                   UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT


                             __________________

                                No. 94-30167
                              Summary Calendar
                             __________________


     UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

                                   versus

     RENE DIAZ,

                                            Defendant-Appellant.

                     *   *     * * * * * *        *
                             __________________

                                No. 94-30168
                              Summary Calendar
                             __________________


     UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

                                   versus

     PAUL SOLIS,

                                            Defendant-Appellant.

         ______________________________________________

      Appeals from the United States District Court for the
                   Eastern District of Louisiana
          ______________________________________________

                          (November 25, 1994)


Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

     In this consolidated appeal, defendants-appellants Rene Diaz
(Diaz) and Paul Solis (Solis) complain of the sentence imposed

under the United States Sentencing Guidelines following their

convictions on pleas of guilty to charges of conspiring to possess

with the intent to distribute cocaine hydrochloride contrary to 21

U.S.C. §§ 841(a) and 846. Both defendants insist that the district

court    erred   in    not     awarding       any   credit   for   acceptance   of

responsibility under section 3E1.1 of the Guidelines.                      For the

reasons that follow, we affirm.

                        Facts and Proceedings Below

     In cooperation with a confidential informant (CI), United

States   Customs      agents    seized    thirty-one     kilograms    of   cocaine

hydrochloride from the M/V Balsa 43 when it arrived in New Orleans

from Colombia on May 25, 1993.            That evening, after giving agents

the telephone numbers of the intended recipients of the cocaine,

the CI agreed to make a controlled delivery.                   At approximately

5:40 p.m., the CI called Diaz, one of the intended recipients.

Diaz agreed to travel from Miami to New Orleans the next day to

purchase 8 kilograms of cocaine for $20,000.                 Diaz also indicated

that he would return later to New Orleans to purchase twelve more

kilograms.

     The next day, May 26, 1993, Diaz arrived in New Orleans with

Solis and two other people.         Shortly after their arrival, Diaz and

Solis (Defendants) went to the agreed-upon site for the purchase.

When the CI arrived, Solis approached him. Then Diaz joined Solis,

and together they led the CI to their van.               Once there, Defendants

took the cocaine but refused to pay for it.                  They forced the CI

from the van and fled the scene.              Five hours later, customs agents

                                          2
intercepted two vans headed for Miami, one driven by Solis and the

other by Diaz.       In the van driven by Solis, the agents discovered

$20,000.     On the side of the road nearby, agents found eight

kilograms    of   cocaine   wrapped      in     the    same    packaging   used    for

delivery by the CI.

      On July 16, 1993, an indictment returned against Defendants

charged them with one count of conspiracy to possess with the

intent to distribute eight kilograms of cocaine hydrochloride in

violation of 21 U.S.C. §§ 841(a)(1) and 846.                  After some delay, the

trial was scheduled for November 15, 1993.                 On that morning, just

before trial, Defendants entered into plea negotiations.                          As a

result, the government filed a superseding information charging

Defendants with the same crime but omitting reference to the amount

of cocaine specified in the indictment. Defendants then pleaded

guilty to the charge.           The district court accepted the pleas and

ordered presentence investigation reports (PSRs).

      Diaz's PSR recommended awarding credit for acceptance of

responsibility because "he acknowledges that he traveled from Miami

to   New   Orleans    to   do    a    cocaine    transaction."         Solis's     PSR

recommended not awarding the credit because "he denies having any

knowledge that the purpose of the trip to New Orleans was to

purchase cocaine" and because "[h]e denies knowing that a drug deal

was occurring prior to his meeting with the government informant

and further indicates that he was no more than an observer."                        At

the sentencing       hearing     on   March     9,    1994,    the   district   court

informed Defendants of its decision not to award either of them any

credit for accepting responsibility.                  At that time, the district

                                          3
court based its decision on two facts:             (1) Defendants' delay

before pleading guilty and (2) Defendants' failure to tell the

whole truth.     When Defendants objected, the district court made

clear   that   its   decision   was   firm   but   offered   Defendants   an

opportunity to consider withdrawing their pleas.             Both Diaz and

Solis declined.

     The district court then sentenced Diaz, who had a total

offense level of 32 and a criminal history category of III, to 180

months in prison and 3 years' supervised release.                The court

sentenced Solis, who had a total offense level of 32 and a criminal

history category of II, to 150 months in prison and 3 years'

supervised release.     After the hearing, in its written reasons for

the sentence, the district court indicated that Defendants' prior

felony convictions also supported its decision not to allow credit

for acceptance of responsibility.

     After Defendants filed timely notices of appeal, this Court

granted their motion to consolidate the two cases.           As their only

issue on appeal, Defendants contend that the district court erred

in not awarding them credit for acceptance of responsibility.

Finding no reversible error in either case, we affirm.

                                Discussion

     Whether the district court correctly applied the Guidelines is

a question of law subject to de novo review.             United States v.

Howard, 991 F.2d 195, 199 (5th Cir.), cert. denied, 114 S.Ct. 395

(1993).   Under U.S.S.G. § 3E1.1, Defendants must prove they are

entitled to credit for acceptance of responsibility.           Because the

district court "is in a unique position to evaluate a defendant's

                                      4
acceptance of responsibility[,]" we review the district court's

underlying factual findings and ultimate determination under a

standard even more deferential than clear error. U.S.S.G. § 3E1.1,

comment (n. 5); United States v. Brown, 7 F.3d 1155, 1162 (5th Cir.

1993).

       Section   3E1.1(a)     of     the       Guidelines   allows     a   two-point

reduction in the total offense level when a defendant "clearly

demonstrates     acceptance     of     responsibility        for     his   offense."

U.S.S.G. § 3E1.1(a).        "The mere entry of a guilty plea, however,

does   not   entitle   a    defendant      to     a   sentencing     reduction   for

acceptance of responsibility as a matter of right."                   United States

v. Shipley, 963 F.2d 56, 58 (5th Cir.) (per curiam), cert. denied,

113 S.Ct. 348 (1992).         Only a defendant who qualifies for this

downward adjustment under section 3E1.1(a) may obtain an additional

one-point credit under subsection (b).1               In short, a defendant not

awarded a two-point reduction under subsection (a) is ineligible

for a single-point reduction under subsection (b).                     Because, in

this case, the court decided not to award either defendant any

points for acceptance of responsibility, only subsection (a) is at

issue.

       Defendants assert that the district court misapplied the

Guidelines.      In particular, Defendants claim the district court

erred as a matter of law in basing its decision in part on


1
     A one-point credit under subsection (b) is available if the
total offense level is sixteen or greater and if the defendant
has either "timely provid[ed] complete information to the
government concerning his own involvement in the offense" or
timely notified authorities of his intention to plead guilty.
U.S.S.G. § 31E.1(b)(1).

                                           5
Defendants' criminal history and on the timeliness of their pleas.

With respect to the first contention, we agree with Defendants that

the district court erred in factoring their prior offenses into its

decision not to grant credit for acceptance of responsibility.

While the bare fact that Defendants had prior felony convictions is

relevant to the calculation of a criminal history category, it has

no   independent   bearing   on   whether   Defendants   had   accepted

responsibility for the crime charged.

     The district court's consideration of an irrelevant factor,

however, is "not fatal if there is some other reason to be found

that supports" the court's decision:        "We may always affirm a

district court's ruling, made for an invalid reason, if we are

shown or can find a valid reason to support the ruling."         United

States v. Tello, 9 F.3d 1119, 1128 (5th Cir. 1993).       Here, we are

convinced that the reference to prior convictions, first appearing

in the written reasons composed after the sentencing hearing, is no

more than an afterthought.    The two other factors (timeliness and

truthfulness), on the other hand, were the sole expressed bases for

the decision at the actual time of sentencing.            Because the

district court's decision was independently supported by two other

factors, and because we conclude that there is no reasonable

possibility that the district court would have granted any credit

for acceptance of responsibility had it never considered the

previous convictions in that connection, we hold that the court's

post hoc reference to prior convictions as also supportive of its

decision was harmless error in this case.

     Defendants also challenge the district court's consideration

                                   6
of timeliness.      According to Defendants, whether a plea was timely

relates only to the one-point award under subsection (b) and cannot

relate to     the   two-point   reduction   under   subsection   (a).    We

disagree.   While the terms of subsection (b) mandate consideration

of timeliness, the terms of subsection (a) do not forbid it.

Indeed, the consideration of timeliness is expressly allowed.           The

application    notes   to   section   3E1.1(a)   state,   "In   determining

whether a defendant qualifies under subsection (a), appropriate

considerations include, but are not limited to, the following: . .

. (h) the timeliness of the defendant's conduct in manifesting the

acceptance of responsibility."2       We therefore find no error in the

district court's consideration of this factor.3


2
     In arguing that a district court cannot consider timeliness
under subsection (a), Defendants rely on the following portion of
United States v. Tello, 9 F.3d 1119 (5th Cir. 1993):

            "We are unable to read anything into § 3E1.1
            or into Tello's interpretation of it, that
            'ties acceptance of responsibility to the
            timeliness of the entry of the plea.' To the
            contrary, the element of timeliness is
            nowhere to be found in any aspect of the
            basic 2-level decrease . . . ." Id. at 1127.

Initially we note that, because Tello dealt with section 3E1.1(b)
only, any reference in the opinion to subsection (a) was mere
dicta, which we refuse to interpret contrary to the express terms
of the application notes to section 3E1.1. In any event,
however, this dicta is not inconsistent with our holding today.
The passage quoted was in response to the government's contention
that "tieing" acceptance of responsibility to timeliness "would
obligate every district court to automatically reduce offense
levels by three whenever a prompt guilty plea was made." Id. at
1127 (citation and emphasis omitted). Recognizing the flaw in
this logic, the panel merely pointed out that under subsection
(a), unlike subsection (b), timeliness is not an indispensible
element of the credit and thus not a factor the court must be
governed by.
3
     We do not read the statements of the district court to mean,

                                      7
      Finally, Defendants contend that the district court committed

clear error in concluding, on these facts, that Solis and Diaz had

not clearly accepted responsibility.           As mentioned earlier, at the

sentencing hearing the district court based its decision on both

the timeliness and truthfulness of Defendants.              With respect to

timeliness, both parties agree that Defendants waited until the

morning of trial to enter plea negotiations, thereby denying all

involvement until almost six months after their arrest.                       See

Wilder, 15 F.3d at 1299 (decision not to award credit under section

3E1.1(a) based in part on the defendant's failure to plead guilty

until the "eve of trial").          Given this delay, the district court

did   not    err   in   finding     that     Defendants   were    untimely    in

"manifesting the acceptance of responsibility."

      The court also found that Defendants had failed to acknowledge

the   full    extent    of   the   charged    conspiracy.        Acceptance   of

responsibility hinges on a defendant's "truthfully admitting the

conduct comprising the offense(s) of conviction" and demonstrating

"'sincere contrition' regarding the full extent of . . . criminal

conduct."     Id. (emphasis added).          Diaz and Solis both maintained

that Solis knew nothing of the drug transaction before meeting with

the CI.     In his written statement, Solis portrayed himself, in the



as Defendants suggest, that a defendant must accept
responsibility at the moment of arrest to qualify for credit
under section 3E1.1(a). The identified comments of the court at
the sentencing hearing reflect a concern not so much with the
delay per se but with the reasons for the delay: "To me,
acceptance of responsibility is, when you are caught, not until
you see that you are in a corner and you don't have anywhere else
to go." Elsewhere, the court's comments relate only to the last-
minute timing of the pleas.

                                       8
words of the PSR, as an "observer" more than an active participant

in a criminal conspiracy.          The district court was entitled to

discredit this assertion, considering that Solis was the first to

approach the CI at the purchase site and the one whose van

contained both the money and the drugs on the way back to Miami.

Diaz, too, while acknowledging his intention to drive to New

Orleans to purchase drugs, persistently discounted the existence of

a conspiratorial agreement with Solis.              These facts justify the

district court's finding that Diaz and Solis failed to come clean

on the full extent and nature of their charged conspiracy.

     Because     these   factual    determinations         are   not      clearly

erroneous,     the   district   court       acted   well   within   its    broad

discretion in concluding that Defendants had failed to demonstrate

a clear acceptance of responsibility. Accordingly, Defendants were

not entitled to the two points credit under subsection (a) nor, a

fortiori, the single point credit under subsection (b).

                                Conclusion

     The judgment of the district court is

                                                                       AFFIRMED.




                                        9
