              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                        File Name: 13a0503n.06

                                 12-5723
                                                                      FILED
                     UNITED STATES COURT OF APPEALS               May 21, 2013
                          FOR THE SIXTH CIRCUIT
                                                              DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,             )
                                      )
     Plaintiff-Appellee,              )   ON APPEAL FROM THE
                                      )   UNITED STATES DISTRICT
     v.                               )   COURT FOR THE WESTERN
                                      )   DISTRICT OF TENNESSEE
TAVIS MARTIN,                         )
                                      )
     Defendant-Appellant              )
                                      )

BEFORE: MARTIN and COOK, Circuit Judges; GRAHAM, District Judge.*

     GRAHAM, District Judge.          Defendant-Appellant Tavis Martin

appeals the sentence of 120 months incarceration imposed following

his plea of guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. §922(g)(1).         Martin argues that the trial

court improperly restricted his cross-examination of government

witnesses     at   the   sentencing    hearing   in     violation     of   the

Confrontation Clause of the Sixth Amendment to the United States

Constitution.      Defendant also appeals the imposition of a special

condition of supervised release that he undergo treatment for a

gambling addiction as directed by his probation officer.

                         I. History of the Case

     Martin    was   arrested   on    August   25,    2010,   based   on   the

allegations of Torressa Thompson that Martin had raped her while


     *
      The Honorable James L. Graham, United States District Judge
for the Southern District of Ohio, sitting by designation.
threatening her with a handgun.      In the presentence investigation

report (“PSR”), the probation officer recommended the application

of    the   cross-reference   provision   in    United   States   Sentencing

Guidelines (“U.S.S.G.”) §2K2.1(c), which instructs that “[i]f the

defendant used or possessed any firearm or ammunition in connection

with the commission or attempted commission of another offense,”

then the guideline range of the other offense as determined under

U.S.S.G. §2X1.1 (Attempt, Solicitation, or Conspiracy) is applied

if the resulting offense level for the other offense is greater

than the offense level calculated for the offense of conviction.

See    U.S.S.G.   §2K2.1(c)(1)(A).        The   application   of    U.S.S.G.

§2A3.1(a)(2), Attempt to Commit Criminal Sexual Abuse, combined

with Martin’s criminal history category of III, would ordinarily

have resulted in a total offense level of 38, with a guideline

imprisonment range of 292 to 365 months.            However, because the

statutory maximum penalty for the §922(g)(1) offense was ten years,

the guideline range in Martin’s case was 120 months.                  Martin

objected to the facts recited in the PSR, claiming that his sexual

activity with Torressa Thompson was consensual.           He also objected

to the paragraphs in the PSR which applied the cross-reference

provision.     Martin’s version of the facts would result in a total

offense level of 20, with a range of 41 to 51 months.

       The district court held a sentencing hearing on June 13, 2012.

Torressa Thompson testified that early on the morning of August 25,

2010, she had an argument with her boyfriend, Jamarious McCurdy.
Torressa, who was three months pregnant at the time, requested that

he drive her to her mother’s house, where she resided.       Instead, he

drove her a few blocks from his apartment, forced her out of the

car and drove away. Torressa called her mother, Greta Thompson, on

her cell phone, and started to walk toward a nearby gas station.

Martin approached her from across the street and told her to stop.

As she started to run, Martin grabbed her in a choke hold and held

a silver gun to her head.      When she started screaming, he told her

to be quiet or he would kill her.       He took her phone and dragged

her into the back yard of an abandoned house across the street,

where he engaged in vaginal intercourse with her. Martin then took

her back to the street.   At that point, McCurdy and the police, who

had been called by Greta Thompson, arrived at the scene.            Martin

threw down the gun and was arrested.

     Greta Thompson testified that around midnight on August 25,

2010, she received a phone call from her daughter, who stated that

McCurdy had put her out of the car and that she was walking to the

gas station.   Her daughter started to scream for help, and then the

call was disconnected. After unsuccessfully trying to reach her by

phone, Greta called McCurdy and the police, and drove to the gas

station. When she arrived at the scene, her daughter was dirty and

teary, and stated that she had been raped.

     The   government   also   presented   the   testimony   of   Margaret

McCallum of the Memphis/Shelby County Rape Crisis Center, who

obtained a statement from Torressa concerning the rape.           McCallum
conducted a physical examination of Torressa, during which she

observed an abrasion consistent with rape, and obtained vaginal

swabs   for   laboratory   testing.   The   parties   stipulated   to   a

laboratory report which stated that vaginal swabs taken from

Torressa contained sperm which matched Martin’s DNA.

     Martin called his fiancee, McKeisha Webb, as a witness.       Webb

testified that she was dating Martin in August of 2010, and that

they had not had sexual relations for two to three months because

Martin’s uncircumcised penis would become irritated and would crack

and bleed.     Martin also relied on a letter from a doctor dated

October 24, 2011, which stated that defendant had sought medical

treatment in the form of antibiotics for an infection of his penis

at the jail facility where he had been incarcerated since December

of 2010.

     The district court concluded that the government’s witnesses

were credible witnesses, and that the facts included in the PSR

were correct.     The court rejected Webb’s testimony, noting her

relationship with Martin.      The court also concluded that Webb’s

testimony was not corroborated by the doctor’s letter, noting that

the letter related to Martin’s medical condition over a year after

the offense, and that there was no medical evidence about Martin’s

condition at the time of the offense.           After addressing the

statutory sentencing factors, the district court imposed a sentence

of 120 months, the statutory maximum.
                   II. Confrontation Clause Issues

     Martin argues that the trial court improperly limited his

cross-examination of government witnesses in violation of the

Confrontation Clause.        A trial court’s evidentiary decisions are

reviewed for an abuse of discretion.         United States v. Wagner, 382

F.3d 598, 616 (6th Cir. 2004).          However, because Martin did not

raise his Confrontation Clause argument before the district court,

we review the district court’s rulings for plain error.               United

States v. Baker, 458 F.3d 513, 519 (6th Cir. 2006).            To constitute

plain error, “there must be error, (2) that is ‘plain,’ (3) and

that ‘affects substantial rights.’”          Johnson v. United States, 520

U.S. 461, 466-67 (1997)(quoting United States v. Olano, 507 U.S.

725, 732 (1993)).      An error “affects substantial rights” when it

“affected the outcome of the district court proceedings.”             Olano,

507 U.S. at 734.      If these three conditions are met, an appellate

court may exercise its discretion to address the issue if the error

seriously   affects    the   fairness   or    integrity   of   the   judicial

proceedings.   Johnson, 520 U.S. at 467.

     The Confrontation Clause protects a defendant’s right to

cross-examine the witnesses against him. Davis v. Alaska, 415 U.S.

308, 315-16 (1974); see also Vasquez v. Jones, 486 F.3d 135, 143

(6th Cir. 2007)(“[T]he Confrontation Clause affords the right to

impeach a witness with his criminal record, subject to the trial

court’s discretion to impose reasonable limitations to prevent

harassment and annoyance of the witness.”). However, “trial judges
retain wide latitude ... to impose reasonable limits on such cross-

examination     based    on    concerns     about,     among      other    things,

harassment,   prejudice,       confusion    of   the    issues,    the    witness’

safety, or interrogation that is repetitive or only marginally

relevant.”    Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see

also United States v. Holden, 557 F.3d 698, 704 (6th Cir. 2009).

The Supreme Court has explained that “the Confrontation Clause

guarantees an opportunity for effective cross-examination, not

cross-examination       that   is   effective    in    whatever    way,    and   to

whatever extent, the defense might wish.”              Delaware v. Fensterer,

474 U.S. 15, 20 (1985)(emphasis in original).                      In the trial

context, “under the Confrontation Clause, a defendant must show

that, had he been able to cross-examine a witness on an issue, [a]

reasonable jury might have received a significantly different

impression of [the witness’s] credibility[.]’”                 United States v.

Faulkenberry,    614    F.3d   573,   589   (6th      Cir.   2010)(quoting       Van

Arsdall, 475 U.S. at 680); see also Holden, 557 F.3d at 704 (noting

that “[t]he key issue is whether the jury had enough information to

assess the defense’s theory of the case despite the limits placed

on cross-examination”).

     The government notes that this court has previously held that

the Confrontation Clause does not apply to sentencing hearings.

See, e.g., United States v. Paull, 551 F.3d 516, 527-28 (6th Cir.

2009); United States v. Moncivais, 492 F.3d 652, 665 (6th Cir.

2007); United States v. Katzopoulos, 437 F.3d 569, 573-76 (6th Cir.
2006).   As we stated in United States v. Mejia-Ruiz, 433 F. App’x

455, 459 (6th Cir. 2011), most of those opinions addressed the

admissibility of testimonial hearsay at sentencing hearings, not

the right to cross-examine a testifying witness.            We need not

decide the question of whether the Confrontation Clause applies in

the latter context, however, because, even assuming that the

Confrontation Clause does apply, Martin has not demonstrated any

infringement of his right to cross-examine witnesses.

     Martin first argues that he was improperly denied his right to

cross-examine Torressa Thompson concerning her prior misdemeanor

conviction for a theft offense, shoplifting.              The government

opposed this line of impeachment, noting that shoplifting was not

an offense where “establishing the elements of the crime required

proving–or    the   witness’s   admitting–a   dishonest   act   or   false

statement.”     Fed.   R.   Evid.   609(a)(2);   see   United   States   v.

Washington, 702 F.3d 886, 893 (6th Cir. 2012)(shoplifting is not a

crime of dishonesty or false statement)(citing McHenry v. Chadwick,

896 F.2d 184, 188 (6th Cir. 1990)).      The district court agreed with

the government’s position and disallowed this line of questioning.

     Adherence to Rule 609(a)(2) was not required in this case, as

the Federal Rules of Evidence do not apply to sentencing hearings.

See Fed. R. Evid. 1101(d)(3); United States v. Christman, 509 F.3d

299, 304 (6th cir. 2007).       But the district court’s reliance on

Rule 609(a)(2), even if erroneous, did not deprive Martin of any

meaningful cross-examination.       The rationale behind Rule 609(a)(2)
is that crimes of stealth such as theft and shoplifting “have

little   bearing   on   a   witness’s   character   for   truthfulness.”

Washington, 702 F.3d at 893; see also United States v. Barb, 20

F.3d 694, 696 (6th Cir. 1994)(conviction under worthless check

statute “is not, as a matter of law, a conviction involving

dishonesty and adds nothing to the factfinder’s ability to judge

the credibility or propensity for truthfulness of a witness”).

Likewise, there is no evidence in the record suggesting that

Torressa’s conviction for misdemeanor shoplifting was a crime

involving dishonesty or false statement, or that it was relevant to

her credibility as a witness.

     Martin relies on Vasquez v. Jones, 496 F.3d 564 (6th Cir.

2007).   That case is distinguishable.       In Jones, we held that the

state court’s refusal to permit defendant to impeach the hearsay

statement of a nontestifying witness introduced at trial with

evidence of the witness’s prior convictions resulted in prejudicial

error under the Confrontation Clause.          Id. at 575.      Here, the

district court, the trier of fact at the sentencing hearing, was

made aware of the shoplifting conviction by defense counsel, and

justifiably concluded that it was not relevant for impeachment

purposes.   Martin also argues that it was unfair to deny him the

right to cross-examine Torressa Thompson concerning her shoplifting

conviction, while permitting the government to ask Webb, the

defense witness, whether she had ever been convicted of a crime, to

which she responded, “Driving while license suspended.” Sentencing
Hrg. Tr. p. 100.       Yet, defense counsel raised no objection to this

inquiry.   The district court made no reference to this conviction

in its evaluation of Webb’s credibility as a witness.

      Although noting that the question would have no probative

effect, the district court did permit defense counsel to ask

Torressa if she had ever been arrested, and she responded, “Yes.”

Sentencing Hrg. Tr. p. 56.         Defense counsel was also permitted to

thoroughly cross-examine Torressa concerning the events surrounding

the rape and Torressa’s previous statements.               We cannot say that

the district court might have received a significantly different

impression of her credibility had it permitted cross-examination

concerning her shoplifting conviction, or that the district court’s

ruling affected the outcome of the sentencing hearing.

      Martin    also   contends    that   the   district    court   improperly

precluded him from cross-examining Greta Thompson regarding her

opinion of Torressa’s boyfriend, Jamarious McCurdy.                 On direct

examination, counsel for the government asked Greta if she liked

McCurdy, but then withdrew the question.            Sentencing Hrg. Tr. p.

61.   On cross-examination, Greta stated that she didn’t care for

McCurdy, and that she “didn’t really care for a lot of his ways.”

Sentencing Hrg. Tr. p. 67.           When defense counsel asked her to

elaborate on what those ways were, the government objected on the

ground   that    the    question   was    outside   the     scope   of   direct

examination.     Defense counsel acknowledged that the government had

withdrawn the question, and the district court correctly ruled that
the question was outside the scope of direct and was not relevant.

Sentencing Hrg. Tr. p. 67.       Defense counsel made no argument as to

why the witness’s opinion of McCurdy had any bearing on whether

Torressa Thompson was raped by Martin.         In addition, the district

court   permitted    the   cross-examination     of   Torressa    Thompson

concerning the difficult relationship she had with McCurdy, who

became argumentative when he was drinking, and the fact that she

had previously called the police on one such occasion.           Sentencing

Hrg. Tr.   pp.    35-37.   Any    further   cross-examination     of Greta

Thompson concerning that subject would have been cumulative, and

the district court’s limitation of the cross-examination of Greta

Thompson did not deny Martin any confrontation rights.

     Lastly, Martin notes that in discussing the evidence presented

at the hearing, the district court stated that “the law presumes

that each witness has attempted to and has, in fact, testified to

the truth unless it is demonstrated to [the] contrary.” Sentencing

Hrg. Tr. p. 119.    This statement was erroneous.      See United States

v. Maselli, 534 F.2d 1197, 1202-03 (6th Cir. 1976)(holding that it

was error to give a jury instruction concerning a legal presumption

of the truthfulness of witnesses).          Martin does not explain how

this isolated statement by the district court denied him a right to

confront   or    cross-examine    witnesses.     Despite   the   confusing

reference to a presumption of truthfulness, it does not appear that

the district court later applied any such presumption in evaluating

the credibility of the witnesses.           The above statement was the
court’s only reference to a presumption of truthfulness. Following

this statement, the district judge noted that “the testimony was by

and large not in conflict[.]”                    Sentencing Hrg. Tr. p. 119.                 The

district judge        then      stated      that    “we    make       decisions      based in

evidence” and “we don’t disregard anybody’s evidence, we evaluate

it all.”    Sentencing Hrg. Tr. pp. 119-20.                     The district judge then

engaged    in   an    extensive        explanation         as    to    why   he     found    the

testimony of the government’s witnesses to be credible.                              He found

the circumstances         to     be   consistent          with    rape,      and    noted    the

corroboration        of   Torressa       Thompson’s        testimony         by    expert    and

testimonial evidence.            Sentencing Hrg. Tr. pp. 120-24.                    The judge

explained that Webb, the defense witness, was “in love with the

defendant and is not a credible witness[.]”                            The district court

further found that Webb’s testimony concerning Martin’s physical

problems was not supported by any contemporaneous medical evidence.

Sentencing Hrg. Tr. pp. 124.

     In    summary,       we     find       no    error     that       affected      Martin’s

substantial     rights          or    the    outcome       of     the     district         court

proceedings.

            III. Special Condition of Supervised Release

     Martin also raises as error the inclusion in the written

judgment of a special condition of supervised release concerning

treatment for a gambling addition at the direction of the probation

officer,    because       the    district        court     said       nothing      about    this

condition in pronouncing the oral sentence in court.                               This court
has not yet decided whether the trial court must announce special

conditions of supervised release at the sentencing hearing.                   See

United States v. Swanson, 209 F. App’x 522, 524 & n.3 (6th Cir.

2006).      We need not decide this issue here.                The government

concedes that the district court’s failure to orally impose the

special condition constituted an abuse of discretion in this case,

and asks that this case be remanded to the district court for

amendment    of   the   written    judgment   to     conform   with    the   oral

pronouncement of the conditions of supervised release.

                                IV. Conclusion

     In   accordance     with     the   foregoing,    the   district    court’s

sentence is affirmed in part and reversed in part, and this case is

remanded to the district court with instructions to amend the

written judgment to conform with the oral pronouncement of the

special conditions of supervised release.
