                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                       No. 17-2175
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                  GLENVERT GREEN,

                                              Appellant
                                     ______________

                      Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                 (D.C. No. 4-16-cr-00259)
                      District Judge: Honorable Matthew W. Brann
                                     ______________

                        Submitted Under Third Circuit L.A.R. 1.2
                                   January 18, 2018
                                   ______________

             Before: AMBRO, RESTREPO, and FUENTES, Circuit Judges

                                  (Filed: April 10, 2018)
                                     ______________

                                        OPINION*
                                     ______________

RESTREPO, Circuit Judge

       Appellant Glenvert Green appeals the District Court’s ruling prohibiting the cross-


       *
         This disposition is not an Opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
examination of the victim at Green’s sentencing hearing. We will affirm.

                                             I

        In March of 2016, Green was incarcerated at United States Penitentiary

Allenwood in White Deer, Pennsylvania. On March 9, 2016, Green left his housing unit

but remained in the “sally port,” an area through which inmates enter and exit the unit.

Green waited until Senior Officer Jacqueline Showers, a federal Bureau of Prisons

correctional officer, entered the sally port to monitor the metal detector. Once Officer

Showers and Green were alone and standing within feet of one another, Green exposed

his penis and began to masturbate. While doing so, he made sexual remarks to the

officer. Officer Showers ordered him to stop, but Green refused and continued his

conduct until Officer Showers radioed for assistance.

        On December 20, 2016, Green pled guilty to indecent exposure, pursuant to the

Assimilated Crimes Act, 18 U.S.C. § 13, in violation of Pennsylvania law, 18 Pa. C.S. §

3127.

        On May 11, 2017, the District Court sentenced Green to 21 months’

imprisonment, to be served consecutively to his current sentence. At the sentencing

hearing, Officer Showers elected to give a victim impact statement on the record.

Defense counsel sought to cross-examine her and the Government objected. After

hearing argument from both parties, the District Court found that the questions proffered

by Green’s counsel would not elicit relevant testimony and sustained the objection.

        On appeal, Green argues that the Court’s ruling prohibiting the cross-examination

of Officer Showers after her victim impact statement violated the Confrontation Clause

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and Green’s due process rights. As a result, he asks us to vacate the judgment of

sentence and remand his case for a new sentencing hearing.

                                             II

       The District Court had jurisdiction under 18 U.S.C. § 3231, and we have

jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We review constitutional

claims de novo, except where, as here, the issues were not raised in the court below. In

these instances, we review such claims for plain error. Government of Virgin Islands v.

Vanterpool, 767 F.3d 157, 162 (3d Cir. 2014) (citing United States v. Marcus, 560 U.S.

258, 262 (2010)). “A plain error that affects substantial rights may be considered even

though it was not brought to the court’s attention.” Fed. R. Crim. P. 52(b). Appellate

courts may correct unpreserved error only when (1) there is an “error,” (2) that is “plain,”

(3) that affects the complaining party’s “substantial rights,” and (4) that “seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.” United

States v. Olano, 507 U.S. 725, 736 (1993) (citing Connor v. Finch, 431 U.S. 407, 421

n.19 (1977)).

                                             III

       Pursuant to the Crime Victims’ Rights Act (CVRA), victims have “[t]he right to

be reasonably heard at any public proceeding in the district court involving release, plea,

sentencing, or any parole proceeding.” 18 U.S.C. § 3771(a)(4); see also Fed. R. Crim. P.

32(i)(4)(B) (“Before imposing sentence, the court must address any victim of crime who

is present at sentencing and must permit the victim to be reasonably heard.”). “Under the

CVRA, courts may not limit victims to a written statement.” United States v. Vampire

                                              3
Nation, 451 F.3d 189, 197 n.4 (3d Cir. 2006). At the sentencing hearing, Officer

Showers elected to testify to the impact Green’s conduct had on her mental state, both at

home and in the workplace.

       Green argues first that the Court’s ruling to prohibit the cross-examination of

Officer Showers violated the Confrontation Clause. He acknowledges, however, that the

law is settled that the Confrontation Clause does not apply in the sentencing context. See

United States v. Robinson, 482 F.3d 244, 246 (3d Cir. 2007) (“Both the Supreme Court

and this Court of Appeals have determined that the Confrontation Clause does not apply

in the sentencing context[.]”); United States v. McGlory, 968 F.2d 309, 347 (3d Cir.

1992) (“The Sixth Amendment’s confrontation clause does not apply to sentencing

hearings and reliable hearsay is generally admissible. . . .”); United States v. Kikumura,

918 F.2d 1084, 1099-1100 (3d Cir. 1990) (holding that the Confrontation Clause applies

at trial, not sentencing). Because Green did not have the right to confront Officer

Showers at his sentencing, the claim that he was deprived of the opportunity to do so

does not pose a viable ground for relief.

       The assertion that Green’s due process rights were violated by the District Court’s

ruling to prohibit cross-examination is similarly unfounded. The Due Process Clause

requires that victim impact statements must have some “minimal indicium of reliability

beyond mere allegation” to be admissible at sentencing hearings. Robinson, 482 F.3d at

246 (quoting Kikumura, 918 F.2d at 1102); see also United States v. Paulino, 996 F.2d

1541, 1547 (3d Cir. 1993) (“[T]he introduction of evidence at sentencing is subject to [a]

due process standard of reliability.”) Green does not contend that Officer Showers’

                                             4
testimony was insufficiently reliable to be properly considered by the District Court in

imposing sentence. He instead asserts, without citation to legal authority, that his due

process rights entitled him to cross-examine the victim because she testified to the

circumstances of the offense. This assertion, however, is refuted by controlling law. See

Williams v. New York, 337 U.S. 241, 250-51 (1949) (holding that consideration of

information supplied by witnesses at sentencing who are not subject to cross-examination

did not violate Due Process Clause); U.S. ex rel. Gerchman v. Maroney, 355 F.2d 302,

309 (3d Cir. 1966) (“It is undoubtedly true that the guarantee of the right of confrontation

and cross-examination does not apply to sentencing pursuant to a criminal conviction.”)

       Accordingly, because Green is unable to show a violation of the Confrontation

Clause or his due process rights, we will affirm the sentence of the District Court.




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