concurring.
I concur in this court’s decision to reverse the district court’s dismissal of appellant Cox’s habeas petition and to remand for further proceedings because I think there *190are some questions as to the exact circumstances of the shots fired in the commission of the armed robbery of which appellant was convicted. Given that the shooting element of the offense raises the crime’s severity classification from “very high” to “greatest,” and given that this changes appellant’s probable range of customary total time served (taking into account his salient factor score) from 55-65 months to a “greater,” but not specified, range, I do not believe it possible to decide whether or not appellant has a sound claim for relief until more is known about the shooting than the National Appellate Board’s, conclusionary statement that “shots were fired and there was assaultive behavior.”
I would note, however, that if the characterization is correct, I do not see any need to reverse and remand in the mere fact that appellant has already served 96 months of a twenty-four year sentence. Appellant’s salient factor score of 31 places him in the group of offenders with the poorest parole prognosis. Were the severity of his offense characterized as “very high,” Justice Department guidelines would expect him to serve 55 to 65 months before any parole would be considered. But I do not think this 55-65 month range for crimes with “very high” severity should by any means be read as some kind of maximum also applicable in the “greatest” severity category where the Justice Department has not even established a range.2 I believe that in *192the case of greatest severity crimes committed by offenders with low salient factor scores, the Parole Board has the discretion to deny parole even after 65 months based on the egregious nature of the offense, and that this reason satisfies the requirement of Xing v. United States, 492 F.2d 1337 (7th Cir. 1974); McGee v. Aaron, 523 F.2d 825 (7th Cir. 1975).
I would further note that even if appellant’s account of the shooting is correct, i. e., that the shots fired were by police and an accomplice in the course of the accomplice’s independent flight, I am not sure that the Parole Board is in error in characterizing appellant’s crime as of greatest severity or in denying parole. For it may well be within the Board’s discretion to decide that one who participates in a crime in some way involving violence, though not himself firing a weapon, is more dangerous than one whose crime involved no violence whatsoever. But this is a question we do not,.and indeed should not, reach by dealing with hypotheticals. It is precisely for the purpose of determining the facts of the shooting involved, as they are known by the Parole Board, and as they are necessary to determining whether appellant’s crime has been appropriately characterized, that I join in this decision to remand.
The majority places some reliance for its opinion on the fact that in this case the National Appellate Board failed to review the regional board’s parole decision prior to notification to appellant of that decision as required by 28 C.F.R. § 2.24. I cannot join in this .part of the opinion as I find the record insufficient even to raise a question that this omission on the part of the Board was so prejudicial to appellant as to warrant reversal of his parole denial.
. The lower an offender’s salient factor score, , the poorer his parole prognosis. In arriving at a score, the parole board awards 2 points if an • offender has had no prior convictions, 1 point if he has had one or two convictions, 2 points if an offender has had no prior incarcerations, 1 point if he has had one or two incarcerations, 1 point if an offender was age 18 or older at his first commitment, 1 point if the offense did not involve auto theft, 1 point if the offender has never had parole revoked or committed a new offense on parole, 1 point if the offender has no history of heroin or opium dependence, I point if the offender has completed high school or received a grade equivalency diploma, 1 point if the offender was employed or attending school full time in the community for 6 months during the last two years, 1 point if the offender’s release plan is to live with a spouse and/or children. Offenders whose total point score is 3 or less are deemed to have the poorest parole prognosis. See 28 C.F.R. § 2.20.
. 28 C.F.R. § 2.20 provides the following parole guidelines for adult offenders:
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