NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 9, 2011*
Decided February 24, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10‐2419
RICHARD L. PLUMMER, Appeal from the United States District
Petitioner‐Appellant, Court for the Southern District of Indiana,
Terre Haute Division.
v. No. 2:08‐cv‐209‐RLY‐WGH
HELEN J. MARBERRY, Richard L. Young,
Respondent‐Appellee. Chief Judge.
O R D E R
Richard Plummer, a federal inmate, petitioned for a writ of habeas corpus,
contending that the United States Parole Commission improperly postponed his release
date in violation of the Due Process Clause, the Ex Post Facto Clause, and his plea
agreement. The district court denied his petition, and we affirm.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 10‐2419 Page 2
Plummer was serving in the Marine Corps when he murdered his fellow serviceman,
Kevin Berrigan, in 1985. The two were embezzling money from the government; after
learning that Berrigan had implicated Plummer to their superiors, Plummer murdered
Berrigan by stabbing him 71 times. In a court martial that same year, Plummer pleaded
guilty to murder (but not premeditated), conspiracy to commit wrongful appropriation, and
wrongful appropriation, and was sentenced to life imprisonment. Plummer was transferred
from the custody of the military to the Bureau of Prisons to complete his sentence. See
10
U.S.C. § 858.
Plummer applied for parole and received his first hearing before the Commission in
April 1997. The panel assigned Plummer a severity index of Category Eight for his crime
and a salient factor score (based on Plummer’s criminal history) of 9, yielding a parole
guidelines range with a lower bound of 100 months’ imprisonment and no upper limit. See
28 C.F.R. § 2.20, Chapter 2, Subchapter A, § 201; id. at Chapter 13, Subchapter B, Salient
Factor Scoring Manual. Plummer expressed remorse and told the examiner that he did not
remember committing the murder because he was in a mindless rage. The Commission
assigned Plummer a presumptive release date of December 21, 2009, but explained that it
needed additional information from the court martial. If the court‐martial documents
showed that the murder was preplanned, contrary to Plummer’s assertion, the parole panel
would have a “completely different opinion” about Plummer’s behavior and parole date.
In 2000 the deputy general counsel for the Parole Commission, after reviewing
Plummer’s case on an unrelated issue, followed up on the parole panel’s request for further
details about the crime. The Commission obtained and reviewed records from the court
martial and, in October 2001, reopened the parole case to consider the new information. Id.
§ 2.28(f). In addition to considering evidence of premeditation, the case analyst also
contemplated whether Plummer had murdered Berrigan with the intention to silence a
witness, which would make Plummer ineligible for parole. See id. § 2.20 n.1. A hearing was
scheduled for March 2002 to review the records. But Plummer had not received the new
information in advance, so the Commission postponed the hearing. Four months later, after
Plummer had reviewed the court‐martial documents, the hearing took place. The
Commission ultimately found that the new information did not establish a motive to silence
a witness but did show premeditation. It amended Plummer’s parole status; instead of
presumptive release in 2009, Plummer was denied parole and assigned a reconsideration
hearing in 2012. See id. § 2.14(c)(1). Since then Plummer has attended interim hearings in
2004 and 2006, held to see if any developments warranted reconsideration of his status, see
id. § 2.14(a)(1)(ii), with no changes resulting.
No. 10‐2419 Page 3
Plummer petitioned for relief under
28 U.S.C. § 2241 in May 2008. He raised
seventeen different arguments based on the Constitution and the Parole Commission’s
regulations. The district court rejected all of his contentions.
On appeal Plummer presses only a few of these arguments. As many other prisoners
have unsuccessfully argued before him, Plummer first contends that § 235(b)(3) of the
Sentencing Reform Act of 1984, Pub. L. No. 98‐473, tit. II, ch. II, 98 Stat 1837, entitles him to
receive a release date based on parole guidelines. But he is doubly mistaken, relying as he
does on the original version of § 235(b)(3) from 1984. As amended in 1987, § 235(b)(3) does
not vest prisoners with the right to a release date within the parole guidelines range. See
Skowronek v. Brennan,
896 F.2d 264, 268‐69 (7th Cir. 1990); Norwood v. Brennan,
891 F.2d 179,
182 (7th Cir. 1989). To the contrary, as long as the Commission continues to operate, that
amended section grants to the Commission discretion to set a parole release date beyond the
parole guidelines range (which in Plummer’s case has no upper limit anyway). Norwood,
891
F.2d at 181 n.2, 182. Congress most recently extended the life of the Parole Commission until
November 1, 2011. See U.S. Parole Comm’n Extension Act of 2008, Pub. L. No. 110‐312,
122
Stat. 3013. And until the Commission approaches the final three months of its life, it is not
required to set any release date for Plummer. See Furnari v. U.S. Parole Comm’n,
531 F.3d 241,
248‐49 (3d Cir. 2008); Bledsoe v. United States,
384 F.3d 1232, 1236‐37 (10th Cir. 2004).
Next, Plummer contends that applying the amended § 235(b)(3) to his 1985 offense
violates the Ex Post Facto Clause. The Ex Post Facto Clause protects people from being
punished more severely than they could have been when they committed their crime. See
United States v. Demaree,
459 F.3d 791, 793 (7th Cir. 2006). Although the 1987 amendment
applied retrospectively, it did not disadvantage Plummer; he would be in the same position
even if the Commission were required to release him within his applicable parole
guidelines, since his range has no upper limit.
Plummer argues that the Commission deprived him of due process by attempting to
rely on new information about premeditation that Plummer had not reviewed. The
Commission can consider new, adverse information after it provides notice. See 28 C.F.R
§ 2.28(f); Schiselman v. U.S. Parole Commʹn,
858 F.2d 1232, 1234‐35 (7th Cir. 1988). When
Plummer stated that he had not received the information and needed time to prepare, the
Commission provided him copies and postponed the hearing until July 2002. Since it
immediately remedied its error by giving Plummer the new information, and took no action
in Plummer’s case before then, the Commission did not violate Plummer’s due process
rights.
Relatedly, Plummer contends that the Commission exceeded its statutory authority
by finding at his parole hearing that the murder was premeditated. But the Commission
No. 10‐2419 Page 4
may rely on information that has not been proven in an earlier adversarial setting so long as
it provides the prisoner with advance access to the information, as it did. See
18 U.S.C.
§§ 4207, 4208(b); Pulver v. Brennan,
912 F.2d 894, 896‐97 (7th Cir. 1990). And the Commission
can consider any mitigating or aggravating information at its discretion. See
28 C.F.R.
§ 2.20(d). It is not bound by the charge or Plummer’s stipulation of fact. See Augustine, 821
F.2d at 368‐69.
Plummer tells us that he wants to withdraw his guilty plea because he thinks that the
government has not honored the plea agreement’s terms. This litigation, however, concerns
only parole. If Plummer wants to wage a collateral challenge against his conviction and
sentence, he must use whatever remedies may be available within the military‐justice
system. Plummer’s remaining arguments have been considered but do not warrant further
discussion.
AFFIRMED.
