                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2248
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
     v.                                * District Court for the Northern
                                       * District of Iowa.
Troyce Allen Lewis,                    *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: November 15, 2005
                                Filed: February 7, 2006
                                 ___________

Before MURPHY, McMILLIAN1, and GRUENDER, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

      A jury convicted Troyce Allen Lewis of possessing cocaine base and cocaine
with an intent to distribute within 1,000 feet of a school, and the district court2
sentenced him to 360 months. Lewis appeals, arguing that the district court erred by
excluding evidence he wanted to introduce, denying his motion for a new trial, and
imposing an unreasonable sentence. We affirm.

      1
       The Honorable Theodore McMillian died on January 18, 2006. This opinion
is being filed by the remaining judges of the panel pursuant to 8th Cir. Rule 47E.
      2
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
       A federal grand jury issued a two count indictment on November 12, 2003,
charging Lewis with one count of knowingly and intentionally possessing cocaine
base with an intent to distribute within 1,000 feet of a school, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 860, and one count of knowingly and intentionally
possessing cocaine with an intent to distribute within 1,000 feet of a school, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 860.

       The government introduced evidence at trial that in early November 2003 a safe
owned by Arthur Graves was left with Troyce Lewis who was a friend of Graves and
knew him to be a drug dealer. Lewis asked Jayme Jeffries whether he could store
some of Graves' "stuff "in her garage, and she agreed. Lewis put a bag with the
Gordmans name on it in Jeffries' garage, and she gave him a key to the garage.
Jeffries testified that Lewis returned the next day looking high and told her that the
bag contained $40,000 worth of stuff and that it would cost her life if something
happened to it. Jeffries later opened the bag and discovered that it contained a safe.
She had served as a confidential informant to the police for five years and decided to
contact them about her discovery. Her property happened to be adjacent to a private
school, the Walnut Ridge Baptist Academy.

       Officers William Herkelman, Dennis O'Neill, and Michael McNamee went to
Jeffries' residence on November 10 in response to her call. They searched the garage
and the Gordmans bag in which they found a locked safe. They took the bag and safe
with them and obtained a search warrant to open the safe after a trained narcotics dog
alerted to it. Inside the safe they found 252.36 grams of cocaine base packaged in
three baggies and 310.6 grams of powder cocaine packaged in five baggies.

       On November 11 Lewis returned to Jeffries' residence. She testified that when
he discovered that the safe was missing, he demanded its return and again threatened
her life. Jeffries called the police, and Herkelman and McNamee drove to her house.
Posing as her brothers, the officers handed Lewis the bag containing the empty safe.

                                           -2-
When Lewis discovered that the contents of the safe were missing, he began to swear
and threw it to the ground. The officers identified themselves as police, and Lewis
attempted to run away but they tackled and arrested him. A search of his person
yielded a set of keys and $175 in cash, all of which was returned to him. After the
officers asked for the key to his Ford Explorer so they could move it, they eventually
found a key ring in his crotch. On the ring were keys to his vehicle, to Jeffries'
garage, and to Graves' safe. The cash that had been returned to Lewis was later found
under the front seat of the police car in which he was transported to the station.

       Before trial the government moved in limine to exclude potential impeachment
evidence related to Jeffries, who had been charged in September 2004 with filing a
false police report in connection with an August 2004 rape. Lewis did not resist the
motion, and the court granted it after concluding that the evidence was inadmissible
under either Federal Rule of Evidence 609, because Jeffries had not been convicted
of the charge, or Rule 608, because her fifth amendment privilege precluded
impeachment by this specific instance of conduct.

       The trial lasted for three days. The government introduced testimony from
Jeffries and from officers Herkelman, O'Neill, and McNamee, who reported on the
seizure of the safe and its contents and their interactions with Jeffries and Lewis.
Lewis moved for acquittal at the close of the government's case; the motion was
denied. The defense presented evidence from three witnesses. Lewis' wife testified
about his employment history, his relationship with Graves, and the delivery of the
safe. She stated that the couple was struggling financially and that she had not seen
signs that her husband was involved in drug distribution. Lewis also called a reserve
police officer, Larry Thompson, who testified that Lewis had been attempting to find
Graves for him so that he could execute an outstanding felony arrest warrant and that
in their conversations about Graves, Lewis had never mentioned anything about a
safe. Lewis took the stand and testified that he had had no knowledge about what was
inside the safe. He stated that he had received three unidentified keys from Graves on

                                         -3-
November 10 and that he had only returned to Jeffries' house on November 11
because she had called him for her garage key. He claimed that it was Jeffries who
had placed the safe in her garage and that it had not been covered with a bag at the
time. Lewis testified that he had informed Thompson about Graves' outstanding
warrant and his whereabouts, which eventually contributed to his arrest.

       The government raised a hearsay objection to a number of questions defense
counsel wanted to ask. These questions included what Lewis had told Thompson
about his drug history, what Lewis had told his wife about Graves, what Lewis had
said to the man who brought him the safe, what Lewis and Graves discussed about
the safe, and what Lewis told the officers when he was arrested. Defense counsel
argued that the statements were not hearsay for several reasons: that the declarant was
testifying at trial, that the government had opened the door to an area of inquiry, or
that the evidence was not offered for the truth of the matter. The court found that the
contested evidence was hearsay and sustained the government's objections.

       In its rebuttal the government recalled Herkelman and called two other
witnesses: officer Adam Gailbraith and Richard Barragan, an inmate in the jail in
which Lewis had been incarcerated. Herkelman and Gailbraith testified about an
interview they had had with Lewis in which he admitted that he had planned to use
some of the drugs that were in the safe although he made conflicting statements about
his knowledge of the safe's contents. Barragan testified about statements Lewis had
made to him while they shared a jail cell.

      Lewis again moved for acquittal at the conclusion of all the evidence. The court
denied the motion, and the case went to the jury which returned a verdict convicting
Lewis of violating 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), 851, and 860.
Lewis filed separate written motions for acquittal and for a new trial, which the court
denied.



                                         -4-
        At the sentencing hearing, the court adopted the guideline calculations in the
presentence report for a base offense level of 36. It added a two level enhancement
for obstruction of justice based on its finding that Lewis had testified falsely during
trial, in particular by "denying knowledge and denying guilt in the facts and
circumstances of this case" and by making the specific false statements identified by
the government. With a total offense level of 38 and criminal history category VI,
Lewis' guideline range was 360 months to life. The court recognized that the statutory
minimum under 21 U.S.C. § 841(b)(1)(A) was twenty years and that the 18 U.S.C. §
3553(a) factors needed to be considered. It indicated that it had considered the facts
and circumstances of his offenses, the letters submitted on his behalf, his prior
criminal history, the seriousness of the conduct at issue, the amount of drugs involved,
the fact that the crimes occurred in proximity to a school, and its finding of perjury.
The court also articulated that it was choosing a sentence at the bottom of the
guideline range which in its opinion was reasonable based on the § 3553(a) factors.
The court then imposed concurrent 360 month sentences.

      Lewis appeals. He argues that the district court erred by restricting his cross
examination of Jeffries, by excluding as hearsay his out of court statements and those
of Larry Thompson, by denying his motion for a new trial, and by imposing an
unreasonable sentence.

       Lewis alleges that the district court abused its discretion by not permitting him
to impeach Jeffries with her dismissed charge of filing a false police report. Lewis
asserts that the evidence was admissible under Rule 404(b) to show intent, motive, or
plan. Lewis argues that Jeffries' motive and plan were to "attempt to redeem herself
and receive favorable treatment" in her case by making false charges against him.
Lewis claims that a lower standard of admissibility should apply for a defendant
seeking to introduce impeachment evidence, citing cases from other circuits. See
United States v. Aboumoussallem, 726 F.2d 906 (2d Cir. 1984), United States v.



                                          -5-
Cohen, 888 F.2d 770 (11th Cir. 1989). He does not claim on appeal that the district
court erred in excluding the evidence under Rules 608 and 609.

       The government responds that our review is for plain error only since Rule
404(b) was not raised in the district court. It further argues that the evidence would
be inadmissible under Rule 404(b) for the same reasons that it could not come in
under Rule 608 because Jeffries' fifth amendment protection overrides the reason for
offering a specific instance of conduct for impeachment. See United States v. Burch,
490 F.2d 1300, 1302-03 (8th Cir. 1974). It points out that Rule 404(a)(3) specifically
refers to Rule 608 as the rule controlling the use of evidence to prove the character of
a witness. The government also asserts that Lewis had a number of other means to
impeach Jeffries and that he has not shown that evidence of her dismissed charge
would in fact have impeached her. Moreover, Lewis' argument that Jeffries had a
motive to lie about him was undercut by the fact that her arrest on the charge of filing
a false report occurred nearly a year after she had reported the safe in her garage.

      Lewis disagrees that plain error review applies and claims the district court
should have allowed him to make an offer of proof to show the relevance of the
evidence. He contends the government's arguments only go to the weight rather than
the admissibility of the evidence.

      Evidence of prior bad acts is admissible under Rule 404(b) if “(1) it is relevant
to a material issue; (2) it is similar in kind and not overly remote in time to the crime
charged; (3) it is supported by sufficient evidence; and (4) its potential prejudice does
not substantially outweigh its probative value.” United States v. Jackson, 278 F.3d
769, 771 (8th Cir. 2002) (internal quotation omitted). Even if Lewis had sought
admission of the evidence under this rule and it had been deemed relevant, its
probative value would have been outweighed by the likelihood of confusion and
prejudice. Jeffries' dismissed charge of filing a false report and her related rape both
occurred many months after she called the police about Lewis and the safe. Evidence

                                          -6-
about this charge would have had minimal relevance and probative value, would have
required considerable time, and would have potentially confused the jury. Although
Lewis now complains that the district court should have allowed him to make an offer
of proof about this evidence, he did not offer to make one at trial. We conclude that
the district court did not abuse its discretion by excluding the evidence at trial and
certainly committed no plain error by not admitting it sua sponte under Rule 404(b).

       Lewis argues that the district court abused its discretion by excluding as hearsay
out of court statements by himself and Larry Thompson. Lewis does not argue that
the statements fall within an exception to the hearsay rule, but rather that a statement
by a declarant who testifies at trial is not hearsay. In support he cites United States
v. Bohr, 581 F.2d 1294 (8th Cir. 1978), where out of court statements by prosecution
witnesses were admitted. Although the challenged statements in Bohr had not been
offered for the truth of the matter asserted, Lewis focuses on dicta in the case which
said that "where the declarant is also a witness, the rationale of the hearsay rule does
not apply". Id. at 1304. The government responds that Lewis' argument for a blanket
exemption from the hearsay rule where the declarant is a witness is unfounded and
that the statements offered by Lewis do not come within any of the specific exclusions
from the definition of hearsay evidence found in Rule 801(d)(1).

        A statement offered to prove the truth of the matter asserted is hearsay unless
it originates while a declarant is testifying at trial. See Fed. R. Evid. 801(c). The fact
that past out of court statements were made by a witness testifying at trial does not
remove them from the reaches of the hearsay rule if they are offered to prove the truth
of the matter asserted. See, e.g, United States v. Water, 413 F.3d 812, 818 (8th Cir.
2005). The challenged statements in Bohr were not admitted for the truth of the
matter so they were not hearsay, and the dicta cited by Lewis is not controlling. We
adhere to the general rule that out of court statements offered for the truth of the
matter asserted are hearsay unless they fit within one of the recognized exceptions to
the hearsay rule. See Fed. R. Evid. 802; United States v. Martin, 59 F.3d 767, 769

                                           -7-
(8th Cir. 1995). Since the evidence offered by Lewis was hearsay as defined by the
rule and does not fit within any of the exceptions, the district court did not abuse its
discretion by excluding it.

       Lewis argues that the district court erred by denying his motion for a new trial.
He claims that a new trial is required in the interest of justice because there was
insufficient evidence that he had knowingly possessed the drugs found in the safe.
Lewis cites his testimony that he had not known the safe contained drugs and that he
did not have a key for it until after it had been seized by the police. He claims this
testimony was unrefuted and that the officers' description of his reaction when he
realized the safe was empty was consistent with his testimony that he thought it
contained money. Lewis also points to specific statements during his police interview
that are consistent with his testimony and complains that the district court analyzed
the weight of the evidence incorrectly in ruling on his motion for a new trial.

       The government responds that the evidence was sufficient for a finding of guilt.
It recounts what it characterizes as strong circumstantial evidence that Lewis had the
key to the safe and knew that it contained drugs. This evidence included his
statements to Jeffries, his knowledge about Graves, his interactions with the police
and his description of the safe's contents during his interview, and his past experience
as a drug user and offender.

       We will not reverse the denial by a district court of a motion for a new trial
unless there has been an abuse of discretion and the evidence indicates that a
"miscarriage of justice may have occurred." United States v. Serrano-Lopez, 366 F.3d
628, 634 (8th Cir. 2004). In this case there was evidence that Lewis had access to the
key at the time he sought to retrieve the safe from Jeffries, that he knew that Graves
had just transported cocaine to Waterloo, that he had described the safe's contents to
Jeffries as "$40,000 worth of stuff" and worth her life, and that he also had the key to
Jeffries' garage. According to law enforcement officers, he admitted to them that he

                                          -8-
had planned to use some of the drugs that were in the safe. The trial record reveals
sufficient evidence from which the jury could find that Lewis knowingly possessed
the drugs contained in the safe and that the verdict was not contrary to the weight of
the evidence. The district court did not abuse its discretion by denying the motion for
a new trial.

       Lewis also alleges that the court erred in sentencing him. He claims that the
court miscalculated his guideline range because the two level enhancement for
obstruction of justice was unsupported and that it failed to analyze the § 3553(a)
factors properly and imposed an unreasonable sentence. The government responds
that the court imposed a reasonable sentence after properly applying an enhancement
for obstruction and considering the statutory sentencing factors.

       In order to base an obstruction of justice enhancement on a defendant's trial
testimony, the district court must find by a preponderance of the evidence that he
perjured himself. See United States v. Taylor, 207 F.3d 452, 455 (8th Cir. 2000)
(internal quotation omitted). The district court explicitly articulated its finding that
Lewis committed perjury while testifying and agreed with the government's listing of
specific parts of his testimony which were false, including his "denial of any
knowledge of the contents of the safe" in light of considerable evidence to the
contrary. Although Lewis claims that there were inconsistencies in the evidence, the
district court's finding that Lewis gave perjurious testimony was a permissible view
of the evidence and not clearly erroneous. See United States v. Rice, 49 F.3d 378, 385
(8th Cir. 1995) ("[w]here there are two permissible views of the evidence, the [district
court's] choice between them cannot be clearly erroneous" (internal quotation
omitted)).

       We determine the reasonableness of a sentence by examining whether the
district court (1) determined the appropriate guideline range, (2) analyzed whether a
departure would be appropriate, and (3) examined other statutory factors in § 3553(a).

                                          -9-
See United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir. 2005). Lewis claims that
the court failed to analyze the § 3553(a) factors sufficiently and only made a
perfunctory reference to them. He also argues that the court did not adequately
account for his cooperation with Larry Thompson, the sentencing disparity between
crimes involving cocaine base and cocaine, or any potential mitigating facts. The
government responds that the court addressed the sentencing factors sufficiently, that
the court made reference to the cocaine sentencing disparity, and that the sentence is
reasonable. The government also alleges that Lewis cooperated with Thompson "only
to gain access to Arthur Graves' drugs."

        A sentence falling within the applicable guideline range is presumptively
reasonable, see United States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005), and
sentencing courts are not obligated to provide "robotic incantations [about] each
statutory factor . . . considered." See United States v. Lamoreaux, 422 F.3d 750 (8th
Cir. 2005). In this case the district court sentenced Lewis at the bottom of the
applicable guideline range after referring to the individual statutory factors, listing
relevant facts, and stating that it considered the sentence reasonable. We conclude
after studying the record that Lewis has not shown that his sentence was unreasonable.


      Accordingly, we affirm the judgment of the district court.

                        _____________________________




                                         -10-
