on the law. People v. Stewart, 55 P.3d 107, 120 (Colo.

2002). As long as the court’s instructions properly inform the jury

of the law, the court enjoys broad discretion to determine the form

and style of the jury instructions. McDonald v. People, 2021 CO 64,

¶ 54. When “determining the propriety of a particular jury

instruction the instructions should be viewed as a whole.” People v.

Riley, 708 P.2d 1359, 1365 (Colo. 1985). The district court “need

not give a supplemental instruction if it is already encompassed in

another instruction.” People v. Oram, 217 P.3d 883, 894 (Colo. App.

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2009), aff’d, 255 P.3d 1032 (Colo. 2011). When evaluating whether

“an undefined phrase in a jury instruction is ‘so technical or

mysterious as to create confusion in jurors’ minds,’” we look “at

whether the phrase ‘is one with which reasonable persons of

common intelligence would be familiar.’” McDonald, ¶ 57 (quoting

People v. Deadmond, 683 P.2d 763, 769 (Colo. 1984)).

C. Analysis

¶ 31 Concerned that the jury would mistake any harassment

against Judge Ollada for retaliation under section 18-8-615,

Acevedo tendered the following supplemental instruction:

“[A]s retaliation or retribution against a

judge . . . ” in instruction number ___ means

that the credible threat or act of harassment

has to be made in response to the Judge’s

service as a judicial officer in order for Mr.

Acevedo to be found guilty. If the credible

threat or act of harassment was not done for

the purpose of retaliation or retribution related

to the Judge’s service as a judicial officer, then

Mr. Acevedo is not guilty of retaliation against

a judge.

The district court denied the instruction, stating it could be “argued

as to whether or not the element of retaliation or retribution was

related to [Judge Ollada’s] service.” While we perceive no abuse of

discretion in the district court’s ultimate ruling, we affirm on a

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different basis. See People v. Eppens, 979 P.2d 14, 22 (Colo.

1999) (appellate court may affirm the court’s ruling on any basis

supported by the record).

¶ 32 The fourth element in the court’s retaliation instruction,

quoted in full above, stated that Acevedo’s credible threat must be

made “as retaliation or retribution against a judge who was serving

in a legal matter assigned to the judge that involved Mr. Acevedo.”

A reasonable juror of common intelligence would understand from

this instruction that retaliation against a judge isn’t merely a threat

made against a judge in their personal capacity, unconnected from

their judicial role. As a result, the phrase “retaliation or retribution

against a judge” isn’t so technical or mysterious as to create

confusion in jurors’ minds, rendering Acevedo’s supplemental

instruction unnecessary. McDonald, ¶ 57.

¶ 33 Accordingly, because the district court’s retaliation instruction

adequately informed the jury of the law, the court didn’t abuse its

discretion by denying Acevedo’s requested supplemental

instruction.

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IV. Silence as Lack of Remorse

¶ 34 Finally, Acevedo argues that the district court erred during

sentencing by considering his exercise of his right to remain silent

as a lack of remorse. We agree.

A. Standard of Review

¶ 35 Acevedo acknowledges that this claim is unpreserved, limiting

our review to plain error. Hagos, ¶ 14. As before, plain error is

both obvious and substantial, id., and we will reverse only if the

error so undermined the fundamental fairness of the sentencing

proceeding as to cast serious doubt on the reliability of the

sentence, People v. Elie, 148 P.3d 359, 367 (Colo. App. 2006).

B. Applicable Law

¶ 36 The constitutional privilege against self-incrimination applies

during sentencing. Steinberger v. Dist. Ct., 198 Colo. 59, 61, 596

P.2d 755, 757 (1979). One purpose of sentencing is to promote

rehabilitation, § 18-1-102.5(1)(d), C.R.S. 2023, and “[a]n offender’s

lack of remorse and failure to accept responsibility are relevant to

the issue of rehabilitative potential,” People v. Lopez, 129 P.3d

1061, 1067 (Colo. App. 2005). When a defendant waives their right

to remain silent and testifies at trial or sentencing, the court can

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consider what the defendant says, or doesn’t say, for the purposes

of sentencing, including whether the defendant expresses remorse.

People v. Everett, 250 P.3d 649, 664 (Colo. App. 2010). But if the

defendant maintains their right to remain silent throughout trial

and sentencing, the court can’t construe their silence as a lack of

remorse that will support a harsher sentence. See People v. Young,

987 P.2d 889, 894 (Colo. App. 1999).

¶ 37 In Young, for example, a division of this court held that the

trial court improperly considered the defendant’s silence at

sentencing as a lack of remorse that justified a harsher sentence.

Id. at 894-95. Given the “discretionary” nature of sentencing, the

division explained that it couldn’t determine from the record

whether the trial court “would have imposed the same sentence had

it not considered” the defendant’s silence in the calculus. Id. at

895. The division therefore vacated the defendant’s sentence and

remanded for resentencing. Id.

C. Analysis

1. The Sentencing Error Was Obvious

¶ 38 Acevedo didn’t testify before or during trial, and at sentencing

he turned down the opportunity to address the court based on

17

counsel’s advice, opting instead for counsel to speak on his behalf.

Defense counsel relayed Acevedo’s regrets, stated he had advised

Acevedo not to speak, and requested a non-prison sentence,

explaining that Acevedo satisfied the criteria for a “wellness”

treatment program.

¶ 39 When sentencing Acevedo, the district court explained that it

was troubled by Acevedo’s silence and his apparent lack of remorse:

[I]t is a little concerning to me -- and I’ll tell

everybody this -- that it is a little concerning to

me that no statement was made. I have really

little information before me other than what

crimes were committed, that you may have a

mental health issue. . . . The point is, I don’t

know.

And I also don’t know if you’re sorry, if you feel

bad about the effect that this might have had

on Judge Ollada -- you heard her speak -- and

if you feel bad about the effect that this may

have had on other people, including people like

yourself that were evacuated from the

courtroom, and if you feel bad about the fact

that -- well, it seems to me -- that Judge

Ollada and perhaps others are living in fear,

but there’s no information on that either.

¶ 40 Although the court asked counsel multiple questions about

the wellness treatment program, it ultimately sentenced Acevedo to

a concurrent prison term of two years for retaliation against a judge

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(a class 4 felony) and one year for menacing with a deadly weapon

(a class 5 felony). Both prison terms fell at the low end of the

presumptive sentencing ranges. See § 18-1.3-401(1)(a)(V.5)(A),

C.R.S. 2023.

¶ 41 Based on the court’s remarks, we conclude that it improperly

considered Acevedo’s silence as a lack of remorse that justified, in

whole or in part, a prison term rather than a sentence to the

wellness treatment program. This constitutes an obvious error.

The law was well established at the time of Acevedo’s sentencing

that a defendant’s right to remain silent extends to the sentencing

hearing. See, e.g., Young, 987 P.2d at 894-95; Steinberger, 596

P.2d at 757.

¶ 42 We aren’t persuaded otherwise by the People’s arguments.

The People rely on Everett to argue that any error wasn’t obvious,

pointing out that the division in that case held that a defendant’s

silence can’t support a sentence in the “aggravated range.” 250

P.3d at 664. But nothing in the Fifth Amendment or section 18 of

article II of the Colorado Constitution limits the constitutional right

against self-incrimination to cases where the court is considering a

sentence in the aggravated range. U.S. Const. amend. V; Colo.

19

Const. art. II, § 18. It applies equally where, as here, the district

court is vacillating between a non-prison sentence and a prison

term at the low end of the presumptive range.

¶ 43 Moreover, Everett relied on Young and People v. Baker, 178

P.3d 1225 (Colo. App. 2007), both of which said that a defendant’s

failure to express remorse can’t be used as “an aggravating

circumstance” at sentencing when a defendant maintains their right

to remain silent. Baker, 178 P.3d at 1234; Young, 987 P.2d at 894.

We think it’s plain that “aggravating circumstance” in this context

means that a trial court can’t use a defendant’s silence or failure to

express remorse as a basis for increasing their sentence above the

level it would otherwise impose, regardless of whether the increased

sentence falls in the aggravated range. See Black’s Law Dictionary

306 (12th ed. 2024) (defining “aggravating circumstance” as “[a] fact

or situation that increases the degree of liability or culpability for a

criminal act”). This interpretation is also consistent with the cases

cited by Young, neither of which cabins the constitutional right

against self-incrimination to instances where the trial court is

considering a sentence in the aggravated range. See Brake v. State,

939 P.2d 1029 (Nev. 1997); State v. Tinajero, 935 P.2d 928 (Ariz. Ct.

20

App. 1997). To the extent Everett can be read differently, we decline

to follow it. People v. Joosten, 2018 COA 115, ¶ 35 (a division of the

court of appeals isn’t bound by the decisions of other divisions).

2. The Sentencing Error Was Substantial

¶ 44 We also conclude that the district court’s sentencing error was

substantial because it so undermined the fundamental fairness of

the sentencing proceeding as to cast serious doubt on the reliability

of the sentence. See, e.g., Elie, 148 P.3d at 366-67.

¶ 45 Although defense counsel urged the court to consider

sentencing Acevedo to the wellness treatment program — an option

the court appeared to be considering based on its questions to

counsel — the court nonetheless imposed a concurrent prison term

of two years and one year for the two convictions. The court’s

discussion of its sentence was fairly brief, occupying less than five

pages in the hearing transcript, and the court identified only a few

factors when making its determination, including Acevedo’s silence

and apparent lack of remorse.

¶ 46 This leaves us in a situation similar to Young — we can’t

conclude from the record that the court would have imposed the

same sentence had it refrained from considering Acevedo’s silence

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and apparent lack of remorse. Accordingly, similar to Young, we

must reverse the sentence and remand for resentencing with

directions that the district court not consider any lack of remorse

that might be inferred from Acevedo’s silence.

V. Disposition

¶ 47 We affirm the judgment of conviction, reverse the sentence,

and remand the case to the district court for resentencing.

JUDGE FOX and JUDGE GROVE concur.