                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1490
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the District
                                        * of Minnesota.
Craig Ramon Chapman,                    *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 21, 2003

                                  Filed: January 21, 2004
                                   ___________

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and MURPHY, Circuit
      Judges.
                        ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       A jury convicted Craig Chapman of conspiring to distribute marijuana, and the
district court sentenced him to imprisonment for 41 months. For the reasons stated
below, we affirm his conviction but remand to the district court for resentencing and
for correction of a clerical error in the judgment.
                                          I.
       This case arises out of Mr. Chapman's participation in a marijuana distribution
conspiracy with his brother, James Chapman (James), and at least one other
individual, Francisco Barron. During a routine traffic stop, a Colorado state trooper
found four duffel bags containing 191 pounds of marijuana in Mr. Barron's trunk.
Mr. Barron told the officers and later Drug Enforcement Agency (DEA) agents that
he had, on several occasions, transported marijuana for "Arturo" from Arizona to
Minneapolis. Once at his destination, Mr. Barron said that he would rent a local
motel room and contact the buyer, Mr. Chapman, to arrange for pick-up and payment.
Mr. Barron agreed to cooperate in a controlled delivery, and DEA agents
accompanied him to meet his buyer in Minnesota where the focus of the investigation
shifted to Mr. Chapman and his brother. Mr. Chapman, James, and Mr. Barron were
indicted together. At the time that Mr. Chapman and his brother were jointly tried,
Mr. Barron was a fugitive. The jury convicted both Mr. Chapman and James of the
charges against them.

                                         II.
       We note, first, that Mr. Chapman raises arguments concerning a jury
instruction, the chain of custody of certain evidence, and the amount of marijuana
attributed to him for sentencing purposes, all of which we have already addressed on
his brother's appeal. See United States v. Chapman, 345 F.3d 630, 636-37 (8th Cir.
2003). We reject these arguments for the reasons given in our previous opinion.

                                         III.
      At trial, the district court, over the objections of both Chapman brothers,
allowed DEA Special Agent Kyle Scheer to testify to Mr. Barron's out-of-court
statements made between the time of the traffic stop and the controlled delivery.
Mr. Chapman asserts that the admission of these statements violated his sixth
amendment right to confront witnesses against him.



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       The government argues that because Mr. Chapman's name was redacted from
the statements and replaced with the more generic words "person" and "buyer," his
constitutional rights were protected. In the appeal concerning James's conviction, see
Chapman, 345 F.3d at 636, however, we noted that the redacted statements did not
harm James because "the jury could only have understood Mr. Barron's statements
about a 'buyer' as referring to Craig." Thus, we will treat Mr. Barron's statements as
if they were not redacted.

       Although Mr. Barron was unavailable as a witness, the admission of his
statements violated the confrontation clause unless the statements showed sufficient
"indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 65-66 (1980). Hearsay
statements exhibit adequate indicia of reliability if they " 'fall[] within a firmly rooted
hearsay exception' or ... contain[] 'particularized guarantees of trustworthiness' such
that adversarial testing would be expected to add little, if anything, to the statements'
reliability." Lilly v. Virginia, 527 U.S. 116, 124-25 (1999) (plurality opinion)
(quoting Roberts, 448 U.S. at 66); United States v. Papajohn, 212 F.3d 1112, 1119
(8th Cir. 2000).

      In James's appeal, we held that Mr. Barron's statements did not fall under the
hearsay exception for statements against penal interest. See Chapman, 345 F.3d at
632-33. Looking at the statements themselves and ignoring the other evidence
presented at trial, moreover, there is no indication that Mr. Barron's statements were
trustworthy or believable enough to warrant their admission despite the fact that they
came within no hearsay exception. See United States v. Beal, 279 F.3d 567, 571
(8th Cir. 2002); see also, Chapman, 345 F.3d at 634-35. Without other particularized
guarantees of trustworthiness, the introduction of the statements violated
Mr. Chapman's sixth amendment right to confront witnesses against him.

      Although the statements were admitted in error, we will reverse only if the
error was not harmless. "[C]onfrontation right violations are subject to the ...

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harmless error test found in Chapman v. California, 386 U.S. 18, [24] (1967), which
requires that the error be harmless beyond a reasonable doubt." United States v.
Copley, 938 F.2d 107, 110 (8th Cir. 1991). "Under Chapman [v. California],
386 U.S. at 24, an error is harmless only if there could be no reasonable doubt that the
error's admission failed to contribute to the jury's verdict." Reed v. Thalacker,
198 F.3d 1058, 1062 (8th Cir. 1999).

      The government's case against Mr. Chapman was extremely strong. Law
enforcement officers testified that when they searched Mr. Barron, they found
business cards with several of Mr. Chapman's phone numbers handwritten and printed
on them. These cards suggested that Mr. Barron and Mr. Chapman knew each other.
DEA Special Agent Tammie Key testified that, on three occasions, she dialed the
numbers on the cards for Mr. Barron so that he could make arrangements with
Mr. Chapman to meet him for the delivery. At trial tapes of these phone
conversations were played for the jury, and Agent Key, who had spoken with
Mr. Chapman during and after his arrest, identified him as the other party to the
recorded conversations.

       Before the controlled delivery, Deputy Dana Nelson saw Mr. Chapman visit
his brother's home to get a box that Mr. Chapman placed in his trunk before meeting
Mr. Barron. Mr. Chapman was positively identified by police as the man who met
Mr. Barron at the motel during the controlled delivery. Another deputy testified that
he found more than $31,000 in the trunk of Mr. Chapman's car in the motel parking
lot following Mr. Chapman's arrest.

       Deputy Nelson also testified that, during the search of Mr. Chapman's home,
the police found a piece of paper with Arturo's name and Arizona phone number on
it and another piece of paper with Mr. Barron's wife's first name and Mexican phone
number on it. These papers were found in the bedroom where police also found bills
addressed to Mr. Chapman. In the same bedroom, the police found a yellow jacket

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with $1064 in the pocket, a file box containing marijuana, a scale, an empty sandwich
bag box, and $300; in the basement, they discovered marijuana residue inside a
Coleman cooler.

      After examining the whole record, we conclude that Mr. Barron's statements
were superfluous and did not contribute to the jury's verdict and thus their admission
was harmless beyond a reasonable doubt. Cf. Delaware v. Van Arsdall, 475 U.S. 673,
681 (1986).


                                        IV.
       We also reject Mr. Chapman's claim that the evidence was insufficient to
support the jury's verdict. We review the sufficiency of the evidence to sustain a
conviction de novo. United States v. Fitz, 317 F.3d 878, 881 (8th Cir. 2003). "On a
challenge to the sufficiency of the evidence supporting a criminal conviction we must
view the evidence 'in the light most favorable to the government, resolving
evidentiary conflicts in favor of the government, and accepting all reasonable
inferences drawn from the evidence that support the jury's verdict.' " United States
v. Abfalter, 340 F.3d 646, 654-55 (8th Cir. 2003) (quoting United States v. Erdman,
953 F.2d 387, 389 (8th Cir. 1992), cert. denied, 505 U.S. 1211 (1992)). We have
already rehearsed much of the evidence against Mr. Chapman. The evidence,
ignoring the improperly admitted hearsay, was more than ample to support a verdict
beyond a reasonable doubt.


                                         V.
      Mr. Chapman asserts that the district court erred when it denied him a
downward departure under the United States Sentencing Guidelines based on his
post-offense rehabilitation. Generally, denials of downward departures are
unreviewable. United States v. McGee, 201 F.3d 1022, 1023 (8th Cir. 2000) (per
curiam). If the sentencing court denied the departure because it believed that it had

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no authority to depart from the sentencing guidelines, however, we will determine on
appeal whether the sentencing court's belief was correct. See United States v. Rice,
332 F.3d 538, 539-40 (8th Cir. 2003).


      While noting that Mr. Chapman's post-offense rehabilitation was "exceptional,"
the district court stated that it did not believe that it could grant Mr. Chapman's
motion because he had held the government to its burden at trial and did not
otherwise accept responsibility for his crime. We hold, to the contrary, that truly
exceptional rehabilitation alone can, in rare cases, support a downward departure
even when the defendant does not accept responsibility.


       Two provisions of the sentencing guidelines involve post-offense, pre-
sentencing rehabilitation: U.S.S.G. § 3E1.1 (2002) (allowing a reduction in offense
level for acceptance of responsibility) and U.S.S.G. § 5K2.0 (2002)1 (policy
statement) (providing for a departure in cases "outside the heartland" of the
guidelines, see Koon v. United States, 518 U.S. 81, 98 (1996)). The commentary to
§ 3E1.1 lists a number of considerations, including post-offense rehabilitation, that
a district court may take into account when determining whether a defendant has
accepted responsibility. See U.S.S.G. § 3E1.1 comment. (n.1) (2002). In practice,
however, holding the government to its burden of proving the defendant's factual

      1
        All references in this opinion are to the 2002 version of the guidelines, which
were in effect at the time that Mr. Chapman was sentenced. We note that § 5K2.0
"was substantially revised, effective October 26, 2003," see U.S.S.G. § 5K2.0 (2003)
(policy statement) comment, and that the revisions included provisions which prohibit
downward departures for acceptance of responsibility, § 5K2.0(d)(2), require that
departures for post offense rehabilitation occur only "in the exceptional case," §
5K2.0(a)(2)(B), and place limitations on departures based on multiple circumstances,
§ 5K2.0(c)(1)(2) (applicable if post offense rehabilitation were to be relied on in
combination with any other circumstance).


                                         -6-
guilt presents a near absolute bar to a defendant receiving a reduction under this
section. See U.S.S.G. § 3E1.1 comment. (n.2) (2002); Hutchison, et. al., Federal
Sentencing Law and Practice § 3E1.1, author's cmt. 5 (2002); see also United States
v. Speck, 992 F.2d 860, 863 (8th Cir. 1993). For example, when a district court
awarded a reduction in the offense level for acceptance of responsibility based solely
on post-offense rehabilitation, we reversed, holding that under § 3E1.1, a defendant
must do more than pursue self-improvement; he must accept responsibility for his
offense in some way. See Speck, 992 F.2d at 862-63. It is abundantly clear in
Mr. Chapman's case that he cannot qualify for this reduction regardless of how
exceptional his post-offense rehabilitation was: He held the government to its burden
and did not admit his guilt in any way to his family, his friends, his church, or the
authorities.


       Post-offense rehabilitation can also support a downward departure under
§ 5K2.0. See United States v. Swick, 334 F.3d 784, 789 (8th Cir. 2003). This section
allows a district court to "impose a sentence outside the range established by the
applicable guidelines, if the court finds 'that there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into consideration by the
Sentencing Commission.' " U.S.S.G. §5K2.0 (2002) (quoting 18 U.S.C. § 3553(b)).
Because § 3E1.1 already takes account of post-offense rehabilitation, "departure
under §5K2.0 is warranted only if the defendants efforts are exceptional enough to
be atypical." United States v. DeShon, 183 F.3d 888, 889 (8th Cir. 1999); see Koon,
518 U.S. at 96. Section 5K2.0 permits departures only in cases that fall "outside the
heartland" of the guidelines. See Koon, 518 U.S. at 98. Our cases demonstrate that,
at minimum, post-offense rehabilitation must be atypical. See e.g., United States v.
Allery, 175 F.3d 610, 614 (8th Cir. 1999). Where post-offense rehabilitation efforts
were not atypical, we have reversed downward departures. See, e.g., Swick, 334 F.3d
at 789-90; United States v. Patterson, 315 F.3d 1044, 1048-49 (8th Cir. 2003). In
cases where we have affirmed downward departures for post-offense rehabilitation,


                                          -7-
however, we have noted that in addition to exceptional rehabilitation, defendants
have accepted responsibility (and also received the § 3E1.1 reduction) and begun
rehabilitation before arrest. See, e.g., United States v. Newlon, 212 F.3d 423, 424
(8th Cir. 2000); DeShon, 183 F.3d at 889-90 (8th Cir. 1999). While atypicality is
certainly required for a § 5K2.0 departure, we have not addressed directly the
significance of a defendant's acceptance of responsibility and the timing of
rehabilitation.


       We hold today that atypical post-offense rehabilitation can by itself be the basis
for a departure under § 5K2.0. Cf. Patterson, 315 F.3d at 1048-49; United States v.
Roberts, 313 F.3d 1050, 1054 (8th Cir. 2002). Atypical post-offense rehabilitation
does not necessarily require that a defendant accept responsibility or that a defendant
begin rehabilitative efforts before arrest. These facts, instead, are relevant to
determining the genuineness of the defendant's rehabilitation. For example, a
defendant admitting his wrongdoing to his family and friends is evidence that a
district court could take into consideration when determining if a defendant's post-
offense rehabilitation is genuine and extraordinary as required for a § 5K2.0
departure. See DeShon, 183 F.3d at 889. The absence of an acceptance of
responsibility, on the other hand, does not necessarily preclude a departure under
§ 5K2.0; it will simply make it more difficult for a defendant to prove that his
rehabilitation is genuine and atypical. Cf. United States v. Kapitzke, 130 F.3d 820,
823 (8th Cir. 1997). Likewise, pre-arrest rehabilitative efforts may better demonstrate
a defendant's sincere desire to change his or her life than post-arrest efforts that may
be tainted by a motive to appear reformed. In the end, however, only the atypicality
of a defendant's post-offense rehabilitation determines whether a § 5K2.0 downward
departure is appropriate. Information such as whether the defendant has accepted
responsibility or the timing of the commencement of rehabilitative efforts serves only
to determine the atypicality vel non of the defendant's behavior.



                                          -8-
       Since we hold that the timing of a defendant's pre-sentencing rehabilitative
efforts and his failure to be accountable for his crime do not necessarily preclude a
§ 5K2.0 downward departure for extraordinary post-offense rehabilitation, we remand
Mr. Chapman's case to the district court for resentencing. On remand, the district
court should assess whether Mr. Chapman's post-offense rehabilitative efforts were
truly extraordinary.


                                        VI.
       Lastly, Mr. Chapman asserts that the judgment and commitment order
mistakenly refer to 21 U.S.C. § 841(b)(1)(C) rather than 21 U.S.C. § 841(b)(1)(D) as
the applicable penalty provision. The government agrees. Upon remand, the district
court should correct these mistakes. See Fed. R. Crim. P. 36.


                                        VII.
       For the reasons stated above, we affirm Mr. Chapman's convictions, but we
remand so that the district court may reconsider Mr. Chapman's request for a
downward departure based on his post-offense rehabilitation and correct a clerical
error in the judgment and commitment order.
                       ______________________________




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