not permissible under the g c regulations but time so can i ask you how are you reading this is in your again tim at page seven section two thousand and four twenty that the board could depart on the basis of certain factors now elsewhere in the regulations it says that those factors are limited and that's in section one and so section twenty two is an implementation of the process that of repeated criminal involvement that is it's a reason why someone would be a better rather than the worst of all this and that helps your clients how the reason why mr bailey's challenge succeeds on the basis of in the two thousand and so so what you're saying is that the four in the in applying the eighty seven read you could only look at changes in circumstances addressing a separate question of whether the numerical scoring system created a liberty interest under the due process clause constitution and so the question there was whether the numerical score to grant parole is a liberty interest and the answer is no and the reason is because there is discretion to depart from that recommendation and all parties agree that there is such discretion so anything beyond that holding is dictated now that dicta even if we take it as a whole very is it doesn't decide this case for two rea all is said that the board in that case relied on what it took to be an unlisted factor and so that unlisted factor that was considered was that an initial role here you know the factors that could be considered initial parole during our listen order to determine what the role or its actual practice was at the time and so for those two reasons they did that analysis is doesn't besides now turning to mcrae the crazy similarly addressed the question of whether the  specific aggravating factors and mitigating factors that are listed and so no court of the d c court of no case of the d c nor any case in this or that has decided to question or address the question of why or o what factors the working out commission may rely on in departing from the numerical recommendation to record a night role that's question is addressed here and the answer to that question is provided by the  so now one further question is whether the government has ever provided an interpretation of these regulations that that accounts for that sentence in that section to go for one that's that requires that there be specific  factors that the commission a line in the government is never offered such an interpretation instead of government returns to the overarching purpose of the statute now there's no question that the statute that governs at the time he granted a substantial amount of discretion eighty seven five one was the right structure was to provide consistency and this is important this is a quote the touchstone of the pro decision making process should be based on in effect on offender characteristics that heavy statistically determine bearing on the vendors risk a may be other considerations that could warrant a judgment that an offenders a greater risk society and the commission is free to make up a policy judgment as a political branches always are however what he can do is retroactively change that policy determination to and civil action in two thousand and ten which has made its way through not one but two court systems when i see the ex post facto claim the test is whether the new standards are pretty significant risk of increasing punishment beyond the standards in place at the time of the offense here or there is no there are no new standards i'm and what this is posited that the commission was applying its two thousand guidelines for the paperwork in the record the decisions the preparing reports that go ahead and question which is whether the individual is a suitable risk to release back into the community and how does this fit w and we respectfully disagree with that notion while it isn't do you have some different legislative history just so i'm clear about that we don't point to anything and our brief we can are simply point to the text of the eighty seven guidelines and another place of point there are two that isn't to eliminate any interpretation of the board was restricted this is with regard to report all decisions it's not directly out of here but to eliminate the interpretation that the work was restricted to using this specific aggravating and mitigating factors certainly a limitation of this is yes it's a limitation in terms of if the decision is outside the numerically determined range whatever whichever way it goes it needs to be explain well by reference to right but the aggravating and mitigating factors include such things as what kinds what kinds of history into institutional conduct other things are being used but more importantly to a four point two two then takes that beyond to a four point one and seven unusual circumstances all you have to do is explain your reasons what you consider well that's if you ignore how they defined unusual circumstances in other words your reading as i understand it gives no weight to the one nine hundred ninety one half definition am i wrong about that what i would say about the ninety one guideline trauner is that they definitional changes didn't alter the structure of the appendix to dash two which allows in either direction there's no conflict in applying the definitions and there still there is no restriction book the things that are numerated or are there but there's nothing in to a four point one or or anywhere else in those section to of work procedures that says you really are only limited to those factors in every single case so that's what's missing that's what's missing is basically a small bishop a specific sen i mean they said everything but that in your view i don't think so i think and once again i point to the words you know the ninety two letters the most recent thing we have on the board on gives a view of what it was doing with its regulations other than the language of the procedures themselves well and you haven't shown me why the path that counsel has acknowledged isn't totally reflective of what the board had in are well the problem is that what the board has said is that if otherwise the defendant is recommended  criminal history than mr bailey but the comparison point is that he had made little or no effort toward rehabilitation and that is one of the main reasons that the pro commission has relied upon to deny mr bailey a role to this point is that he has not achieve factors which sounds like if you didn't have anything else that the sky's the limit they could pick out a because they can waive those factors that are enumerated you come up with something  government officials who are doing their jobs and saying they're doing them are doing them the way they say they're doing this this speculation is has no basis here so if you or i agree that and i've tried to say this at commission's discretion is limited to relying on specifically enumerated factors to depart from a numerical recommendation for all instead the government suggests that that that categorical imperative that uses the word shall can be disregarded in certain circumstances but there's no natural indication that that's the case instead the government relies on the nine hundred ninety two letter and the government is correct that that letter says that the commission before it was explaining that he didn't want to have his discretion what the government omits is that the one thousand nine hundred two regulations relating to set us which is the time in between parole hearings explicitly state that the grounds on which the i think the board could rely included is the parole guidelines are not the clearest in the world but the text does demonstrate that the primos incarceration factors that are referenced in section twenty two it refers to the pretty imposed incarceration factors that are previously kind of foreign section  in course was incarcerated in factors that determination is what the work can depart from on the basis of specifically enumerated factors and if and if he's too uninsured to and so the cream post incarceration factors that can be waived are part of the right that's right and so i think this is particularly clear on the dent in the eleven which implements the regulations on adenoma left and there's a table that says at the top say only factors for category it's low fare moderate high points associated with that those points can be adjusted by going after certain types of risk that is rehearsed ration factors then post incarceration factors are in the next two rows and that generates what's your call the total point score that's in the middle of the page and then the total points or is translated into a recommendation to grant or deny prole now below that at the bottom of the page there's a version that says number five position is within below or above the guidelines and then there's a heading that says reason given outside the guidelines and so the gu for the numerical calculation that happens before then the reasons that are listed below that are reasons to depart from the numerically determined guideline recommendation and that's exactly what the regulations say in section twenty two and so it's clear from the regulations that the discretion of or the two thousand god and so this is clear for at least two reasons first the administrative record in mr baillie its history confirms that the analysis steve the same two thousand and four in two thousand and seven when the commission was explicitly applying the two thousand regulations in two thousand and ten and two thousand and twelve when it was purported to apply to nine hundred eighty seven regulations now the person remained the same which the government is stressed but the analysis should change because under the district court guidelines that actually doesn't matter what matters is that there's something new and that's harsh it doesn't matter whether it's the two thousand guidelines or something else all that matters is that it's you know it's harsher and i know i'm over my time but i want to address this cour after that he stabbed the ex girlfriend after he was released after being arrested for those two crimes he went back to the same apartment and confronted her new companion and stabbed him to death after an altercation and that new companion unusual cruelty to victims which includes among other things physical mental or emotional abuse beyond the degree necessary to sustain a conviction and forcing his ex a french worker knew better or it was that certainly counts as emotionally abusive and so the result of all of this is that the film score confronted a situation in which the commission in fact relies solely upon newbury factors under the night in the seven ninety ninety one bible and so it didn't reach the issue in this case but even if it had reached the issue in this case the upstanding job the court thank you