                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                          FEB 8 2005
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT                        PATRICK FISHER
                                                                              Clerk


 GERALD M. McKINNON,

            Plaintiff - Appellant,
                                                        No. 04-3362
 v.
                                                (D.C. No. 04-CV-3279-RDR)
                                                          (D. Kan.)
 UNITED STATES BUREAU OF
 PRISONS,

            Defendant - Appellee.


                           ORDER AND JUDGMENT *


Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.



      Gerald McKinnon appeals the district court’s denial of his 28 U.S.C.

§ 2241 petition seeking expungement of a particular disciplinary report from his

record. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

      While serving a sentence of eighteen years to life in federal prison,



      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
McKinnon was found guilty at an administrative disciplinary hearing of

“interfering with a staff member (most like attempted assault).” The hearing

officer imposed sanctions. However, all sanctions were suspended. McKinnon

filed a § 2241 petition in district court seeking an order expunging the infraction

from his record. He argued that insufficient evidence supported the infraction

and therefore the Bureau of Prisons violated his due process rights.

      In Sandin v. Conner, 515 U.S. 472, 486-87 (1995), the Court held that

where a disciplinary action does not “work a major disruption in [a prisoner’s]

environment” or “inevitably affect the duration of his sentence,” the prisoner has

not suffered an atypical, significant hardship triggering due process protections.

The court below concluded that having a disciplinary report in his record, even if

the report were frivolous, does not subject McKinnon to atypical and significant

hardship, and that therefore McKinnon failed to state a claim for relief under

federal law.

      McKinnon argues on appeal that the disciplinary report is “the sole matter

that caused the denial of parole,” and therefore “inevitably affect[s] the duration

of his sentence.” Sandin at 487. 1 To explain his position, McKinnon attaches to


      1
        McKinnon also argued below that the charge “interfering with a staff
member (most like attempted assault),” is void for vagueness. He does not make
any substantive void-for-vagueness argument on appeal, but does note that the
offense “is vague and ambiguous.” To the extent that McKinnon intends this
                                                                   (continued...)

                                         2
his brief a parole guideline worksheet. The worksheet shows that prior to

receiving the disputed disciplinary report, McKinnon had a parole guideline range

of 270-306 months; after factoring in the disciplinary report, McKinnon now has

a guideline range of 270-308 months. Because the disciplinary report affects only

the top of his guideline range while leaving the bottom undisturbed, we cannot

conclude that it inevitably affects the duration of his sentence. Furthermore, the

parole board’s decision to grant parole at a given point in the 38-month range

depends on a myriad of factors and “[t]he chance that a finding of misconduct

will alter the balance is simply too attenuated to invoke the procedural guarantees

of the Due Process Clause.” Id. at 486. Additionally, McKinnon “is afforded

procedural protection at his parole hearing in order to explain the circumstances

behind his misconduct record.” Id.

      We therefore agree with the district court that McKinnon failed to state a

claim meriting habeas relief and AFFIRM.

                                       ENTERED FOR THE COURT


                                       Carlos F. Lucero
                                       Circuit Judge


      1
       (...continued)
statement to raise the void-for-vagueness issue, we agree with the district court’s
conclusion that the charge is not “so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application.” United States v.
Protex Industries, Inc., 874 F.2d 740, 743 (10th Cir. 1989).

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