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.