                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 00-1274
                                  ___________


United States of America,            *
                                     *
            Appellee,                *
                                     *      Appeal from the United States
      v.                             *      District Court for the Eastern
                                     *      District of Missouri
Darryl Sadler,                       *
                                     *
            Appellant.               *

                                 ____________

                             Submitted: June 13, 2000

                                 Filed: December 8, 2000
                                 ____________

Before WOLLMAN, Chief Judge, McMILLIAN, Circuit Judge, and PANNER,1
      District Judge.
                             ____________


McMILLIAN, Circuit Judge.




      1
       The Honorable Owen M. Panner, United States District Judge for the District
of Oregon, sitting by designation.
       Darryl Sadler appeals from a final judgment entered in the United States District
Court2 for the Eastern District of Missouri upon a jury verdict finding him guilty of one
count of armed bank robbery and one count of use of a firearm during that crime. See
United States v. Sadler, No. 4:99CR00045CDP (E.D. Mo. Dec. 20, 1999). For
reversal, Sadler argues that (1) the district court erred by denying his motion for
judgment of acquittal based on insufficiency of the evidence; (2) the district court
abused its discretion by refusing to admit hearsay testimony offered for its relevance
to witness credibility under Fed. R. Evid. 401; and (3) the district court erred by
reopening his sentence under Fed. R. Crim. P. 35(c). For the reasons discussed below,
we affirm the judgment of the district court in part and reverse in part and remand the
case to the district court for resentencing.

                                     Jurisdiction

       Jurisdiction in the district court was proper based upon 18 U.S.C. § 3231.
Jurisdiction in this court is proper based upon 28 U.S.C. § 1291. The notice of appeal
was timely filed pursuant to Fed. R. App. P. 4(b) .

                                     Background

       The evidence introduced at trial, viewed in the light most favorable to the
verdict, indicated the following. On April 27, 1995, Darryl Sadler entered a Boatman's
Bank location in St. Louis, Missouri, with another man. While the other individual
asked for penny wrappers, Sadler pulled a handgun from inside his jacket, held it to the
bank security guard's head, and instructed the guard and the bank tellers to lie on the
floor. He leaned over and touched one teller lying on the ground, told her to be quiet,
and removed a $20 bill from her hand. After receiving an emergency call, a police


      2
        The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.

                                          -2-
officer entered the bank, pointed his gun in the robbers' direction, and ordered them to
stop. Two shots were fired at the police officer, hitting him in the back. Sadler ran out
of the bank, continuing gunfire. Police apprehended the other man, who was later
convicted. The bulletproof vest the police officer was wearing curtailed the severity
of his injuries.

       In May 1995, Sadler was taken into custody on state charges stemming from the
bank robbery, which were subsequently dismissed. As he was being transferred from
a holding cell into a courtroom, Sadler told Deputy Williams, the sheriff's deputy, that
he was "the guy that shot the cop on Florissant." Williams did not mention Sadler's
statement to anyone until two years later when Sadler made a similar statement while
in custody on an unrelated charge. In December 1997, Sadler told Deputy Mopkins,
Williams' partner in the transportation unit, that he was being held on a bogus charge
and that the real reason he was in custody was that he had shot a police officer in a
prior bank robbery. Mopkins did not take the statement seriously, so Sadler called out
to the other deputy, Williams, and repeated that he had shot a police officer during a
bank robbery. As a result of these statements, an investigation commenced.

       Sadler was indicted in federal court on February 4, 1999, on two counts. Count
I charged him with armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d).
Count II charged him with using or carrying a firearm during and in relation to a crime
of violence, in violation of 18 U.S.C. § 924(c)(1) and (2).

        Sadler was tried by a jury on September 28-29, 1999. At the two-day jury trial,
the security guard, the bank teller Sadler spoke to during the robbery, and the wounded
police officer each identified Sadler as one of the bank robbers. Sadler's former
girlfriend testified that Sadler had left his residence early on the morning of the robbery
and returned with his head shaved. When she asked him if he had cut his hair as a
result of the bank robbery, he told her that he had been involved in the robbery, that he
needed to change his look and hide from detectives driving around the neighborhood,

                                           -3-
and that he had killed a security guard while escaping. Sadler's attorney attempted to
offer testimony from the attorney who represented Sadler in state court on the original
bank robbery charges. The proposed testimony concerned Sadler's alleged professions
of innocence made immediately prior to his first confession in 1995. The district court
sustained the government's objection to this testimony as hearsay and irrelevant to
whether the statement to the deputy occurred.

       The jury found Sadler guilty on both counts. Sadler moved for a judgment of
acquittal and the district court denied the motion. Sadler was sentenced on December
20, 1999, to consecutive prison terms of 168 months on Count I and 60 months on
Count II, five years of supervised release, and special assessments totaling $100.00.
At the sentencing hearing, the district court refused to upwardly depart from the
Sentencing Guidelines. On December 21, 1999, Sadler filed a notice of appeal, and the
United States filed a motion to set aside the sentence, alleging error based on this
court's interpretation in United States v. Triplett, 104 F.3d 1074 (8th Cir. 1997), of the
commentary to U.S.S.G. § 2K2.4 (holding that the district court erred by failing to
compare the results of two alternative sentence calculations prior to sentencing).
Pursuant to Fed. R. Crim. P. 35(c), the district court granted the government's motion
and vacated Sadler's original sentence. Sadler was resentenced at a hearing on
December 30, 1999. Applying a different calculation method, the district court
sentenced Sadler to 240 months on Count I and 60 months on Count II, resulting in an
increase of 72 months of imprisonment compared with his original sentence. This
appeal followed.

                                       Discussion

Sufficiency of the Evidence

      Sadler first argues that the district court erred in denying his motion for judgment
of acquittal because the evidence was insufficient for a rational trier of fact to find him

                                           -4-
guilty beyond a reasonable doubt. The standard of review is very narrow, and the
evidence is viewed in the light most favorable to the verdict. See United States v.
Smith, 104 F.3d 145, 147 (8th Cir.1997); United States v. Cunningham, 83 F.3d 218,
222 (8th Cir.1996); United States v. Johnson, 56 F.3d 947, 956 (8th Cir.1995). The
government receives the benefit of all reasonable inferences that could logically be
drawn from the evidence. See Cunningham, 83 F.3d at 222. As long as any
interpretation of the evidence, regardless of countervailing evidence, would allow a
reasonable-minded juror to find the defendant guilty beyond a reasonable doubt, the
verdict will be upheld. See United States v. White, 81 F.3d 80, 82 (8th Cir.1996);
United States v. Armstrong, 16 F.3d 289, 292 (8th Cir.1994). Furthermore, it is
permissible for a verdict to rely either completely or partially on circumstantial
evidence. See United States v. Alvarado-Sandoval, 997 F.2d 491, 493 (8th Cir.1993).

       Sadler contends that the witness testimony presented against him was insufficient
for any reasonable juror to conclude his guilt beyond a reasonable doubt. Yet the
prosecution offered eyewitness identification from a bank teller and a security guard
present during the robbery, as well as testimonial evidence from Sadler's ex-girlfriend
and two deputy sheriffs linking Sadler to the crime through his incriminatory
statements. Sadler had an opportunity to expose any deficiencies in this evidence
through cross-examination. The jury had the responsibility to evaluate the facts and
assess credibility. See United States v. Jackson, 204 F.3d 812, 814 (8th Cir. 2000).
Viewed in the light most favorable to the verdict, the evidence presented and the
inferences springing from it are sufficient to support a jury's finding of guilt beyond a
reasonable doubt. As a result, we affirm the jury's verdict.

Exclusion of Witness Testimony

       Sadler also contests the exclusion of defense witness testimony during his trial.
Counsel attempted to introduce testimony from the attorney who represented Sadler in
state court to show that Sadler protested his innocence moments before his alleged

                                          -5-
confession to the sheriff's deputy in 1995. The district court's evidentiary rulings are
reviewed for abuse of discretion. See United States v. Oseby, 148 F.3d 1016, 1025
(8th Cir. 1998). The statements in question constitute hearsay under Fed. R. Evid.
801(c), because they were "offered in evidence to prove the truth of the matter
asserted," namely, that Sadler was in fact innocent. Sadler argues that the statements
were offered not to prove the truth of their content, but to implicate the credibility of
the deputy's testimony about Sadler's confession. As such, Sadler contends that the
statements should have been admitted under Fed. R. Evid. 402 as relevant because they
tend to make a fact of consequence to the determination, the alleged confession, less
probable. See Fed. R. Evid. 401. However, the proffered testimony would only have
its desired effect if in fact the statements were true. Consequently, there is no way to
avoid the categorization of the statements as hearsay. The district court did not abuse
its discretion by excluding the defense witness testimony.

       Sadler does not argue any hearsay exception, but his arguments imply that the
excluded testimony consists of exculpatory prior statements which are consistent with
his not guilty plea, used to rebut the sheriff deputy's testimony, and therefore not
considered hearsay under Fed. R. Evid. 801(d)(1)(B). However, Sadler may not rely
on this definition because he did not testify at the trial and was not subject to cross-
examination, as required by Fed. R. Evid. 801(d)(1). See also United States v. Greene,
995 F.2d 793, 798 (8th Cir. 1993) (refusing to extend the privilege against self-
incrimination to allow a defendant's statements to be admitted without allowing the
government to cross-examine the defendant). Consequently, the proffered testimony
does not fall into the non-hearsay category created by Rule 801(d)(1) and the district
court properly excluded such testimony. See id; see also United States v. Waters, 194
F.3d 926, 931 (8th Cir. 1999) (excluding from evidence defendant's prior statements
consistent with a plea of not guilty), United States v. Chard, 115 F.3d 631, 635 (8th
Cir. 1997) (excluding as hearsay defendant's out-of-court exculpatory statements).

Federal Rule of Criminal Procedure 35(c) Resentencing Authority

                                          -6-
      Sadler argues that the district court erred by reopening his sentence under Fed.
R. Crim. P. 35(c) because there was no clear error in his original sentence. The
government responds that the district court was required to exercise its authority under
Rule 35(c) to correct its clear error in failing to follow the "mandate" of Triplett, 104
F.3d 1074.

       Where a defendant has been convicted of both a violent offense and a violation
of 18 U.S.C. § 924(c), the Sentencing Guidelines require a district court to perform two
different calculations: (1) the sentence possible for the violent crime and the § 924(c)
violation, and (2) the alternative sentence resulting from the violent crime by itself with
an enhancement for using a firearm. See U.S.S.G. § 2K2.4, cmt. n.2 (1997);3 Triplett,
104 F.3d 1074. The district court must utilize its discretion in formulating the sentence
only after these alternate calculations are evaluated. See id. In this case, however, the
question is whether the district court, after initially failing to perform the necessary
calculations, possessed the authority under Fed. R. Crim. P. 35(c) to reopen the original
sentence in order to perform an alternate calculation.


      3
          The commentary states that:

      Where a sentence under this section is imposed in conjunction with a
      sentence for an underlying offense, any specific offense characteristic for
      the possession, use, or discharge of an explosive or firearm . . . is not to
      be applied in respect to the guideline for the underlying offense.

      In a few cases, the offense level for the underlying offense determined
      under the preceding paragraph may result in a guideline range that, when
      combined with the mandatory consecutive sentence under [18 U.S.C. §
      924(c)], produces a total maximum penalty that is less than the maximum
      of the guideline range that would have resulted had there not been a count
      of conviction under [18 U.S.C. § 924(c)] . . . . In such a case, an upward
      departure may be warranted so that the conviction under [18 U.S.C. §
      924(c)] does not result in a decrease in the total punishment.

                                           -7-
       We apply a de novo standard of review for Rule 35(c) issues. See United States
v. Garcia, 112 F.3d 395, 397 (9th Cir. 1997) (stating that "issues of law presented in
a Rule 35(c) motion are reviewed de novo."); accord United States v. Abreu-Cabrera,
64 F.3d 67, 71-73 (2d Cir. 1995) (applying a de novo standard of review without
explicitly declaring it); United States v. Fahm, 13 F.3d 447, 452-54 (1st Cir. 1994)
(same). To the extent that the district court's decision was based on a question of law,
dealing with the legal interpretation and construction of the sentencing guidelines, our
review is de novo. See United States v. Ramirez, 181 F.3d 955, 956 (8th Cir. 1999).



       Rule 35(c) permits a district court to "correct a sentence that was imposed as a
result of arithmetical, technical, or other clear error." Fed. R. Crim. P. 35(c).
However, the scope of Rule 35(c) authority "is intended to be very narrow and to
extend only to those cases in which an obvious error or mistake has occurred in the
sentence." Fed. R. Crim. P. 35 advisory committee's note; see also United States v.
Barragan-Mendoza, 174 F.3d 1024, 1029 (9th Cir. 1999) (interpreting the history of
Rule 35(c) as severely limiting the district court's authority to modify sentences);
Abreu-Cabrera, 64 F.3d 67 at 71-73 (chronicling the history of Rule 35 and the limits
placed on the scope of its authority). Such errors are the type which would almost
certainly be remanded to the district court for further action. See Fed. R. Crim. P. 35
advisory committee's note; see also Ward, 171 F.3d at 191, Abreu-Cabrera, 64 F.3d at
72.

       The Advisory Committee explicitly states that Rule 35(c) "is not intended to
afford the court the opportunity to reconsider the application or interpretation of the
sentencing guidelines or for the court simply to change its mind about the
appropriateness of the sentence." Fed. R. Crim. P. 35 advisory committee's note. The
Second Circuit emphasizes that, as long as the original sentence is legal and valid under
the Sentencing Guidelines, Rule 35(c) is inapplicable. See Abreu-Cabrera, 64 F.3d at
72 (holding that defendant's original sentence did not fall within the scope of Rule 35(c)

                                           -8-
because it was not illegal nor the result of an incorrect or unreasonable application of
the guidelines).4 In this case, the original sentence was not incorrect or unreasonable;
it was merely one of two sentencing options the district court possessed the discretion
to impose.

       It is important to clarify the difference between this case and the requirements
laid out in Triplett, 104 F.3d 1074. In Triplett, the district court's improper calculation
of a sentence resulted in double-counting, a type of error which would unquestionably
be reversed on appeal. See Triplett, 104 F.3d at 1082 (concluding that the district court
may choose either sentencing alternative, but not both). In this case, the district court
imposed one of two acceptable sentences within its discretion, neither of which would
be reversed on appeal. Under these circumstances, the district court's attempt to
resentence Sadler under Rule 35(c) illustrates an impermissible "change of heart as to
the appropriateness of the sentence," Abreu-Cabrera, 64 F.3d at 72, rather than a
correction in the application of the guidelines. As such, it does not constitute the type
of "clear error" which permits a district court to reopen sentencing under Rule 35(c).
We vacate Sadler's sentence and remand for resentencing consistent with this opinion.




      4
       The holding in this case is distinguishable from other circuits where the error
consisted of incorrectly applying the sentencing guidelines, United States v. Waters,
84 F.3d 86, 89 (2d Cir. 1996); using the wrong guideline to calculate the sentence,
United States v. Yost, 185 F.3d 1178 (11th Cir. 1999); and misunderstanding the
governing law, United States v. Ward, 171 F.3d 188, 191 (4th Cir. 1999).

                                           -9-
                                      Conclusion

       For the reasons we have stated, the judgment of the district court is affirmed in
part and reversed in part, and the case is remanded to the district court for resentencing
consistent with this opinion.


      A true copy.

             Attest:

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




                                          -10-
