United States v. Poellnitz ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2774
UNITED STATES OF AMERICA,
Appellee,
v.
SHAWN L. POELLNITZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.
Raymond J. Rigat on brief for appellant.
Maxim Grinberg, Assistant U.S. Attorney, and Michael J.
Sullivan, United States Attorney, on brief for appellee.
December 10, 2008
Per Curiam. Shawn Poellnitz was indicted in the United
States District Court for the Western District of Pennsylvania on
five counts of wire fraud. Shortly after his indictment, he
expressed his desire to plead guilty and consented to the transfer
of his case to the District of Massachusetts (where he was then
serving a sentence for a prior federal offense)1 for his guilty
plea and sentencing, as permitted by Rule 20(a) of the Federal
Rules of Criminal Procedure. Once the case was transferred to
Massachusetts, he pled guilty and was sentenced to 18 months'
imprisonment, the bottom of the applicable guidelines range as
determined by the district court, consecutive to the federal
sentence he was already serving. He now appeals from his
conviction and sentence. For the following reasons, we grant the
government's motion for summary disposition and affirm the
sentence.
On appeal, defendant argues, for the first time, that his
guilty plea was involuntary because it was motivated by his desire
to remain at FMC Devens, where he could receive needed medical
care, and because he was not aware when he pled guilty that he
could have sought a transfer to Massachusetts "for convenience"
1
See United States v. Poellnitz, No. 06-3027, 257 F. App'x 523(3d Cir. Dec. 6, 2007) (unpublished) (affirming defendant's
conviction for the prior offense). Remarkably, the instant offense
was committed the day before and several days after defendant was
sentenced for the immediately prior one.
-2-
under Rule 21 without pleading guilty and waiving his right to a
trial.
Where, as here, defendant did not seek to withdraw his
guilty plea in the district court, this court reviews the
sufficiency of the plea colloquy only for plain error. United
States v. Vonn, 535 U.S. 55, 58-59 (2002); United States v.
Borrero-Acevedo, 533 F.3d 11, 15 (1st Cir. 2008). Under that
standard, defendant must show that there is "(1) error, (2) that is
plain, and (3) that affect[s] substantial rights. If all three
conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error
seriously affect[s] the fairness integrity or public reputation of
judicial proceedings." Borrero-Acevedo, 533 F.3d at 15 (quotation
marks and citations omitted). That "tough[] standard," id., is not
satisfied here.
Although the district court did not advise defendant that
he could have sought a transfer under Rule 21 without pleading
guilty, nothing in Rule 11 or elsewhere required it to do so.
Indeed, as the district court acknowledged, its jurisdiction, as
the receiving district under Rule 20, was limited to accepting
defendant's guilty plea and sentencing him. If defendant decided
not to plead guilty, then the court's only option was to transfer
the case back to the Western District of Pennsylvania. The
district court in Massachusetts had no power to transfer the case
-3-
to itself under Rule 21; any motion under that rule would have had
to have been made in the court where the proceeding began.
The district court did, however, take pains to ensure
that defendant's guilty plea was voluntary. At a hearing on
defense counsel's motion to withdraw, which preceded the Rule 11
hearing, defense counsel assured the court that the breakdown
between him and his client had nothing to do with the guilty plea
and that defendant still wanted to plead guilty. Nevertheless,
after denying the motion to withdraw, rather than proceed to the
Rule 11 hearing, which had been scheduled for the same day, the
court gave defendant three weeks to consult with his counsel and
think about whether he wanted to plead guilty or to have the case
transferred back to Pennsylvania. At the outset of the ensuing
Rule 11 hearing, the court confirmed that defendant still wanted to
plead guilty. At the end of the plea colloquy, the court again
confirmed defendant's desire to plead guilty and, finding defendant
to be competent and to be acting knowingly and voluntarily, the
court accepted his plea. We therefore see no error, plain or
otherwise, in the plea colloquy. Indeed, if the court had rejected
defendant's plea simply because it was motivated by his desire to
remain in Massachusetts, that would conflict with the very purpose
of Rule 20, i.e., "to benefit defendants by sparing them the
hardships associated with appearance and trial in another
jurisdiction." In re Arvedon, 523 F.2d 914, 916 (1st Cir. 1975).
-4-
Moreover, any error that occurred would not satisfy the
third prong of the plain-error standard, i.e., "'a reasonable
probability that, but for the error, [defendant] would not have
entered the plea.'" Borrero-Acevedo, 533 F.3d at 16 (quoting
United States v. Dominguez Benitez, 542 U.S. 74, 78 (2004)). Given
defendant's unwavering determination to plead guilty, despite
several opportunities to change his mind, there is no indication
that, had he been aware of the possibility of seeking a transfer
under Rule 21, he would not have pled guilty.
Defendant next argues that the district court
miscalculated the loss amount by failing to credit him with the
value of the property returned to the victim of the wire fraud
before defendant was arrested. If such a credit had been applied,
the loss amount would have fallen below $5,000 and no enhancement
would apply under U.S.S.G. § 2B1.1(1)(a) (providing for no increase
in the base offense level where the amount of loss is $5,000 or
less).
This argument was first made in defendant's pro se post-
judgment motion to correct his sentence under Rule 35(a) of the
Federal Rules of Criminal Procedure, which the district court
denied without explanation. Whether viewed as an argument that the
district court erred or abused its discretion in denying the Rule
35(a) motion or plainly erred in applying the guidelines at
sentencing, this argument fails.
-5-
Assuming--without deciding--that this court has
jurisdiction to review the district court's denial of relief under
Rule 35(a) despite the absence of a notice of appeal from that
ruling, but see United States v. Cartwright, 413 F.3d 1295, 1300
(11th Cir. 2005) (under those circumstances, finding no
jurisdiction to review the district court's denial of a Rule 35(a)
motion), the district court did not err or abuse its discretion in
denying the motion. The district court's authority under Rule
35(a) "to correct a sentence that resulted from arithmetical,
technical, or other clear error"2 was "intended to be very narrow
and to extend only to those cases in which an obvious error or
mistake has occurred in the sentence, that is, errors which would
almost certainly result in a remand of the case to the trial court
for further action." Fed. R. Crim. P. 35, advisory comm. notes
(1991 amends.); see also United States v. Aqua-Leisure Indus.,
Inc., 150 F.3d 95, 96 (1st Cir. 1998). The guidelines application
error alleged here is not of that ilk; Rule 35(a) was "not intended
to afford the court the opportunity to reconsider the application
or interpretation of the sentencing guidelines." Fed. R. Crim. P.
35, advisory comm. notes (1991 amends.).
Nor did the district court plainly err at sentencing in
failing to credit defendant for the value of the returned property.
2
That authority formerly appeared in Rule 35(c). Fed. R.
Crim. P. 35, advisory comm. notes (2002 amends.).
-6-
In arguing that he was entitled to such a credit, defendant relies
on application note 3(E)(i) to U.S.S.G. § 2B1.1, which allows the
amount of loss to be reduced only by the value of property returned
"before the offense was detected." Under that note, "[t]he time of
detection of the offense is the earlier of (I) the time the offense
was discovered by a victim or government agency; or (II) the time
the defendant knew or reasonably should have known that the offense
was detected or about to be detected by a victim or government
agency." U.S.S.G. § 2B1.1, comment. (n.3(E)(i)). Based on
defendant's admissions that he purchased equipment from the victim
using a wire transfer of funds, knowing that the account from which
the transfer was made was closed and contained no funds, and that
he returned a portion of the equipment shipped to him by the victim
only after the wire transfer was reversed by the bank and the
victim called him to complain, the district court could reasonably
infer that at the time that defendant returned the equipment, he
knew or reasonably should have known that the offense was detected
or about to be detected by the victim. Therefore, the district
court committed no error, plain or otherwise, in not crediting
defendant for the value of the returned equipment.
Finally, defendant challenges the substantive
reasonableness of his sentence. Particularly after Rita v. United
States, 127 S. Ct. 2456 (2007), "[a] defendant who wishes to attack
'an in-guideline-range sentence as excessive' must 'adduce fairly
-7-
powerful mitigating reasons and persuade [this court] that the
district judge was unreasonable in balancing pros and cons despite
the latitude implicit in saying that a sentence must be
"reasonable."'" United States v. Beatty, 538 F.3d 8, 17 (1st Cir.
2008) (quoting United States v. Navedo-Concepción, 450 F.3d 54, 59
(1st Cir. 2006)). Here, the gist of defendant's argument is that
the district court should have given more weight to his medical
problems and the relatively minor nature of the instant offense and
less weight to his apparently uncontrollable penchant for
committing similar offenses. However, given the deference due to
the district court's balancing of the applicable factors, United
States v. Deppe, 509 F.3d 54, 62 (1st Cir. 2007); United States v.
Dixon, 449 F.3d 194, 205 (1st Cir. 2006), such an argument is
usually unavailing, see, e.g., id., and this case is no exception.
Affirmed. See 1st Cir. R. 27.0(c).
-8-