United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 6, 2009 Decided August 6, 2010

No. 08-5385

CHARLES A. PHILLIPS,

APPELLANT

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. 1:06-cv-01650)

Christopher F. Branch argued the cause for appellant. With

him on the briefs was Jason D. Wallach.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the

cause for appellees. With her on the brief were Roy W. McLeese

III and Kenneth Adebonojo, Assistant U.S. Attorneys. R. Craig

Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: GARLAND, BROWN, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.
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GARLAND, Circuit Judge: Appellant Charles Phillips is in

prison for murdering two people in 1977. Although he has been

eligible for parole since 2003, the United States Parole

Commission -- applying regulations it issued in 2000 -- has

repeatedly found him unsuitable for release. Phillips contends

that the Commission should have applied the parole rules that

were in effect when he committed his crimes, and that its failure

to do so violated the Ex Post Facto Clause of the Constitution. 

Finding no significant risk that application of the 2000

regulations has prolonged Phillips’ incarceration, Garner v.

Jones, 529 U.S. 244, 255 (2000), we reject his challenge and

affirm the decision of the district court. 

I 

The first of the crimes for which Phillips is imprisoned took

place in May 1977. After learning that his former girlfriend was

involved in another relationship, Phillips forced her to lure the

new boyfriend to her apartment by telling him she was sick. 

Once the boyfriend arrived, Phillips stabbed him to death. 

Phillips next turned his attention to his former girlfriend,

stabbing her in the side and wrist but not killing her. Although

he was arrested for these crimes the next day, Phillips was soon

released on bond. Seven months later, and now armed with a

gun, he broke into the same ex-girlfriend’s apartment and

discovered her with another man. Phillips shot and killed the

man, who turned out to be a police officer. He was convicted of

both murders in the Superior Court of the District of Columbia. 

In 1978, the court sentenced him to imprisonment for an

aggregate term of 35.5 years to life.

In February 2003, after serving 302 months, Phillips became

eligible for parole. See D.C. Adult Initial Hr’g Summ. at 1-2

(Nov. 19, 2002) (noting that his minimum sentence was reduced

to 302 months due to good time credits). His initial hearing was
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conducted by the United States Parole Commission, which

assumed responsibility for D.C. prisoners when Congress

abolished the D.C. Board of Parole in 1998. National Capital

Revitalization and Self-Government Improvement Act of 1997,

Pub. L. No. 105-33, tit. XI, § 11231(a), (b), 111 Stat. 712, 745

(providing that the Commission shall replace the Board no later

than one year after the date of enactment); see Fletcher v. Reilly,

433 F.3d 867, 870 (D.C. Cir. 2006). The Commission’s 2000

regulations direct it to calculate a “Base Point Score” by

applying a rubric that assigns points for factors like prior

convictions and the nature of the offense. 28 C.F.R. §§ 2.20,

2.80(c), (f). The score translates into a range of months that,

combined with an adjustment for behavior in prison, is added to

the prisoner’s eligibility date to produce the “Total Guideline

Range,” id. § 2.80(h)-(l), the figure the Commission uses to

“determin[e] whether an eligible prisoner should be paroled,” id.

§ 2.80(b). The regulations state that “the Commission shall

apply the guidelines,” id., but that it “may, in unusual

circumstances, grant or deny parole to a prisoner notwithstanding

the guidelines,” id. § 2.80(n). In particular, it may depart “[i]f

the prisoner is deemed to be a poorer or more serious risk [to

society] than the guidelines indicate.” Id.

The Commission applied the 2000 regulations at Phillips’

initial parole hearing, which took place a few months before his

eligibility date, in November 2002. Because his crimes were

violent and resulted in the death of a victim, the Commission

assigned Phillips a base point score of five -- translating into an

additional 18-24 months in prison. Notice of Action at 2-3 (Dec.

13, 2002). The Commission then gave Phillips an upward

adjustment of 0-24 months for a series of prison disciplinary

infractions that occurred between 1979 and 1987, and a

downward adjustment of 16 months for superior program

achievement in prison. Id. at 3; D.C. Adult Initial Hr’g Summ.

at 1. Combining the three adjustments with Phillips’ eligibility
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date of 302 months yielded a Total Guideline Range of 304-334

months. 2002 Notice of Action at 3.

Rather than set a release date within that range, however, the

Commission denied Phillips parole and ordered a rehearing in

November 2005 -- at which time Phillips would have served 335

months. The Commission explained that an upward departure

from the guideline range was warranted because Phillips was a

“more serious risk than indicated” by his base point score, which

captured the first murder but did not take into account the second

or the stabbing of his ex-girlfriend. 2002 Notice of Action at 1. 

Phillips’ next parole hearing took place a month ahead of

schedule, in October 2005. Acknowledging that Phillips had

been confined for 334 months as of that date, the Commission

nonetheless declined to parole him -- again on the ground that

Phillips was “a more serious risk” to society than his base point

score indicated. Notice of Action at 1 (Nov. 18, 2005). The

Commission found that risk demonstrated by the nature of his

offense, noting that Phillips “stabbed an individual to death after

luring him into [his] ex-girlfriend’s apartment” and that he

“seriously assaulted” the ex-girlfriend. Id. “After being arrested

on this offense and released from custody,” the Commission

continued, Phillips “broke into the ex-girlfriend’s apartment

. . . [,] confronted her and her companion[,] and shot her

companion to death after an altercation.” Id. In light of the risk

that the Commission associated with this record, it denied

Phillips parole and stated that it would conduct a new hearing

three years later.1

1

The government advises that Phillips was denied parole at that

hearing, which took place in November 2008. The reasons are not in

the record of this appeal. Appellees’ Br. 10 n.5. 
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In April 2007, Phillips filed suit in the United States District

Court for the District of Columbia. Phillips alleged that the

Commission violated the Ex Post Facto Clause when it used the

2000 regulations to determine his suitability for parole,

notwithstanding that he committed his crimes in 1977. At that

time, the relevant rules were the D.C. Parole Board’s 1972

regulations. Those regulations “requir[ed] only that in exercising

its discretion the Board consider a list of factors” like “the

inmate’s offense, prior history of criminality, [and] institutional

experience,” and did not specify a way to translate the factors

into a parole release date. Blair-Bey v. Quick, 151 F.3d 1036,

1048 (D.C. Cir. 1998) (citing 9 D.C.R.R. § 105.1(a)-(f) (1981));

see 9 D.C.R.R. § 105, 105.1 (1972); see also D.C. CODE § 24-

204(a) (1973). But rather than rely on the Board’s 1972

regulations in making his ex post facto claim, Phillips sought to

be evaluated under regulations the Board published in 1987.2 He

contended that the 1987 regulations were in force in practice,

although not yet in name, when he committed his crimes in 1977. 

Like the Commission’s 2000 regulations, the 1987

regulations contained a detailed rubric assigning points to factors

like the nature of the offense, prior convictions, and prison

disciplinary infractions -- although the factors were weighted

differently than in the 2000 regulations. D.C.MUN.REGS. tit. 28,

§ 204.2, .4, .18, .19 & app. 2-1 (1987). Generally, the Board was

to order release if the prisoner’s point score was less than three. 

Id. § 204.19. But like the 2000 regulations, the 1987 regulations

provided that the Board could depart from that outcome “in

unusual circumstances,” based on the prisoner’s risk to society. 

Id. § 204.22; see id. app. 2-1, at 2-34, 2-35. 

2

While the regulations were actually promulgated in 1985, see 32

D.C. Reg. 940 (Feb. 15, 1985), the parties refer to them as the 1987

regulations because of their year of publication. We adopt that

convention as well. 
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Phillips asked the district court to order the Commission to

reconsider his parole application “in a manner consistent with the

D.C. Parole Board’s 1987 Guidelines,” Compl. at 21, alleging

that its use of the 2000 regulations had “resulted in [a] significant

risk of prolonging [his] incarceration,” id. at 18. According to

Phillips, the 2000 regulations, unlike the 1987 regulations,

permitted time to be added to a prisoner’s eligibility date based

on what he called “offense accountability” -- a determination that

the prisoner’s offenses were so grave as to warrant additional

punishment on the ground of retribution or general deterrence,

rather than risk to society. 

In May 2008, the district court granted the Commission’s

motion to dismiss Phillips’ complaint for failure to state a claim. 

Sellmon v. Reilly, 551 F. Supp. 2d 66, 99 (D.D.C. 2008) (Sellmon

I). Phillips had committed his offenses in 1977, the district court

noted, and there was “simply no evidence before the Court that

the Board’s practices pre- and post-1987 were similar enough to

allow plaintiffs convicted prior to 1987 to rely upon the 1987

Regulations for purposes of arguing an ex post facto violation.” 

Id. at 86; see id. at 76-78. 

Phillips then filed a motion for reconsideration, which the

district court denied. The court first reaffirmed its original

rationale for dismissing the complaint. It then held that, even if

Phillips were right that the 2000 regulations permitted

consideration of offense accountability and the earlier regime did

not, he could not show that it was the Commission’s

consideration of offense accountability that had lengthened his

incarceration, rather than its consideration of his risk to society --

a factor available under both regimes. See Sellmon v. Reilly, 561

F. Supp. 2d 46, 49-50 (D.D.C. 2008) (Sellmon II). This appeal

followed. 
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II

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

shall be passed.” U.S. CONST. art. I, § 9, cl. 3. A “retroactively

applied parole . . . regulation or guideline violates” this

prohibition “if it ‘creates a significant risk of prolonging [an

inmate’s] incarceration.’” Fletcher, 433 F.3d at 877 (quoting

Garner, 529 U.S. at 251). Sometimes such a risk will be

apparent from facial differences between the old and new rule. 

But “[w]hen the rule does not by its own terms show a

significant risk, the [prisoner] must 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.” Garner, 529 U.S. at 255; see Fletcher, 433 F.3d at

877.

In general, ex post facto claims require a comparison of the

challenged scheme to the one in place when the prisoner

committed his crimes. See Garner, 529 U.S. at 247; Cal. Dep’t

of Corrections v. Morales, 514 U.S. 499, 501-02 (1995). For

Phillips, this would mean looking to the 1972 regulations. 

Rather than rely on those regulations, however, Phillips argues

that the 1987 regulations codified the actual practice of the D.C.

Board of Parole when he committed his crimes in 1977, and that

they are a better reflection of that practice than the 1972

regulations. Hence, Phillips urges us to compare the 1987

regulations with the 2000 regulations in evaluating his ex post

facto claim. 

The district court initially found that Phillips had failed to

state a claim under the Ex Post Facto Clause because he had no

evidence to support his allegation that the 1987 regulations were

in practical effect in 1977. Phillips contends that this

misapprehends the applicable legal standard. In ruling on a
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motion to dismiss for failure to state a claim, the court must

“accept as true all of the factual allegations contained in the

complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). As

Phillips points out, the district court did not accept as true his

allegation linking the 1977 practices to the 1987 regulations. 

The Commission responds that the court did not need to accept

this allegation because it was not even “plausible” under the

pleading standard the Supreme Court outlined in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007), and reaffirmed in

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 

We need not resolve this dispute. Even if we were to credit

Phillips’ allegations regarding the Commission’s pre-1987

practices, he cannot show that application of the 2000 rather than

the 1987 regulations created or creates a significant risk of

prolonging his incarceration. See Fletcher, 433 F.3d at 877.

1. Phillips focuses on two adjustments the Commission

made to his guideline release date when it applied the 2000

regulations. One is the way in which the Commission accounted

for the violent nature of his crimes. The five points the

Commission imposed on that ground translated into an additional

18-24 months in prison. See 2002 Notice of Action at 3. Phillips

contends that, under the 1987 regulations, the same factor would

have contributed only one point to his score -- and no additional

prison time at all. Phillips also cites the Commission’s treatment

of the disciplinary infractions he committed while incarcerated. 

The Commission added 0-24 months to Phillips’ guideline range

on account of those infractions, but Phillips avers they were so

old and minor that they would have escaped any penalty at all

under the 1987 regulations. As a result, he concludes, his 1987

guideline release date would have been the same as his parole

eligibility date -- 302 months -- rather than the 304-334 months

prescribed by the 2000 guidelines.
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The problem with this argument is that, as Phillips concedes,

he has already served the time produced by both of the additions

that he challenges. Oral Arg. Recording at 2:27-56. Indeed, he

had done so by October 2005 at the latest, when he hit the 334-

month mark. 2005 Notice of Action at 1. His challenge to how

that figure was calculated was thus moot when he filed his

lawsuit in 2007 and remains moot today. Regardless of whether

the Commission should have applied the 1987 regulations and

calculated a guideline release date of only 302 months, Phillips

cannot “explain[] what adverse impact he continues to suffer as

a result” of its failure to do so. Anyanwutaku v. Moore, 151 F.3d

1053, 1057 (D.C. Cir. 1998). He does not seek damages, and he

already enjoys the same presumption of parole suitability that, he

asserts, properly attached earlier. See 28 C.F.R. § 2.80(b), (n). 

Hence he has no “personal stake in the outcome” of his two

challenges to his guideline date. Spencer v. Kemna, 523 U.S. 1,

7 (1998) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472,

477-78 (1990)). 

2. Of course, Phillips remains in prison, and he certainly has

a personal stake in getting out. He does not, however, remain in

prison because of his guideline release date. Rather, he remains

in prison because the Commission departed upward from the

guidelines. See 2005 Notice of Action at 1.3

 To the extent

Phillips challenges that decision, his challenge is decidedly not

moot.

3

In reviewing the district court’s dismissal of Phillips’ complaint

for failure to state a claim, we can rely on the reasons offered in the

Commission’s Notices of Action because those documents were

“incorporated in [Phillips’] complaint.” Trudeau v. FTC, 456 F.3d

178, 183 (D.C. Cir. 2006) (citation omitted). Phillips does not object

to our doing so; indeed he relies on the Notices himself.
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But although that challenge presents a live controversy, it

does not present a violation of the Ex Post Facto Clause. 

Although the 2000 regulations permit the Commission to depart

upward from the guidelines, see 28 C.F.R. § 2.80(n), so too did

the 1987 regulations, see D.C. MUN. REGS. tit. 28, § 204.22. 

Phillips notes that in “exceptional cases” the 2000 regulations

permit the Commission to depart upward based on the gravity of

the offense, 28 C.F.R. § 2.73(b), the consideration he terms

“offense accountability.” And he alleges that this ground for

departure was not available under the 1987 regulations. Compl.

¶¶ 26, 59; see also Sellmon I, 551 F. Supp. 2d at 88.

But the Commission did not depart upward from Phillips’

guideline range on the basis of offense accountability. Instead,

as the government points out, it did so on the ground that he

represented “a more serious risk” than his guideline range

indicated. 2005 Notice of Action at 1.4

 The 2000 regulations

permit the Commission, in “unusual circumstances,” to depart

upward based on a prisoner’s risk to society. See 28 C.F.R.

§ 2.80(n). But so, too, did the 1987 regulations. See D.C. MUN.

REGS. tit. 28, § 204.22 & app. 2-1, at 2-34. And neither Phillips’

complaint nor his briefs offer any reason to believe that the

Commission, operating under the 1987 regulations, would not

have relied on that same rationale to conclude that 334 months

was an insufficient term of imprisonment.5 

4

Although an intermediate-level parole official did recommend

an upward departure to ensure that Phillips received a “sufficient

sanction for a second murder and aggravated assault,” Hr’g Summ. at

3 (Nov. 15, 2005), the Commission’s decision instead relied on his

risk to society, see 2005 Notice of Action at 1. Phillips acknowledges

as much. Oral Arg. Recording at 31:13-25. 

5

Phillips does not contend that the upward departure would have

been different if there had been a change in the guideline range. That

is, although the Commission determined that the guideline range did
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Accordingly, because Phillips cannot demonstrate that the

Commission’s application of the 2000 regulations created or

“‘creates a significant risk of prolonging [his] incarceration,’” he

has no claim under the Ex Post Facto Clause. Fletcher, 433 F.3d

at 877 (quoting Garner, 529 U.S. at 251); see Glascoe v. Bezy,

421 F.3d 543, 548-49 (7th Cir. 2005).

III

For the foregoing reasons, the judgment of the district court

is

Affirmed.

not fully capture the risk of releasing Phillips, its discretionary

decision about what date would be acceptable for release on risk

grounds was not a function of that range and hence does not save

Phillips’ two challenges to the range from mootness. Indeed, the

Commission’s decision to depart upward demonstrates that Phillips

would have remained in prison regardless of the range: if the

Commission thought 334 months was insufficient to protect society,

a fortiori it would have thought the same of the 302 months prescribed

by the 1987 regulations.