Unpublished Dispositionbenjamin F. Christian, Petitioner-appellant, v. John Gluch, Respondent-appellee, 940 F.2d 659 (6th Cir. 1991)

Before DAVID A. NELSON and SUHRHEINRICH, Circuit Judges, and HOLSCHUH, Chief District Judge.^* 

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and the record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Petitioner was sentenced in 1986 to a 15 year term of imprisonment for conspiracy to transport in interstate commerce and to possess stolen goods, aiding and abetting the transportation of explosive materials, conspiracy to commit arson, mail fraud, and making false and fraudulent statements. In exchange for his guilty plea to the above, the charges of involvement in a robbery which resulted in a death and conspiracy to murder a federal witness were not pursued. However, these two crimes were considered by the Parole Commission in determining that his offense behavior was a category eight severity and that his imprisonment be continued to the expiration of his sentence. The prosecuting Assistant U.S. Attorney supplied information to the Commission and the Commission also considered Judge Wilhoit's statements regarding how he listened to 14 hours of tapes of petitioner talking about killing a federal witness. The National Appeals Board affirmed the offense behavior level.

In the district court, petitioner raised three issues: 1) the Commission made an error in rating his offense behavior severity because it relied in part on evidence related to dismissed or unfiled charges; 2) the presumptive release time was outside the parole guidelines; and 3) the plea agreement he entered into bars the Commission from considering the allegations that he committed additional crimes. The district court dismissed the habeas corpus petition and petitioner appealed.

On appeal, petitioner argues that the Parole Commission was not entitled to consider evidence of unproven and unrelated criminal activity in determining his offense behavior severity rating.

After careful consideration of the record, it is ORDERED that the decision of the district court is affirmed for the reasons stated in the district court's March 26, 1991, memorandum opinion and order. The information considered by the Parole Commission was not irrelevant, and the Commission did not act irrationally in placing petitioner's offense behavior severity rating in category eight.