                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2951
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                  Paris Hollingshed

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                            Submitted: October 18, 2018
                              Filed: October 3, 2019
                                  ____________

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
                              ____________

SMITH, Chief Judge.

        Paris Hollingshed was charged with two counts of being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was tried by a
jury that convicted him of Count I and acquitted him of Count II. During the trial, the
government elicited hearsay testimony from a police detective regarding an
eyewitness’s photo lineup identification of Hollingshed. The district court1 admitted
the evidence. The eyewitness, who identified Hollingshed, had been designated as
one of the government’s trial witnesses but never took the stand. Hollingshed’s
counsel did not object to the detective’s testimony that the eyewitness identified
Hollingshed from the photo lineup. On appeal, Hollingshed argues that the district
court erred in admitting the photo lineup identification in violation of his Sixth
Amendment right to confrontation. He also argues the jury’s verdict was not
supported by sufficient evidence. And, Hollingshed challenges the district court’s
imposition of domestic violence and anger management treatments as conditions of
supervised release. Finally, in supplemental briefing, Hollingshed argues that
application of Rehaif v. United States, 139 S. Ct. 2191 (2019), to his case requires
vacatur of his conviction or a new trial. We affirm.

                                    I. Background
       In the spring of 2015, Chavonte Bragg purchased drugs from Hollingshed.
During the transaction, Hollingshed carried a .38 caliber revolver. At a later date,
Bragg purchased a 9mm handgun and a .45 caliber handgun from Hollingshed.
Hollingshed separately delivered the ammunition for the .45 caliber handgun to Bragg
in a sock. Bragg was subsequently arrested on weapons and drug charges. When
arrested, Bragg possessed the 9mm handgun he says he purchased from Hollingshed.
Bragg pleaded guilty to the charges and agreed to cooperate with authorities in this
case against Hollingshed. Bragg told police he purchased the handgun from
Hollingshed and testified to that fact at trial.2

      1
       The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
      2
        Presumably the majority of Bragg’s testimony was elicited by the government
pursuing a conviction on Count II, which was for possession of the 9mm handgun and
which resulted in an acquittal. The jury’s hearing and weighing of the evidence,
though, is not divided by count; therefore, we cannot exclude it from consideration,
as relevant, to Count I.

                                         -2-
       On August 18, 2015, after receiving two disturbance calls from the same
residence in Davenport, Iowa, the Davenport Police Department began looking for
a person that a witness at the scene observed with a handgun. According to the
witness’s description, the suspect wore an orange T-shirt and stood near a white
Chevrolet Camaro. The police, while en route to the calls’ location, passed and then
pursued a white Dodge Challenger. The Challenger bore some resemblance to the
reported Camaro. The driver—Hollingshed—wore a red T-shirt. The next day, the
eyewitness came to the police station and viewed a photo lineup of possible suspects
related to the disturbance calls. The witness identified Hollingshed as the man he had
observed with a gun.

       Based on the disturbance call and positive lineup identification, the police
obtained a search warrant for Hollingshed’s residence. On August 20, 2015, police
executed the warrant and found the following: drug trafficking paraphernalia,
including inositol (used to make crack cocaine), a small digital scale, a vacuum sealer,
a roll of unused vacuum-sealer bags, and a partially cut vacuum sealed bag. The
vacuum sealer was dusted for fingerprints. Only Hollingshed’s fingerprints were found
on the vacuum sealer. In the basement rafters, the police found an empty gun box for
a .45 caliber firearm. Officers also found a drawstring bag containing two tube socks
and a digital scale outside near the apartment’s front basement window and below a
bush. One of the socks contained .38 caliber ammunition. The other sock contained
a .38 caliber revolver inside a vacuum-sealed bag. According to the government’s
evidence, the cut line on the partial bag found inside the apartment and the cut line on
the vacuum-sealed bag containing the .38 caliber revolver “match[ed] up identically
with one another,” indicating they originated as one bag. Redacted Tr., Vol. II, at 112,
United States v. Hollingshed, No. 3:16-cr-00034 (S.D. Iowa, Oct. 26, 2017), ECF No.
132. The basement window hinges appeared recently used and loose, and the bag was
within reaching distance from the basement through the window.




                                          -3-
       Based on this evidence, the police arrested Hollingshed for possessing the
firearm. While in jail, Hollingshed spoke by phone with his girlfriend, Dedrica Doolin.
The call was recorded. During the call, Hollingshed told Doolin that “a person with
a gun license can take it,” meaning “that someone that has a permit or someone that
has a gun license could take the gun, take the charge.” Redacted Tr., Vol. III, at 6,
United States v. Hollingshed, No. 3:16-cr-00034 (S.D. Iowa, Oct. 26, 2017), ECF No.
133. Thereafter, Doolin told Hollingshed to “tell them it’s mine.” Id. Later in the call,
Hollingshed suggested to Doolin that one of her family members could claim
ownership and responsibility for the gun found in the bush.

       Hollingshed was charged with two counts of being a felon in possession, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In Count I, Hollingshed was
charged with possessing the .38 caliber revolver recovered from his residence on
August 20, 2015. In Count II, Hollingshed was charged with possessing the 9mm
handgun that he sold to Bragg sometime between February 1, 2015, and April 22,
2015.

       During trial, Doolin testified that she owned the .38 caliber revolver. Doolin
said that she put the vacuum-sealed gun with no ammunition outside of her back
basement window. According to Doolin, she put the ammunition that she had obtained
with the gun in a junk drawer at her mother’s house and not outside the window. In
rebuttal, the government introduced Hollingshed’s recorded conversation with Doolin.
Contrary to Doolin’s testimony, when officers discovered the gun, it was located
outside the front basement window, and the ammunition was located in a box inside
of a sock outside that window.

       Also at trial, Detective Bryan Butt of the Davenport Police Department testified
about the disturbance calls that led to officers’ discovery of Hollingshed.
Hollingshed’s counsel cross-examined Detective Butt about who made the disturbance
calls and what information the callers provided. Counsel showed Detective Butt the

                                          -4-
dispatch log to refresh his recollection. Counsel then questioned Detective Butt about
talking to the eyewitness the following day to clarify the description of the person that
possessed the gun. During this line of questioning, counsel pointed out inconsistencies
between the eyewitness’s statement and the officers’ observations of Hollingshed.

       On redirect examination, the government moved to admit the dispatch log and
photo lineup into evidence. The photo lineup included the eyewitness’s initials and the
date by Hollingshed’s picture. Hollingshed’s counsel responded, “No objection.”
Redacted Tr., Vol. II, at 63. In response to questioning, Detective Butt identified
Hollingshed as the individual that the eyewitness identified from the photo lineup.
Hollingshed’s counsel apparently planned to cross-examine the eyewitness about the
accuracy and reliability of his identification later during the trial. At the time, counsel
expected the eyewitness to testify because he appeared on the government’s witness
list. As it turned out, the government did not call the eyewitness. The jury ultimately
convicted Hollingshed on Count I for possessing the .38 caliber revolver.

                                       II. Discussion
       In his opening appellate brief, Hollingshed raises three points. First, he argues
the district court plainly erred by admitting the government’s eyewitness photo lineup
identification through Detective Butt’s redirect testimony because the eyewitness did
not testify at trial. That identification, Hollingshed says, is testimonial hearsay that
violates his Sixth Amendment right to confrontation and is therefore reversible error.
Second, Hollingshed contends that the jury’s verdict rests on insufficient evidence.
And third, as to sentencing, Hollingshed argues the district court abused its discretion
by imposing similar domestic violence and anger management treatments as
conditions during his supervised release period.

      In addition, after oral argument, we granted Hollingshed’s motion to file
supplemental briefing on the impact, if any, of Rehaif v. United States, 139 S. Ct. 2191
(2019), on Hollingshed’s conviction. We will address this issue first.

                                           -5-
                 A. Impact of Rehaif on Hollingshed’s Conviction
       During the pendency of this appeal, the Supreme Court issued its decision in
Rehaif v. United States, 139 S. Ct. 2191 (2019). The Court held “that in a prosecution
under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the
defendant knew he possessed a firearm and that he knew he belonged to the relevant
category of persons barred from possessing a firearm.” Id. at 2200. At issue in Rehaif
was the appellant’s knowledge of his status as an unlawful alien. Id. at 2194. Notably,
the Supreme Court made clear that it was “express[ing] no view . . . about what
precisely the Government must prove to establish a defendant’s knowledge of status
in respect to other § 922(g) provisions not at issue here.” Id. at 2200; see also 18
U.S.C. § 922(g) (listing nine categories of persons prohibited from firearms
transactions involving interstate commerce).

       In light of Rehaif, Hollingshed argues that insufficient evidence supports his
conviction or, in the alternative, the district court’s failure to instruct the jury
regarding his knowledge of this felony status constitutes reversible error. Because
Hollingshed failed to challenge the lack of a jury instruction regarding his knowledge
of his felony status, we review his claim for plain error. See United States v. Olano,
507 U.S. 725, 734 (1993) (holding that, to establish plain error, a defendant must
show: (1) an error (2) that was obvious and (3) that affected the defendant’s
substantial rights and (4) that seriously affected the fairness, integrity, or public
reputation of judicial proceedings).

       Unlike in Rehaif, Hollingshed is a convicted felon. See 18 U.S.C. § 922(g)(1).
Hollingshed stipulated at trial that he had been previously convicted of a crime
punishable by imprisonment for a term exceeding one year. Nonetheless, we will
assume that Hollingshed’s stipulation does not resolve the issue of whether he knew
he was a felon. See United States v. Benamor, No. 17-50308, 2019 WL 4198358, at
*5 (9th Cir. Sept. 5, 2019). “Here, the absence of an instruction requiring the jury to
find that [Hollingshed] knew he was a felon was clear error under Rehaif.” Id. (citing

                                          -6-
Henderson v. United States, 568 U.S. 266, 273 (2013) (holding that the first two
elements of plain error are satisfied if the error is obvious when the case is on appeal);
Griffith v. Kentucky, 479 U.S. 314, 321 n.6, 328 (1987) (providing that Supreme Court
decisions in criminal cases apply to all cases pending on direct review)).

        However, Hollingshed does not satisfy elements three and four of the Olano
plain-error test. See id. Hollingshed pleaded guilty to possession with intent to
distribute cocaine in 2001, was sentenced to 78 months’ imprisonment, and was
imprisoned for about four years before he began his supervised release. When his
supervised release was later revoked, he served an additional 15 months’
imprisonment. His supervised release for the conviction was discharged in October
2011. These facts, combined with Hollingshed’s phone call to Doolin while in jail,
indicate that Hollingshed knew he had been convicted of “a crime punishable by
imprisonment for a term exceeding one year” when he possessed the firearm in 2015.
18 U.S.C. § 922(g)(1). He thus cannot “show a reasonable probability that, but for the
error, the outcome of the proceeding would have been different.” See Molina-Martinez
v. United States, 136 S. Ct. 1338, 1343 (2016) (internal quotations omitted). As a
result, “any error in not instructing the jury to make such a finding did not affect
[Hollingshed’s] substantial rights or the fairness, integrity, or public reputation of the
trial.” Benamor, 2019 WL 4198358, at *5.

                               B. Confrontation Clause
       Hollingshed argues for the first time on appeal that admission of the
identification evidence violated his Sixth Amendment right to confrontation.
Hollingshed’s counsel did not object to Detective Butt’s testimony regarding the
eyewitness’s identification of Hollingshed. In fact, counsel stated that he had “[n]o
objection” to the admission of the photo lineup identifying Hollingshed as the
perpetrator. See Redacted Tr., Vol. II, at 63. Apparently, counsel planned to challenge
the photo identification evidence through cross-examination of the eyewitness later
during the trial. Unfortunately, that opportunity did not arise. The government did not

                                           -7-
call the eyewitness. Hollingshed concedes that because he failed to lodge an objection
at trial, plain error review applies. Appellant’s Br. at 15; see also United States v.
Johnson, 688 F.3d 494, 504 (8th Cir. 2012) (“When a defendant fails to raise a
Confrontation Clause objection at trial, we review his claim for plain error.” (internal
quotation omitted)).3

       “The Confrontation Clause bars admission of a witness’s testimonial hearsay
statements unless the witness is unavailable and the defendant has had a prior
opportunity to cross examine him.” United States v. Taylor, 813 F.3d 1139, 1149 (8th
Cir. 2016). The government concedes that the eyewitness’s identification from the
photo lineup was testimonial.4 Appellee’s Br. at 14. But it nonetheless argues that no
reversible error occurred because (1) Hollingshed’s counsel opened the door during
cross-examination of Detective Butt by questioning him about the lineup and
interview of the eyewitness; (2) “Detective Butt’s statements concerning what the
eyewitness told him are not hearsay because they demonstrated the reasons for and
propriety of his investigation,” id. at 15; (3) “[t]he testimony elicited and not objected
to by the defense regarding the line-up identification was purposeful and a waiver of
[Hollingshed’s] rights of confrontation,” id. at 17; and (4) any error in admitting the
evidence was not plain.



      3
        Because Hollingshed concedes that plain error review applies, the “stricter
standard” of the government proving that the alleged Confrontation Clause violation
“is harmless beyond a reasonable doubt” is inapplicable. See United States v. Holmes,
620 F.3d 836, 846 (8th Cir. 2010) (holding erroneous admission of statements in
search warrant affidavit by non-testifying confidential informant that he had twice
seen defendant in possession of firearms at home in which firearms were discovered,
in violation of defendant’s Confrontation Clause rights, was not harmless error).
      4
        “[Statements] are testimonial when the circumstances objectively indicate that
there is no . . . emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.”
Davis v. Washington, 547 U.S. 813, 822 (2006).

                                           -8-
       Assuming, without deciding, that the district court plainly erred in admitting the
photo identification evidence and that Hollingshed did not waive his Confrontation
Clause rights, we conclude that admission of such evidence did not affect his
substantial rights. See United States v. Morrissey, 895 F.3d 541, 554 (8th Cir. 2018).
Hollingshed has not shown prejudice in this case. See Olano, 507 U.S. at 734. The
evidence overwhelmingly establishes that Hollingshed possessed a firearm. The
government introduced Bragg’s testimony. Bragg testified, as relevant to Count I, that
he saw Hollingshed carry a .38 caliber revolver; that Hollingshed offered to sell Bragg
guns; and that Hollingshed delivered ammunition in a sock with the purchase of one
firearm.

       In addition to Bragg’s testimony, the government introduced the items found
outside Hollingshed’s apartment near the front basement window. Significantly,
officers found a drawstring bag containing two tube socks: One sock contained .38
caliber ammunition, and the second sock contained a .38 caliber revolver inside a
vacuum-sealed bag. The vacuum-sealed bag holding the revolver “match[ed] up
identically with” another vacuum-sealed bag found inside the apartment. Redacted Tr.,
Vol. II, at 112. Only Hollingshed’s fingerprints were found on the vacuum sealer
located in the apartment.

      Finally, the jury heard the recorded telephone conversation between
Hollingshed and Doolin, in which Hollingshed suggested that someone other than him
claim ownership of the .38 caliber revolver. The jury then heard Doolin’s testimony
claiming that she owned the gun and that she believed it was on the other side of the
house.

       Accordingly, we hold that any error by the district court in admitting the
identification evidence did not seriously affect the fairness or integrity of the judicial
proceedings on account of the great weight of other evidence presented. Consequently,
Hollingshed has not established plain error.

                                           -9-
                           C. Sufficiency of the Evidence
       We review a challenge to the sufficiency of the evidence de novo, examining
the record in the light most favorable to the verdict, and will reverse “only if no
reasonable jury could have found [Hollingshed] guilty beyond a reasonable doubt.”
United States v. Coleman, 584 F.3d 1121, 1125 (8th Cir. 2009). In this review, we will
not weigh evidence or witness credibility, because those jury determinations are
“virtually unreviewable on appeal.” United States v. Alexander, 714 F.3d 1085, 1090
(8th Cir. 2013) (quoting United States v. Wiest, 596 F.3d 906, 911 (8th Cir. 2010)).

      An extended review of this particular issue is unnecessary. In holding that
overwhelming evidence supports the jury’s verdict without the presence of the
erroneously admitted hearsay, see supra Part II.B., we also conclude that the admitted
evidence was sufficient for a reasonable jury to find Hollingshed guilty beyond a
reasonable doubt.

                   D. Special Conditions on Supervised Release
       Hollingshed’s final contention on appeal is that the district court abused its
discretion by imposing two special conditions for Hollingshed’s supervised-release
term following completion of his incarceration.

       In preparation for sentencing, the probation office prepared a presentence
investigation report (PSR) that recounted Hollingshed’s criminal history. According
to the PSR, in 1996, Hollingshed, age 16, was convicted of assault; however, the
circumstances of the offense are unknown. On December 12, 1998, Hollingshed, age
18, was arrested for domestic abuse assault on his girlfriend after allegedly pulling her
hair, pushing her down the hallway, and striking her in the face. The charge was
dismissed when no witnesses appeared at trial. At age 19, he was arrested again on
February 28, 1999, for domestic abuse assault on his child’s mother for allegedly
kicking in the door to her apartment building, shoving her to the floor, punching her
in the face at least three times, and threatening to kill her if she contacted law

                                          -10-
enforcement. That charge was also dismissed when the victim recanted. On February
26, 2001, Hollingshed, age 21, reportedly assaulted his child’s mother. He was
originally charged with domestic abuse assault resulting in bodily injury for allegedly
kicking his child’s mother in the face, resulting in a black eye; however, he ultimately
pleaded guilty to trespass. During Hollingshed’s probationary period in 2006, the
probation office reported that Hollingshed, age 26, allegedly caused a female victim
to have a black eye, chased her in her vehicle, and kicked her passenger side door.
Finally, on July 30, 2010, Hollingshed, age 30, was arrested for domestic abuse assault
on a female for allegedly grabbing the woman by both arms and twisting her upper
body in an aggressive manner, resulting in scratches on the woman’s underarm. The
charge was dismissed. The PSR recommended that Hollingshed “participate in an
approved treatment program for anger control/domestic violence.” PSR Draft at 34,
¶ 151, United States v. Hollingshed, 3:16-cr-00034 (S.D. Iowa April 28, 2017), ECF
No. 100.

       Hollingshed objected to the factual summary underlying his trespass conviction,
as well as the factual summaries underlying his arrests for domestic abuse assault in
1998, 1999, and 2010. He also objected to the special condition requiring that he
participate in an anger control/domestic violence treatment program. Hollingshed
argued that his history did not support the special condition.

       In response to Hollingshed’s objections to the factual summaries, the probation
officer explained that those summaries were taken from court documents and law
enforcement records. As to Hollingshed’s objection to the special condition requiring
anger control/domestic violence treatment, the probation officer recounted the
domestic abuse assault charges against Hollingshed and concluded that the special
condition was necessary in light of Hollingshed’s propensity towards violence. The
probation officer updated the PSR to separate the anger control and domestic violence
treatment.



                                         -11-
      In its sentencing memorandum, the government argued that the two special
conditions were reasonably related to Hollingshed’s characteristics, the deterrence of
criminal conduct, the protection of the public from any further crimes of Hollingshed,
and Hollingshed’s correctional needs. Additionally, it maintained that the conditions
did not involve any greater deprivation of liberty than is reasonably necessary to
advance the sentencing concerns.

      At sentencing, the district court imposed the two special conditions requiring
Hollingshed to participate in anger management treatment and domestic violence
treatment. The court concluded the conditions “are reasonably necessary conditions
for supervision given Mr. Hollingshed’s behavior problems in the past.” Tr. of
Proceedings at 21, United States v. Hollingshed, No. 3:16-cr-00034 (S.D. Iowa Oct.
3, 2017), ECF No. 128.

       On appeal, Hollingshed argues that the district court erred in imposing the two
special conditions because it imposed them without evidence of their need and because
the conditions are not reasonably related to the goals of criminal sentencing. He notes
that his offense of conviction did not involve domestic violence or the threat of
violence. Thus, the only basis for the conditions are his 1996 assault conviction, 2001
trespass conviction, and the 2006 probation violation. The last of these incidents, he
points out, is over ten years old. Hollingshed cites the PSR’s recognition that he was
referred for a mental health evaluation on August 3, 2010, and, based on that
evaluation, received mental health treatment. He was discharged from treatment on
September 30, 2010. As a result, he maintains that “the evidence does not support two
different treatments that will likely have significant overlap.” Appellant’s Br. at 26.

      We review for an abuse of discretion the district court’s imposition of special
conditions of supervised release. United States v. Smart, 472 F.3d 556, 558 (8th Cir.
2006).



                                         -12-
             A district court is afforded wide discretion in imposing conditions
      on a defendant’s supervised release so long as they meet the requirements
      of 18 U.S.C. § 3583(d). United States v. Boston, 494 F.3d 660, 667 (8th
      Cir. 2007). Section 3583(d)(1) provides that any special condition must
      be reasonably related to the nature and circumstances of the offense and
      the history and characteristics of the defendant, deterrence of criminal
      conduct, protection of the public, and treatment of the defendant’s
      correctional needs. Furthermore, the condition may not work a
      deprivation of liberty that is greater than reasonably necessary for the
      purposes of deterring criminal conduct, protecting the public from the
      defendant, and treating the defendant’s correctional needs. § 3583(d)(2).
      Finally, each condition must be consistent with pertinent Sentencing
      Commission policy statements. § 3583(d)(3).

United States v. Mayo, 642 F.3d 628, 631 (8th Cir. 2011) (per curiam).

       Here, the PSR recounted the domestic abuse assault charges and allegations
against Hollingshed. He objected to the PSR’s factual summary underlying his trespass
conviction, as well as the factual summaries underlying his arrests for domestic abuse
assault in 1998, 1999, and 2010. “When a defendant objects to factual statements
contained in such a report, ‘the sentencing court may not rely on those facts unless the
government proves them by a preponderance of the evidence.’” United States v.
Hopkins, 824 F.3d 726, 734–35 (8th Cir. 2016) (quoting United States v. Bowers, 743
F.3d 1182, 1184 (8th Cir. 2014)). Therefore, we must exclude these charges and
allegations from our consideration.

       Nevertheless, Hollingshed’s 2006 probation violation is evidence that
Hollingshed continues to potentially have anger and domestic violence issues. This
violation, when combined with his 1996 assault conviction, evidences a concerning
pattern of behavior. These conditions, therefore, fall within the ambit of the district
court’s “wide discretion” to impose. See Mayo, 642 F.3d at 631.



                                         -13-
                           III. Conclusion
Accordingly, we affirm the judgment of the district court.
               ______________________________




                                 -14-
