# 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. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* 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 F ED

. R. A PP

. 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 Comm ʹ n

, 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 CommissionNo. 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.