United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 7, 2014 Decided September 12, 2014

No. 12-5327

ROY A. DANIEL, ET AL.,

APPELLANTS

v.

ISAAC FULWOOD, JR., CHAIRMAN OF THE UNITED STATES

PAROLE COMMISSION, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-00862)

Kenneth J. Pfaehler argued the cause for appellants. With

him on the briefs was Deborah Golden.

Alan Burch, Assistant U.S. Attorney, argued the cause for

appellees. With him on the brief were Ronald C. Machen Jr.,

U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. 

Michelle Lo, Assistant U.S. Attorney, entered an appearance.

Before: GARLAND, Chief Judge, SRINIVASAN, Circuit

Judge, and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GARLAND.
2

GARLAND, Chief Judge: The plaintiffs in this case are

prisoners who violated District of Columbia criminal laws

before March 3, 1985. They contend that the United States

Parole Commission contravened the Ex Post Facto Clause of the

Constitution by retroactively applying parole guidelines that it

issued in 2000, instead of applying the guidelines that were in

place at the time of their offenses. The district court dismissed

their complaint for failure to state a claim. Because the

plaintiffs have plausibly alleged that the application of the 2000

guidelines creates “a significant risk of prolonging [their]

incarceration,” Garner v. Jones, 529 U.S. 244, 251 (2000), we

reverse and remand for further proceedings.

I

At the time the plaintiffs committed their offenses, the

District of Columbia Board of Parole made parole decisions for

prisoners sentenced under the District of Columbia Code. Under

the guidelines applicable at that time -- which had been issued

in 1972 -- a prisoner became eligible for parole after serving the

minimum sentence imposed by the sentencing court. 9 D.C.R.R.

§§ 104.1, 105 (1972) (App. 379-456) (the “1972 Guidelines”);

see D.C. Code § 24-203(a) (1973) (now § 24-403(a)); id. § 24-

204(a) (1973) (now § 24-404(a)). To guide the Board’s

decisionmaking regarding whether and when to actually parole

a prisoner, the guidelines listed a set of factors that included,

“[a]mong others,” the nature of the prisoner’s offense, his prior

criminal history, his personal and social history, and his

institutional experience (including behavior in prison,

involvement in academic and vocational programs, etc.). See 9

D.C.R.R. § 105.1 (1972). The 1972 Guidelines contained no

prescribed method for “translat[ing] the factors into a parole

release date.” Phillips v. Fulwood, 616 F.3d 577, 579 (D.C. Cir.

2010). 
3

In 1987, the Board replaced the 1972 Guidelines with

another regime. To determine whether a prisoner was suitable

for parole, the 1987 Guidelines employed a system of points

related to offender history, offense characteristics, and behavior

while in prison. See D.C. MUN. REGS. tit. 28, § 204 (1987)

(Appellants Br., Ex. 16) (the “1987 Guidelines”). The resulting

point total determined whether parole would be granted, id.

§ 204.19, although the Board could depart from the point

calculation in “unusual circumstances,” id. § 204.22.

In 1997, Congress enacted the National Capital

Revitalization and Self-Government Improvement Act, Pub. L.

No. 105-33, 111 Stat. 712 (1997). The Act abolished the D.C.

Board of Parole and directed the U.S. Parole Commission to

conduct parole hearings for D.C. Code offenders. Id.

§ 11231(a)-(c), 111 Stat. at 745. In 2000, the Commission

promulgated its own parole guidelines for those D.C. Code

offenders who became eligible for parole on or after August 5,

1998, including the plaintiffs in this case. 28 C.F.R. § 2.70 et

seq. (the “2000 Guidelines”). 

The 2000 Guidelines establish a different point-based

system, which adds a range of months, beyond the time a

prisoner is eligible for parole, that must be served before he is

regarded as suitable for parole. See id. § 2.80(l). A District of

Columbia prisoner is eligible for parole when he has served

(with certain adjustments) the minimum sentence imposed by

the sentencing court. See D.C. Code § 24-403(a) (formerly

§ 24-203(a)); id. § 24-404(a) (formerly § 24-204(a)).1

 Merely

being eligible for parole, however, does not guarantee that a

1

See also D.C. Code §§ 24-221.01(b), 24-221.01a(b) (providing

that educational and meritorious good time credits are applied to the

minimum term of imprisonment to determine the date of eligibility for

parole).
4

prisoner will actually be granted parole. Rather, once a prisoner

is eligible, the Commission then determines whether he is

suitable for release. See 28 C.F.R. § 2.73(b).

Under the 2000 Guidelines, the first step in the suitability

determination involves assigning points based on the prisoner’s

risk of recidivism (his “salient factor score”),2

 the presence of

violence in his current or prior offenses, and whether the current

offense involved the death of a victim or an otherwise high level

of violence. Id. §§ 2.20, 2.80(c), (f). The sum of these points,

called the prisoner’s “base point score,” corresponds to a range

of months to be served by the prisoner, called his “base

guideline range.” Id. § 2.80(f), (h). That range of months is

added to the number of months until the prisoner’s parole

eligibility date, and adjusted upward for “significant disciplinary

infractions” and downward for “superior program achievement.” 

Id. § 2.80(j)-(l).

This calculation produces the prisoner’s “total guideline

range” for his initial parole hearing: the total range of time the

prisoner must presumptively serve before he is suitable for

parole. Id. § 2.80(l); see id. § 2.80(b); Phillips, 616 F.3d at 579. 

At subsequent reconsideration hearings, the Commission

“[a]dd[s] together the . . . Total Guideline Range from the

previous hearing, and the . . . guideline range for [any]

disciplinary infractions since the previous hearing,” and “[t]hen

subtract[s] [any] award for superior program achievement.” Id.

§ 2.80(m). Although the Commission may “grant or deny parole

to a prisoner notwithstanding the guidelines,” it may do so only

in “unusual circumstances.” Id. § 2.80(n)(1).

2

The salient factor score is based on such factors as the number

of the prisoner’s prior convictions, the number of his prior

commitments to facilities, and his age at the commencement of his

prior offenses and commitments. See 28 C.F.R. § 2.20.
5

Plaintiffs Abdus-Shahid Ali, Percy Jeter, and William Terry

were all convicted for conduct during the period in which the

1972 Guidelines were in effect. Compl. ¶¶ 14, 16, 17. By the

time they became eligible for parole, however, the 2000

Guidelines were in place. Based on those guidelines, at Ali’s

initial parole hearing the Commission calculated (after

correcting for errors) that he had to serve an additional 98-128

months beyond his minimum sentence before he would be

suitable for parole. See id. ¶¶ 240-41, 248-50. At Jeter’s initial

hearing, the Commission calculated that he had to serve an

additional 72-120 months beyond his minimum sentence. See

id. ¶¶ 211-12. And at Terry’s first hearing under the 2000

Guidelines, the Commission calculated that he had to serve an

additional 156-222 months. See id. ¶¶ 276-77.3

 At subsequent

reconsideration hearings, the Commission added a number of

months to the maximum (but not to the minimum) of Jeter’s

total guideline range. Id. ¶¶ 216, 220. The Commission found

no “unusual circumstances” in any of the three prisoners’ initial

or subsequent hearings and declined to depart downward from

the ranges of months calculated under the guidelines. Id.

¶¶ 213, 217, 221, 251, 274, 280, 286.

On May 25, 2010, plaintiffs Jeter, Ali, and Terry filed a

class action complaint against the Commissioners of the U.S.

Parole Commission, alleging that they have subjected the

plaintiffs and the class they represent to retroactively increased

incarceration, in violation of the Ex Post Facto Clause of the

3

Because the Commission developed its approach in a series of

regulations between 1998 and 2000, it conducted Terry’s initial parole

hearing under a hybrid regime that incorporated some but not all

provisions of the 2000 Guidelines. See Compl. ¶¶ 72-75, 263, 270-75;

Commissioners Br. 11-12. The differences are immaterial for

purposes of the disposition we reach in this opinion.
6

Constitution.4 The alleged class consists of persons currently

incarcerated for violations of the D.C. Code committed before

March 3, 1985, and whose first parole hearings occurred on or

after August 5, 1998. Compl. ¶ 10. The complaint alleges that

the Commission has conducted parole hearings for this class

under the 2000 Guidelines, rather than under the 1972

Guidelines that were in effect when the class members

committed their offenses. Id. The plaintiffs contend that the

retroactive application of the 2000 Guidelines has exposed them

to a significant risk of prolonged incarceration.

On September 30, 2011, before any discovery was taken

and without reaching the class certification issues, the district

court granted the defendants’ motion to dismiss the complaint

for failure to state a claim, pursuant to Federal Rule of Civil

Procedure 12(b)(6). Thereafter, the plaintiffs filed a timely

notice of appeal.

II

We review de novo a district court’s dismissal of a

complaint for failure to state a claim. Kassem v. Wash. Hosp.

Ctr., 513 F.3d 251, 253 (D.C. Cir. 2008). “To survive a motion

to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A

4

Three other prisoners filed along with the plaintiffs: Roy A.

Daniel, Alfonso Taylor, and Harold Venable. Each has since been

paroled. Commissioners Br. 1. The Commissioners’ brief states that

the Commission has set an “effective parole date” for Jeter of July 23,

2014. Id. The parties have not advised the court whether he has in

fact been paroled. According to the Commissioners, the “effective

parole dates” for Terry and Ali are not until 2015. Id.
7

claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal,

556 U.S. at 678. “When there are well-pleaded factual

allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an entitlement to

relief.” Id. at 679.

The Constitution provides that “No . . . ex post facto Law

shall be passed.” U.S. Const. art. I, § 9, cl. 3. In order to prevail

on the merits of an ex post facto claim with regard to parole

guidelines, a plaintiff must show that retroactive application of

the new guidelines “creates a significant risk of prolonging [his]

incarceration” as compared to application of the prior

guidelines. Fletcher v. Reilly, 433 F.3d 867, 877 (D.C. Cir.

2006) (quoting Garner, 529 U.S. at 251) (internal quotation

marks omitted).5

The Commissioners maintain that “the comparisons [the

plaintiffs] attempt between the current parole schemes and the

1972 DC Regulations are hopelessly indeterminate in light of

the fundamentally different methodologies of the old and new

systems, as well as the broad discretion available under both.” 

Commissioners Br. 3. Comparison is effectively impossible, the

defendants argue, because of “the broad discretion available

under the 1972 DC Regulations, and the narrower but still

relevant discretion available to the Commission under the 2000

Guidelines.” Id. at 26. The Supreme Court has made clear,

however, that although “[w]hether retroactive application of a

5

The Commissioners contend that parole guidelines are not

“laws” subject to the Ex Post Facto Clause. As they acknowledge, this

circuit has rejected that argument. See Commissioners Br. 40-41

(citing Fletcher v. District of Columbia, 391 F.3d 250, 251 (D.C. Cir.

2004)); see also Fletcher v. Reilly, 433 F.3d at 876-77. 
8

particular change in parole law respects the prohibition on ex

post facto legislation is often a question of particular difficulty

when the discretion vested in a parole board is taken into

account,” Garner, 529 U.S. at 250, the “presence of discretion

does not displace the protections of the Ex Post Facto Clause,”

id. at 253. As we said in United States v. Turner, “under the law

of this circuit the existence of discretion does not foreclose an ex

post facto claim.” 548 F.3d 1094, 1100 (D.C. Cir. 2008) (citing

Fletcher, 433 F.3d at 876).

An inmate may establish the requisite risk of increased

incarceration in two ways. See Fletcher, 433 F.3d at 877. First,

he may demonstrate that the new regulation “by its own terms

show[s] a significant risk” of prolonging his incarceration. 

Garner, 529 U.S. at 255. Second, he may “demonstrate, by

evidence drawn from the rule’s practical implementation by the

agency charged with exercising discretion, that its retroactive

application will result in a longer period of incarceration than

under the earlier rule.” Id.; see Fletcher, 433 F.3d at 877. At

the motion to dismiss stage, of course, a plaintiff need only

show that his ex post facto claim -- like any other claim -- is

“plausible.” Iqbal, 556 U.S. at 678.

A

The plaintiffs’ strongest argument in support of their ex post

facto claim is that the 2000 Guidelines create a presumption of

a long period of extended incarceration in their cases, while the

1972 Guidelines would not have done so. As described in Part

I above, the 2000 Guidelines employ a number of specific

factors and adjustments to generate a range of months that is

added to the number of months remaining until the date the

prisoner will have served his minimum sentence (his parole

eligibility date), thus generating a total range of months that the

prisoner must presumptively serve before he should be paroled
9

(his parole suitability date). See 28 C.F.R. § 2.80(l) (instructions

for determining total guideline range). Under 28 C.F.R.

§ 2.80(n), the presumption holds unless “unusual circumstances”

warrant departure from the prisoner’s total guideline range.6

Misconstruing the plaintiffs’ presumption argument, the

Commissioners contend that § 2.80(n) does not create a

presumption because it permits but does not require the

Commission to depart upward from the guideline range in

unusual circumstances. Commissioners Br. 38-39. The

plaintiffs’ argument, however, is that both upward and

downward departures from the guidelines require a showing of

“unusual” circumstances. See 28 C.F.R. § 2.80(n)(1). This, they

explain, effectively creates a presumption that, in the usual case,

the guideline range will govern a prisoner’s period of parole

unsuitability.

With respect to their specific circumstances, plaintiffs Ali,

Jeter, and Terry allege that the Commission’s actual application

of the 2000 Guidelines to their cases generated guideline ranges

that presumptively required them to serve additional time,

beyond the point of parole eligibility, in the amounts of 98-128

months, 72-120 months, and 156-222 months, respectively. See

6

See 28 C.F.R. § 2.80(b) (“In determining whether an eligible

prisoner should be paroled, the Commission shall apply the guidelines

set forth in this section. . . . Decisions outside the guidelines may be

made, where warranted, pursuant to paragraph (n) of this section.”);

id. § 2.80(n)(1) (“The Commission may, in unusual circumstances,

grant or deny parole to a prisoner notwithstanding the guidelines. . . .

In such cases, the Commission shall specify in the notice of action the

specific factors that it relied on in departing from the applicable

guideline or guideline range.”); see also Sellmon v. Reilly, 551 F.

Supp. 2d 66, 73 (D.D.C. 2008) (“Until a parole candidate has served

a period of time equal to the bottom of his total guideline range, the

candidate is presumed to be unsuitable for parole.”). 
10

Compl. ¶¶ 211-12, 240-41, 248-50, 276-77. They further allege

that the Commission found no “unusual circumstances”

warranting downward departures from those guideline ranges. 

Id. ¶¶ 213, 217, 221, 251, 274, 280, 286. These are factual

allegations that a court must accept for purposes of reviewing a

motion to dismiss under Rule 12(b)(6). See Iqbal, 556 U.S. at

679. The Commissioners do not contest them. 

It may be that the factors that led the Commission to add

time to the plaintiffs’ periods of incarceration under the 2000

Guidelines are factors that the D.C. Board of Parole could also

have considered under the 1972 Guidelines. Under the text of

the 1972 Guidelines, however, there would not have been a

presumption that the plaintiffs should serve significantly more

time than their minimum sentences. See 9 D.C.R.R. §§ 105,

105.1 (1972); see also D.C. Code § 24-204 (1973). It is

appropriate, in assessing the risk of increased punishment

created by a subsequent parole system’s implementation, to

consider a parole board’s written policies. As the Supreme

Court said in Garner, “[a]bsent a demonstration to the contrary,

we presume the Board follows its statutory commands and

internal policies in fulfilling its obligations.” 529 U.S. at 256. 

And we think it reasonable to infer that the presumption of

extended unsuitability contained in the 2000 Guidelines would

prolong a prisoner’s period of incarceration as compared to the

1972 Guidelines -- in which no such presumption existed -- even

if the same factors could have been considered under the earlier

regime.7

7

Cf. Fletcher, 433 F.3d at 879 (concluding that “facial

distinctions between the Board’s [1987] regulations and the [2000]

federal regulations” regarding reparole “made out a prima facie case

that [the prisoner’s] rights under the Ex Post Facto Clause have been

violated” and were “sufficient to warrant factual development on his

habeas petition”).
11

Our focus on the effect of a presumption is consistent with

the analysis the Supreme Court employed, in Miller v. Florida,

in concluding that the application of revised sentencing

guidelines to a petitioner who committed his offense before the

revised guidelines’ effective date violated the Ex Post Facto

Clause. See 482 U.S. 423 (1987). Under the Florida guidelines

in effect when Miller committed his offense, the “presumptive

sentence” was 3.5 to 4.5 years’ imprisonment. Id. at 424. 

Under the revised guidelines, the presumptive sentencing range

was 5.5 to 7 years’ imprisonment. Id. The Court held that the

revised guidelines violated the Ex Post Facto Clause because

Miller had been “substantially disadvantaged” by their

application. Id. at 432.8 As we subsequently explained in

applying Miller to post-offense revisions of the U.S. Sentencing

Guidelines, “[i]t was no answer to say that the defendant might

have received the same sentence under the old version of the

guidelines. While the Florida trial court was not bound to give

the presumptive sentence, the court’s discretion to give a

different sentence was quite limited, and so as a practical matter

the change in the guidelines increased the defendant’s sentence.” 

Turner, 548 F.3d at 1099 (citations omitted).9

8

In Peugh v. United States, the Supreme Court confirmed that

“the result in Miller remains sound” -- notwithstanding that it

“employed a ‘substantial disadvantage’ test that th[e] Court has since

abandoned” in favor of asking “whether the change in law creates a

‘sufficient’ or ‘significant’ risk of increasing the punishment for a

given crime.” 133 S. Ct. 2072, 2083 n.4 (2013) (quoting Garner, 529

U.S. at 250-51). 

9

The presumptive effect of the Florida guidelines was generated

by the requirement that, if a “court wished to depart from the

guidelines range, . . . it was required to give ‘clear and convincing

reasons in writing for doing so,’” and a non-guidelines sentence was

subject to appellate review. Peugh, 133 S. Ct. at 2082 (quoting Miller,

482 U.S. at 426). In Miller, the government’s contention was that the
12

As the Supreme Court held just last year, “Miller thus

establishes that applying amended sentencing guidelines that

increase a defendant’s recommended sentence can violate the Ex

Post Facto Clause, notwithstanding the fact that sentencing

courts possess discretion to deviate from the recommended

sentencing range.” Peugh v. United States, 133 S. Ct. 2072,

2082 (2013). So, too, here. Under the 1972 Guidelines, the

plaintiffs were not subject to any recommended period of parole

unsuitability at all, and they could have been paroled

immediately upon serving their minimum sentences. See D.C.

Code §§ 24-203(a), 24-204(a) (1973); 9 D.C.R.R. §§ 104.1, 105

(1972). Under the 2000 Guidelines, by contrast, they are 

subject to guideline ranges that far exceed those minimum

sentences. Once again, it is “no answer to say that the

[plaintiffs] might have received the same sentence[s] under the

old version of the guidelines.” Turner, 548 F.3d at 1099. 

Although the Board could have imposed the same periods of

incarceration under the 1972 Guidelines, there was no

presumption that it do so. And while the Commission “was not

plaintiff could not show that his sentence under the new guidelines

was longer than it would have been under the old ones because a judge

could have imposed the same sentence by departing upward from the

old guidelines. See 482 U.S. at 432. The Court rejected that argument

because “the sentencing judge would have to [have] provide[d] clear

and convincing reasons in writing” to impose the longer sentence

under the old guidelines, while he would not have to do so under the

new guidelines. Id. at 432-33. In this case, the government makes an

argument from the opposite direction: that under the 2000 Guidelines

the Commission has the same discretion to impose a shorter

unsuitability period as it did under the 1972 Guidelines because it can

depart downward from the newguidelines in “unusual circumstances.” 

(As in Miller, the Commission must specify the reasons for a guideline

departure in writing. See 28 C.F.R. § 2.80(n)(1).) The direction of the

required departure makes no material difference in the relative

persuasiveness of these arguments.
13

bound” to impose the presumptive ranges under the 2000

Guidelines, id., its discretion to depart was limited, see 28

C.F.R. § 2.80(n). Hence, it is more than plausible that the

change in parole regimes increased the prisoners’ periods of

incarceration. Consequently, the plaintiffs’ ex post facto claim

should not have been dismissed.

B

The plaintiffs press a number of additional arguments in

support of their contention that the 2000 Guidelines create a

significant risk of prolonged incarceration as compared to the

1972 Guidelines. Although we briefly note some of them here,

we do not need to resolve their merits because the considerations

that we have addressed in Part II.A are sufficient to require

reversal of the dismissal of the complaint.

First, the plaintiffs argue that the 2000 Guidelines do not

take into account several factors that the 1972 Guidelines

considered and that would favor their earlier release. Compl.

¶¶ 101-13. Those include “rehabilitative efforts, institutional

behavior, [and] self-improvement efforts” while in prison that

did not rise to the level of “superior” efforts. Id. ¶ 106; see 9

D.C.R.R. § 105.1(e) (1972). They also include mitigating

circumstances surrounding their criminal conduct, as well as

community resources available to the parolee upon release. 

Compl. ¶ 113; see 9 D.C.R.R. § 105.1(a), (f). These factors are

not expressly accounted for in the 2000 Guidelines’ calculation

of the range of months to be served before parole suitability. 

See 28 C.F.R. §§ 2.20, 2.80; see also id. § 2.80(k), (l)(1)

(providing a subtraction only for “superior” program

achievement). By contrast, they are expressly listed among the

“factors considered” in the 1972 Guidelines. See 9 D.C.R.R.

§ 105.1(a) (mitigating or aggravating circumstances surrounding

the offense); id. § 105.1(e) (“efforts put forth” in institutional
14

programs, without a limitation to “superior” efforts); id.

§ 105.1(f) (available community resources). The plaintiffs

allege that each of these factors would apply to their individual

cases. See Compl. ¶¶ 223-26, 231-32, 253-57, 260-61, 288-92,

295-99.

It is true that, after the Commission calculates the range of

months required before a prisoner is deemed suitable for parole,

the 2000 Guidelines authorize it to consider “case-specific

factors that are not fully taken into account in the guidelines.” 

28 C.F.R. § 2.80(n)(1). The factors to which the plaintiffs point

could certainly be considered at that stage. See id. § 2.80(n)(2). 

But, once again, the Commission may utilize such factors to

depart downward from a prisoner’s guideline range only in

“unusual circumstances,” id. § 2.80(n)(1), creating a

presumption against consideration of those factors that did not

exist under the 1972 Guidelines. Hence, this argument may

further support the plausibility of the plaintiffs’ claim that

application of the 2000 Guidelines increases their risk of

prolonged incarceration.

Second, the plaintiffs argue that their claim of a significant

risk of prolonged incarceration is even stronger than would

appear on the face of the 2000 Guidelines because in practice

the Commission “almost never” exercises its discretion to depart

downward -- that is, it almost never finds unusual

circumstances. Compl. ¶ 69. If true, that would render the

Guidelines’ presumption virtually irrebuttable, and such a

presumption would suggest an even greater risk of

comparatively longer incarceration.

Finally, the plaintiffs contend that their ex post facto claim

is also buttressed by comparing the 2000 Guidelines with

guidelines the Board adopted in 1987. Rather than merely

listing factors to be taken into account in the Board’s discretion
15

-- as was the case for the 1972 Guidelines -- the 1987 Guidelines

utilized a point system to determine whether a prisoner was

suitable for parole. See D.C. MUN. REGS. tit. 28, § 204 (1987). 

The plaintiffs’ complaint alleges that, although different in form,

the 1987 Guidelines were intended merely to articulate the

practices, policies, and procedures that the Board had actually

followed under the 1972 Guidelines. Compl. ¶ 37. On appeal,

they maintain that the two regimes were “substantively the

same,” and that, as a consequence, the court can use the 1987

Guidelines as a “meaningful predictor” of results under the 1972

Guidelines. See Appellants Br. 21-22. They further allege that

a comparison of the 1987 and 2000 Guidelines makes the

relative risk of longer incarceration under the latter even clearer. 

We need not resolve this argument either, because -- as we

have held above -- a direct comparison of the 1972 and 2000

Guidelines renders the plaintiffs’ ex post facto claim sufficiently

plausible to survive a motion to dismiss. The argument based on

the 1987 Guidelines, like the others addressed in this subpart,

can be examined on remand to determine whether it further

supports the plaintiffs’ claim. In that regard, we note that the

Third Circuit, in a case involving a habeas petitioner convicted

in the District of Columbia and incarcerated within that circuit,

did rely on the 1987 Guidelines as reflective of practice under

the 1972 Guidelines. Employing the 1987 Guidelines in that

fashion, the court concluded that the petitioner had made out a

prima facie ex post facto challenge to the application of the 2000

Guidelines in his case. See Brown v. Williamson, 314 F. App’x

492, 497 (3d Cir. 2009); see also Puifory v. Reilly, No. 3:08-CV982, 2009 WL 839354, at *6-7 (M.D. Pa. Mar. 30, 2009) (same).

C

The Commissioners maintain that, whatever the merits of

the plaintiffs’ claims, they are moot and therefore nonjusticiable. 
16

They contend that, although the “base point score” generated by

the 2000 Guidelines “results in [a] potentially longer period of

time before an inmate first becomes eligible for parole[,] . . . .

[e]ach of the Prisoners has become eligible for parole, as shown

by the fact that each has had parole hearings.” Commissioners

Br. 37-38. This, the Commissioners maintain, rendered the

prisoners’ claims of presumptively longer incarceration moot. 

Id.

The Commissioners’ argument both conflates the meaning

of parole “eligibility” and parole “suitability,” and ignores the

impact of the 2000 Guidelines on both initial and subsequent

parole hearings. As we explained above, a D.C. prisoner

becomes eligible for parole when (with certain adjustments) he

has served his minimum sentence. See D.C. Code §§ 24-403(a),

24-404(a). The “base point score” and other elements of a

prisoner’s “total guideline range” do not extend the period of

time before an inmate first becomes eligible for parole, but

rather the period before he becomes suitable for parole -- i.e.,

when “an eligible prisoner should be paroled.” 28 C.F.R.

§ 2.80(b) (emphasis added); see id. §§ 2.73(b), 2.80(i).

Nor does the impact of the prisoner’s total guideline range

on his parole suitability dissipate once he has had his first parole

hearing. At any subsequent (“reconsideration”) hearing, the

prisoner’s total guideline range for that hearing is calculated by

“add[ing] together the . . . Total Guideline Range from the

previous hearing, and the . . . guideline range for [any]

disciplinary infractions since the previous hearing,” and “[t]hen

subtract[ing] [any] award for superior program achievement.” 

Id. § 2.80(m). Accordingly, the plaintiffs’ claims did not

become moot simply because they received initial parole

hearings under the 2000 Guidelines.
17

III

The text of the 2000 Guidelines and the plaintiffs’ factual

allegations regarding the application of those guidelines in their

cases indicate that they are subject to a long presumptive period

of parole unsuitability that would not have applied to them under

the 1972 Guidelines. This gives rise to a reasonable inference

that the 2000 Guidelines create a significant risk of prolonging

their incarceration in comparison to the 1972 Guidelines. 

Accordingly, the plaintiffs have raised a plausible claim that the

application of the later guidelines to their cases violates the Ex

Post Facto Clause. We must therefore reverse the dismissal of

the complaint and remand the case for further proceedings. 

Because this case comes to us as an appeal from the

dismissal of a complaint, the only question before us is the one

we have answered in the affirmative: Have the plaintiffs stated

an ex post facto claim that is plausible? We therefore have no

occasion to consider what additional evidence -- if any -- beyond

the facial differences between the 2000 and 1972 Guidelines the

plaintiffs must develop on remand to prove their claim. Nor do

we have occasion to consider what evidence the Commissioners

must marshal in defense of their retroactive application of the

2000 Guidelines. As is appropriate, we leave those issues for

consideration, in the first instance, by the district court. 

Reversed and remanded.