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Daniel v. Fulwood

United States Court of Appeals, District of Columbia Circuit

September 12, 2014


Argued February 7, 2014.

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.


Page 58

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, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), we reverse and remand for further proceedings.


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

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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, 392 U.S.App. D.C. 396 (D.C. Cir. 2010).

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 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, ...

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