Unpublished Disposition, 911 F.2d 740 (9th Cir. 1990)

MEMORANDUN^** 

Earhl Schooff appeals the district court's refusal (1) to reconsider his sentence and (2) to grant traveling expenses. We affirm.

DISCUSSION

Schooff argues that the district court committed plain error when it failed to construe his request for resentencing based on the remand from this court as a Federal Rule of Criminal Procedure 35(b) motion for reduction of sentence.

Plain error is a highly prejudicial error affecting substantial rights. United States v. Potter, 895 F.2d 1231, 1238 (9th Cir.), cert. denied, --- U.S. ---- (Jun. 25, 1990). This court will not reverse for plain error absent a showing of prejudice. Id.

We conclude the district court did not commit plain error because Schooff suffered no discernible prejudice. To show prejudice, Schooff must show either that the district court would have reduced his sentence if it knew it had authority to do so under Rule 35(b), or that the district court's denial of a Rule 35(b) motion would have been reversible error. Schooff has presented no evidence that had the district court construed his request as a Rule 35(b) motion, it would have reduced his sentence. Indeed, the record indicates that the district court had previously rejected a Rule 35(b) motion. Neither has Schooff presented any evidence that the denial of a Rule 35(b) motion would have been reversible error. In fact, we determined in a prior appeal that Schooff's sentence of two years was not excessive.

Schooff contends that the district court abused it discretion when it refused to reimburse Schooff for the travel expenses.

18 U.S.C. § 4285 allows a district court to order the United States Marshals to pay for a defendant's travel expenses if the court determines such a payment would serve the interests of justice and if the defendant was financially unable to provide the necessary transportation.

We conclude that the district court did not abuse its discretion when it declined to reimburse Schooff under 18 U.S.C. § 4285 for his travel expenses. It believed Schooff had additional financial resources. Specifically, the district court found that several organizations tied to Schooff had made payments on Schooff's house and utility bills. Schooff frustrated the district court's attempt to learn more about these organizations by refusing to consent to a government audit of these organizations. On appeal, Schooff has not challenged the district court's findings about Schooff's financial relationship with these organizations. We find no abuse of discretion.

AFFIRMED.