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Merki v. U.S. Parole Commission

*fn* submitted: May 26, 1992.


Appeal from the United States District Court for the Central District of California. D.C. No. CV-89-5147-AAH. A. Andrew Hauk, District Judge, Presiding.

Before: Farris, Thompson and Fernandez, Circuit Judges.


Robert E. Merki, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2241 habeas corpus petition alleging that the Parole Commission ("Commission") improperly determined his release date. Merki contends the district court erred by holding that the Commission did not violate (1) the terms of his plea agreement with the government, (2) its own rules and procedures, (3) the Sentencing Reform Act of 1984, and (4) his civil and equal protection rights when determining his presumptive parole release date. We have jurisdiction under 28 U.S.C. § 2253 and we affirm.

We review de novo a district court's decision to deny a petition for a writ of habeas corpus. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir. 1985). Our review of Commission decisions is limited to reviewing whether the Commission has violated the Constitution, exceeded the statutory limits on its discretion, or, in cases where it has set a parole date outside the parole guidelines, to determining whether the Commission had good cause for doing so. Wallace v. Christensen, 802 F.2d 1539, 1551-52 (9th Cir. 1986) (en banc). Statutory and constitutional claims are reviewed de novo. Id.

While a fugitive from counterfeiting and bail jumping charges in Oregon and counterfeiting charges in Washington, Merki was arrested in December 1984 during a raid by federal agents on The Order, a para-military white supremacist organization. Merki and numerous other codefendants were charged in a twenty-one count indictment. Pursuant to a plea agreement, all but four counts against Merki were dismissed in exchange for a guilty plea to the remaining counts and a promise of cooperation in the government's investigation and prosecution of members of The Order.*fn1 The government promised to apprise the Commission as to the extent of Merki's cooperation with authorities. Pursuant to the agreement, Merki was sentenced to serve 30-years imprisonment.

At his initial parole hearing, the hearing panel recommended release after 64 months. The government informed the panel as to Merki's cooperation, as required by the plea agreement. The Regional Commissioner then referred Merki's case to the National Commissioners for original jurisdiction consideration. Following the recommendation of the Regional Commissioner, the National Commissioners established a parole guideline range of 58-92 months but then departed upward to establish a presumptive parole date after 108 months.


Plea Agreement

The Eighth Circuit has previously rejected Merki's contention raised in a prior 28 U.S.C. § 2241 petition that the Commission's decision violates his plea agreement. Merki v. Sullivan, 853 F.2d 599, 601 (8th Cir. 1988). We concur with the reasoning of the Eighth Circuit.

As the Eighth Circuit noted, "although the plea agreement did obligate the United States Attorney to specify to the [] Commission those crimes in which appellant had a personal role, it did not foreclose the [] Commission from considering the general implications of [Merki's] association with an extremist group such as The Order." Id. at 601. In the absence of a specific provision to the contrary in a plea agreement, the Commission is free to consider information contained in a presentence report, unadjudicated allegations and/or hearsay information when determining a prisoner's release date. United States v. Keller, 902 F.2d 1391, 1393 (9th Cir. 1990) (plea agreement no bar to Commission consideration of uncharged crimes where government agreed only not to prosecute); Vargas v. Parole Com'n, 865 F.2d 191, 195 (9th Cir. 1988) (no due process violation where Commission considered unadjudicated allegations and hearsay information in determining presumptive parole date); Walker, 816 F.2d at 1317 (Commission may rely on information in presentence report when determining presumptive parole date). Therefore, the Commission did not breach the plea agreement, and the district court did not err when it denied Merki relief on this basis.


Procedure Followed by the Commission

Merki contends the Commission violated its own rules and procedures when it imposed on him the 108 month presumptive parole release date. Merki argues that the Regional Commissioner did not intend to designate his case for original jurisdiction consideration by the National Commissioners, but did so mistakenly on the recommendation form. In addition, Merki contends that improper procedures were followed by the National Commissioners in rendering their decision. Finally, Merki contends the Commission did not have good cause to sentence him outside of the applicable parole guidelines range. These contentions are without merit.

Pursuant to 28 C.F.R. § 2.24(b), a Regional Commissioner may exercise any of four options upon review of a parole hearing panel recommendation.*fn2 Here, the Regional Commissioner checked on the handwritten recommendation form two separate and mutually exclusive recommendations: modification of the panel recommendation to a date not to exceed six months from the panel recommendation, 28 C.F.R. ยง 2.24(b)(2); and designation of the case for original jurisdiction consideration by the National Commissioners, 28 ...

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