Not for Publication in West's Federal Reporter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
See United States v. Poellnitz, No. 06-3027, 257 F. App'x 523 1

(3d Cir. Dec. 6, 2007) (unpublished) (affirming defendant's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. 

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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) for his guilty 1

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"
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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
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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).
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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 postjudgment 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.
That authority formerly appeared in Rule 35(c). Fed. R. 2

Crim. P. 35, advisory comm. notes (2002 amends.).

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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" was "intended to be very narrow 2

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.
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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
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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).