United States v. Poellnitz

• Court: Court of Appeals for the Third Circuit
• Decided: June 25, 2004
• Docket: 03-4044
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

6-25-2004

USA v. Poellnitz Precedential or Non-Precedential: Precedential

Docket No. 03-4044

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Recommended Citation "USA v. Poellnitz" (2004). 2004 Decisions. Paper 534. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/534

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL MARY BETH BUCHANAN United States Attorney BONNIE R. SCHLUETER UNITED STATES COURT OF Assistant U.S. Attorney, Chief of Appeals APPEALS Division FOR THE THIRD CIRCUIT LAURA S. IRWIN Assistant U.S. Attorney Office of United States Attorney No. 03-4044 700 Grant Street, Suite 400 Pittsburgh, PA 15219

UNITED STATES OF AMERICA Counsel for Appellee

v. LISA B. FREELAND Acting Federal Public Defendner SHAWN L. POELLNITZ, KAREN S. GERLACH Assistant Federal Public Defender Appellant Office of Federal Public Defender 1001 Liberty Avenue 1450 Liberty Center Pittsburgh, PA 15222 On Appeal from the United States District Court Counsel for Appellant for the Western District of Pennsylvania (Dist. Ct. No. 95-cr-00158) District Judge: Honorable William L. Standish OPINION

CHERTOFF, Circuit Judge. Submitted Under Third Circuit LAR Shawn L. Poellnitz appeals from 34.1(a) the District Court’s order finding that he May 14, 2004 violated a condition of his supervised release by committing a state crime. Before: NYGAARD, McKEE and Poellnitz argues that (1) there was CHERTOFF, Circuit Judges. insufficient evidence to prove that he committed a state crime, namely because (Filed: June 25, 2004) he pled nolo contendere (instead of guilty) to the crime in state court and passed a polygraph test, and (2) the delay between

1 the filing of the supervised release petition 2001, the United States Probation Office and the supervised release violation (USPO) issued a “Status Report/Request hearing was not “reasonably necessary,” as for Warrant in Abeyance.” The letter required by 18 U.S.C. § 3583. The reported that Poellnitz was arrested on District Court exercised jurisdiction June 7, 2001, and charged with indecent pursuant to 18 U.S.C. § 3231. This Court assault, corruption of a minor, and has jurisdiction under 28 U.S.C. § 1291. endangering the welfare of a child. On For the reasons stated below, we will November 13, 2001, the probation office reverse the District Court’s order and filed a Petition on Supervised Release remand for a determination of whether (“Petition”), alleging Poellnitz violated there is sufficient evidence (under a conditions of supervised release and preponderance standard) that Poellnitz requesting the court issue a bench warrant committed a crime. to be held in abeyance until the pending state charges were resolved. On I. November 15, 2001, the District Court On November 16, 1995, Poellnitz granted the Petition, and on November 16, pled guilty to engaging in monetary 2001, the District Court issued the arrest transactions in property derived from warrant, to be held in abeyance. specified unlawful activity, in violation of On February 10, 2003, Poellnitz 18 U.S.C. § 1957(a), and making a false, entered a plea of nolo contendere in the ficticious or fraudulent claim, in violation Court of Common Pleas of Allegheny of 18 U.S.C. § 287. The District Court County, Pennsylvania, to the charge of sentenced Poellnitz to 37 months in prison corruption of a minor.2 On February 20, followed by 3 years of supervised release.1 2003, the USPO filed a Supplemental The terms of the sentence included a Petition on Supervised Release provision that “[w]hile on supervised (“Supplemental Petition”), alleging release, the defendant shall not commit violations of the supervised release and any crimes, federal, state, or local and requesting issuance of a summons for shall abide by the standard conditions of Poellnitz to appear to show cause why the supervised release.” App. at 3 (emphasis District Court should not revoke his added). supervised release. On February 25, 2003, Poellnitz was released from custody the District Court granted the and began to serve his term of supervised Supplemental Petition and scheduled the release on November 19, 1998. The term revocation hearing for April 11, 2003. of supervised release was set to expire on The District Court subsequently sua November 18, 2001. On November 9,

2 The other counts—indecent 1 Poellnitz received this sentence assault and endangering the welfare of a for each count, to be served concurrently. child—were withdrawn.

2 sponte rescheduled the hearing on three Amended Order, pursuant to Federal Rule occasions: On February 27, 2003, the of Criminal Procedure 35(a).4 In the hearing was rescheduled for May 2, 2003; Amended Order, the District Court found on April 8, 2003, the hearing was again Poellnitz guilty of violating a state law rescheduled for May 16, 2003; and, on while on supervised release, but contrary May 28, 2003, the hearing was again to the original Order did not find him rescheduled for June 20, 2003. guilty of failing to pay full restitution. Additionally, on July 10, 2003, the The Court treated the state law violation as District Court granted Poellnitz a a grade C violation and, pursuant to 18 continuance due to Poellnitz’s health U.S.C. § 3583(e)(3) and (h), revoked problems, and the hearing was Poellnitz’s supervised release and rescheduled for July 21, 2003. Similarly, sentenced him to a term of one month’s on two occasions the District Court imprisonment, to be served in home granted Government motions to confinement pursuant to 18 U.S.C. § reschedule because of the unavailability of 3583(e)(4) and § 7B1.3(a)(2) and (c)(1) of Probation Officer Verne Howard: On July the United States Sentencing Guidelines. 5 16, 2003, the District Court granted a motion and reset the hearing for 4 September 12, 2003; and on July 24, 2003, “(a) Within 7 days after the District Court granted a motion sentencing, the court may correct a resetting the hearing for September 26, sentence that resulted from arithmetical, 2003. The hearing ultimately took place technical, or other clear error.” Fed. R. on October 2, 2003. There is no Crim. P. 35(a). indication on the docket sheet as to why 5 The Notice of Appeal was filed on the hearing was postponed between October 3, 2003. Pursuant to Federal Rule September 26 and October 2.3 of Appellate Procedure 4(b)(5), “[t]he In an October 3, 2003 Order, the filing of a notice of appeal under this Rule District Court found that Poellnitz had 4(b) does not divest a district court of violated a state law while on supervised jurisdiction to correct a sentence under release and failed to pay full restitution. Federal Rule of Criminal Procedure 35(a), The District Court ordered that the term of nor does the filing of a motion under 35(a) supervised release be reinstated to affect the validity of a notice of appeal commence October 2, 2003, and to run for filed before entry of the order disposing of a term of five months. On October 9, the motion.” Fed. R. App. P. 4(b)(5). 2003, the District Court issued an Thus, the District Court retained jurisdiction to amend the judgment. The Government argues that this appeal 3 All dates are derived from the properly flows from the October 9, 2003 District Court docket entries. See App. at Amended Order, and not the October 3 27-34. Order, as suggested by Poellnitz. Because

3 II. The plain language of 18 U.S.C. § Poellnitz argues there was 3583(e)(3) requires a finding by “a insufficient evidence to prove that he preponderance of the evidence that the violated a condition of his supervised defendant violated a condition of release by committing a crime because he supervised release.” When the condition pled nolo contendere (rather than guilty) is that the defendant not commit a crime, to the crime charged and passed a there is no requirement of conviction or polygraph test. Poellnitz’s challenge to even indictment. This Court has the propriety of the District Court’s emphasized “the broad discretion which is consideration of a nolo contendere plea as traditionally given to district courts to proper evidence that he committed a crime revoke probation when probation in violation of his supervised release is a conditions are violated.” United States v. question that is “essentially legal in Gordon, 961 F.2d 426, 429 (3d Cir. 1992). nature, [and] we will exercise de novo A “court can revoke probation when it is review.” United States v. Blackston, 940 reasonably satisfied that the probation F.2d 877, 882 (3d Cir. 1991) (citing conditions have been violated, without the United States v. Ortiz, 878 F.2d 125, 126- government being required to present 27 (3d Cir. 1989)). We conclude that the proof beyond a reasonable doubt that the District Court erred as a legal matter in defendant committed the alleged acts.” Id. relying on the nolo plea as evidence of at 429; see also United States v. commission of a crime.6 Chambers, 429 F.2d 410, 411 (3d Cir. 1970) (citations omitted). In other words, “to revoke probation it is not necessary the challenges mounted by Poellnitz are equally applicable to both orders, the technical question of which order is being appealed is not dispositive. However, to lacked sufficient evidence to support its avoid duplicative and unnecessary finding of commission of a crime. While litigation, we treat this as an appeal from the District Court admitted the polygraph the October 9 Amended Order. examination, it concluded that the examination was not “particularly relevant 6 We do not address the factual . . . because . . . [it] relates to . . . conduct question of whether there is sufficient different from the conduct . . . alleged to evidence to establish a violation, a have been the basis for the corruption determination that would be reviewed for charge.” App. at 262. On remand, the clear error. See Blackston, 940 F.2d at District Court should consider this 879. Therefore, we need not address evidence, in conjunction with other Poellnitz’s argument that in light of the evidence in the record, to determine polygraph examination results indicating whether a preponderance of the evidence that Poellnitz was truthful in denying supports the conclusion that Poellnitz certain alleged activities, the District Court committed a crime.

4 that the probationer be adjudged guilty of was convicted of a crime, the court may a crime, but only that the court be automatically revoke release based on the reasonably satisfied that he has violated defendant’s commission of the underlying one of the conditions.” United States v. offense. That is not so when it comes to Manuszak, 532 F.2d 311, 317 (3d Cir. the peculiar legal effect of the plea of nolo 1976). contendere. While a nolo plea is The novel question presented here indisputably tantamount to a conviction, it is whether Poellnitz’s nolo contendere is not necessarily tantamount to an plea, without more, is sufficient to admission of factual guilt. See United establish that he violated a condition of States v. Adedoyin, No. 02-3042, slip op. supervised release even under the at 8-9 (3d Cir. May 28, 2004); see also relatively relaxed burden of proof that United States v. Wyatt, 762 F.2d 908, 911 applies. The answer depends upon (1) (11th Cir. 1985) (holding nolo plea was what actually constitutes a violation of the not admissible to prove defendant had condition of release, and (2) what admitted his guilt, although the underlying significance we attribute to a nolo plea. facts were admissible); United States v. The condition of release specified Graham, 325 F.2d 922, 928 (6th Cir. in the revocation proceeding was that the 1963) (internal citations omitted) (“It is “defendant shall not commit any crimes, true that a nolo contendere plea permits a federal, state or local.” App. at 3. The judgment of conviction and the imposition condition was not that defendant shall not of punishment the same as if a plea of be convicted of another crime. What is guilty had been made. However, it has forbidden is illegal conduct, not another been held that it is not admissible to aid judgment of conviction. In order to proof of guilt in another proceeding.”). establish that Poellnitz was guilty of a And since the condition of release in this violation of this condition of release, case was to avoid the commission of a therefore, the government did not have to crime—not to avoid a conviction for a show that he was convicted of a new crime—establishing that Poellnitz was crime, but did have to show that he convicted of a new crime through his plea actually committed a new crime. In this is not enough. What matters is whether he case, the District Court’s finding that committed that crime as a matter of fact. Poellnitz committed a new state crime was Thus, we are obliged to ask whether the not based exclusively or primarily on plea that Poellnitz entered can be deemed evidence of the facts underlying the to establish underlying guilt, and not alleged new state crime. Rather, the merely the fact of a criminal conviction. District Judge treated the nolo plea as the We observe at the outset that the proof that Poellnitz committed the effect of the nolo plea in question here is underlying crime. See App. at 18. governed by state law. The Federal Rules In the normal course, one might of Criminal Procedure and the Federal expect that if the court finds defendant Rules of Evidence establish certain

5 limitations on the effect of a nolo plea as regards a nolo plea as constituting an a matter of federal criminal law, or in the admission or evidence of criminal context of federal trials. See Adedoyin, conduct, then it was entitled to whatever No. 02-3042, slip op. at 7-8. Here, weight the District Court chose to give it. however, the nolo plea in question is not a So, for example, in United States v. federal plea, and the rules of evidence do Verduzco, 330 F.3d 1182, 1185 (9th Cir. not apply in a supervised release 2003), the Ninth Circuit relied on proceeding.7 See Fed. R. Ev. 1101(d)(3). California Penal Code § 1016, which The critical question therefore is provides that the “legal effect of [a nolo how Pennsylvania law regards the legal contendere] plea, to a crime punishable as effect of the nolo plea that Poellnitz a felony, shall be the same as that of a plea entered in response to the state criminal of guilty for all purposes,” in holding that charge of corrupting a minor. If the District Court properly relied on nolo Pennsylvania treats such a plea as a plea to find violation of supervised judgment of conviction, but not an release. See also United States v. admission of guilt, then that plea was Guardarrama, 742 F.2d 487 (9th Cir. entitled to no evidentiary weight at the 1984) (per curiam) (same).8 revocation hearing. Cf. Olsen v. Correiro, A review of the applicable statutes 189 F.3d 52, 60 (1st Cir. 1999) (citations and case law reveal that in Pennsylvania a omitted) (“[I]n most jurisdictions, nolo plea does not constitute an admission including Massachusetts, a nolo plea is not of factual guilt, and thus has no a factual admission that the pleader committed a crime. Rather, it is a statement of unwillingness to contest the 8 Several circuit courts have noted government’s charges and an acceptance that “[a] certified copy of a conviction is of the punishment that would be meted out proper evidence that a defendant violated to a guilty person.”). a state or federal law and, thereby, On the other hand, if state law violated a condition of his supervised release.” United States v. Hofierka, 83 F.3d 357, 363-64 (11th Cir. 1996) (per 7 In Adedoyin, the defendant at trial curium) (citing cases); see also United sought to exclude a California conviction. States v. Fleming, 9 F.3d 1253, 1254 (7th We did not, however, examine the Cir. 1993) (per curium). These cases, meaning of a nolo plea under California however, deal with an entirely different law. Rather, because federal evidentiary situation—instances where the defendant rules applied, the case was analyzed entered a guilty plea. A nolo plea is an pursuant to Federal Rule of Evidence 410. entirely different species—“a nolo plea is not a factual admission that the pleader committed a crime.” Olsen, 189 F.3d at 59.

6 evidentiary value in assessing whether the evidence of guilt in a subsequent defendant committed a crime. The proceeding. Pennsylvania Rules of Evidence Unlike its federal counterpart, differentiate between the admissibility of Federal Rule of Evidence 410, the guilty pleas and nolo pleas in subsequent Pennsylvania Rules of Evidence appear to proceedings: be equally applicable to revocation proceedings. See Pa.R.E. 101 (“These Except as otherwise rules of evidence shall govern proceedings provided in this rule, in all courts of the Commonwealth of evidence of the following is Pennsylvania’s unified judicial system, not, in any civil or criminal except as otherwise provided by law.”). proceeding, admissible While the revocation proceeding at issue against the defendant who is a federal proceeding, and thus not made the plea or was a governed by the Pennsylvania Rules of participant in the plea Evidence, the Pennsylvania Rules provide discussions: substantial support for the conclusion that, .... under Pennsylvania law, nolo pleas do not (2) a plea of nolo have any evidentiary value as an contendere admission of guilt.10 .... Pennsylvania case law further supports this conclusion. Under Pa.R.E. 410. The Comment clarifies that Pennsylvania law, “[a]lthough the effect the Rule “does not prohibit the use of a of a plea of nolo contendere is equivalent conviction that results from a plea of nolo to a plea of guilty, the import of the pleas contendere, as distinct from the plea itself, to impeach in a later proceeding (subject to Pa.R.E. 609) or to establish an element 10 As the District Court noted, § of a charge in a later administrative 71.4 of the Pennsylvania Administrative proceeding.” Pa.R.E. 410 cmt. (citing Code provides, in pertinent part, that “[a] Commonwealth v. Snyder, 182 A.2d 495 revocation hearing shall be held within (Pa. 1962); Eisenberg v. Commonwealth, 120 days from the date the Board received 516 A.2d 333 (Pa. 1986)).9 Thus, the official verification of the plea of guilty or Pennsylvania evidence code draws a nolo contendere or of the guilty verdict at distinction between the permissible use of the highest trial court level.” 37 Pa. Code a nolo plea to prove the fact of conviction § 71.4. While this provision may support and the impermissible use of a nolo plea as the conclusion that a guilty plea and a nolo plea have the same effect in terms of triggering a revocation hearing, the 9 Rule 609’s limitations are not section in no way suggests that both types applicable to this case. of pleas have the same evidentiary value.

7 is not the same. In pleading nolo act. The judgment of contendere; the defendant does not admit conviction follows upon his guilt, but merely consents to being such plea as well as upon a punished as if he were guilty.” plea of guilty. Commonwealth v. Gunter, 771 A.2d 767, In 1970, the United States 773 (Pa. 2001) (Cappy, J., concurring) Supreme Court, in North (citing Commonwealth v. Boyd, 292 A.2d Carolina v. Alford, [400 434, 435 (Pa. Super. 1972); North U.S. 25 (1970)] held that Carolina v. Alford, 400 U.S. 25, 35 n.8 the courts could impose (1970); Eisenberg, 516 A.2d at 335).11 criminal penalties where a In Eisenberg, the Pennsylvania defendant pleading nolo Supreme Court explicitly addressed the contendere specifically question of the effect of a nolo contendere denied guil t of th e plea under Pennsylvania law: underlying facts. . . . The Alf o r d procedure is The effect of a nolo substantially similar to the contendere plea in practice in Pennsylvania on Pennsylvania is concisely nolo contendere pleas. discussed in the leading case of Commonwealth v. Eisenberg, 516 A.2d at 335 (internal Ferguson, 44 Pa. Superior citations omitted). Ct. 626 (1910): The Eisenberg court held that an A plea of nolo contendere, Alford plea, which is “substantially when accepted by the court, similar” to a Pennsylvania nolo plea, was is, in its effect upon the sufficient to constitute a “conviction” case, equivalent to a plea of pursuant to the state statute under which guilty. It is an implied Eisenberg was charged. 516 A.2d at 336. confession of guilt only, and In so holding, the court explained that “the cannot be used against the Department here does not attempt to use defendant as an admission the plea as judicial admission of the fact of in any civil suit for the same fraud. Rather, the conviction entered upon the plea itself is the operative fact which authorizes suspension. This 11 In Gunter, the Pennsylvania evidence of the conviction itself is not Supreme Court held that a nolo plea was affected by the procedure leading up to the involuntary, in part because of the failure plea . . . . ” Id. The Eisenberg court, of the colloquy to mention that the however, specifically noted that a nolo defendant was entering a nolo plea, as plea is not proper evidence of the distinct from a guilty plea. 771 A.2d at underlying facts of the conviction: 771.

8 A nolo plea to a criminal not the province of the court to occupy charge is not evidence of itself with the question of guilt or either its underlying or innocence.”); Ferrelli v. Commonwealth, ultimate facts in a later civil 783 A.2d 891, 893 (Pa. Cmwlth. Ct. action. It follows as a 2001).12 corollary that in a civil action based on the same act or transaction, the pleader is 12 It is certainly true that in some not precluded from denying contexts a nolo plea has the same legal or contesting the facts of the effect as a guilty plea under Pennsylvania transaction by his nolo plea. law. These situations, however, are distinguishable and entirely consistent Id. at 336 n.6 (internal citations omitted). with the Pennsylvania rule that a nolo plea is not an admission of guilt. See, e.g., The decisions of Pennsylvania’s Sontag v. Ward, 789 A.2d 778, 780 (Pa. lower courts similarly reflect this Cmwlth. Ct. 2001) (explaining in the distinction between the use of a nolo plea context of holding that requiring as evidence of the fact of conviction as defendant to admit guilt to attend sex opposed to evidence of the commission of offender program did not violate right the underlying crime. For example, in against self-incrimination that “a plea of Strain v. Commonwealth, the court nolo contendere is to be treated the same explained that “our Supreme Court has as a guilty plea”); Commonwealth v. upheld the use of a conviction entered on Lewis, 791 A.2d 1227 (Pa. Super. Ct. a plea of nolo contendere as evidence in a 2002) (holding in context of post-sentence subsequent civil matter where it was the motion to withdraw a plea that a “‘plea of fact of conviction, not the plea, that was nolo contendere is treated the same as a the operative fact relied upon.” 784 A.2d guilty plea’”) (quoting Commonwealth v. 845, 848 (Pa. Cmwlth. Ct. 2001) (citing Miller, 748 A.2d 733, 735 (Pa. Super. Ct. Eisenberg). The Strain court went on to 2000)). explain that in that case “[s]uspension of a In addition, the instructions given licensee’s operating privilege under the at Poellnitz’s sentencing hearing do not Compact . . . does not turn on whether the affect the legal consequences of the nolo licensee has admitted or denied guilty; it is plea. At the sentencing hearing on the the conviction that triggers the provision.” charge of corruption of a minor, Poellnitz Id.; see also Bourdeev v. Commonwealth, was specifically instructed and 755 A.2d 59, 61-62 (Pa. Cmwlth. Ct. acknowledged that “there is no difference 2000); Commonwealth v. Boyd, 292 A.2d between a plea of guilty and a plea of nolo 434, 435 (Pa. Super. Ct. 1972) (“Where a contendere,” App. at 133, and that “by plea of nolo contendere is tendered by the pleading guilty to these charges, you’ll be defendant and accepted by the court, it is in violation of that period of parole or

9 Thus, as a legal matter in pertinent part: consideration of a nolo contendere plea as evidence of Poellnitz’s commission of the The power of the court to underlying crime was improper. On revoke a term of supervised remand, the District Court should consider release for violation of a whether there is sufficient evidence (under condition of supervised the preponderance of evidence standard) release, and to order the that Poellnitz violated a condition of defendant to serve a term of supervised release. In conducting this imprisonment and . . . a inquiry, the District Court should take into further term of supervised account all evidence in the record, release, extends beyond the including, but not limited to, evidence expiration of the term of presented at Poellnitz’s plea hearing. supervised release for any What the District Court may not do, period reasonably necessary however, is treat the nolo plea as an for the adjudication of admission by Poellnitz that he committed matters arising before its the crime. expiration if, before its expiration, a warrant or III. summons has been issued Poellnitz contends that the delay of on the basis of an allegation nearly two years between the filing of the of such a violation. supervised release violation petition and the occurrence of the supervised release 18 U.S.C. § 3583(i) (emphasis added). violation hearing was not “reasonably We exercise plenary review over questions necessary.”13 18 U.S.C. § 3583 provides, of statutory interpretation. See United States v. Thayer, 201 F.3d 214, 219 (3d Cir. 1999). probation,” id. at 132. These instructions, In analyzing this question, the perhaps given erroneously, do not alter the District Court found instructive the legal status of the nolo plea—such a plea Seventh Circuit’s decision in United is not an admission of guilt under States v. Rasmussen, 881 F.2d 395 (7th Pennsylvania law. Cir. 1989). In Rasmussen, the court utilized the following factors in assessing 13 We address this issue, despite our whether the delay between the notice of conclusion above that remand is probation action and hearing on the warranted, because if Poellnitz is correct petition to revoke probation was a denial we must reverse and the District Court of due process: length of delay, reason for cannot reconsider on remand whether the delay, the probationer’s assertion of there is sufficient evidence of commission his right, prejudice to the probationer, and of a crime. the reason why the probationer was in

10 custody. Id. at 398 (citing Barker v. did not violate § 3583(i).” Id. at 450. Wingo, 407 U.S. 514 (1972); United In addition, we conclude that the States v. Scott, 850 F.2d 316, 320 (7th Cir. delay in this case was not unreasonable. 1988)). Unlike the present case in which To begin, it was reasonable for the District Poellnitz alleges the delay violated the Court to wait for the adjudication of the terms of § 3583(i), Rasmussen claimed the state court charges before proceeding with delay was a denial of due process. While the revocation hearing. Although it is not Rasmussen may be distinguishable on necessary that the probationer be adjudged these grounds and certainly does not guilty of a crime to revoke release, see provide a rigid and exclusive set of factors Manuszak, 532 F.2d at 317, it is certainly that a court may consider, the decision understandable that the District Court provides a useful framework for waited for adjudication of these state considering whether the delay was charges because it might be relevant in the unreasonable. We conclude that it was revocation proceeding. not. Furthermore, the subsequent To begin, we reject Poellnitz’s decisions to reschedule the hearing were argument that the delay was not connected not unreasonable. The record does not to the federal adjudication of the violation, reflect that Poellnitz objected to the but was solely related to the adjudication District Court’s sua sponte decisions to of state charges. Poellnitz’s reliance on reschedule, and the docket reflects the Ninth Circuit’s decision in United considerable activity during this time, States v. Garrett, 253 F.3d 443 (9th Cir. including Poellnitz’s motion for 2001) is misplaced. In Garrett, the court appointment of counsel and motion to held that § 3583(i) “refers to the federal dismiss the petition. Moreover, granting adjudication of the defendant’s supervised the Government’s motions requesting release violations [and] [t]hus . . . extends rescheduling, which also appear to have the jurisdiction of the federal court only to been unopposed, was reasonable in light the period of time reasonably necessary to of the importance of Probation Officer adjudicate pending supervised release Howard’s testimony. Cf. Rasmussen, 881 revocation issues.” Id. at 459 (emphasis F.2d 395 (7th Cir. 1989) (holding 13- added in Garrett). In other words, the month delay between notice of probation jurisdiction of the federal court is action and hearing on petition to revoke extended to permit adjudication of the probation was not a denial of due federal supervised release revocation process); Bennett v. Bogan, 66 F.3d 812, issue. But such adjudication can include 818 (6th Cir. 1995) (noting that “although consideration of whether there was, as in the lengthy delay [of five and one-half this case, the commission of a state law years] between the issuance and execution violation. In fact, Garrett held that of the second warrant for Petitioner’s “postponement of . . . [the] revocation arrest is lamentable, it does not rise to the hearing until . . . release from state custody level of intolerable”).

11 The delay did not prejudice Poellnitz’s ability to contest the validity of **** his revocation. Poellnitz makes general For the foregoing reasons, the assertions about how having to defend judgment of the District Court entered on himself in 2003 against incidents allegedly October 3, 2003, as amended on October occurring in late 1999 and early 2000 9, 2003, will be reversed and remanded “caused the prospect of dimmed for further proceedings consistent with memories, and the resulting possibility of this opinion. inadequate cross examination.” Appellant Br. at 29. Not only does Poellnitz not identify any specific “dimmed memories,” but his argument fails to recognize that he was required to defend himself against these charges in 2003 in the state court proceedings, irrespective of the federal supervised release hearing. In addition, we are unpersuaded by Poellnitz’s argument that he was prejudiced because he was unaware of the pending charges when he pled. At the plea hearing, Poellnitz was instructed on and acknowledged the potential impact of the plea on his supervised release status.14

14 The testimony provides, in pertinent part:

THE COURT: Were you on parole or probation at the t i me t h e s e o f f e n s e s occurred? THE DEFENDANT: Yes. any sentence I might impose T H E C OURT : Y ou upon you, that you would be understand that by pleading subjecting yourself to an guilty to these charges, additional penalty? you’ll be in violation of that THE DEFENDANT: Yes. period of parole or probation and in addition to App. at 132.