944 F. 2d 904 - Brown v. Gluch

Before RYAN, Circuit Judge, WELLFORD, Senior Circuit Judge, and HIGGINS, District Judge.*

This case had 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).

Rex Brown, represented by counsel, appeals the district court's order dismissing his 28 U.S.C. § 2241 federal petition for a writ of habeas corpus. Brown pled guilty to conspiracy to manufacturing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846, perjury, and bail jumping. He was sentenced to fifteen years imprisonment with five years probation.

Brown claimed that the Parole Commission failed to set a presumptive parole date within his suggested guideline range of 46-64 months pursuant to section 235(b)(3) of the Sentencing Reform Act. The Commission had advised him that he was continued to a presumptive parole after serving 84 months with the special drug aftercare provision. The notice stated that, although the aggregate guideline range was 46-64 months to be served prior to parole eligibility, a decision above the guidelines was warranted because the total offense behavior included a finding that while on fugitive status from a methamphetamine offense, Brown opened and operated another methamphetamine lab. See Hackett v. United States Parole Comm'n, 851 F.2d 127, 132-33 (6th Cir.1987) (per curiam).

Brown raises basically the same argument on appeal.

Upon consideration, we affirm the dismissal of the petition for the reasons stated in the December 26, 1990, magistrate's report and recommendation which was adopted by the district court in its January 18, 1991, order. Rule 9(b)(3), Rules of the Sixth Circuit.