USCA1 Opinion

April 6, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1013
UNITED STATES,
Appellee,
v.
ELLERTON P. WHITNEY, III,
Defendant, Appellant.
____________________
No. 95-1014
ELLERTON P. WHITNEY, III,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, Senior U.S. District Judge]
__________________________
____________________
Before

Torruella, Chief Judge,

___________
Cyr and Boudin, Circuit Judges.
______________
____________________

Ellerton P. Whitney, III on brief pro se.

________________________
Paul M. Gagnon, United States Attorney, and Peter E. Papps, Fi
______________
______________
Assistant United States Attorney, on brief for appellee.
____________________
____________________

Per Curiam.
__________

Defendant Ellerton P. Whitney

appears

in this court for the fifth time in connection with

bank fraud conviction.
request

He here appeals from the denial of a

for post-conviction

motion for

his 1991

Fed. R. Crim.

styled as

P. 33 or,

in the

alternative, as a petition for relief under 28 U.S.C.

2255.

For

new trial under

relief--a request

the following reasons, as

well as those

recited by the

district court, we affirm.

The instant request
occurring

during

resentencing.

for relief was

Whitney's

Whitney

earlier

notes that the

prompted by
appeal

events

from

government there,

his
in

addressing the amount of loss for purposes of calculating the

offense level, argued that the district court could

losses

attributable to "uncharged

loans" under the relevant

conduct provision of the sentencing guidelines.

1B1.3.

He also notes

See United States v. Whitney,

___ ______________
_______

slip

at

(1st

See U.S.S.G.
___

that we endorsed such

our decision.
op.

Cir.

consider

1994)

(per

a measure in
21 F.3d

curiam)

420,

(table)

("Especially considering that additional losses resulted from

uncharged

conduct

plan,...

we

that

find

determination.").

no

was

part

error

of
in

a
the

common scheme
court's

or

[loss]

In the belief that neither the presentence

report (PSR) nor the district court had made any reference to
uncharged

relevant

government's (and

conduct,

this court's)

subsequent CRB and FCB loans.

to

conclude,

Whitney

inter alia,
__________

infers

that

reference pertained

the

to the

From this premise, he proceeds

that:

(1) this

court

"by clear

implication" found him not

for which he was

liable for "61.4% of

specifically accused, tried, convicted, and

twice sentenced," Brief at 9-10;

improperly based on charges
and

(3) the

facts

(2) his conviction was thus

not appearing in the indictment;

government's eleventh-hour

constitutes

indictment,

or

the conduct

misconduct

at least

admission

of these

warranting dismissal

"new

evidence"

of

the

warranting a

new

trial.
Whitney's premise is wrong.

The PSR did, in fact, refer

to uncharged relevant

conduct (apart

loans).

See PSR
___

("Nor does the figure above [referring

to

losses

the

40

the

indictment]

FCB

an

approximately $100,000 loss to the Dartmouth Bank as part

of

scheme presented

in

CRB and

reflect

the same

specified

from the

earlier in

this report.").

district court specifically

incorporated this amount in

loss

4/27/93

calculations.

Transcript at 86.
in

See
___
And

Order

at

3;

the reference to "uncharged

The
its

4/26/93
conduct"

our earlier opinion was made with the Dartmouth Bank loss

in mind.
In any
than

event, Whitney's

rehash of

his

complaint here is

"variance"

argument that

rejected by this court on two previous occasions.

States v.
______
largely on

Whitney, supra, slip

_______ _____
"law of the

op. at 2-3,

case" grounds,

little more
has

been

See United
___ ______

4-5 (rejecting,

the allegation

that

"the three loans charged in the indictment actually consisted

-3-

of

some seven or more,

and that the

jury permissibly could

have convicted him on only a portion thereof"); United States

_____________
v. Whitney, 991 F.2d 786, slip
_______
curiam)

(table)

allegation that
loans

than
of

reviewed

again

Singleton v.
_________

(finding no
"the

those

disposed

op. at 4 (1st Cir. 1993) (per

in

a prior

in

way of

S.

the

appeal,

United States,
_____________

cert. denied, 115

_____________

error

evidence showed

charged

by

plain

with respect

different

fraudulent

indictment").
of

course,

Ct. 517

233,

(1994).

Issues

will not

2255 motion.
26 F.3d

be

See, e.g.,
___ ____

240 (1st
We

to

also

Cir.),
observe,

contrary to Whitney's suggestion, that our decision in United

______
States
______

v.

Lilly, 983
_____

F.2d 300

(1st

Cir. 1992),

does not

constitute "supervening" law, but rather was issued one month

prior to oral argument in his initial appeal.

Affirmed.
_________

-4-