Unpublished Dispositionjames Edward Ware, Petitioner-appellant, v. Benjamin Baer, Respondent-appellee, 863 F.2d 50 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 863 F.2d 50 (6th Cir. 1988) Nov. 16, 1988

Before LIVELY and DAVID A. NELSON, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.


ORDER

James Edward Ware appeals the district court's judgment denying his habeas corpus petition filed under 28 U.S.C. § 2241. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Ware is serving a ten-year sentence based on his Rule 11 guilty plea to a charge of possession of stolen bank currency. In his petition, Ware claimed that the Parole Commission violated its regulations and his plea agreement when it relied on a dismissed armed robbery charge to determine his offense severity rating. The district court denied relief concluding that the Commission did not abuse its discretion.

Upon consideration, we conclude the petition was properly denied. Ware's dismissed charge of armed robbery was properly considered by the Commission as relevant information in his presentence report. See Hackett v. United States Parole Comm'n, 851 F.2d 127, 130 (6th Cir. 1987) (per curiam); United States v. LeBlanc, 762 F.2d 502, 505 (6th Cir.), cert. denied, 106 S. Ct. 156 (1985). Furthermore, the Commission's conclusions are properly supported by a rational basis; see Hackett, 851 F.2d 127, 130, as well as by a preponderance of the evidence. See 28 C.F.R. Sec. 2.19(c). The factual findings underlying these conclusions are insulated from judicial review, even if the findings are based on inaccurate information. See Hackett, 851 F.2d at 131; Farkas v. United States, 744 F.2d 37, 38-39 (6th Cir. 1984). Finally, the probation department's recommended parole release date was merely a non-binding guideline for the Commission's consideration. See 28 C.F.R. Sec. 2.20(d).

Accordingly, the judgment of the district court is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.