Full opinion text
MEMORANDUM OPINION ELLEN SEGAL HUVELLE, District Judge. Plaintiffs Tony Sellmon, Carlton Martin, Charles Phillips, Darius Smith, Daru Swin-ton, Benson West-El, Curtis Eason, and James Gambrell are inmates serving prison sentences for committing criminal offenses under the District of Columbia Code. Each committed his crime and was sentenced prior to August 5, 1998, when the United States Parole Commission (“USPC”) took over responsibility from the District of Columbia Parole Board (“the Board”) for conducting parole hearings for D.C.Code offenders. Although the facts of each plaintiffs case differ materially, all plaintiffs allege that USPC retroactively applied its own parole guidelines and practices so as to significantly increase the risk that they would serve longer terms of incarceration in violation of the Ex Post Facto Clause of the Constitution. Before the Court are plaintiffs’ motion for summary judgment and defendants’ motion for judgment on the pleadings. For the reasons stated herein, plaintiffs’ motion will be granted in part and denied in part and defendants’ motion will be granted in part and denied in part. BACKGROUND I. PAROLE PRACTICES FOR D.C. OFFENDERS On August 5, 1997, Congress enacted the National Capital Revitalization and Self-Government Improvement Act (“the Revitalization Act”), Pub.L. No. 105-33, § 11231 111 Stat. 712, 734-37 (codified at D.C. Code §§ 24-101 et seq. (2001 & Supp.2005)). (Pis.’ Joint Stmt, of Material Facts [“Pis.’ Joint Stmt.”] ¶ 13.) The Revitalization Act abolished the D.C. Parole Board, see Pub.L. No. 105-33 § 11231(b), and directed the USPC to conduct parole hearings for D.C.Code offenders “pursuant to the parole laws and regulations of the District of Columbia.” Id. § 11231(c). Since August 5, 1998, the USPC has conducted the hearings and decided the requests for parole of all persons convicted of violating the D.C.Code. (Pis.’ Joint Stmt. ¶ 2.) Prior to this date, the D.C. Parole Board conducted the parole hearings for D.C.Code offenders, applying guidelines it formally adopted in 1985, and published in the District of Columbia Municipal Regulations in 1987 (the “1987 Regulations”). (Id. ¶ 18) (citing D.C. Mun. Regs. tit. 28, §§ 100 et seq. (1987) (repealed Aug. 5, 2000).) A. 1987 Regulations The 1987 Regulations were adopted to “structure the exercise of the paroling authority’s discretion” and to promote “increased consistency in parole release decisions and enhanced accountability of the Board” by making “explicit those factors that will be considered in each case.” (Pis.’ Joint Ex. 1 [Report on the Development of the Paroling Policy Guidelines for the District of Columbia Board of Parole] at 1-2) (emphasis in original). The Board’s stated goals in promulgating formal parole regulations were to: (1) promote consistent decision-making; (2) make the Board’s parole policies more explicit; (3) ensure that the offender’s time served is proportionate to the sentence imposed by the court and risk posed by the offender; (4) “achiev[e] the sentencing purposes of incapacitation and specific deterrence, while promoting, to the fullest extent possible, the offender’s efforts at rehabilitation;” (5) “penalizfe] institutional misconduct;” and (6) “develop[] an evolutionary model of management control.... ” (Id. at 2-3.) In formulating the Regulations, the Board was guided by three principles: (1) “the touchstone of the parole decision-making process should be based on offender characteristics that have a statistically determined bearing on the offender’s risk of future involvement in criminal behavior;” (2) “the court should addresse[ ] the purposes of retribution and general deterrence through the sentence it imposes .... ” and the Board “will not function in a manner that might be viewed as the usurpation of the functions of the sentencing judge;” and (3) “in determining the factors to be used in assessing the guidelines, consideration should be given to their fairness as well as to their statistical reliability.” (Id. at 3-4.) The Board concluded that “[g]uidelines oriented to the assessment of risk and institutional performance, therefore touching on the need for progress towards rehabilitation, [would] be consistent with the intent of this Act.” (Id. at 4.) After serving his or her minimum sentence, a D.C.Code offender became eligible to considered for parole. Once a prisoner became eligible for parole, the D.C. Parole Board would then determine whether he or she was suitable for parole. Under the 1987 Regulations, the D.C. Parole Board would make this determination employing an analytical framework that relied on both pre- and post-incarceration factors. (See Pis.’ Joint Stmt. ¶ 30.) The Regulations were “comprised of four factors, two of which utilize[d] information known at the time of incarceration, the other two based on post-incarceration factors.” (Pis.’ Joint Ex. 1 at 5.) The D.C. Parole Board intentionally did not use an offense severity factor in its regulations because its philosophy was to let the “court-imposed sentence serve as its offense severity indicant.” (Pis.’ Joint Stmt. ¶ 32 (quoting Pis.’ Joint Ex. 1 at 17).) The first and “primary” factor the Board considered was the degree of risk posed by an offender. (See Pis.’ Joint Ex. 1 at 5.) This factor was “based on [the] calculation of the Salient Factor Score [“SFS”],” an actuarial risk assessment device that relies exclusively on information known at the “time of incarceration.” (Id.) In calculating a prisoner’s SFS, the Board considered six pre-incarceration factors: (1) prior convictions and adjudications; (2) prior commitments of more than 30 days; (3) age at the commission of current offense; (4) recent commitment-free period; (5) status of prisoner at time of current offense; and (6) history of heroin or opiate dependence. See Fletcher v. Reilly, 433 F.3d 867, 871 (D.C.Cir.2006) (“Fletcher III”) (citing D.C. Mun. Regs. tit. 28, § 204.4-204.16). The SFS placed the candidate into one of four risk categories (10-9 = low risk, 8-6 = fair risk, 5-4 = moderate risk, or 3-0 = high risk) from which the Board would determine a baseline number of points (“base point score”) that provided 0 for low risk, 1 for fair risk, 2 for moderate risk, and 3 for high risk. (Pis.’ Joint Ex. 1 at 5; D.C. Mun. Regs. tit. 28, § 204.17, app. 2-1.) The Board would then take the base point score and adjust it using the remaining pre-incarceration factor and the two-post incarceration factors to arrive at the Point Assignment Grid Score (“total point score”). (Pis.’ Joint Ex. 1 at 5-6.) The remaining pre-incarceration factor was the “type of risk” posed by the offender; “an aggravating factor applicable to those cases in which the Board ... made findings that the current offense, or the offender’s pattern of past offenses, involved violence, weapons, or drug trafficking.” (Id. at 5.) This factor recognized that “if an offender has already indicated through past behavior that he or she is capable of committing a type of crime that is considered particularly serious ..., [the Board] should be willing to tolerate a lesser degree of risk.” (Id. at 21) (emphasis in original). If the Board determined that the parole candidate’s current offense, or two prior felony convictions involved violence, weapons, and/or drug trafficking, then the Board could increase the baseline point score by a maximum of one point. D.C. Mun. Regs. tit. 28, § 204.18, app. 2-1. The two post-incarceration factors were the offender’s institutional adjustment, “an aggravating factor applicable to those cases in which the Board ... made findings that disciplinary infractions ... [were] either serious or repetitious enough to impact negatively on the parole decision,” and the offender’s program participation, “a mitigating factor applicable to those cases in which the Board has made findings that the program or work accomplishments of the prisoner ... [were] substantial enough to impact favorably on the parole decision.” (Pis.’ Joint Ex. 1 at 5.) The Board could add one point to the candidate’s baseline point score for “negative institutional behavior” and subtract one point for sustained program or work assignment achievement. See D.C. Mun. Regs. tit. 28, § 204.18 & apps. 2-1, 2-2. Once the Board calculated the offender’s total point score, the 1987 Regulations directed that a parole request could be granted (with varying levels of supervision) at the initial hearing if the offender’s final adjusted score was 0, 1, or 2, or denied if the offender’s final adjusted score was 3-5. Id. § 204.19. In the case of a parole rehearing, parole could be granted for a score of 0-3, or denied if the score was 4-5. Id. § 204.21. The Board recognized, however, that “there occasionally will be unique circumstances that are not taken into account by either the Salient Factor Score or the type of risk assessment, but that none-the-less should impact on the release decision.” (Pis.’ Joint Ex. 1 at 22.) In such a case, the Parole Board could depart from the action indicated by the SFS by referencing an applicable aggravating or mitigating factor listed in Appendices 2-1 and 2-2. See D.C. Mun. Regs. tit. § 204.22. In Appendix 2-1 of the 1987 Regulations, the D.C. Parole Board listed six pre-incarceration factors that, if applicable, demonstrated that the candidate was a greater risk for parole than reflected by his or her total point score: (1) the offender repeatedly failed under parole supervision; (2) the current offense involved ongoing criminal behavior; (3) the offender had a lengthy history of criminally related alcohol abuse; (4) the offender had a history of repetitive sophisticated criminal behavior; (5) the offender had an unusually serious prior record of at least five felony convictions; or (6) the offender’s crime involved unusual cruelty to victims. See D.C. Mun. Regs. tit. 28, app. 2-1. B. 1991 Policy Guideline In 1991, to ensure consistent and equitable application of the 1987 Regulations, the Board adopted a policy guideline to define the terms used in the appendices to the 1987 Regulations (the “1991 Policy Guideline”). (Pis.’ Joint Stmt. ¶ 65; Pis.’ Joint Ex. 8 [1991 Policy Guideline] at 1 (The purpose of the 1991 Policy Guideline was “[t]o define criteria and parameters for determining the applicability of descriptive terminology used in the [1987 Regulations] for release decisionmaking, and to facilitate consistency in [Regulation] Application.”).) The Board explained that “negative institutional behavior” in initial parole cases meant: (1) one Class I Offense for murder, manslaughter, kidnapping, armed robbery, or first degree burglary at any time during the minimum sentence; (2) one Class I Offense during the twelve months preceding the hearing or during the last half of the minimum sentence up to a period of three years, whichever is longer; or (3) two Class II Offenses during this same time frame. (See Pis.’ Ex. 8 at 2.) In parole reconsideration cases, “negative institutional behavior” was defined as either (1) one Class I Offense or (2) two Class II Offenses occurring since the preceding release consideration on the sentence. (Id.) The Board further clarified that “sustained program or work assignment achievement” in the context of an initial parole consideration meant “[s]uccessful completion of one or more educational or vocational programs, or program levels, each of which enabled the offender to develop an academic or job-related skill, OR enabled the offender to progress to a higher level of difficulty or skill in the program area.” (Id. at 3.) In parole reconsideration cases, an offender would be found to have “sustained work or program achievement” if he or she completed the required programs since the last consideration for release. (Id.) Finally, the Board defined each of the unique or “unusual circumstances” listed in appendix 2-1 of the 1987 Regulations. The Board also added and defined three additional “unusual circumstances” that would justify a departure from the action indicated by the total base point score: (1) repeated or extremely serious negative institutional behavior; (2) lengthy history of criminally-related substance abuse; and (3) absence of community resources which ensure the safety of the community. (Id. at 6-9.) C. 2000 Guidelines Between 1998 and 2000, the USPC drafted new parole regulations and guidelines (the “2000 Guidelines”) that it applied to any offender who received an initial parole hearing after August 5, 1998. (Pis.’ Joint Stmt. ¶ 14.) The USPC justified its revisions explaining that its research demonstrated that “[t]he point score system used by the D.C. Board of Parole ha[d] resulted in a high rate of upward departures from the guidelines based upon factors that should be included in the guidelines. ...” 63 Fed.Reg. 17771, 17772 (Apr. 10, 1998). The USPC claimed that in a random sample of 100 cases decided by the Board in 1997, over half resulted in upward departures. 63 Fed.Reg. 39172, 39172 (July 21, 1998). The USPC also undertook a study to “identify factors relevant to current offense and criminal history that [could] be empirically correlated with repeat violent crime.” Id. Based on these studies, the USPC replaced the 1987 Regulations with the 2000 Guidelines for D.C.Code offenders who received their first hearing after August 5, 1998. (Pis.’ Joint Stmt. ¶ 89.) The USPC was concerned that its new guidelines might increase the period of incarceration that D.C.Code offenders would have to serve, but it has not analyzed whether this in fact has occurred. (Id.) Similar to the 1987 Regulations, the 2000 Guidelines use a point score system to determine whether a candidate is presumptively suitable for parole. This system begins with a calculation of the Salient Factor Score (“SFS”), which assesses the degree of risk that a parole candidate will become a recidivist. See 28 C.F.R. §§ 2.80(c) and 2.20. The candidate’s “criminal conduct (including the nature and circumstances of the current offense) ... [is then] used to assist the Commission in determining the probable seriousness of the recidivism that is predicted by the Salient Factor Score.” Id. § 2.80(c). Like the 1987 Regulations, the 2000 Guidelines also determine the “type of risk” posed by the parole candidate by looking at his or her history of violence, the use of weapon, and/or death of the victim as a result of the candidate’s crime. Id. § 2.80(f). Under the 2000 Guidelines, a candidate can receive as many as 7 points based on the “type of risk” factor. Id. Any parole candidate serving a sentence for a crime of violence that resulted in the death of the victim automatically had 5 points added to his or her base point score. (Pis.’ Joint Stmt. ¶ 126.) After calculating both the degree and type of risk posed by an offender, the base point score is converted into a “base guideline range” of months that are added to the parolee’s minimum sentence imposed by the court. See 28 C.F.R. § 2.80(h). Amy offender with a base point score of greater than 3 points will, absent superior program achievement, have additional months added to his or her parole eligibility period. Id. §§ 2.80(h), (i). After adding the base guideline range to the parole eligibility period, the USPC then adds or subtracts months to reflect negative institutional behavior and/or superior program achievement. See 28 C.F.R. §§ 2.80®, (k), & (l). The final range of months is referred to as the “total guideline range,” which is “the amount of time [an offender] may expect to serve with continued good conduct and ordinary program achievement.” 65 Fed.Reg. 70663, 70664 (Nov. 27, 2000). 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. See 28 C.F.R. §§ 2.80(h), (i), & (l). Finally, similar to the 1987 Regulations, the 2000 Guidelines permit the USPC to deny parole to a candidate who is presumptively eligible under “unusual circumstances.” The 2000 Guidelines provide examples of “unusual circumstances” but do not limit the discretion of the USPC to depart on any basis that it classifies as “unusual” except that it cannot have been “fully taken into account in the guidelines.” 28 C.F.R. § 2.80(n). II. PLAINTIFFS Each plaintiff is a D.C.Code offender who committed his crime and was sentenced prior to August 5, 1998, when the D.C. Parole Board was responsible for determining the criteria to apply to D.C.Code Offenders. Since August 5, 1998, the USPC has decided plaintiffs’ parole requests. Plaintiffs can be grouped into four categories according to the timing of their offenses and of their initial parole hearings. James Gambrell and Curtis Eason committed their offenses after the Board adopted the 1987 Regulations and were considered by the USPC under the 1987 Regulations. Charles Phillips and Benson West-El committed their offenses before the Board adopted the 1987 Regulations and were considered by the USPC under the 2000 Guidelines. Tony Sellmon and Carlton Martin committed their offenses after the Board adopted the 1987 Regulations, but before the 1991 Policy Guideline was enacted, and were considered by the USPC under the 2000 Guidelines. Finally, Darius Smith and Daru Swinton committed their offenses after the 1987 Regulations and 1991 Policy Guideline were adopted, and were considered by the USPC under the 2000 Guidelines. A. Plaintiffs Considered Under the Parole Board’s 1987 Regulations: Gambrell and Eason 1. James Gambrell James Gambrell was sentenced on January 3, 1991, to imprisonment for a term of 12 years to life for Murder II While Armed for an offense he committed on February 13, 1989. (Gambrell’s Stmt, of Undisputed Material Facts [“Gambrell Stmt.”] ¶ 1; Gambrell Ex. 2 [Sentence Monitoring Computation Data] at 2.) Gam-brell first became eligible for parole on November 26, 1999, after serving his minimum sentence. (Gambrell Ex. 2 at 3.) At Gambrell’s initial parole hearing on July 14, 1998, the D.C. Parole Board represented that it would apply the 1987 Regulations. (Gambrell Stmt. ¶ 3; 28 C.F.R. § 2.80(a)(4).) Parole was denied and the Board set a rehearing date for August 20, 1999. (Id.) On December 9, 1999, a USPC Pre-Hearing Assessment Reviewer prepared a reconsideration prehearing assessment for Mr. Gambrell. (Id. ¶ 5.) In his report, the Reviewer expressed his concern that “[t]he major issue[] is whether this is sufficient accountability for the murder of an unarmed guard during a robbery. The history in this case is extremely volatile with numerous incidents of his possession of weapons and assaultive behavior.” (Gambrell Ex. 4 [D.C. Reconsideration Pre-Hearing Assessment of James Gambrell (Dec. 9, 1999) ] at 3.) On December 14, 1999, Gambrell appeared before a USPC hearing examiner. (Gambrell Stmt. ¶ 6.) The Hearing Examiner reduced Gam-brell’s total point score by one point for sustained program achievement since his last year, giving him a total point score of 0, which indicated that Gambrell was presumed suitable for parole. (Id.) The Hearing Examiner noted that Gambrell had programmed well, had received no disciplinary infractions, and had a total point score of 0, but nonetheless recommended a departure from the D.C. Parole Guidelines stating that “a close review of the crime itself as well as the subject’s history would suggest that he represents a clear threat to the community and should not be released at this time.” (Gambrell Ex. 5 [D.C. Reconsideration Hearing Summary of James Gambrell (Dec. 14, 1999) ] at 2.) On January 18, 2000, the USPC adopted the Hearing Examiner’s conclusions and recommendations and departed from the recommended action under the 1987 to deny Gambrell’s request for parole. (Gambrell’s Stmt. ¶ 8.) The USPC gave Gambrell a four-year set-off for August 2003. (Id.) The USPC conducted Gambrell’s second rehearing on July 1, 2003, at which time Gambrell again received a total point score of 0 and was presumptively suitable for parole. (Id. ¶ 9.) The Hearing Examiner again recommended a denial of the parole request based on the same reasons previously used to deny parole on January 18, 2000, and the USPC again denied parole on July 29, 2003. (Id. ¶ 10.) The USPC gave Gambrell a three-year set-off, with rehearing scheduled for July 2006. (Id.) After Gambrell’s third rehearing, at which he again received a total point score of 0, the USPC again denied parole based on the same reasons and gave him a two-year set-off. (Id. ¶¶ 11-12.) Between Gam-brell’s third and fourth rehearings, Gam-brell brought this lawsuit. (Id. ¶ 19.) On July 24, 2007, the USPC conducted Gambrell’s fourth rehearing. (Id. ¶ 20.) Gambrell had completed the Challenge Program between hearings pursuant to the USPC’s request at his prior hearing, and he had not been subject to any disciplinary actions. (Id.) The Hearing Examiner recommended parole, writing that Gambrell “is remorseful for his instant offense and said that he has demonstrated that through his corrective action and programming. This examiner believes giving the subject a parole date at this juncture is appropriate and would not lessen the severity of the offense. It would hold him accountable for his actions and the subject has done everything possible in order for him to succeed.” (Id.) Executive Reviewer Kostbar disagreed and recommended that Gambrell be given a five-year set-off, explaining that “19 years is simply not enough time for an individual to serve in a crime of this nature, and I believe that release at this time, or any time in the near future, would depreciate the seriousness of the offense behavior and promote disrespect for the law.” (Gambrell Ex. 11 [Rehearing Summary of James Gambrell (Jul. 24, 2007) ] at 3.) On August 10, 2007, the USPC adopted the Executive Reviewer’s conclusions and recommendations and denied parole, citing the same reasons for departing from the guidelines as it had in the prior three rehearings, but giving Gambrell a five-year set-off and setting rehearing for July 2012. (Gambrell Stmt. 1(24.) 2. Cv/riis Eason On November 9, 1988, Curtis Eason was sentenced to a term of 14 years to life for the crime of Murder in the Second Degree While Armed. (Eason’s Stmt, of Material Facts [“Eason Stmt.”] ¶ 1.) Eason became eligible for parole on March 18, 1998, after serving his minimum sentence. (Id. ¶ 2.) On February 20, 1998, the D.C. Parole Board held Eason’s initial hearing and determined that Eason had a total point score of 3, which indicated that he was not presumed suitable for parole. (Id. 1(3.) The Board denied Eason parole on November 23, 1998, and gave him a one year set-off and a rehearing date of March 18, 1999. (Id. ¶¶ 4-5.) The Board gave Ea-son two special instructions for reconsideration: (1) “program participation” and (2) “no new disciplinary reports.” (Id.) On March 9, 1999, a USPC Pre-Hearing Assessment Reviewer prepared an assessment and computed a total point score of 2. The Reviewer noted that “[Eason] is now within the parolable guidelines with a total point score of 2. The issue is whether or not 11 years in custody is adequate accountability for the taking of a life during a robbery offense.” (Eason Ex. 4 [D.C. Reconsideration Prehearing Assessment (March 9, 1999) ] at 3.) At the hearing, the Examiner noted that Eason had followed the Board’s instructions for reconsideration, had continued programming well, and had no new disciplinary infractions, but recommended departing from the 1987 Regulations and denying parole. (Eason Stmt. ¶ 9.) The Examiner stated that: (Id.) The USPC adopted the Examiner’s recommendation finding that a departure from the Regulations was warranted because Eason was “a more serious risk than indicated by [his] total point score ...” based on his prior criminal history. (Ea-son Ex. 6 [Notice of Action (April 23, 1999) ] at 1.) The USPC gave Eason a five-year set-off with a rehearing date of March 2004. (Eason Stmt. ¶ 10.) The prisoner certainly is doing extremely well in terms of programming and conduct, however in this examiner’s opinion, the prisoner’s favorable institutional adjustment does not outweigh the issues of risk or accountability. This examiner would believe that ... for the nature of the prisoner’s instant offense some minimum sentence service up to 20 years would be indicated or possibly even more. It appears that the prisoner has served between 10 and 11 years in continuous custody at this juncture and again in this examiner’s opinion, it simply would not be sufficient for purposes of accountability, not to mention risk. The USPC conducted Eason’s second rehearing on March 2, 2004, at which time the Hearing Examiner reduced Eason’s total point score by one point for program achievement, giving him a total point score of 1, which rendered him presumptively suitable for parole. (Id. ¶ 11.) The Hearing Examiner recommended that parole be granted. (Id.) The Executive Reviewer, however, rejected the Examiner’s decision and recommended denial of parole on the basis that [a] review of the file documents reveals that although the offender was permitted to plead to the reduced offense of Murder II, the offense behavior has all of the elements of Murder I. There was planning, aforethought, etc. The offender brought to the table a serious assault/violent criminal history and must still be considered [a] threat to the public safety. Although he has made a generally good institutional] adjustment, the behavioral accountability factor has not been met. In many jurisdictions release for a case of this magnitude would not be seriously considered un-tilt ] at least 20 years had been served. It is noted also that at the 1999 hearing the USPC imposed the maximum “set-off’ (5 yrs.) and would possibly have made a more lengthy one if permitted. (Id.) The USPC adopted the recommendation of the Executive Reviewer and departed from the 1987 Regulations in denying Eason parole. The Notice of Action stated that “[a]fter consideration of all factors and information presented, a departure from the guidelines is warranted because your offense behavior is more serious than your conviction to Murder II in that the murder was planned and an act of revenge. Consequently, the Commission has determined additional time incarcerated is necessary for accountability purposes.” (See Eason Ex. 8 [Notice of Action (Apr. 1, 2004) ] at 1.) The USPC gave Eason a three-year set-off with a rehearing date of March 2007. (See Eason Stmt. ¶ 12.) The USPC conducted Eason’s third rehearing on March 13, 2007, and reduced his total point score to 0 for sustained program achievement. (Id. ¶ 13.) The Hearing Examiner recommended a grant of parole. Executive Reviewer Jeffrey Kostbar disagreed This is a highly aggravated case and outside the “heartland” of a 2nd degree murder case. The case specifics are more closely associated with a 1st degree, premeditated murder. Consequently I believe that the subject should serve much more time on this term, possibly as long [as] 25-30 years. A decision less than that, would, in my opinion, depreciate the seriousness of the [offense] behavior and promote disrespect for the rule of law ... (Eason Ex. 9 [Hearing Summary (Mar. 13, 2007) ] at 3-4.) The USPC adopted Kost-bar’s recommendation and denied Eason’s request for parole, noting that “additional time is necessary for accountability purposes.” (Eason Ex. 10 [Notice of Action (Mar. 23, 2007) ] at 1.) B. Plaintiffs Considered Under the USPC’s 2000 Guidelines 1. Crimes Committed Before Publication of the 1987 Guidelines: Phillips and West-El a. Charles Phillips On October 25, 1978, Charles Phillips was sentenced to a term of thirty-five years and six months to life for assault with a deadly weapon, two counts of second-degree murder, carrying a pistol without a license, and unlawful entry. (Phillips Stmt, of Undisputed Material Facts [“Phillips Stmt.”] ¶ 1.) He became eligible for parole on February 8, 2003. (Phillips Ex. 2 [Sentence Monitoring Computation Data] at 3.) On November 19, 2002, the USPC conducted Phillips’s initial parole hearing under the 2000 Guidelines. (Phillips Stmt. ¶ 4.) The USPC calculated Phillips’s SFS as 9, giving him a baseline score of O. (Phillips Ex. 3 [Hearing Summary (Nov. 19, 2002) ] at 2.) The USPC then added 5 points to the base point score because his offense was a crime of violence resulting in the death of the victims, thereby producing a base point score of 5. (Id. at 2, 4.) The base point score was converted into a base guideline range of 18-24 months, which the USPC added to his parole eligibility period of 302 months. It then subtracted 16 months for superior program achievement and added 0-24 months because of nine disciplinary infractions Phillips received in 1987 or earlier, producing a Total Guideline Range of 304-334 months. (Id. at 1, 3.) The USPC denied Phillips’s request for parole on December 13, 2002, and gave Phillips a three-year set-off with a rehearing date of November 2005. (See Phillips Stmt. ¶¶ 7-8.) This date was outside the 2000 Guidelines because the rehearing date was set later than the top of Phillips’s Total Guideline Range. (Id.) The USPC explained its reasoning as follows: On May 28, 1977, you stabbed an individual to death after luring him to your ex-girlfriend’s apartment. You the[n] seriously assaulted her by stabbing her in the left side and cutting her on the wrist. After being arrested on this offense and released from custody, you broke into your ex-girlfriend’s apartment on December 22, 1977, confronted her and her companion and shot her companion to death after an altercation. Your Base Point Score of 5 reflects 2 point[s] assessed in Category II for violence and 3 points in Category III for death of a victim. However, the addition of these points capture[s] only the murder which occurred on May 28, 1977; stabbing of your ex-girlfriend on May 28, 1977, breaking into and entering her apartment on December 22, 1977 and murdering her companion on the same date are not reflected in the Base Point Score. The Commission at your next hearing will consider the risk you pose to the community based on your homicidal acts not captured in the Base Point Score. (Phillips Ex. 4 [Notice of Action (Dec. 13, 2002) ] at 1.) On October 27, 2005, the USPC conducted Phillips’s rehearing under the 2000 Guidelines, at which time his Total Guideline Range remained at 304-334 months. (Phillips Stmt. ¶ 14.) The Hearing Examiner recommended granting the request for parole at 370 months because that would “hold [Phillips] accountable for the two deaths of his victims and the stabbing of the [woman] that he cared for which he apologized for all of the crimes that he has committed.” (Phillips Ex. 5 [Reconsideration Hearing Summary (Oct. 27, 2005) ] at 2.) The Executive Reviewer disagreed and recommended denying parole. I disagree with setting a release date at this hearing and recommend a reconsideration hearing in 36 months. The examiner is recommending a release date after the service of approximately 31 years. This offense involved two murders and a stabbing.... It should be noted that the companion/victim was a police officer. Phillips denies knowing that the victim was a police officer!]. The guidelines only take into consideration one murder.... As a result, the second murder and assault are not considered in the computation of the guidelines. Phillips[’s] guidelines are 304-384 months. At the top of the hearing, he had served 335 months. The difference between the top of the range and the recommendation for a release date made by the examiner is 36 months. Thirty-six months is not sufficient sanction for a second murder and aggravated assault. (Id. at 3.) The USPC adopted the recommendation of the Executive Reviewer and denied parole explaining that “Breaking and Entering into [his ex-girlfriend’s] apartment on 12/22/77 and the murdering of her companion on the same date are not reflected in the Base Point Score.” (Phillips Ex. 6 [Notice of Action (Nov. 18, 2005) ] at 1.) Phillips received a three-year set-off and a rehearing date of October 2008. (Phillips Stmt. ¶ 17.) b. Benson West-El On February 16, 1984, Benton West-El was sentenced to imprisonment for a combined, concurrent term of twenty years to life for attempted robbery while armed, first degree murder while armed, attempted robbery, and carrying a weapon without a license. (West-El’s Stmt, of Undisputed Material Facts [“WesNEl Stmt.”] ¶ 1.) He became eligible for parole on January 5, 2003. (West-El Ex. 1 [Sentence Monitoring Computer Data] at 2.) On April 29, 2002, the USPC conducted West-El’s initial parole hearing under the 2000 Guidelines. (West-El Stmt. ¶ 4.) The USPC calculated his SFS as 7 with a base point score of 1, to which five points were added because West-El committed a crime of violence resulting in the death of the victim. (West-El Ex. 2 [Hearing Summary (Apr. 29, 2002) ] at 3.) The base point score of 6 was converted into a base guideline range of 36^18 months, which was added to Wesfl-El’s parole eligibility period of 227 months. (Id. at 3-4.) The USPC then added 24-40 months based on disciplinary infractions committed in 1983, 1984, 1986, 1989, and 1992, resulting in a total guideline range of 287-315 months. (Id. at 2-4.) West-El did not receive any credit for superior program achievement, despite his program achievements in Metal Fabrication and Industrial Maintenance, the Refrigeration Squad, 24 weeks of the Drug Program, and religious and self-help groups. (Id. at 3.) The USPC denied parole, a decision within the Guidelines, and gave West-El a four-year set-off, with a rehearing date of April 2006. (WesNEl Stmt. ¶ 9.) On March 22, 2006, the USPC conducted West-El’s rehearing under the 2000 Guidelines. (Id. ¶ 18.) The Hearing Examiner made a correction in West-El’s parole eligibility period and then subtracted 16 months for superior program achievement resulting in a corrected total guideline range of 284-312 months. (Id.) The Hearing Examiner recommended that West-El be paroled on November 5, 2007, after the service of 298 months, a sentence “[t]hat seems to appropriately fit this case.” (West-El Ex. 4 [Hearing Summary (Mar. 22, 2006) ] at 3.) The USPC denied parole and ordered that he be paroled after the service of 312 months. (West-El’s Stmt. ¶ 20.) West-El is currently scheduled to be paroled on January 5, 2009. 2. Crimes Committed After the Publication of the 1987 Guidelines: Sell-mon and Martin a. Tony R. Sellmon On February 26, 1992, Tony Sellmon was sentenced to a combined concurrent term of 15 years to life for second degree murder while armed and possession of a firearm during the commission of a crime of violence or dangerous offense. (Sell-mon’s Stmt, of Undisputed Material Facts [“Sellmon Stmt.”] ¶ 1.) He became eligible for parole on May 13, 2003. (Sellmon Ex. 2 [Sentence Monitoring Computation Data] at 2.) On August 7, 2002, the USPC conducted Sellmon’s initial parole hearing under the 2000 Guidelines. (Sellmon Stmt. ¶ 4.) The USPC calculated Sellmon’s SFS as a 9, placing him in the very good risk category with a base point score of 0, then added 5 points because his offense was a crime of violence resulting in the death of the victim. (Id. ¶ 5.) The USPC converted the base point score of 5 into a base guideline range of 18-24 months, which it added to his parole eligibility period of 136 months, resulting in a total guideline range of 154— 160 months. (Id.) The Hearing Examiner recommended that 43 months be subtracted for superior program achievement, but the Executive Hearing Examiner refused to grant this reduction because he believed that Sellmon had not been held sufficiently accountable for his crime. He then recommended that the USPC deny parole. (Id. ¶ 6.) The USPC adopted the Executive Hearing Examiner’s recommendation and denied parole. (Id. ¶ 7.) Sellmon successfully challenged the USPC’s refusal to grant him a program achievement deduction in federal court and a second initial parole hearing was held. (Id. ¶¶ 8-9.) At the second hearing, the USPC calculated Sellmon’s total guideline range in the same way it had at his first hearing, but subtracted 50 months for superior program achievement, resulting in a total guideline range of 104-110 months. (Id.) Sellmon had served 149 months by that date, so the Hearing Examiner recommended parole. (Id. ¶¶ 9-10.) Executive Reviewer Denton disagreed and recommended a three-year set-off due to the brutality of the murder. (Sellmon Ex. 6 [Hearing Summary (Jun. 22, 2004) ] at 3-4.) Executive Reviewer Husk agreed with Denton and recommended that the USPC exceed the 2000 Guidelines “because the murder that [Sellmon] committed while armed was extremely brutal, as evidenced by the massive head trauma ... inflicted upon the victim.” (Id. 5) The USPC denied parole and gave Sellmon a three-year set-off, with a rehearing date of August 2005. The USPC erroneously left this rationale off the Notice of Action, but stated only that “additional time is necessary for planning purposes.” (Sellmon Ex. 7 [Notice of Action (Jul. 24, 2004) ] at 1.) The error was noted and corrected at the time of Sellmon’s first rehearing. (See Sellmon Ex. 8 [Hearing Summary (Aug. 2, 2005)] at 1.) On August 2, 2005, Hearing Examiner Jeffrey Kostbar conducted Sellmon’s rehearing and did not add or subtract any months from Sellmon’s total guideline range of 104-110 months. Although Sell-mon had served 163 months by this date, (i.e., 53 months longer than the top of his guideline range), Kostbar recommended that parole be denied. This examiner believes that accountability for the offense behavior not only is a consideration of the factors that go into the guideline calculation, but also factors that are outside of that calculation. That would include the brutality exhibited by an offender in committing a murder. In this case, subject chose to beat a female victim to death by beating her in the head with a gun, thereby, causing massive head trauma and her ultimate death. This methodology is extremely brutal. I do not believe that it is captured by the guidelines.... I do not believe that the extreme brutality of the offense is captured by his current service of nearly 14 years, or even by the next Reconsideration Hearing date, which would be scheduled after service of approximately 17 years.... (Sellmon Ex. 8 [Reconsideration Hearing Summary (Aug. 2, 2005) ] at 3.) On August 11, 2005, the USPC denied Sellmon parole “because the murder that [he] committed while armed was extremely brutal, as evidenced by the massive head trauma ... inflicted upon the victim.” (Sellmon Ex. 9 [Notice of Action (Aug. 11, 2005)] at 1.) Sellmon was continued to a three-year rehearing in August 2008. b. Carlton Martin On February 19, 1992, Carlton Martin was sentenced to a combined, concurrent term of 15 years to life for manslaughter while armed, possession with intent to distribute cocaine, and possession of a firearm during the commission of a crime of violence. (Martin’s Stmt, of Undisputed Material Facts [“Martin Stmt.”] ¶ 1.) He became eligible for parole on June 14, 2003. (See Martin Ex. 2 [Sentence Monitoring Computation Data] at 3.) On January 21, 2003, the USPC conducted Martin’s initial parole hearing under the 2000 Guidelines. (Martin Stmt. ¶4.) The USPC calculated Martin’s SFS as a 5, placing him in the fair risk category with a base point score of 2, and added 5 points because his offense was a crime of violence that resulted in the death of the victim. (Martin Ex. 3 [Notice of Action (Feb. 13, 2003) ] at 2.) The base point score of 7 was converted to a base guideline range of 54-72 months, which was added to Martin’s parole eligibility period of 138 months. (Martin Stmt. ¶ 5.) The USPC then added 0-2 months for a minor non-drug related infraction, resulting in a total guideline range of 192-212. (Id.) The USPC denied Martin’s request for parole on February 13, 2003, a decision within the Guidelines. (Id. ¶ 6.) At that time, Martin had served 133 months and was 59 months away from the bottom of his total guideline range. He was given a rehearing date of January 2006. (Id. ¶ 7.) On March 22, 2006, the USPC conducted Martin’s rehearing under the 2000 Guidelines (Id. ¶ 15.) The USPC subtracted 13 months for superior program achievement and produced a new total guideline range of 179-199 months. (Id.) The Hearing Examiner recommended that Martin be granted parole on September 10, 2007, after serving 189 months. (Id. ¶ 16.) The Executive Reviewer rejected this recommendation with the following explanation: As indicated in previous summaries, since the victim was shot multiple times in the head, it is unlikely that the victim’s death was unintentional. In a separate offense/conviction that is being considered at this hearing, subject was found in possession of drugs and a firearm. The examiner is recommending release after approximately 15.5 years. This is not sufficient accountability for the death of the victim in addition to possession of a firearm during a drug offense. (Martin Ex. 4 [Reconsideration Hearing Summary (Mar. 22, 2006) ] at 4.) The USPC adopted the Executive Reviewer’s recommendation and denied Martin parole on April 12, 2006. (Martin Ex. 5 [Notice of Action (Apr. 12, 2006) ] at 1.) The USPC gave Martin a three-year set-off and a rehearing date of March 2009, 8 months later than the top of his Total Guideline Range. (Id.) 3. Crimes Committed After the Publication of the 1991 Guidelines: Smith and Swinton a. Darius Smith On April 6, 1994, Darius C. Smith was sentenced to imprisonment for a combined, concurrent term of 15 years to life for possession of a firearm during a crime of violence, carrying a weapon without a license, and second-degree murder. (Smith’s Stmt, of Undisputed Material Facts [“Smith Stmt.”] HI.) He became eligible for parole on February 26, 2005. (Id. ¶ 2.) On June 22, 2004, the USPC conducted Smith’s initial parole hearing under the 2000 Guidelines. (Id. ¶ 4.) The USPC calculated Smith’s SFS as an 8, placing him in the very good risk category with a base point score of O. (Smith Ex. 8 [Notice of Action (Jul. 20, 2004) ] at 2.) The USPC added 5 points because Smith’s offense was a crime of violence that resulted in the death of a victim. (Id.) It then converted the base point score of 5 to a base guideline range of 18-24 months, which it added to his parole eligibility period of 140 months. (Id. at 4.) The USPC then added 88-124 months because of disciplinary infractions Smith received in 1997 and 1998, more than six years before his initial hearing, and subtracted 12 months for superior program achievement, for a total guideline range of 234-276 months. (Id.) The USPC denied Smith’s request for parole on July 20, 2004, a decision within the Guidelines, and set a rehearing date for June 2009. (Martin Stmt. ¶¶ 7-8.) b. Daru Swinton On May 8, 1998, Daru Swinton was sentenced to a term of five years to life for armed robbery and a term of twenty months to five years for attempted kidnapping. (Swinton’s Stmt, of Undisputed Material Facts [“Swinton Stmt.”] ¶ 1.) Swin-ton became eligible for parole on July 22, 2004. (Id. ^2.) On December 2, 2004, the USPC conducted Swinton’s initial parole hearing under the 2000 Guidelines. (Id. ¶ 4.) The USPC calculated his SFS score as a 5, placing him in the fair risk category with a base point score of 2. (Swinton Ex. 4 [Notice of Action] (Jan. 22, 2004) at 2.) The USPC added 3 points to Swinton’s base point score because his offense was a crime of violence with other high level violence, producing a base point score of 5, which converted to a base guideline range of 18-24 months. (Id. at 2-3.) The USPC then added this range to Swinton’s parole eligibility period of 80 months, subtracted 8 months for superior program achievement and added 12-16 months because of a disciplinary infraction that Swinton received in 2003. (Id. at 3.) This resulted in a total guideline range of 102-112 months. (Id.) On January 22, 2004, the USPC denied Swinton’s request for parole, a decision within the Guidelines, and gave him a three-year set-off and a rehearing date of December 2006. (Id. at 3.) On October 23, 2006, the USPC conducted Swinton’s rehearing under the 2000 Guidelines. (Swinton Stmt. ¶ 11.) The USPC subtracted 4 months for superior program achievement and added 0-2 months for a minor disciplinary infraction, resulting in a new total guideline range of 98-110 months. (Swinton Ex. 5 [Rehearing Summary (Oct. 23, 2006) ] at 2-3.) The Hearing Examiner recommended granting Swinton’s request for parole on January 19, 2007, after he served 110 months. (Id. at 1.) The Executive Reviewer disagreed and recommended denying parole and a set-off of 36 months. In Category III of the Score, you receive[d] 1 point for a crime involving high level violence, kidnapping. However, in your offense, three individuals were kidnapped and held at gunpoint for over 3 hours while you forced the adult victim to withdraw all of her available cash out of various ATMs during the ordeal. The victims were a mother and her two young sons. Your callous disregard for the victims, to include two young boys, coupled with your propensity to carry weapons as reflected in your prior record and your possession of a weapon (sharpened metal blade) create a risk to the safety of the community. (Id. at 4.) The USPC adopted the Executive Reviewer’s conclusions and recommendation and denied parole on November 7, 2006, a decision outside the Guidelines. (Swinton Stmt. ¶ 13.) Swinton had served 108 months by that date and was only 2 months away from the top of his new Guidelines range, but the USPC gave Swinton a three-year set-off with a rehearing date of October 2009. (Id. ¶¶ 13-14.) ANALYSIS I. STANDARD OF REVIEW Plaintiffs have moved for summary judgment. Under Fed.R.Civ.P. 56(c), a motion for summary judgment shall be granted if there is no genuine issue of material fact, and the moving party is entitled to judgment as matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505; see also Wash. Post. Co. v. United States Dep’t of Health and Human Servs., 865 F.2d 320, 325 (D.C.Cir.1989). The moving party “bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, the opposing party must “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted). Defendants have moved for judgment on the pleadings. Under Fed.R.Civ.P. 12(c), a motion for judgment on the pleadings may be granted if the moving party demonstrates that “no material fact is in dispute and that it is entitled to judgment as a matter of law.” Peters v. Nat’l R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C.Cir.1992) (internal quotation marks and citations omitted). “The standard for reviewing a motion for judgment on the pleadings is the same as that applied to a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6).” National Ass’n of Mfrs. v. Taylor, 549 F.Supp.2d 33, 47, 2008 WL 1390606, at * 10 (D.D.C. Apr.ll, 2008) (citing Dale v. Exec. Office of President, 164 F.Supp.2d 22, 24 (D.D.C.2001)). To defeat a motion to dismiss for failure to state a claim, plaintiffs’ complaint must contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, — U.S.-, -, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). 11. PROCEDURAL POSTURE OF THE SUIT As a preliminary matter, defendants contend that plaintiffs’ suit may not proceed under 42 U.S.C. § 1983. Defendants first argue that plaintiffs may not bring their ex post facto challenge pursuant to 42 U.S.C. § 1983 because the Commissioners of the USPC are not considered “persons” under the statute. (See Defs.’ Mot. 37.) This position was previously rejected by the D.C. Circuit in Fletcher v. District of Columbia, 370 F.3d 1223 (D.C.Cir.2004) (“Fletcher I”), vacated on reh’g by Fletcher v. District of Columbia, 391 F.3d 250 (D.C.Cir.2004) (“Fletcher II”). In Fletcher I, a D.C. prisoner brought an ex post facto claim against the USPC under 42 U.S.C. § 1983. Id. at 1225. The USPC argued that Fletcher could not maintain his suit because it does not act “under color of state law” and is not “a person” subject to suit under the statute. Id. at 1227. The D.C. Circuit first held that the members of the USPC act under color of state law when they act pursuant to the D.C. Revitalization Act. Id. The Court then “construe[d the prisoner’s] complaint to have named the individual members of the Commission” and allowed the suit to proceed. Id. at 1227 n. *. Following the authority of Fletcher I, plaintiffs here have properly sued the Chairman and the Commissioners of the USPC in their official capacities, and not the Commission itself, for acts taken by the defendants pursuant to their authority under the Revitalization Act. Defendants next contend that plaintiffs may not pursue their claims under 42 U.S.C. § 1983, but rather must seek writs of habeas corpus in the various jurisdictions where they are incarcerated because plaintiffs’ claims “necessarily imply or automatically result in a speedier release.” (Defs.’ Mot. 38 (quoting Fletcher v. District of Columbia, 370 F.3d at 1227).) This argument ignores the holding of the Supreme Court in Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005), which concluded that suits which “seek relief that will render invalid the state procedures used to deny parole eligibility ... and parole suitability ...,” may be brought pursuant to § 1983 because success on such claims “would [not] necessarily spell speedier release.” Id. at 82, 125 S.Ct. 1242. Were these plaintiffs to prevail in their ex post facto challenge, they would gain “at most a new parole hearing at which ... [the USPC] may, in [its] discretion, decline to shorten [their] prison term[s].” Id. This case therefore falls squarely within the holding of Wilkinson. III. EX POST FACTO CLAIMS The Court now turns to the merits of plaintiffs’ argument that defendants violated their constitutional rights under the Ex Post Facto Clause by applying the USPC’s policies and procedures to their cases, rather than those of the D.C. Parole Board. The Ex Post Facto Clause of the United States Constitution prohibits retroactive increases in punishment for a crime after its commission. See U.S. Const. art. I, § 9, cl. 3; Collins v. Youngblood, 497 U.S. 37, 42-43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). It is meant “to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.” Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). The Supreme Court has held that a retroactively applied parole regulation, guideline, or policy statement may violate the Ex Post Facto Clause if it creates “a significant risk” of “a longer period of incarceration than under the earlier rule.” Garner v. Jones, 529 U.S. 244, 255, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). A determination of whether the retroactive application of a new parole regime violates the Ex Post Facto Clause requires a “searching comparison” of the two parole regimes. Fletcher III, 433 F.3d at 879. Although Gamer provides that “significant risk” may be demonstrated either through a facial showing of a difference in the two policies, or through evidence that the agency’s discretionary implementation of the new policy results in a longer period of incarceration than under the earlier rule, see Garner, 529 U.S. at 255, 120 S.Ct. 1362, the D.C. Circuit has clarified that “[t]he controlling inquiry is one of practical effect.” Fletcher III, 433 F.3d at 877 (citation and internal quotation marks omitted). To prevail on an ex post facto claim, therefore, plaintiffs must demonstrate that as applied to their individual cases, the “practical effect” of the application of the federal parole standards and/or the 2000 Guidelines was a “substantial risk” of lengthier incarceration. A. Plaintiffs’ Ability to Invoke the Ex Post Facto Clause Defendants first argue that several of the plaintiffs may not raise ex post facto challenges based on the 1987 Regulations or the 1991 Policy Guideline because their offenses were committed before one or both of these policies were adopted. The 1987 Regulations were formally adopted in 1985 and published in May 1987 (see Pis.’ Joint Stmt. ¶ 18), and the 1991 Policy Guideline was adopted on December 16, 1991. (See Pis.’ Joint Ex. 8 [ 1991 Policy Guideline] at 9.) Defendants contend that plaintiffs Eason, West-El, Gambrell, and Phillips may not rely on either policy because their offenses were committed pri- or to 1987 (see Defs.’ Mot. 47, 50), and that plaintiffs Sellmon and Martin may not rely on the 1991 Policy Guideline because their offenses were committed before 1991. (Id. 53.) The principles of “fair notice and governmental restraint” which underlie the Ex Post Facto Clause are implicated “when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver, 450 U.S. at 30, 101 S.Ct. 960. It is therefore clear, that plaintiffs may only invoke ex post facto protection based on the parole regime that was in place at the time they committed their offenses. Plaintiffs do not contest this core principle. Rather, they contend that the practices codified in the 1987 Regulations were actually in place prior to their enactment. (See Pis.’ Opp’n 49.) To support their argument, they cite Davis v. Henderson, 652 A.2d 634 (D.C.Cir.1994), which rejected an ex post facto challenge by a D.C.Code offender to the application of the 1987 Regulations to his case and held that “the 1987 Regulations formalized the manner in which the D.C. Parole Board had exercised its discretion prior to the regulations.” (Pis.’ Opp’n 49 (citing Davis, 652 A.2d at 636).) Plaintiffs argue that based on the D.C. Court of Appeals’ determination that the Board’s practice in 1980 was the same as its practice after 1987 (such that no ex post facto violation occurred when applying the new regulations to offenders whose crimes were committed prior to their implementation), it is only logical that pre-1987 offenders can rely on the 1987 Regulations as an accurate description of the parole regime which applied to them at the time they committed their offenses. Although plaintiffs’ argument has facial appeal, they have somewhat overstated the holding in Davis. Davis challenged the application of the 1987 Regulations to his case on the grounds that new scoring system limited the Board’s ability to exercise its discretion to grant release. Davis, 652 A.2d at 635. The D.C. Court of Appeals concluded that the 1987 Regulations merely formalized (but did not limit) the Board’s exercise of discretion and therefore did not did not violate the Ex Post Facto Clause because they did not prevent the Board from exercising its discretion to grant Davis parole if it so chose. Id. at 635-36. The Davis decision did not hold that the 1987 Regulations actually represented or codified the actual practice of the Board prior to their enactment. Moreover, plaintiffs fail to acknowledge that the D.C. Circuit has already held that the Davis decision is not binding on federal courts with respect to the question of whether the retroactive application of the 1987 Regulations violated the Ex Post Fac-to Clause. In Blair-Bey v. Quick, 151 F.3d 1036 (D.C.Cir.1998), the D.C. Circuit considered the case of a parole candidate who was similarly situated to Davis. The Court explained that it was required to “defer to the ruling that the D.C. parole guidelines ‘merely formalize the manner in which the Board’ exercises its discretion,” but then went on to clarify that it was not bound by “Davis’s reading of what the ex post facto clause requires____” Id. at 1050. The Court also noted that the Davis holding was limited to the challenge raised by the petitioner in that case, and that other grounds could exist to support a finding that the retroactive application of the 1987 Regulations violated the Ex Post Facto Clause. Id. The Court remanded for further consideration of Blair-Bey’s ex post facto claim. Because Blair-Bey appears not to have pursued his habeas petition, the question of whether the retroactive application of the 1987 Regulations to pre-1987 offenders violates the Ex Post Facto clause appears to be unresolved in this circuit. Therefore, contrary to plaintiffs’ representations, there is simply no evidence before the Court that the Board’s practices pre- and posN1987 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. The claims of plaintiffs Phillips, and West-El are thus dismissed. The Court now turns to the 1991 Policy Guideline. As plaintiffs explain, the 1991 Policy Guideline was adopted “to ensure consistent and equitable application of the 1987 Regulations ...” by eliminating the subjectivity from the parole criteria. (Pis.’ Joint Stmt. ¶¶ 69-70.) The 1991 Policy Guideline thus represented a departure from the Parole Board’s previous practices. It is difficult to see how “[t]he elements of fair notice and reasonable reliance” that underlie the proscription of ex post facto regulation could be implicated by the elimination of a guideline that was not in place at the time that plaintiffs committed their offenses. The Court therefore concludes that plaintiffs Smith, Swinton, Martin, and Sellmon may proceed with their ex post facto challenge based on the 1987 Regulations, but only plaintiffs Smith and Swinton may claim ex post facto protection based on the 1991 Policy Guideline. B. Plaintiffs Considered Under the 2000 Guidelines 1. Facial Differences Between the 1987 and 2000 Regimes Four plaintiffs (the “2000 Plaintiffs”) came up for parole after the USPC Commission assumed responsibility for making parole decisions for D.C.Code offenders and have had the 2000 Guidelines applied to them. The 2000 Plaintiffs first argue that there are several important facial differences between the 1987 Regulations and the 2000 Guidelines, which give rise to a compelling inference that the application of the 2000 Guidelines significantly increased plaintiffs’ risk of serving lengthier terms of incarceration. First, under the 2000 Guidelines, an offender who has committed a crime of violence resulting in the death of the victim can never be found suitable for parole at the time they first become eligible for parole after having served their minimum sentence. Unlike the 1987 Regulations, which add only 1 point to a candidate’s SFS if his current or past offenses involved violence, weapons, and/or drug trafficking, the 2000 Guidelines treat a candidate’s history of violence, use of