2004 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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# U S A v . P o el lnit z

P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al

D ock e t N o . 03-4044

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. e du/thir dc ir c uit_2004/5341 PRECEDENT IAL

UNITED S TATES COUR T OF APPEALS FOR THE THIRD CIRCUIT

No. 03-4044

UNITED STATES OF AMERICA

v.

SHAWN L. POELLNI TZ,

Appellant

On Appeal from the United States

District Court for the Western District of Pennsylvania (Dist. Ct. No. 95-cr-00158 ) District Judge: Honorable Wil lia m L. Standish

Submitte d Under

Third Circ uit LAR 34.1(a) May 14, 2004

Before: NYGAARD
, McKEE and CHERTOFF
, Circuit Judges

. (Filed: June 25, 2004) MARY BETH B UCHANAN United States Attorney BONNIE R . SCHLUETER Assist ant U.S. Attorn ey, Chief of App eals Division LAURA S. IRWIN Assistant U.S. Attorney Of fi ce of Un it ed St at es At to rn ey 700 Grant Str

eet, Suite 400 Pittsbur gh, PA 15219

Counsel for Appellee

LISA B. FREELAND Acting Federal Public Defendner KAREN S. GERLACH Assistant Federal Public Defender Office of Federal Public Defender 1001 Liberty Avenue 1450 Liberty Center Pittsbur gh, PA 15222

Counsel f or Appellan t

OPINI ON

CHERTOFF
, Circuit

Judge

. Shawn L. Poellnitz appea

ls from the District Court’s ord er finding t hat he violateda c ond ition of his supervised release by com

mitting a sta

te cr ime. Poellnitz argues th at (1) there was insuffici ent

evi d ence to pr

ove that he committ ed a sta t e crime, namely because he pled nolo contendere (i ns te ad of gu il ty)
to the crime in s tate c our t and passed a poly graphtest, and (2) the de la y between2

the filing of

the super vised release

petiti on and the supervised release vi olation hear ing was not “reaso nably nece ssary ,” as required by 18 U. S.C. § 3583. The D i strict Court exer

cised jur

isdict ion pursuant to 18 U.S .C. § 323 1. This Court has jurisdiction under 28 U.S.C. § 1 291. For the rea sons st ated b elow , we w ill

reverse the Distri ct Court’ s order a nd remand for a det ermination of whether there is suff

icie nt evide nce (un der a preponderanc e stand ard) th at Po ellnitz

com mitte d a c rime

.

I. On November 16 , 1995, P oellnitz pled guilty

to engaging in mo netary transa ctions in propert

y de rived from specifiedunlawfulac ti vi ty, in violat ion of 18 U.S.C. § 1957(a), and making a false, fictic ious or

fraudulent

claim , in viola

tion of 18 U.S.C. § 287. The District Court sentencedPoellnitz to 37 months in prison followed by 3 y

ears of supervisedrelease. 1 The terms of the s en tence included a provision that “[w]hile on supervised release, the defend ant shall no t commit any crim es, fede ral, s tate, or local

and shall abide by

the sta ndard condit

ions of supervisedr ele ase.” App. at 3 (emphasis added). Poellnitz w as releas ed from custod y and began to serve his term of supervised release on November19, 199 8. The term of supervisedrelease was set to expire on November

18, 2001. On Novem

ber 9, 2001, the United States Probation Office

(USPO) issued a “Status R eport/Requ est for Warran t in Abeyance. ” The letter reported that Poellnitz wa s arre sted on June 7, 2001
, a nd charged wi th indece nt assault, corrupti on o f a minor , and endangeri ng the welfare o f a child. O n November

13, 2001, the probation office filed a Petit

ion o n Supervised Release (“Petition”), alleging Poellnitz violated

co n ditions of supervis ed rele ase and request ing the court issue a

bench warrant to be held in a

bey ance unti l the pending state char ges were

res olved . On November

15, 2001, the District Court granted the Petition, and on November

16, 2001, the Dist

rict Cour t issue d the arrest warrant, to be held in abey ance. On February 10, 200 3, Poellnitz entereda ple a of nolo contendere in the Court of Com mon Pleas of Allegheny Co un ty, Pe nnsy lvania, to the cha rge of corrupti on of a mi n or. 2 On February 20, 2003, the U SPO filed a Supplemental Petiti on on Supervise d R el eas e (“Supplemental Petiti o n”), allegin g violati ons of the super

vised release

and request ing issuanc e of a sum

mons for Poellnitz to appear to sh ow cause why t he District Court sho uld not rev oke his supervisedrel eas e. On

February 25, 2003, the District Court g ranted th e Supplemental Petiti on and schedul ed the
revocat ion hear ing fo r April 11, 2 003. The District Court su bs eq ue nt ly sua

1 Poellnit z received thissent e nce for each coun t, to be se rv ed co nc ur re nt ly. 2 The oth e r counts—indecent

ass ault and endanger

ing the welfare of a child—were w ithdrawn.3

sponte resche du led the hearing on three occasions: On February 27, 2003, the hearingwas rescheduled

for May2, 2003;

on April 8, 20 03, the hearin g was again

r esch eduled for May

16, 2003; and, on May 28, 2003, the hearing wa s again rescheduled for June 2 0, 2003

. Ad di ti on al ly, on July

10, 2003, the District Cour t granted Poellnitz a continuance due to Poellnitz’s h ealth p roblems, a nd the hear ing wa s resche duled for Jul

y 21, 2003. Si mi la rl y,

on t wo occasions the District Court granted Go vernment motions t o reschedule be ca us e o f t he un av ai la bi li ty o f Probation Officer V erne How ard: On July 16, 20 03, the Dist

rict Cour t grante d a motion and reset the h ea ring for September

12, 2003; and on Jul

y 24, 2003, the Distri ct Court gr

anted a m

otion

r es ettingthe hear

ing for Septe

mber 26, 2003. Th e h ea ri ng ul ti ma te ly took place

on October 2, 2003. Ther e is n o indica ti on on the docket

sheet a s to why the hearing wa s po st poned between Septem ber 26 and Oct

ober 2. 3 In an October

3, 2003 Order , the D istrict Court found that Poellnitz had violateda state law while on supervise d release an d f ai le d t o p ay f ull res tituti on. The District Court ordered that the term of supervisedrelease be reinstated to

commence

October 2, 2003, and to r

un for

aterm of fiv e m onths. On Oct ober 9, 2003, the D istrict Court iss ued an Amended Order, pur suant to Federal Rule of Criminal Procedure 35(a). 4 In th e Amended Order, the District Court found Poellnitz guil ty of violating a state law while on supervised release, but contra ry to the original O rder did no t find him guilty of fai ling to pay

full res tituti on. The Court tre ated the

state law viola tion as

agrade C viol ation

and, pursuant t

o 18 U.S.C. § 3583(e)(3) and (h), revoked Poellnitz’s supervis ed r elease an d sentencedhim to a ter

mof one month’s impri son men t, to b e serv ed in home confinem ent pursuant t

o 18 U.S.C. § 3583(e)(4) and § 7B1.3(a)( 2) and(c)(1) of the United States Sentencing Guidelines. 5

3 All date s are der

ived from

the District Court do cket entries. See App. at 27-34. 4 “(a) W ithin 7 da ys a

fter
sentenc ing, the court may correct a sentence t h at resulted fro m arithmetical,
t echnical, or other clear error. ” F ed. R

. Crim. P. 35(a).

5 The Notice of Appeal was filed on October 3, 2003. Pursuant to Federal Rule of Appellat

e Procedur

e 4(b)(5) , “[t]he filing of a notice of appeal under this Rule 4(b) does not d ivest a distric t c ourt of jurisdic tion to corre ct a se ntence und e r Federal Rule of Criminal Procedure35(a),

nor does the filing of a moti on under 35(a) affect the validity

of a notice of appeal filed before entry

of the order dis posing of th e m otion.” Fed. R. App. P. 4(b)(5). Thus, the District Court ret aine d jurisdic tion t o amend t

he judgment . The Government

argues that this appeal pr operly flows from

the Octobe

r 9, 2003 Am e nded Order, and not the October 3 Order, as suggested by Poellnit z. Because4 II. Poellnitz arg ues t

here wa s i nsufficie nt evidence

to prove tha

t he violateda con dit ion of his supervised release by c ommitting acrim e becaus e he pled nolo con te nder e (r at he r t ha n g ui lt y)
to the crime cha

rged and

pas sed a poly graphtest. Poellnit z ’s challenge to the propriet

y of t he Distr ict Co urt’ s consider ation of a nolo contendere plea as properevidence that

he commit ted a crime i n vio lation of h is supervised relea se is a question that is “essentially legal in

na tu re, [and] we will exercise de novo review.” United Sta

tes v. Blackst

on , 940 F.2d 877, 882 (3d Cir . 1991) (citing United Statesv. Ortiz , 878 F.2d 125, 126- 27 (3d Cir. 1989)) . We conc lude that the District Court erred a s a legal matter in rely ing on the nolo plea as e videnc e of commiss ion of a crime. 6 The plain la nguage of 18 U.S.C. § 3583(e)(3) require s a finding b y “a preponderance of the evidence that the defendant

violate d a con d ition o f supervisedrelea se.” W

hen the con dit ion is that the defendant no t commit a

crime, there is n o req uirem

ent of convic tion or

even indictment. This Court has emphasized

“the broad d iscretion which is
tra di tionally given to d istrict courts to

r evoke probatio n when p robatio n conditionsare violated.” United States v. Gordon
, 961 F.2d 426, 429 (3d Cir. 1992). A “court can revoke probat ion when it is

reasona bly satis fied that

the probat

ion conditionshave been violate d, without the governme

nt bei ng require d to prese nt proof beyond a rea sona ble doubt tha t the defendant committ ed the alleged

acts.” Id.
at 429; see also United Sta tes v. Chambers
, 429 F.2d 410
, 411 (3d Cir. 1970) (cita

tions omitted). In other w ords, “to revoke pr obati on it is not necessar y the challe

nges mount

ed by P oellnitz are equally applicable to both order s, t he technicalquestion of

which order

is being appealed is not dispo sitive. H owev er, to avoid duplicat

ive and u n necessar y litiga tion, we treat t his as an appeal from the October 9 Amended Order.

6 We do n ot a ddress the factual question of whethe r there i s suffici ent evidence to es ta blish a violatio n, a determ ination that would be

reviewe d for clear error. See Blacksto n , 9 40 F.2d at 87 9. Therefo re, we need n ot address Poellnitz’s argume

nt that in light of the poly graph ex amina

tion res ults indi cating that Poellnitz was tru th ful in deny ing certain alleged activities, the Dist rict Cou rt lacked suffi ci ent evidence to suppo rt its finding of

commission of a crime. While the Distri ct Court a

dm i tted the

poly graph

exa minat ion, it concl

uded that t

he examination

was not “parti cular

ly releva nt

. . . because . . . [it] relates to . . . co nduct different from the conduct

. . . alleged to have been the ba sis for th e co rruption ch ar ge.” App. at 262. On r emand, the District Court sho uld consid er this evidence, in conjuncti on w ith other

e vidence in th e rec ord , to d etermi n e wh ether a preponderance of the evidence supports the conclusio n that Poell ni tz committed

a crime.5

that the probat

ioner be adjudged guilt

y of

acrim e, but only

that the

cou r t be

rea sonably satisfied that he has viola ted

one o f th e conditions.” United Sta tes v. Manuszak
, 532 F.2d 311, 317 (3d Cir. 1976). The novel qu estion prese n ted here is whether Po ellnitz’s nolo cont e ndere plea, without more, is su fficient to establish that he violated a condit ion of supervis ed relea se eve n under the relatively relaxe d bu rden of proof that applies. The answer

depends upon (1) whatactually

constitutes a violat

ion of the

c ondition of release, and (2) what significance we attri

bute to a nolo plea. The condition of release specified in the revocation proceeding was t hat the “defendant

shall n ot c ommit any crimes, feder al, state or local.” Ap p. at 3. Th e condition was not that defendant

shall not be convicted o f another c rime. What is forbidden is illeg a l conduct, not another judgment of conv iction. In ord er to establish that

Poe llnitz wa s guil

ty of a violati on of this condition of release, therefore, the govern ment did not h ave to sh ow that he was convicted of a n e w crime, but did have t o sho w that he actually commi tte d a new crime. In th is
case, the District Cou rt’s findin g that Poellnitz committ

ed anew state crim

e was not based exc lusivel

y or prima rily on evidence of the fact s underly ing the allegednew stat

e crim e. Rathe

r, the District Judge treated the nolo plea asthe proof that Poellnitz co mmitte d the underlying crime. See App. at 18

. In the n ormal cou rse, o ne mi gh t expect that if th e court finds defendant was convi cted of a crime, the c ourt may automatically revoke release based on the defendant’s comm

ission of the underl

ying offense. Thatis n ot so when it comes to the peculiar legal

effect of t he plea of nolo contendere

. While a nolo plea is indisputab ly

tantam ount to a convictio n, it is not neces saril

y t antam oun t t o an admis sion of factua

l g uilt. See United States v. Adedo yin , No. 02-3042, s lip op.
at 8-9 (3d Cir. May 28, 20 04); see also United States v. Wyatt , 762 F.2d 908, 911 (11th Cir. 1985 ) (holdin g n olo plea was

no t admissible to prov e defend ant ha d admitted his guilt , although

the underly

ing fa ct s were admissible); United Sta tes v. Graham
, 325 F .2d 9 22, 928 (6th Cir. 1963) (inter

nal cit ations om

itted) (“I t is true that a nolo con tendere plea p ermits a judgment of c onviction a

nd the im position of punishme

nt the sa me asif a plea

of guilty had been made. However, it has be en held that it is no t admissible to aid proof of guilt in another procee d ing.”). And si nce t he conditio n of release in this

case was to avoi d the com mis sion o f a

cr ime—not

to avoid a c onviction f or a crim e—esta blishingthat Poellnitz was convicted of

a new crime through his plea is not enough. Wha

t mat ters i s whether

he committ ed that crime

as a matt er of fact. Thus, we are oblige d to ask wh ether th e plea that Poellnitz entered canbe deemed
to establish underl

ying guilt, a

nd not

merely the fact of a crim inal convi ction. We observe at th e outset th at th e effect of th e nol o plea in questio n here is governed by sta

te law. The Federal Rules of Criminal Pro cedu re and the Federal Rules of Evidence e stabli sh c ert ain6

limitationson the effect of a nolo plea as

amatt er of feder al criminal

law, or in the

co ntext of fede ral trials. See Adedoyin
, No. 02-304 2, slip op. at 7 -8. Here, however, the nolo plea in questio n is not a federal pl ea, and the rul es of evidence do
not apply in a supervise d release proceedi ng. 7 See Fed. R. Ev. 1101(d)(3). The critical q ues tion therefo re is how Penns y lvani a la

w r eg ards the legal effe ct of the nolo plea tha

t Poellnit z ente red in response to the state criminal char ge of corrupting a minor. If Pennsylvania tr eats such a plea as a judgment of conviction, but not an admis sion of guilt, th en that plea was entitled to no evidentiary

wei ght at the
revocat ion hearing. Cf. Olsen v. Correiro
, 189 F.3d 52 , 60 (1st Cir. 1 999) (cit ation s omitte d) (“[I]n m ost jur isdict ions
, includingMassachusetts, a nolo plea is not

afactual admiss ion that the pleader committ ed a crime. Rat her , it is a
state ment of unwillingn es s to conte st the gove r nment’s charges and an acceptance of the punishment th at would be met ed out to a guilty person.”). On the other

ha nd, i f state law regards a nolo plea as constituting an

a dmiss ion or evidenc e of crim ina l conduct, th en it was entitled to whatever weight the

Distri ct Court chose to give it. So, for exam

ple, in United Sta tes v. Verduzco
, 330 F.3 d 1182
, 118 5 (9th Cir. 2003), the Ninth Circu i t reli ed on California Penal Code § 1016
, which provides that th e “l egal effect o f [a nolo contendere] plea, to a crime punishable a s

afelony, shall be the

sam e as that of a plea of guilty for all purposes,” in holding that the Distri ct Court pr

ope r ly relie d on nolo plea to fin d viol ati on of s upervised release. See also United Sta tes v. Gu a rdar rama , 742 F.2d 487 (9th C ir. 1984) (per curiam) (sam

e). 8 A review of t

he applicable statute s and case law reveal that in Pennsy lvania a nolo plea does not constitu te an admi ssion of factual guilt, a

nd th us has no

7 In Adedoyin , the defendant at trial sought to exclude

a Califor nia convic tion. We did not, howeve

r, exam ine the

m ean ing of a nolo plea under C alifornia law. R at her, because federal evidenti ary rules applied, the case was a nalyz ed pursuant to Federal

Rule of Evidence 410. 8 Several circuit c ourts hav e no ted

that “[a] cer tified c opy of a

con victio n is proper evidence that a defendant violated

astate or fed e ra l l aw an d, th er eb y, violateda conditi on of his supe rvi sed rel ease.” United Sta

tes v. Hofi erka
, 8 3 F.3d 357, 36 3-64 (11 th C ir. 1996) (per

c uriu m) (citing cases); see also United States v. Flem

ing
, 9 F.3d 12 53, 125 4 (7th Cir. 1993) (p er curium). These cases, however, deal wit

h an entir

ely different situati on—instances where the defendant entereda guilty plea . A nolo plea is an entirely different species—“a nolo plea is
not a factual admission th at t he pleader committ ed acr ime.” Olsen , 189 F.3d at 59.7

evidentiary

value in a ssess ing whether the defendant c om mitt

ed a cri me. The Pennsy lvania Rules of Eviden c e differen tiate between t

he admi ssibil

ity of guilty pleas a

nd nolo pleas in subsequent proceeding s:

E xcept as oth erwis e provided in thi s rule
, evidence of the followin g is not, in any ci vil or criminal proceedin g, admiss ibl e against the d e fendant who made the p lea or was a par ticipa nt i n the ple a discussions:

. . . . (2) a ple a of nol o contendere

. . . .

Pa.R. E. 410. The Comment clar i fies that the Rule “doesnot prohibit the use of a convicti on that resu lts f

rom a plea of nolo contendere
, as dist

inct from the plea its elf,
to impea ch in a la ter proc eeding ( subject
to Pa.R.E. 609) or

to esta blish an eleme

nt of a charge in a later

admi nistra

tive proceeding .” Pa.R.E. 410 cmt. (citing Commonwealth v. Snyder , 182 A.2d 495 (Pa. 1962); Eisenberg v. Commonwealth
, 516 A.2d 333 (Pa

. 1986)). 9 Thus, the Pennsylvania evidence

code draws a distinc tionbetween the permissible use of

a nolo plea to pr

ove thefact

of convicti on and the im

permi ssible

use of a nolo plea as evi den ce of guilt in a subsequent proceeding

. Unlikeits federal cou nterpart, Federal Rule of Evidenc e 410, the Pennsylvania Rules of Evidence appear to be equally

applica ble to revocation proceeding s. See Pa.R.E. 10 1 (“These rules of evide nce shall govern pr oceedings in all cour

ts of the Com

monweal th of Pennsylvania’ s unified j udicia l system,

ex cep t as otherwise provided by law.”). While the re vocation pr

oceeding a

t issue is a federal

proc ee ding, and thusnot governed by the Pennsy lvania Rules of Evidence, the Pennsylvania Rules provi de substantialsupport for

the concl usion that, under Pennsylvania law, nolo pleas do not have any evidenti ary

value as an admission of g uilt. 10 Pennsylvania case law further supports this conclusion. Under Pennsylvania law, “[a]lthough the effect of a pleaof

nolo contende

re is e quivalent
to a pl ea of gu il ty, the import of the pleas

9 Rule 609 ’s limitationsare not applicable to th is case. 10 As the Distric t Cou rt noted, § 71.4 of t he Pennsy

lvania Adm

inistr ative Code provides, in pertinent part, that “[a]
revocat ion hearing shall be h eld within 120 da ys from the date the Board recei ved official verific ation of

the plea of g uilty or nolo contender

e or of the

guilty ver

dict at the highest t

rial c ourt level.” 37 Pa. Code § 71.4. While this provision may support the conclusi on that a gui lty plea and a nolo plea have the same effect in term s o f trigger ing a revoc ati on hearing, the secti on in no way suggests that both types of pleas have the same evidentiary value.8

is not thesame. In pleading nolo contendere; the defendant does n ot admit his guilt, but merely

consents to bei n g punished as if he w e re gu il ty. ” Commonwealth v. Gunter , 771 A.2d 767, 773 (P a. 2001) (Ca

ppy, J., concurring) (citing Commonwe alth v. Bo yd , 292 A.2d 434, 435 (Pa. Super. 19 72); North Carolina v. Alford , 400 U

. S. 25, 35 n.8 (1970); Eisenberg , 516 A.2d at 335). 11 In Eisenberg , the Pennsylvania Sup reme Court expli citly address ed the question of the effectof a nolo con tendere plea under P ennsylvania law:

Th e e ffect of

a nolo contendere ple a i n Pen n sylvania

is concisely discussedin the l e ading

case of C om monweal

th v. Ferguson
, 44 Pa. Superi or Ct. 626 (1 910): A plea of nolo contendere, when accepted

by the court, is, in its effect up on the
case, equivalent to a plea of gu il ty. It is an impli ed confessi on of

guilt only , and
cannot be us e d against

the defendant as a n admis sion in any civil suit

for the s ame act. T he judgment of convicti on f

o llows upon such plea as wel l as upon a pl ea of gu il ty. In 1970, the U n ited States Sup reme Court, in North Carolina v. Alford , [400 U.S. 25 (1970)] held that the courts co uld impose criminal penalties w here a defendant pleading n olo
cont endere specificall y denied guil t of th e underly ing facts.

. . . The Alf ord procedure i s substantially similar to the practice in Pennsy

lvania on nolo con tendere pleas.

Eisenberg
, 516 A.2 d at 3 35 (internal citations omitted). The Eisenb e rg court held that an Alford plea, whi ch is “s ub sta ntially similar ” to a Pennsylvania nolo pl ea, was suf ficient to constitute a “ convicti on” p ursua nt to the state sta

tute under which Eisenberg was charged

. 516 A.2d at 336. In so holding, the court explained that “the Depar tme nt

here does n ot attempt to use the plea as judicial

admis sion of

the fact of fraud. Rather, the co n viction entered upon the plea itself

is the operative fact which authorizes s us pension. T his evidence of the convic tionits elf is not affected by t

he procedur

e leading up to the pl ea

. . . . ” Id. The Eisenberg court, however, specif

i cally noted that a nolo plea is not prope

r evidenc e of the underlying facts of

the convictio n: 1 1 In Gunter , the Pennsylvan i a Sup reme Cour t he ld that a nolo plea was involuntary, in part

because of the failure of the collo quy to ment ion that t

he defendant wa s entering a nolo plea, as distinct from a guilty

plea . 771 A.2d at 771.9

A no lo plea to a crim

inal charg e i s not evide

nce of either its u nderly

ing or ultimate facts in a

later civil action. It follows as a corollary that in a civil action base d on the s ame act

or transaction, the p leader is
not precluded from deny

ing

or contest ing the fact s of

the
transa ction by his nolo plea.

Id. at 336 n.6 (intern al c itations omitt ed).

The decisions of Pennsylvania ’s lo wer co urts si mila

rly reflec t thi s distinc tionbetween the u se of a nolo plea

as e vidence of t

he fact of c onviction a s opposed to evidenc e of

the com miss ion of the underlying crime. For exa mple, in Strain v. Commonwealth , the court explained that “our

Supreme

Cou rt h as upheld th e use of a conviction entered on

aplea of nolo con tendere as evidence in a subsequent

civ il matt

er where it was t he fact of convic tion, not the plea, that was the operative fact

relied upon.” 784 A.2d 84 5, 848 (Pa. Cm

wlth. Ct. 2001) (cit

ing Eisenb er g ). The Strain court went o n to explain that

in that cas e “[s ]uspe nsion

of a licensee’s operating privile ge under the Compact . . . does not

turn on whethe

r the licensee has admitted

or denied g uilty; it is the conviction that triggers the p rovision.” Id. ; see also Bourdeev v. Commonwealth
, 755 A.2 d 59, 61-62 (P a. Cmwlth. Ct. 2000); Co mmo nw ea lt h v . B oyd , 292 A.2d 434, 435 (Pa. Super. Ct. 1972) (“Where a plea of nolo contende

re is t endered by

the d efendant and accepted by the court, it i s not the p rovin ce of the c ourt to occupy it self with the que stion of guil t or innocence.”); Ferr elli v . Co mmo nw ealth
, 783 A.2d 891 , 893 (Pa. Cmwlth. Ct. 2001). 12

12 It is ce rt ai nl y true that in so me contexts a nolo plea has the sam e legal effect as a guilty

plea under Pennsylvania law. These situat

io ns, however, are distinguish able and entir ely consist ent with the Pennsylvania

rule that a nolo plea is not an admission of guilt. See , e.g. , So ntag v. Ward , 789 A.2d 778, 780 (Pa. Cmwlth. Ct

. 2001) (expla ining in the
context of hold in g that requirin g defendant to admit guilt to att

end sex offender program did not violate right agains t self-incrim

ination t hat “a pl ea of nolo contendere is to be tre a ted t he sa me

as a guilty plea”); Commonwe alth v. Lewis
, 791 A.2d 12 27 (Pa. Su per. Ct. 2002) (holding in c ontext of post-sentence motion to withdraw a plea that a “‘plea of nolo contender e i s treated the same as a guilty plea’”) (quoting Commonwe alth v. Miller
, 748 A.2d 733, 735 (Pa. S uper. Ct. 2000)). In addition, the instructions given
at Poellnitz’s sen tencing he aring do not

a ff ect the legal consequences of the nolo plea. At the sentencin g hear ing on the charge of corrup tion of a mino r, Poellnitz

was spec ifically instruct ed an d acknowledged that “there is no difference between a plea of gui lty

and a plea

of nolo contendere ,” App. at133 , and that “by pleadingguilty to these charges, you’ ll be in vio la tion of that

period of par

ole or10

Thus, as a legal matte r consider ation of a nolo contendere plea as evidence of Poellnitz’s commission of the underly ing crime was i mpr

oper. On

rema nd, the District Court should consider whether ther e is sufficient evidence (under the prepondera

nce of evidence sta

ndard) that Poellnitz vio lated a condit i on of supervisedrelea se. In c ond ucting this in qu ir y, the District Court should tak e into
account all evi dence in t

he re cord, including, but not limited to, evidence presentedat Poellnitz’s p l ea hear ing. What the D istri ct Co urt ma y n ot do, however, is treat the n olo plea as an admis sion by

Poellnitz that he committed the crime.

III. Poellnitz contends t

hat the delay

of nearly two year s between t he filingof the supervisedre lea se viola

tion petition and the occurrence of the supervised relea s e violati on hearing wa s not “reasona bly necessary.” 13 18 U.S.C. § 3583 provides, in pertinent p art:

The powe r o f the court to revokea term of supervised release for vi olat

ion of a condition of super vise d release, and to orde

r t he defendant to serve a

term of impri sonment

and . . . a further term of su p ervised release, exten d s bey ond the expirat ion of the ter

m of supervisedr el ease for

any period reasonab ly necess

ar y for the adjudic ation of
matter s arising befo re its

e xpirati on if, before its

e xpirati on, a warrant o r

summ ons has been issued

on the basi s of

an allega tion of such a viol ation.

18 U.S.C. § 3583(i) (emphasis added). We exercise plenary

review over question s of statutory interpretation. See Unit ed States v. T ha yer , 201 F.3d 214, 219 (3d Cir. 1999). In anal yz ing this que stion, t he Di s trict Court found inst

ructive the Seventh Circuit’s deci sio n in United States v. Rasmussen , 881 F.2 d 395 (7 th Cir. 1989). In Rasmussen
, the court utilized the following factorsin asse ssing whether the delay

bet we en the noti ce of probation action an d hearing on t he petiti on t o r evoke probation was a denial of due proce ss: le ng th of

de la y, reason for the delay , the proba

t ioner’sasser

tion of his right, prejudice to theprobatione r, and the reason why the probati oner w as in probation ,” id. at 132. These instructio ns, perhaps gi ve n e rr on eo us ly, do not alter the legal status of the nolo plea—such a plea is not an admission of guilt under Pennsylvania law.

13 We address this issue, despite our

co nclusion above that re mand i s warrant ed, because

if Poellnitz is c orre ct

we must reverse and th e District C our t

ca nnot reconsider on remand whether there is sufficient evidence of comm ission of a crime.11

cu st od y. I d. at 398 (citing Barker v. Wi ngo , 407 U.S . 514 (19 72); United States v. Scott , 850 F.2d

316, 320 (7th Cir. 1988) ). Unlike the present case i n which Poellnitz alle ges the dela y vi olated t

he
terms of § 3583(i), Ra smuss en claimed the delay was a denial of d ue process. While Rasmussen

may be distinguish a ble on these grounds and ce

rtainl y doe s not providea rigid and exclus ive set of factors that a c our t may

consider , the dec ision provides a us eful f ram ewo rk fo r

co nsidering whether the delay was

un reas onable. We conclude that it was
not. To begin, we re ject Poellnitz ’ s argume nt that the delay was not connected
to the federa l a djudicati on of the viola tion, but was solely

relat ed to the a

djudi ca tion of state charges . Poellnitz’s r

elianc e o n the Ninth Circuit’s deci sio n in United States v. Garret t , 253 F.3d 443 (9th Cir. 2001) is mi splace d. In Garrett , the court held that § 3583(i) “refers to the federal adjudi cati on of the defendant’s supervised release violati ons [and] [t]hus . . . exte nds the jurisdic tion of the

federal cou rt only to the period of

time reasonably necessary to ad ju dicate pending supervised re lease
revocat ion i ss ues.” Id. at 459 (emphasis

a dded in Garrett ). In other word s, th e jurisdic tionof the fed eral court is

ex tend ed to perm

it adjudic ation of the federal super vi sed release r evocati on issue. But such adjudi cation c an include

c on sidera tion of wheth er there was, as in this cas e, t

he com mis sion o f a

state law violati on. In fact, Garrett held th at “pos t ponement

of . . . [the ] revocat

ion hearinguntil . . . rele ase from state custody did not violate § 3583(i).” Id. at 450.

I n addition, w e conclude that th e delay in this case was not unreasonable. To begin, it was reaso nable for theDistrict Court to wait for th e adjudica tion of the
state court charges before proc eeding with the revocation h earing. Altho ugh it is not necessary that th e probationer be adjudged guilty of a crim

e to revok

e release, see Manuszak
, 532 F.2d at 317, it is certainly understa nd able that the District Court waitedfor adju dicatio n of these state charges because

it mi ght be rel evant in t

he revocation p roceeding. Furtherm or e, the subsequen t de cisi ons to reschedule the hearing were
not unreasona

ble. The r

ecord does not reflect that Poellnitz obje cted to t he District Court’s sua spont

e decisions to reschedule, and the dock et reflects considerable activity during this tim e, including Poellni tz’ s mo tion f o r appointm ent of coun sel and motion to dismi ss the pe

tition. Moreover, granting the Government’s motio ns requestin g reschedulin g, which als o appear t o have been unopposed, was re aso nable in light of the importance of Probation Officer Howard’s te st im on y. Cf. Rasmussen
, 881 F.2d 395 ( 7th Cir. 1989) ( holding 13- month delay

between not

ice of proba

tion action and h earing on pe

tition t o revoke probati on w as not a de nial of due process); Bennett v. Bogan , 66 F.3d 812, 818 (6th Cir. 1995) (noting t hat “al though the le ngthy delay [of five an d one-half years] between the issuance and execut

ion of the second warrant for Petitioner’s arrest is l amentable, it does not rise to the level of into lerable”).12

The delay

did not prejudice Poellnitz’s abilit

y t o contest the vali dity

of hi s revocation. Poellnitz makes gener a l

asser tions about

how havi ng to defend himself in 2003 against inciden ts allegedly occurri ng in late

1999 and earl

y 2000 “caused the prospe ct of dimme d

mem ories, and the re sultingpossibility of inadequate cross examinat ion.” A ppellant Br. at 29. N ot only does Poell nitz not ident ify any specific “dimmed memories,” but his argume

nt failsto recogni ze that

he

was required to d efend him se lf against these charge s in 2003 in the state court proceeding s, i r respective of the federal supervisedrelease hear

i ng. In additi on,

we are unper suade d by Poellnitz ’s argume nt that he was pre

judiced b ecause he was unawar

e of th e pending charges when he pled. At th e ple a he aring, Poellnitz was inst ructed on an d acknowledged the potentia l impa ct of the plea on his su pervised release statu s. 14 **** Fo r the forego ing reasons, t h e judgment of the District

Court ente

red on Oct ober3, 2003, as amended on October 9, 2003, will be reversed and remanded f or further pr oceedings co nsistent w it h this opinio n.

14 The testimony provides, in pertinent part:

THE COURT: Were you on parole or pro bation at

the tim e these offense s

occurre d?

THE DE FENDA NT: Yes.

THE C OUR T: Yo u understa nd that by pleading guilty to these charg es, you’ll be in viola

tion of that p eriod of parole o r probation and in addition

to any sentence Imight impose upon you, that y

ou would be subjectin g yourself to an ad di ti on al pe na lt y?

THE DE FENDA NT: Yes. App. at 132.