United States of America v. Shawn Poellnitz

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3027
UNITED STATES OF AMERICA
v.
SHAWN POELLNITZ,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 05-cr-00177)
District Judge: Honorable Donetta W. Ambrose
Submitted Under Third Circuit LAR 34.1(a)
November 2, 2007
Before: RENDELL, WEIS and NYGAARD, Circuit Judges.
(Filed December 6, 2007 )
OPINION OF THE COURT
RENDELL, Circuit Judge.
Appellant Shawn Poellnitz (“Poellnitz”) appeals a 30-month term of imprisonment
imposed by the United States District Court for the Western District of Pennsylvania.
Poellnitz contends that the District Court clearly erred (1) when it determined that the

-- 1 of 5 --

As we write for the benefit of the parties alone, we need not undergo a detailed1
recitation of the facts.
Poellnitz’s guilty plea was not the result of a plea agreement.2
2
Government proved by a preponderance of the evidence that the relevant conduct to
which Poellnitz did not plead guilty was closely related to the scheme of criminal conduct
for which he did plead guilty; and (2) when it included the dollar amounts representing
the relevant conduct in the amount of loss sentencing calculation. Poellnitz requests that
we vacate his sentence and remand for resentencing so that the District Court can
recalculate the amount of loss for sentencing purposes. For the reasons stated below, we
will affirm.
DISCUSSION1
On September 28, 2005, Poellnitz pled guilty to all twelve counts of a twelve-
count grand jury indictment. The indictment charged Poellnitz with seven counts of theft2
of government property in violation of 18 U.S.C. § 641, based upon his use of checks
drawn on a closed bank account to purchase postage stamps at various post offices. The
indictment also charged Poellnitz with five counts of bank fraud in violation of 18 U.S.C.
§ 1344(1), based upon Poellnitz’s presentation of counterfeit checks to various financial
institutions.
Although Poellnitz admitted only to the conduct charged in the indictment, leading
to a $7,361.75 amount of loss calculation, the District Court was presented with evidence
regarding various other counterfeit checks that were not charged in the indictment, but

-- 2 of 5 --

The District Court specifically stated:3
I think that the evidence I have heard here today, from my review of all the
submissions, all the exhibits, all the information in the report, does convince
me, by a preponderance of the evidence, that the relevant conduct set forth
in the presentence report and testified here today, is closely related to the
scheme of criminal conduct for which the defendant was indicted and to
which he pled guilty. So, I do find that it is relevant conduct for the
purpose of calculating loss.
(App. 298-99).
Preponderance of the evidence is defined as follows:4
Is it more likely that something happened than not? Sometimes lawyers and
judges explain preponderance of the evidence . . . by making the analogy to
a scale, a simple scale; and they say, look at the evidence in favor of the
proposition . . .; and then look at the evidence against that proposition. And
3
that the Government attributed to Poellnitz. At sentencing, the District Court termed all
of the uncharged counterfeit checks as “relevant conduct” and added their value to the
amount of loss calculation, for a total amount of loss in excess of $30,000, but less than
$70,000 (i.e., $39,004.99).3
On appeal, Poellnitz argues that the Government did not prove, by a
preponderance of the evidence, that both sets of checks were part of a common criminal
scheme. Consequently, Poellnitz contends that the unindicted conduct was not “relevant
conduct” and thus should not have been included in the amount of loss calculation. We
review a district court’s determination of sentencing facts for clear error. Grier, 475 F.3d
at 569. As recognized by Poellnitz, the standard of proof for facts relevant to sentencing
is preponderance of the evidence. United States v. Grier, 475 F.3d 556, 565 (3d Cir.4

-- 3 of 5 --

then whichever side preponderates or tips, that is where you should abide
your decision.
United States v. Santos, 932 F.2d 24, 248 (3d Cir. 1991).
4
2007) (en banc) (holding that preponderance of the evidence standard of proof applies to
the determination of all facts relevant to the application of guideline enhancements).
We find that the District Court did not clearly err in its determination, based on the
preponderance of the evidence, that Poellnitz’s relevant conduct involved at least $30,000
in loss. The Government presented testimony from three witnesses in support of its
argument that the uncharged relevant conduct should be included in the amount of loss
calculation, including the testimony of a Secret Service agent who stated that the relevant
conduct checks, like the checks for which Poellnitz had been indicted, were drawn on
accounts with the same fictitious name, “Major Sportsland.” Moreover, not only were the
unindicted checks and the indicted checks similar in physical appearance, but the
Government identified multiple common factors of time, method, and victims to show that
the checks for which Poellnitz was indicted and the checks for which Poellnitz was not
indicted were all part of a the same “course of conduct” or “common scheme or plan.” See
U.S.S.G. § 1B1.3(a)(2). The evidence contained in the PSI Report, the exhibits attached to
the Government’s Sentencing Memoranda, and the testimony presented at sentencing were
sufficient for the District Court to reach its conclusion. We find no reason to disturb it.

-- 4 of 5 --

5
CONCLUSION
For the reasons set forth above, we will affirm the judgment of the District Court.

-- 5 of 5 --