United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued February 7, 2014            Decided September 12, 2014

                        No. 12-5327

                   ROY A. DANIEL, ET AL.,
                       APPELLANTS

                              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. 1:10-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.

    Opinion for the Court filed by Chief Judge GARLAND.
                                2
     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 (2000), we
reverse and remand for further proceedings.

                                I

     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 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 (D.C. Cir.
2010).
                                 3
     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


    1
      See also D.C. Code §§ 24-221.01(b), 24-221.01a(b) (providing
that educational and meritorious good time credits are applied to the
minimum term of imprisonment to determine the date of eligibility for
parole).
                                 4
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, 616 F.3d at 579.
At subsequent reconsideration hearings, the Commission
“[a]dd[s] together the . . . Total Guideline Range from the
previous hearing, and the . . . guideline range for [any]
disciplinary infractions since the previous hearing,” and “[t]hen
subtract[s] [any] award for superior program achievement.” Id.
§ 2.80(m). Although the Commission may “grant or deny parole
to a prisoner notwithstanding the guidelines,” it may do so only
in “unusual circumstances.” Id. § 2.80(n)(1).


    2
      The salient factor score is based on such factors as the number
of the prisoner’s prior convictions, the number of his prior
commitments to facilities, and his age at the commencement of his
prior offenses and commitments. See 28 C.F.R. § 2.20.
                                  5
     Plaintiffs Abdus-Shahid Ali, Percy Jeter, and William Terry
were all convicted for conduct during the period in which the
1972 Guidelines were in effect. Compl. ¶¶ 14, 16, 17. By the
time they became eligible for parole, however, the 2000
Guidelines were in place. Based on those guidelines, at Ali’s
initial parole hearing the Commission calculated (after
correcting for errors) that he had to serve an additional 98-128
months beyond his minimum sentence before he would be
suitable for parole. See id. ¶¶ 240-41, 248-50. At Jeter’s initial
hearing, the Commission calculated that he had to serve an
additional 72-120 months beyond his minimum sentence. See
id. ¶¶ 211-12. And at Terry’s first hearing under the 2000
Guidelines, the Commission calculated that he had to serve an
additional 156-222 months. See id. ¶¶ 276-77.3 At subsequent
reconsideration hearings, the Commission added a number of
months to the maximum (but not to the minimum) of Jeter’s
total guideline range. Id. ¶¶ 216, 220. The Commission found
no “unusual circumstances” in any of the three prisoners’ initial
or subsequent hearings and declined to depart downward from
the ranges of months calculated under the guidelines. Id.
¶¶ 213, 217, 221, 251, 274, 280, 286.

     On May 25, 2010, plaintiffs Jeter, Ali, and Terry filed a
class action complaint against the Commissioners of the U.S.
Parole Commission, alleging that they have subjected the
plaintiffs and the class they represent to retroactively increased
incarceration, in violation of the Ex Post Facto Clause of the



     3
      Because the Commission developed its approach in a series of
regulations between 1998 and 2000, it conducted Terry’s initial parole
hearing under a hybrid regime that incorporated some but not all
provisions of the 2000 Guidelines. See Compl. ¶¶ 72-75, 263, 270-75;
Commissioners Br. 11-12. The differences are immaterial for
purposes of the disposition we reach in this opinion.
                                  6
Constitution.4 The alleged class consists of persons currently
incarcerated for violations of the D.C. Code committed before
March 3, 1985, and whose first parole hearings occurred on or
after August 5, 1998. Compl. ¶ 10. The complaint alleges that
the Commission has conducted parole hearings for this class
under the 2000 Guidelines, rather than under the 1972
Guidelines that were in effect when the class members
committed their offenses. Id. The plaintiffs contend that the
retroactive application of the 2000 Guidelines has exposed them
to a significant risk of prolonged incarceration.

     On September 30, 2011, before any discovery was taken
and without reaching the class certification issues, the district
court granted the defendants’ motion to dismiss the complaint
for failure to state a claim, pursuant to Federal Rule of Civil
Procedure 12(b)(6). Thereafter, the plaintiffs filed a timely
notice of appeal.

                                  II

     We review de novo a district court’s dismissal of a
complaint for failure to state a claim. Kassem v. Wash. Hosp.
Ctr., 513 F.3d 251, 253 (D.C. Cir. 2008). “To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A


     4
      Three other prisoners filed along with the plaintiffs: Roy A.
Daniel, Alfonso Taylor, and Harold Venable. Each has since been
paroled. Commissioners Br. 1. The Commissioners’ brief states that
the Commission has set an “effective parole date” for Jeter of July 23,
2014. Id. The parties have not advised the court whether he has in
fact been paroled. According to the Commissioners, the “effective
parole dates” for Terry and Ali are not until 2015. Id.
                                  7
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678. “When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to
relief.” Id. at 679.

     The Constitution provides that “No . . . ex post facto Law
shall be passed.” U.S. Const. art. I, § 9, cl. 3. In order to prevail
on the merits of an ex post facto claim with regard to parole
guidelines, a plaintiff must show that retroactive application of
the new guidelines “creates a significant risk of prolonging [his]
incarceration” as compared to application of the prior
guidelines. Fletcher v. Reilly, 433 F.3d 867, 877 (D.C. Cir.
2006) (quoting Garner, 529 U.S. at 251) (internal quotation
marks omitted).5

     The Commissioners maintain that “the comparisons [the
plaintiffs] attempt between the current parole schemes and the
1972 DC Regulations are hopelessly indeterminate in light of
the fundamentally different methodologies of the old and new
systems, as well as the broad discretion available under both.”
Commissioners Br. 3. Comparison is effectively impossible, the
defendants argue, because of “the broad discretion available
under the 1972 DC Regulations, and the narrower but still
relevant discretion available to the Commission under the 2000
Guidelines.” Id. at 26. The Supreme Court has made clear,
however, that although “[w]hether retroactive application of a


     5
      The Commissioners contend that parole guidelines are not
“laws” subject to the Ex Post Facto Clause. As they acknowledge, this
circuit has rejected that argument. See Commissioners Br. 40-41
(citing Fletcher v. District of Columbia, 391 F.3d 250, 251 (D.C. Cir.
2004)); see also Fletcher v. Reilly, 433 F.3d at 876-77.
                                 8
particular change in parole law respects the prohibition on ex
post facto legislation is often a question of particular difficulty
when the discretion vested in a parole board is taken into
account,” Garner, 529 U.S. at 250, the “presence of discretion
does not displace the protections of the Ex Post Facto Clause,”
id. at 253. As we said in United States v. Turner, “under the law
of this circuit the existence of discretion does not foreclose an ex
post facto claim.” 548 F.3d 1094, 1100 (D.C. Cir. 2008) (citing
Fletcher, 433 F.3d at 876).

    An inmate may establish the requisite risk of increased
incarceration in two ways. See Fletcher, 433 F.3d at 877. First,
he may demonstrate that the new regulation “by its own terms
show[s] a significant risk” of prolonging his incarceration.
Garner, 529 U.S. at 255. Second, he may “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.” Id.; see Fletcher, 433 F.3d at 877. At
the motion to dismiss stage, of course, a plaintiff need only
show that his ex post facto claim -- like any other claim -- is
“plausible.” Iqbal, 556 U.S. at 678.

                                 A

     The plaintiffs’ strongest argument in support of their ex post
facto claim is that the 2000 Guidelines create a presumption of
a long period of extended incarceration in their cases, while the
1972 Guidelines would not have done so. As described in Part
I above, the 2000 Guidelines employ a number of specific
factors and adjustments to generate a range of months that is
added to the number of months remaining until the date the
prisoner will have served his minimum sentence (his parole
eligibility date), thus generating a total range of months that the
prisoner must presumptively serve before he should be paroled
                                   9
(his parole suitability date). See 28 C.F.R. § 2.80(l) (instructions
for determining total guideline range). Under 28 C.F.R.
§ 2.80(n), the presumption holds unless “unusual circumstances”
warrant departure from the prisoner’s total guideline range.6

     Misconstruing the plaintiffs’ presumption argument, the
Commissioners contend that § 2.80(n) does not create a
presumption because it permits but does not require the
Commission to depart upward from the guideline range in
unusual circumstances. Commissioners Br. 38-39. The
plaintiffs’ argument, however, is that both upward and
downward departures from the guidelines require a showing of
“unusual” circumstances. See 28 C.F.R. § 2.80(n)(1). This, they
explain, effectively creates a presumption that, in the usual case,
the guideline range will govern a prisoner’s period of parole
unsuitability.

     With respect to their specific circumstances, plaintiffs Ali,
Jeter, and Terry allege that the Commission’s actual application
of the 2000 Guidelines to their cases generated guideline ranges
that presumptively required them to serve additional time,
beyond the point of parole eligibility, in the amounts of 98-128
months, 72-120 months, and 156-222 months, respectively. See

     6
      See 28 C.F.R. § 2.80(b) (“In determining whether an eligible
prisoner should be paroled, the Commission shall apply the guidelines
set forth in this section. . . . Decisions outside the guidelines may be
made, where warranted, pursuant to paragraph (n) of this section.”);
id. § 2.80(n)(1) (“The Commission may, in unusual circumstances,
grant or deny parole to a prisoner notwithstanding the guidelines. . . .
In such cases, the Commission shall specify in the notice of action the
specific factors that it relied on in departing from the applicable
guideline or guideline range.”); see also Sellmon v. Reilly, 551 F.
Supp. 2d 66, 73 (D.D.C. 2008) (“Until a parole candidate has served
a period of time equal to the bottom of his total guideline range, the
candidate is presumed to be unsuitable for parole.”).
                                10
Compl. ¶¶ 211-12, 240-41, 248-50, 276-77. They further allege
that the Commission found no “unusual circumstances”
warranting downward departures from those guideline ranges.
Id. ¶¶ 213, 217, 221, 251, 274, 280, 286. These are factual
allegations that a court must accept for purposes of reviewing a
motion to dismiss under Rule 12(b)(6). See Iqbal, 556 U.S. at
679. The Commissioners do not contest them.

     It may be that the factors that led the Commission to add
time to the plaintiffs’ periods of incarceration under the 2000
Guidelines are factors that the D.C. Board of Parole could also
have considered under the 1972 Guidelines. Under the text of
the 1972 Guidelines, however, there would not have been a
presumption that the plaintiffs should serve significantly more
time than their minimum sentences. See 9 D.C.R.R. §§ 105,
105.1 (1972); see also D.C. Code § 24-204 (1973). It is
appropriate, in assessing the risk of increased punishment
created by a subsequent parole system’s implementation, to
consider a parole board’s written policies. As the Supreme
Court said in Garner, “[a]bsent a demonstration to the contrary,
we presume the Board follows its statutory commands and
internal policies in fulfilling its obligations.” 529 U.S. at 256.
And we think it reasonable to infer that the presumption of
extended unsuitability contained in the 2000 Guidelines would
prolong a prisoner’s period of incarceration as compared to the
1972 Guidelines -- in which no such presumption existed -- even
if the same factors could have been considered under the earlier
regime.7


    7
       Cf. Fletcher, 433 F.3d at 879 (concluding that “facial
distinctions between the Board’s [1987] regulations and the [2000]
federal regulations” regarding reparole “made out a prima facie case
that [the prisoner’s] rights under the Ex Post Facto Clause have been
violated” and were “sufficient to warrant factual development on his
habeas petition”).
                                 11
     Our focus on the effect of a presumption is consistent with
the analysis the Supreme Court employed, in Miller v. Florida,
in concluding that the application of revised sentencing
guidelines to a petitioner who committed his offense before the
revised guidelines’ effective date violated the Ex Post Facto
Clause. See 482 U.S. 423 (1987). Under the Florida guidelines
in effect when Miller committed his offense, the “presumptive
sentence” was 3.5 to 4.5 years’ imprisonment. Id. at 424.
Under the revised guidelines, the presumptive sentencing range
was 5.5 to 7 years’ imprisonment. Id. The Court held that the
revised guidelines violated the Ex Post Facto Clause because
Miller had been “substantially disadvantaged” by their
application. Id. at 432.8 As we subsequently explained in
applying Miller to post-offense revisions of the U.S. Sentencing
Guidelines, “[i]t was no answer to say that the defendant might
have received the same sentence under the old version of the
guidelines. While the Florida trial court was not bound to give
the presumptive sentence, the court’s discretion to give a
different sentence was quite limited, and so as a practical matter
the change in the guidelines increased the defendant’s sentence.”
Turner, 548 F.3d at 1099 (citations omitted).9


     8
      In Peugh v. United States, the Supreme Court confirmed that
“the result in Miller remains sound” -- notwithstanding that it
“employed a ‘substantial disadvantage’ test that th[e] Court has since
abandoned” in favor of asking “whether the change in law creates a
‘sufficient’ or ‘significant’ risk of increasing the punishment for a
given crime.” 133 S. Ct. 2072, 2083 n.4 (2013) (quoting Garner, 529
U.S. at 250-51).
     9
     The presumptive effect of the Florida guidelines was generated
by the requirement that, if a “court wished to depart from the
guidelines range, . . . it was required to give ‘clear and convincing
reasons in writing for doing so,’” and a non-guidelines sentence was
subject to appellate review. Peugh, 133 S. Ct. at 2082 (quoting Miller,
482 U.S. at 426). In Miller, the government’s contention was that the
                                 12
     As the Supreme Court held just last year, “Miller thus
establishes that applying amended sentencing guidelines that
increase a defendant’s recommended sentence can violate the Ex
Post Facto Clause, notwithstanding the fact that sentencing
courts possess discretion to deviate from the recommended
sentencing range.” Peugh v. United States, 133 S. Ct. 2072,
2082 (2013). So, too, here. Under the 1972 Guidelines, the
plaintiffs were not subject to any recommended period of parole
unsuitability at all, and they could have been paroled
immediately upon serving their minimum sentences. See D.C.
Code §§ 24-203(a), 24-204(a) (1973); 9 D.C.R.R. §§ 104.1, 105
(1972). Under the 2000 Guidelines, by contrast, they are
subject to guideline ranges that far exceed those minimum
sentences. Once again, it is “no answer to say that the
[plaintiffs] might have received the same sentence[s] under the
old version of the guidelines.” Turner, 548 F.3d at 1099.
Although the Board could have imposed the same periods of
incarceration under the 1972 Guidelines, there was no
presumption that it do so. And while the Commission “was not


plaintiff could not show that his sentence under the new guidelines
was longer than it would have been under the old ones because a judge
could have imposed the same sentence by departing upward from the
old guidelines. See 482 U.S. at 432. The Court rejected that argument
because “the sentencing judge would have to [have] provide[d] clear
and convincing reasons in writing” to impose the longer sentence
under the old guidelines, while he would not have to do so under the
new guidelines. Id. at 432-33. In this case, the government makes an
argument from the opposite direction: that under the 2000 Guidelines
the Commission has the same discretion to impose a shorter
unsuitability period as it did under the 1972 Guidelines because it can
depart downward from the new guidelines in “unusual circumstances.”
(As in Miller, the Commission must specify the reasons for a guideline
departure in writing. See 28 C.F.R. § 2.80(n)(1).) The direction of the
required departure makes no material difference in the relative
persuasiveness of these arguments.
                               13
bound” to impose the presumptive ranges under the 2000
Guidelines, id., its discretion to depart was limited, see 28
C.F.R. § 2.80(n). Hence, it is more than plausible that the
change in parole regimes increased the prisoners’ periods of
incarceration. Consequently, the plaintiffs’ ex post facto claim
should not have been dismissed.

                                B

     The plaintiffs press a number of additional arguments in
support of their contention that the 2000 Guidelines create a
significant risk of prolonged incarceration as compared to the
1972 Guidelines. Although we briefly note some of them here,
we do not need to resolve their merits because the considerations
that we have addressed in Part II.A are sufficient to require
reversal of the dismissal of the complaint.

     First, the plaintiffs argue that the 2000 Guidelines do not
take into account several factors that the 1972 Guidelines
considered and that would favor their earlier release. Compl.
¶¶ 101-13. Those include “rehabilitative efforts, institutional
behavior, [and] self-improvement efforts” while in prison that
did not rise to the level of “superior” efforts. Id. ¶ 106; see 9
D.C.R.R. § 105.1(e) (1972). They also include mitigating
circumstances surrounding their criminal conduct, as well as
community resources available to the parolee upon release.
Compl. ¶ 113; see 9 D.C.R.R. § 105.1(a), (f). These factors are
not expressly accounted for in the 2000 Guidelines’ calculation
of the range of months to be served before parole suitability.
See 28 C.F.R. §§ 2.20, 2.80; see also id. § 2.80(k), (l)(1)
(providing a subtraction only for “superior” program
achievement). By contrast, they are expressly listed among the
“factors considered” in the 1972 Guidelines. See 9 D.C.R.R.
§ 105.1(a) (mitigating or aggravating circumstances surrounding
the offense); id. § 105.1(e) (“efforts put forth” in institutional
                                14
programs, without a limitation to “superior” efforts); id.
§ 105.1(f) (available community resources). The plaintiffs
allege that each of these factors would apply to their individual
cases. See Compl. ¶¶ 223-26, 231-32, 253-57, 260-61, 288-92,
295-99.

     It is true that, after the Commission calculates the range of
months required before a prisoner is deemed suitable for parole,
the 2000 Guidelines authorize it to consider “case-specific
factors that are not fully taken into account in the guidelines.”
28 C.F.R. § 2.80(n)(1). The factors to which the plaintiffs point
could certainly be considered at that stage. See id. § 2.80(n)(2).
But, once again, the Commission may utilize such factors to
depart downward from a prisoner’s guideline range only in
“unusual circumstances,” id. § 2.80(n)(1), creating a
presumption against consideration of those factors that did not
exist under the 1972 Guidelines. Hence, this argument may
further support the plausibility of the plaintiffs’ claim that
application of the 2000 Guidelines increases their risk of
prolonged incarceration.

     Second, the plaintiffs argue that their claim of a significant
risk of prolonged incarceration is even stronger than would
appear on the face of the 2000 Guidelines because in practice
the Commission “almost never” exercises its discretion to depart
downward -- that is, it almost never finds unusual
circumstances. Compl. ¶ 69. If true, that would render the
Guidelines’ presumption virtually irrebuttable, and such a
presumption would suggest an even greater risk of
comparatively longer incarceration.

      Finally, the plaintiffs contend that their ex post facto claim
is also buttressed by comparing the 2000 Guidelines with
guidelines the Board adopted in 1987. Rather than merely
listing factors to be taken into account in the Board’s discretion
                                15
-- as was the case for the 1972 Guidelines -- the 1987 Guidelines
utilized a point system to determine whether a prisoner was
suitable for parole. See D.C. MUN. REGS. tit. 28, § 204 (1987).
The plaintiffs’ complaint alleges that, although different in form,
the 1987 Guidelines were intended merely to articulate the
practices, policies, and procedures that the Board had actually
followed under the 1972 Guidelines. Compl. ¶ 37. On appeal,
they maintain that the two regimes were “substantively the
same,” and that, as a consequence, the court can use the 1987
Guidelines as a “meaningful predictor” of results under the 1972
Guidelines. See Appellants Br. 21-22. They further allege that
a comparison of the 1987 and 2000 Guidelines makes the
relative risk of longer incarceration under the latter even clearer.

     We need not resolve this argument either, because -- as we
have held above -- a direct comparison of the 1972 and 2000
Guidelines renders the plaintiffs’ ex post facto claim sufficiently
plausible to survive a motion to dismiss. The argument based on
the 1987 Guidelines, like the others addressed in this subpart,
can be examined on remand to determine whether it further
supports the plaintiffs’ claim. In that regard, we note that the
Third Circuit, in a case involving a habeas petitioner convicted
in the District of Columbia and incarcerated within that circuit,
did rely on the 1987 Guidelines as reflective of practice under
the 1972 Guidelines. Employing the 1987 Guidelines in that
fashion, the court concluded that the petitioner had made out a
prima facie ex post facto challenge to the application of the 2000
Guidelines in his case. See Brown v. Williamson, 314 F. App’x
492, 497 (3d Cir. 2009); see also Puifory v. Reilly, No. 3:08-CV-
982, 2009 WL 839354, at *6-7 (M.D. Pa. Mar. 30, 2009) (same).

                                 C

     The Commissioners maintain that, whatever the merits of
the plaintiffs’ claims, they are moot and therefore nonjusticiable.
                                16
They contend that, although the “base point score” generated by
the 2000 Guidelines “results in [a] potentially longer period of
time before an inmate first becomes eligible for parole[,] . . . .
[e]ach of the Prisoners has become eligible for parole, as shown
by the fact that each has had parole hearings.” Commissioners
Br. 37-38. This, the Commissioners maintain, rendered the
prisoners’ claims of presumptively longer incarceration moot.
Id.

     The Commissioners’ argument both conflates the meaning
of parole “eligibility” and parole “suitability,” and ignores the
impact of the 2000 Guidelines on both initial and subsequent
parole hearings. As we explained above, a D.C. prisoner
becomes eligible for parole when (with certain adjustments) he
has served his minimum sentence. See D.C. Code §§ 24-403(a),
24-404(a). The “base point score” and other elements of a
prisoner’s “total guideline range” do not extend the period of
time before an inmate first becomes eligible for parole, but
rather the period before he becomes suitable for parole -- i.e.,
when “an eligible prisoner should be paroled.” 28 C.F.R.
§ 2.80(b) (emphasis added); see id. §§ 2.73(b), 2.80(i).

     Nor does the impact of the prisoner’s total guideline range
on his parole suitability dissipate once he has had his first parole
hearing. At any subsequent (“reconsideration”) hearing, the
prisoner’s total guideline range for that hearing is calculated by
“add[ing] together the . . . Total Guideline Range from the
previous hearing, and the . . . guideline range for [any]
disciplinary infractions since the previous hearing,” and “[t]hen
subtract[ing] [any] award for superior program achievement.”
Id. § 2.80(m). Accordingly, the plaintiffs’ claims did not
become moot simply because they received initial parole
hearings under the 2000 Guidelines.
                               17
                               III

     The text of the 2000 Guidelines and the plaintiffs’ factual
allegations regarding the application of those guidelines in their
cases indicate that they are subject to a long presumptive period
of parole unsuitability that would not have applied to them under
the 1972 Guidelines. This gives rise to a reasonable inference
that the 2000 Guidelines create a significant risk of prolonging
their incarceration in comparison to the 1972 Guidelines.
Accordingly, the plaintiffs have raised a plausible claim that the
application of the later guidelines to their cases violates the Ex
Post Facto Clause. We must therefore reverse the dismissal of
the complaint and remand the case for further proceedings.

     Because this case comes to us as an appeal from the
dismissal of a complaint, the only question before us is the one
we have answered in the affirmative: Have the plaintiffs stated
an ex post facto claim that is plausible? We therefore have no
occasion to consider what additional evidence -- if any -- beyond
the facial differences between the 2000 and 1972 Guidelines the
plaintiffs must develop on remand to prove their claim. Nor do
we have occasion to consider what evidence the Commissioners
must marshal in defense of their retroactive application of the
2000 Guidelines. As is appropriate, we leave those issues for
consideration, in the first instance, by the district court.

                                       Reversed and remanded.
