concurring.
I join in parts I and II of the majority opinion, but write to explain why I do not join in portions of part III.
The application of the ex post facto clause to parole guidelines is an issue the Supreme Court expressly reserved in United States Parole Commission v. Geraghty, 445 U.S. 388, 390 n. 1, 408, 100 S.Ct. 1202, 1205 n. 1, 1214, 63 L.Ed.2d 479 (1980), and United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2239, 60 L.Ed.2d 805 (1979). As the majority opinion recognizes, the question has divided the courts of appeals.
In touching on the merits in Geraghty v. United States Parole Commission, 579 F.2d 238, 267 (3d Cir.1978), vacated and remanded on other grounds, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), we noted indications that the guidelines were not merely a “channel for discretion” but were actually an “unyielding conduit.” Nevertheless, because the Commission intimated that it did in fact engage in “individualized consideration of prisoners similar to that which it undertook before the guidélines went into effect,” a controverted issue of fact was presented. Id. We remanded for resolution of that conflict.
In United States v. Ferri, 652 F.2d 325 (3d Cir.1981), we reconsidered the ex post facto issue after remand from the Supreme Court in Matthews v. United States, 450 U.S. 962, 101 S.Ct. 1476, 67 L.Ed.2d 611 (1981), vacating and remanding United States v. Ferri (Appeal of Matthews), 620 F.2d 288, 290 (3d Cir.1980) (mem.). This was the third occasion on which the Supreme Court chose not to decide the validity of the parole guidelines. We observed that the petitioner in Ferri had failed to allege “any arbitrary, unreasonable or nonindivi-dualized treatment resulting in a detrimental impact or an actual denial of parole . ... ” 652 F.2d at 328. Since he had proceeded pro se, however, and in light of the complicated evolution of the law in this area, we remanded the case to the district court. On the other hand, in United States ex rel. Goldberg v. Warden, 622 F.2d 60, 65 (3d Cir.), cert. denied, 449 U.S. 871, 101 S.Ct. 210, 66 L.Ed.2d 91 (1980), the record did demonstrate individualized treatment, thereby negating “any argument that petitioner received nothing more than a mechanical application of the parole guidelines.” Consequently, we concluded that Geraghty1 s concerns had been met in that instance.
The record in this case leaves open the questions raised in Geraghty, and I agree that a remand for a factual hearing is required. The district court must determine whether petitioner was subjected to a wooden application of the guidelines or instead given individualized consideration and a truly discretionary ruling by the Commission. Because that factual issue is as yet unresolved, I believe that most of the majority’s extensive discussion in part III on the parole guidelines and the ex post facto clause is premature.
The constitutional issue here is a substantial one. I prefer to wait until the record is complete before expressing my views.