James J. Rumler, Petitioner-appellant, v. John Gluch, United States Parole Commission, Respondents-appellees, 945 F.2d 405 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 945 F.2d 405 (6th Cir. 1991)

Oct. 3, 1991


Before KENNEDY and SUHRHEINRICH, Circuit Judges, and ENGEL, Senior Circuit Judge.


ORDER

James J. Rumler, a federal prisoner, moves for the appointment of counsel on appeal from the district court judgment denying his petition for a writ of habeas corpus filed under 28 U.S.C. § 2241. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Rumler was convicted following a jury trial of conspiracy to import marijuana and was sentenced to seven years imprisonment. The Parole Commission determined that he should serve forty-eight months before parole. After exhausting administrative remedies, Rumler challenged this determination in this petition for a writ of habeas corpus. He argued that the Commission erred in relying on the amount of marijuana stated in his presentence report in determining his offense severity. The district court rejected this argument and denied the petition.

Rumler claims that the information as to the weight of marijuana in his presentence report is unreliable because no evidence was produced at trial regarding weight, and because the trial judge disclaimed any reliance on weight in sentencing, pursuant to Fed. R. Crim. P. 32(c) (3) (D). The Parole Commission is not limited to the evidence adduced at trial in determining the severity rating of an offense. Roberts v. Corrothers, 812 F.2d 1173, 1180 (9th Cir. 1987). The Commission is also free to consider disputed information in the presentence report that the sentencing judge has disclaimed reliance on. Hackett v. U.S. Parole Comm'n, 851 F.2d 127, 131 (6th Cir. 1987) (per curiam). Because there was ample evidence that this offense involved between 2,000 and 20,000 pounds of marijuana, the Commission properly determined the severity rating.

Upon consideration, therefore, the motion for counsel is denied and the district court's judgment affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.