or the parole commission's retroactive application of the two thousand guidelines flipped johnson status from presumptively suitable for parole to presumptively unsuitable in particular under the two thousand guidelines johnson unsuitable for her role in two thousand and given a twelve to eighteen month period of extended unsuitability had the nine hundred eighty seven guidelines been applied johnson would have been presumptively suitable for parole and no extended period of  nsuitability would have been added because the retroactive application of the two thousand guidelines that the presumption made him for some of unsuitable for parole for a longer period johnson has alleged a viable ex post facto climb under this court's decision and daniel and in the specific circumstances of this case qualified immunity does not bar johnson's claim on the merits of the ex post facto clime there is no dispute that the commission applied the two thousand guidelines at johnson's two thousand two thousand and five and two thousand and eight parole hearings that's available at the government's brief at pages five and six and as in daniel the retroactive application of those guidelines created a presumption of extended unsuitability for johnson specifically applying the two thousand guidelines resulted in this or johnson receive in base course of four in the two thousand two thousand and five and two thousand a parole hearings and those scores are what added the twelve to eighteen month period of unsuitability for johnson due to basis for the ex post facto claim the first is this extended presumption of unsuitability which arises from the danial case in our briefing we had raised a second basis which was that the on factors in the two thousand guidelines that we believe the one nine hundred eighty seven guidelines restricted them from rely on and as as your own approach points out and as we disclosed our twenty a j voter ford undercuts  and the two thousand guidelines that i don't believe will preston ford but for all intents and purposes and that's why we're focusing our argument on the extended period of unsuitability and the flipping of the presumption under this court's decision and dan i don't believe it is because it would create unreconcilable tension with daniel i believe there's a difference between being able to rely on the same factors to depart upward which was the situation in ford and bailey and phillips and it's a very different argument to say applying the two thousand guidelines created a different person than and created a situation where mr johnson's period of unsuitability was extended twelve eighteen months which is the factual situation addressed in daniel so it's a difference in starting point it's not saying that the commission couldn't have considered the prior rape charge or something like that but in considering that they started from a guideline range under the two thousand guidelines of one hundred thirty three to one hundred thirty nine months when absent applying to two thousand guidelines the range would have been a hundred twenty one months so this increase i believe under daniel it does matter because as the court in daniel specifically said it's no answer to say that the ultimate sentence might have been the same or that the commission has abundant discretion to depart because all that matters while the criteria might have been the same the period might have been very different yards because you're starting from a different starting point in two thousand had the one nine hundred eighty seven guidelines been applied johnson would have been presumptively suitable for parole he was not in two thousand when the guideline when the two thousand guidelines were applied so he was given a rehearing of sixty minds if he had started from a presumptively suitable for parole standpoint it's very unclear and on twelve b six i think it's a reasonable inference that his period of unsuitability would have been shorter and he would have likely gotten an earlier rehearing so just because the co well the regulations command the regulations on the nine hundred eighty seven compared to two thousand did not create an extended period of unsuitability the two thousand guidelines created this twelve to eighteen month period so he wasn't at two thousand at the two thousand hearing this bridge onsen wasn't even suitable for parole under the two thousand guidelines when he would have been suitable for parole under the one nine hundred eighty seven guidelines so when the commission departed in two thousand and then later in two thousand and five in two thousand and eight they were departing from a presumption of unsuitability in two thousand and nine hundred eighty seven guidelines been applied they would have been departing from my presumption of suitability for  parole mr johnson received a three under the two thousand guidelines the record indicates he would have received a one in two thousand so it would have flipped the presumption the twelve to eighteen month period of extended unsuitability stems from the what's called the base point score under the two thousand guidelines he was given a base point score for each of the hearings which created that twelve to eighteen month period of because from for purposes of your argument your view is that the presumption alone is enough right you think put aside all eighteen months you think that there's a meaningful distinction between a presumption in one direction or the other even though there's discretion to overcome the presumption that's correct your honor believe danial stands for that proposition and even though ford comes along later and says of the fact even if the factors on interim aerated the fact that you can take into account the factors is enough correct so suck there's a talismanic distinction in your view between discretion to consider presumption even if the presumption can be overcome if you take into account other factors that's correct and i think i think this court precedents in daniel as well as supreme court precedents and related contacts make make the point that the starting point matters in terms of sentencing in the pew case grant it was slightly different context in terms of sentencing but if you're applying a a guideline range or a starting point with the presumption that's different that affects the entire analysis and in forwarding bailey you're dealing with a situation of where the argument is you couldn't rely on factors that as this court have baling for there you could have been right on there but they're two separate issues one could read forward in the way that the colloquy earlier has been suggesting which is to say as long as their discretion to take into account whatever it is and it doesn't matter that the guidelines peak in one way at time zero in another way at time one and if you did at that level of generality that would deal with the presumption too i believe you're honest correct that if you read it that way it would impact our first argument but respectfully under this court's earlier decision in daniel i don't think you can read ford that broadly because ford sorry daniel makes very clear that discretion is not enough to overcome the ex post facto violation and it's not enough that the same alternate sentence might have been arrived at and i don't believe those ninety seven guidelines were applied the rehearing period after the two thousand and ten hearing was twenty four months which was the shortest period ever been down from sixty months and thirty six months at the other hearings which suggests that starting from a difference starting point and was starting point more favorable to appellate johnson you had a shorter period of unsuitability and in a lower departure upward relative to the earlier parole hearings under the two thousand guidelines i believe we've covered covered balian for desire as i figured we would with the last couple minutes i'd like to address the issue of qualified immunity under the supreme court's decision and garner that's the benchmark case for the qualified immunity analysis that johnson was on because it stands for the proposition that a retroactive application of the guidelines that creates an increase risk of incarceration violates the ex post facto cause the government has essentially asked this court for an earlier president on all fours that's not what the qualified immunity test requires this court's decision in taylor versus riley is a political and stands for the proposition that if it would have been apparent to reasonable officials in two thousand that applying those two thousand guidelines either facially or as applied created a significant risk of increased incarceration they qualified immunity would not serve as a bar and while in taylor it is true that under the specific facts of that case the court did not find that it clearly established right had been violated the violations more apparent here and table recognizes that it's possible that qualified immunity might be overcome in the right circumstances and the reason that the qualified immunity analysis is different here as opposed to in taylor is the issue of achievement as this court's opinion and fletcher to help one of the main distinctions between the hundred seven guidelines and the two thousand guidelines was that the two thousand guidelines limited rehabilitative efforts relative to the one nine hundred eighty seven guidelines specifically under the one nine hundred eighty seven guidelines and as the pro commission recognized in two thousand and ten when applied those guidelines mr johnson would have received a point deduction for sustained achievement at his two thousand hearing his two thousand and five hearing and his two thousand and eight hearing under the two thousand guidelines the standard was changed to where superior achievement was required to receive any benefit and each of those hearings he was denied the benefit of superior achievements unlike the case in taylor you have a situation where as applied to mr johnson looking at the difference between sustained achievement versus superior achievement created the issue and in fact in two thousand and four the presumption and created the situation of having a twelve eighteen month period so if if i'm understanding correctly that if you're between the qualified immunity argument and merits argument we on the merits argument you say daniel comes along and tells you that presumption means something and the fact that four comes along later and says that these is of discretion is enough doesn't trump the daniel notion for presumption of qualified immunity purposes you'd have to say that a reasonable parole official back at that time would have to understand not only that ford doesn't undo danno but that it would have been unreasonable to think anything otherwise well forward hadn't come along by the time ms right about the idea of forward is is an idea that's out there in the world that does that the existence of discretion benefit of it would have been apparent to officials in two thousand two thousand and five two thousand and eight that he did not receive that benefit that he would have received and since we're talking about differences in point systems reducing a point in fact in two thousand and changes the presumption because he would have gone from a three to a two and that's a cutoff point from being present to be suitable for parole right but reckless act of purposes and qualified immunity it's not just that someone would have to look at it and see that the two systems are different is that someone would have to look at it and see that the two systems are so different that it creates an act that it would be unreasonable not to think that it creates an ex post facto problem and the correct your honor and then the and the issue with the  point deduction for sustained achievement versus a period gene that is that's pretty clear on the face of comparing it to guide on rates were not as stable or talks about an apples and oranges comparison that's not the situation here when you look at that specific factor if the court has no furthe appears person versus callahan and that's in many cases after the court can do the qualified immunity analysis first it may not assess whether there was an ex post facto issue to begin with and i think it's pretty clear under this court's cases that it was not clearly established in two thousand two thousand and five or two thousand and eight when the relevant parole determinations were made that there was a clearly established rule against using the two thousand guidelines in the case of mr johnson i think that's clear from ford versus masseur own i think the fact that one could read ford versus masseur own to say that the latter enacted guidelines do not create a significant risk over the prior inactive guidelines is enough for the qualified immunity analysis to preclude any claim for money damages here i would also just say that the the suitability argument that amica says raised is taken off the table by the two thousand the commission decision in two thousand and ten to voluntarily recalculate all of mr johnson's parole hearings using the two thousand and ten guidelines because we actually know as a matter of fact because it happened that when the commission recalculated his parole determinations using the parole guidelines in effect on the date of his conviction that it denied parole for the same reasons it had given under the two thousand and lines so i think a proper inquiry under garner your honor is whether there was a significant risk of increasing the length of his incarceration and so whether you know that the jots and tittles of the presumption between the two guideline regimes don't matter unless it would have been clear in two thousand two thousand five or two thousand and eight to a reasonable parole commissioner that this presumption actually does under garner significantly increase the risk of lengthening his incarceration and under this court's opinion in daniel which was a general case of multiple plaintiffs not about money damages the court was very clear that in order to prevail you would have to show that as a quite a prisoner would have to show that as applied to him or her the significant risk was manifest and so i think this presumption you know whatever the effect of the presumption it is not there's nothing in the record suggest and in fact the record contradicts that there was a significant risk of increasing the length of mr johnson the course aeration as a result of whatever the presumption might have been in any of these hearings and we set a record does that that's because of what happened at one time i think that's because of what happened in tw ten it's because of the reasons the commission gave in each of his parole hearings so each of his hearings if you go through them the commission departs upward because it says that mr johnson was on bond for a rape and then committed another rape and then had obtain psychological counseling and treatment while he was in prison and so you can go through that that's an appendix fifty to fifty two for the two thousand hearing appendix fifty seven for the two thousand and five hearing and appendix sixty four for the two thousand and eight hearing just to give you an example of what i'm referring to in an appendix it before the commission says it made another quote decision above the current total guideline range and quote because johnson was quote a more serious risk and quote than his score indicated so i think if you actually look at what the we should make sure that we're not going anywhere near violating a clearly established right and just go ahead and recalculate all of his parole hearings using the prior inactive guidelines it's that your argument would be the same even if daniel had come along and had been designed  so i think my argument is yes i think my argument is much stronger because daniel's not until two thousand and fourteen but yes i mean even under daniel if you actually look at daniel daniel has a group of prisoners ok i'll make an undifferentiated claims about the eighty seven guidelines versus the two thousand guidelines and daniel says you know look i'm just looking at these things on their face it's possible taking all the inference is in favor of this group of individual plaintiffs that some some plaintiff might have had his his rights violated under the post facto clause as it did over matter because that was an injunctive case not a money case but i think if you read daniel and actually apply it to the particulars of this case in this complaint daniel itself would have said no this is not a because in daniel itself the court was very clear that you had to be able to show relief as applied to your particular case so so in daniel the court had before it three or four out for good maybe five prisoners who all were still incarcerated and who al seeking an injunction to get them exactly what mr johnson already received which is a new parole hearing recalculating all of their parole under the prior inactive guidelines and so when daniel says it's possible that that is required in some case just looking at the two guidelines regimes on their face but in order to state a claim you have to show more you have to show that you know to actually observe the prevail on a claim you have to show that the guidelines as applied to you in created created a was i think i'd say like this i think if we were in the d c court of appeals and this was of some sort of a direct appeal of under d c law of whether they properly applied the presumption it's possible the presumption of matters but the standard that that that advocates has to clear is much higher than that because under garner they have to show that the the lateran act the application of the latter and acted regime created a significant risk of prolonging actually prolonging the person's incarceration and so judge edwards on this record i would say that the presumption is not nearly enough to do that because the commission told us in all of these parole determinations that it would have departed upward and kept mr johnson would have denied him parole based on the unique circumstances in his record so that's that's my answer that that after the recalculation is not suspect because it's also i'm sorry on that after the fact recalculation is not suspect me of self serving i don't think so your honor because it was isn't even done in response to this litigation so the commission adopted a policy in two thousand and nine where that when there had been some district court litigation over this issue and said you know what we're not going to risk any any issue we're going to go ahead and we do everybody's parole that wants it that was convicted under the eighty seven which is twenty twelve i think it's about the same time as daniel what the court there says and this is quoting from daryn this is on page one thousand and fourteen that i'm sorry one thousand one hundred fourteen of the court's opinion is that great and quote significant risk quote as applied to his own sentence and so i think you know in the abstract this presumption could be significant but i think in the particular of this case where you actually know what happened in all of these parole hearings because they're all on the record it's clear that as applied to mr johnson's own sentence the clear in two thousand and eight i think the recalculation takes this i mean i think that puts it beyond doubt but even if there hadn't been a recalculation i think it would have still not been clear to the average commissioner in two thousand and eight that i should take to bed thank you your honor i appreciate it i'm just a few brief points as judgement of asa noted that one with in danial is very important and helpful and shows that presumptions do in fact matter and the government suggested that we've somehow not shown that as applied to this case that that would have in fact matter but we've shown that the presumption did actually flip in two thousand and even if you look at the two thousand and  hearing doesn't solve all the problems for just very briefly for did not address the issue of qualified immunity and to begin to the extent that the government tries to expand forward as broadly as it has awesome recognize there's real tension with daniel to the extent that it is construed that broadly those are the main points i want to cover and for those reasons as well as as stated in our brief we believe that