[00:00:07] Speaker 00: versus District of Columbia and L. Mr. Gilstrap for the Amicus Caride, Mr. Burnham for the Apple Leafs. [00:00:48] Speaker 03: Mr. Gilstrap. [00:01:00] Speaker 01: Thank you, your honor, and may it please the court. [00:01:02] Speaker 01: My name is Steven Gilstrap, arguing on behalf of Amicus in support of Appellant Michael Johnson. [00:01:07] Speaker 01: I've reserved three minutes for rebuttal. [00:01:10] Speaker 01: The central issue here is whether Johnson has pleaded a viable ex post facto claim or the parole commission's retroactive application of the 2000 guidelines flipped Johnson's status from presumptively suitable for parole to presumptively unsuitable. [00:01:26] Speaker 01: In particular, under the 2000 guidelines, Johnson was deemed presumptively unsuitable for parole in 2000 and given a 12 to 18 month period of extended unsuitability. [00:01:37] Speaker 01: Had the 1987 guidelines been applied, Johnson would have been presumptively suitable for parole and no extended period of unsuitability would have been added. [00:01:47] Speaker 01: Because the retroactive application of the 2000 guidelines flipped the presumption and made him presumptively unsuitable for parole for a longer period, Johnson has alleged a viable ex post facto claim under this court's decision in Daniel. [00:02:02] Speaker 01: And in the specific circumstances of this case, qualified immunity does not bar Johnson's claim. [00:02:09] Speaker 01: On the merits of the ex post facto claim, there is no dispute that the commission applied the 2000 guidelines at Johnson's 2000, 2005, and 2008 parole hearings. [00:02:21] Speaker 01: That's available at the government's brief at pages five and six. [00:02:25] Speaker 01: And as in Daniel, the retroactive application of those guidelines created a presumption of extended unsuitability for Johnson. [00:02:34] Speaker 01: Specifically, applying the 2000 guidelines resulted in Mr. Johnson receiving base scores of 4 in the 2000, 2005, and 2008 parole hearings, and those scores are what added the 12- to 18-month period of unsuitability for Johnson. [00:02:56] Speaker 01: So there are two bases for the ex post facto claim. [00:02:58] Speaker 01: The first is this extended presumption of unsuitability, which arises from the Daniel case. [00:03:04] Speaker 01: In our briefing, we had raised a second basis, which was that the parole commission relied on factors in the 2000 guidelines that we believe the 1987 guidelines restricted them from relying on. [00:03:18] Speaker 01: And as Your Honor points out, and as we disclosed in our 28-J letter, Ford undercuts the second basis of that argument, while we believe that... It pretty much demolishes it, doesn't it? [00:03:33] Speaker 01: For the most part, Your Honor, there are arguments that we pressed here under the textual differences between the 1987 guidelines and the 2000 guidelines that I don't believe were pressed in for, but for all intents and purposes. [00:03:46] Speaker 01: And that's why we're focusing our argument on the extended period of unsuitability and the flipping of the presumption under this Court's decision in Daniel. [00:04:01] Speaker 04: Under this court's decision in Ford, they could have considered the same factors. [00:04:18] Speaker 01: I don't believe it is because it would create unreconcilable tension with Daniel. [00:04:23] Speaker 01: I believe there's a difference between being able to rely on the same factors to depart upward, which was the situation in Ford and Bailey and Phillips. [00:04:33] Speaker 01: And it's a very different argument to say applying the 2000 guidelines [00:04:38] Speaker 01: created a different presumption and created a situation where Mr. Johnson's period of unsuitability was extended 12 to 18 months, which is the factual situation addressed in Daniel. [00:04:50] Speaker 01: So it's a difference in starting point. [00:04:52] Speaker 01: It's not saying that the commission couldn't have considered the prior rate charge or something like that, but in considering that, they started from a guideline range under the 2000 guidelines [00:05:04] Speaker 01: of 133 to 139 months, when absent applying the 2000 guidelines, the range would have been 121 months. [00:05:13] Speaker 01: So this increased [00:05:22] Speaker 01: I believe under Daniel it does matter because as the court in Daniel specifically said it's no answer to say that the ultimate sentence might have been the same or that the commission has abundant discretion to depart because all that matters [00:05:45] Speaker 01: While the criteria might have been the same, the period might have been very different, Your Honor. [00:05:52] Speaker 01: Because you're starting from a different starting point. [00:05:54] Speaker 01: In 2000, had the 1987 guidelines been applied, Johnson would have been presumptively suitable for parole. [00:06:03] Speaker 01: He was not in 2000 when the 2000 guidelines were applied. [00:06:08] Speaker 01: So he was given a rehearing of 60 months. [00:06:11] Speaker 01: If he had started from a presumptively suitable for parole standpoint, it's very unclear, and on 12b6 I think it's a reasonable inference, that his period of unsuitability would have been shorter and he would have likely gotten an earlier rehearing. [00:06:27] Speaker 01: So just because the Commission... [00:06:36] Speaker 01: Well, the regulations under 1987 compared to 2000 did not create an extended period of unsuitability. [00:06:47] Speaker 01: The 2000 guidelines created this 12 to 18 month period. [00:06:51] Speaker 01: So he wasn't, at the 2000 hearing, Mr. Johnson wasn't even suitable for parole under the 2000 guidelines when he would have been suitable for parole under the 1987 guidelines. [00:07:02] Speaker 01: When the commission departed in 2000, and then later in 2005 and 2008, they were departing from a presumption of unsuitability in 2000. [00:07:13] Speaker 01: Had the 1987 guidelines been applied, they would have been departing from a presumption of suitability for parole. [00:07:20] Speaker 05: So what's the relationship between the presumption and the 12 to 18 months? [00:07:25] Speaker 01: So the presumption is keyed off of the point score in the 1987 guidelines. [00:07:32] Speaker 01: A 2 or under, you're deemed presumptively suitable for parole. [00:07:36] Speaker 01: Mr. Johnson received a 3 under the 2000 guidelines. [00:07:40] Speaker 01: The record indicates he would have received a 1 in 2000. [00:07:43] Speaker 01: So it would have flipped the presumption. [00:07:45] Speaker 01: The 12 to 18 month period of extended unsuitability stems from the, what's called the base point score under the 2000 guidelines. [00:07:54] Speaker 05: He was given a base point score of four at each of the hearings, which created that 12 to 18 month period of... Because for the purpose of your argument, your view is that the presumption alone is enough, right? [00:08:08] Speaker 05: Put aside the 12 to 18 months, you think that there's a meaningful distinction between a presumption one direction or the other, even though there's discretion to overcome the presumption? [00:08:17] Speaker 01: That's correct, Your Honor. [00:08:18] Speaker 01: I believe Daniel stands for that proposition. [00:08:20] Speaker 05: And even though Ford comes along later and says even if the factors aren't enumerated, the fact that you can take into account the factors is enough? [00:08:29] Speaker 05: Correct. [00:08:30] Speaker 05: So there's a talismanic distinction in your view between [00:08:33] Speaker 05: discretion to consider factors and the establishment of a presumption, even if the presumption can be overcome if you take into account other factors. [00:08:42] Speaker 01: That's correct. [00:08:43] Speaker 01: And I think this Court's precedents in Daniel as well as Supreme Court precedents in related contexts make the point that the starting point matters in terms of sentencing. [00:08:53] Speaker 01: In the Pew case, granted, it was a slightly different context in terms of [00:08:57] Speaker 01: But if you're applying a guideline range or a starting point with the presumption that's different, that affects the entire analysis. [00:09:07] Speaker 01: And in Ford and Bailey, you're dealing with a situation of where the argument is you couldn't have relied on factors that, as this court held in Bailey and Ford there, it could have been relied on, but they're two separate issues. [00:09:19] Speaker 05: Yeah, I appreciate the fact that you're not making the argument that Ford was a thoughtless opinion written by an indistinguished federal judge. [00:09:25] Speaker 01: A very esteemed judge, Your Honor. [00:09:27] Speaker 05: But it has to be that you thought that you read Ford to mean that [00:09:34] Speaker 05: One could read forward in the way that the colloquy earlier has been suggesting, which is to say, as long as there's discretion to take into account whatever it is, then it doesn't matter that the guidelines speak in one way at time zero and in another way at time one. [00:09:49] Speaker 05: And if you did it at that level of generality, then that would deal with the presumption too. [00:09:53] Speaker 01: I believe, Your Honor is correct, that if you read it that way, it would impact our first argument. [00:09:59] Speaker 01: But respectfully, under this Court's earlier decision in Daniel, I don't think you can read forward that broadly. [00:10:06] Speaker 01: Daniel makes very clear that discretion is not enough to overcome the ex post facto violation, and it's not enough that the same ultimate sentence might have been arrived at. [00:10:17] Speaker 01: And I don't believe those statements in Daniel can be reconciled with this idea that any time the commission could depart or could have considered these factors that that somehow sweeps away an ex-bus factor violation. [00:10:30] Speaker 05: What about the fact then that in 2010 the right guidelines, I think even under your estimation, were applied and the decision was made in 2010 that their parole wasn't in the offing? [00:10:41] Speaker 01: Right, and I think 2010 in a lot of ways actually supports our ex post facto claim because while the 1987 guidelines were applied, the rehearing period after the 2010 hearing was 24 months, which was the shortest it had ever been, down from 60 months and 36 months at the other hearings, which suggests that starting from a different starting point and a starting point more favorable to Appellant Johnson, [00:11:08] Speaker 01: you had a shorter period of unsuitability and a lower departure upward relative to the earlier parole hearings under the 2000 guidelines. [00:11:22] Speaker 01: I believe we've covered Bailey and Ford as I figured we would. [00:11:27] Speaker 01: With the last couple minutes, I'd like to address the issue of qualified immunity. [00:11:31] Speaker 01: Under the Supreme Court's decision in Garner, that's the benchmark case for the qualified immunity analysis that Johnson relies on because it stands for the proposition that a retroactive application of the guidelines [00:11:44] Speaker 01: that creates an increased risk of incarceration violates the ex post facto clause. [00:11:49] Speaker 01: The government has essentially asked this court for an earlier precedent on all fours. [00:11:55] Speaker 01: That's not what the qualified immunity test requires. [00:11:58] Speaker 01: This court's decision in Taylor versus Riley is applicable and stands for the proposition that if it would have been apparent to reasonable officials in 2000, [00:12:08] Speaker 01: that applying those 2000 guidelines either facially or as applied created a significant risk of increased incarceration, then qualified immunity would not serve as a bar. [00:12:18] Speaker 01: And while in Taylor, it is true that under the specific facts of that case, the court did not find that a clearly established riot had been violated. [00:12:27] Speaker 01: The violation is more apparent here. [00:12:29] Speaker 01: And Taylor recognizes that it's possible that qualified immunity might be overcome in the right circumstances. [00:12:36] Speaker 01: And the reason that the qualified immunity analysis is different here as opposed to in Taylor is the issue of achievement. [00:12:45] Speaker 01: As this court's opinion in Fletcher II held, one of the main distinctions between the 1987 guidelines and the 2000 guidelines was that the 2000 guidelines [00:12:55] Speaker 01: limited rehabilitative efforts relative to the 1987 guidelines. [00:13:00] Speaker 01: Specifically, under the 1987 guidelines, and as the parole commission recognized in 2010 when it applied those guidelines, Mr. Johnson would have received a point deduction for sustained achievement at his 2000 hearing, his 2005 hearing, and his 2008 hearing. [00:13:18] Speaker 01: Under the 2000 guidelines, the standard was changed to where superior achievement was required to receive any benefit. [00:13:27] Speaker 01: And at each of those hearings, he was denied the benefit of superior achievement. [00:13:31] Speaker 01: So unlike the case in Taylor, you have a situation where, as applied to Mr. Johnson, looking at the difference between sustained achievement versus [00:13:42] Speaker 01: superior achievement created the issue and in fact in 2000 flipped the presumption and created the situation of having a 12 to 18 month period. [00:13:52] Speaker 05: So if I'm understanding correctly the relationship between the qualified immunity argument and the merits argument, on the merits argument you say Daniel comes along and tells you that the presumption means something and the fact that Ford comes along later and says [00:14:05] Speaker 05: that the existence of discretion is enough doesn't trump the Daniel notion for presumption. [00:14:10] Speaker 05: But for qualified immunity purposes, you'd have to say that a reasonable parole official back at that time would have to understand not only that Ford doesn't undo Daniel, but that it would have been unreasonable to think anything otherwise. [00:14:26] Speaker 05: Well, Ford hadn't come along by the time... Right, but the idea of Ford is an idea that's out there in the world, that the existence of discretion is enough not to create a significant risk. [00:14:38] Speaker 01: I would characterize it as Daniel creates this presumption issue in this period of extended unsuitability. [00:14:43] Speaker 01: The one-point deduction that would have been required under the 1987 guidelines and that Mr. Johnson did not receive the benefit of, it would have been apparent to officials in 2000, 2005, 2008 that he did not receive that benefit that he would have received. [00:15:00] Speaker 01: And since we're talking about differences in point systems, reducing a point, [00:15:04] Speaker 01: in fact, in 2000, changes the presumption because he would have gone from a three to a two, and that's a cutoff point from being presumptively suitable for parole. [00:15:14] Speaker 05: Right, but for ex post facto purposes and qualified immunity, it's not just that someone would have to look at it and see that the two systems are different. [00:15:21] Speaker 05: It's that someone would have to look at it and see that the two systems are so different that it creates, that it would be unreasonable not to think that it creates an ex post facto problem. [00:15:30] Speaker 01: Correct, Your Honor. [00:15:32] Speaker 01: And the issue with the one-point deduction for sustained achievement versus superior achievement is that's pretty clear on the face of comparing the two guideline range. [00:15:41] Speaker 01: We're not, as Taylor talks about, an apples and oranges comparison. [00:15:45] Speaker 01: That's not the situation here when you look at that specific factor. [00:15:49] Speaker 01: If the Court has no further questions, I'll reserve the balance of my time. [00:15:52] Speaker 03: Thank you. [00:16:04] Speaker 02: Good morning, Judge Henderson. [00:16:05] Speaker 02: James Burnham on behalf of the federal APLEs. [00:16:07] Speaker 02: I'd like to pick up right where Judge Rivasan left off. [00:16:10] Speaker 02: So Mr. Johnson has been released, which means that all that is remaining is his claim for money damages against the commissioners. [00:16:17] Speaker 02: Under the Supreme Court's decision in Pearson versus Callahan, and it's the many cases after, the court can do the qualified immunity analysis first. [00:16:24] Speaker 02: It need not assess whether there was a ex post facto issue to begin with, and I think it's pretty clear under this court's cases that it was not clearly established in 2000, 2005, or 2008 when the relevant parole determinations were made, that there was a clearly established rule against using the 2000 guidelines in the case of Mr. Johnson. [00:16:45] Speaker 02: I think that's clear from Ford versus Massaron. [00:16:47] Speaker 02: I think the fact that one could read Ford versus Massaron to say that the latter enacted guidelines do not create a significant risk over the prior enacted guidelines is enough for the qualified immunity analysis to preclude any claim for money damages here. [00:17:02] Speaker 02: I would also just say that the suitability argument that amicus has raised is taken off the table by the commission's decision in 2010 to voluntarily recalculate all of Mr. Johnson's parole hearings using the 2010 guidelines. [00:17:18] Speaker 02: Because we actually know, as a matter of fact, because it happened, that when the Commission recalculated his parole determinations using the parole guidelines in effect on the date of his conviction, that it denied parole for the same reasons it had given under the 2000 guidelines. [00:17:33] Speaker 05: So that's what happened in 2010. [00:17:35] Speaker 05: So just to go back to where you started, Amicus's argument is that there's something talismanic about a presumption. [00:17:43] Speaker 05: And so even for qualified immunity purposes, you'd have to know, looking at the state of play, that the absence or presence of a presumption changes everything. [00:17:54] Speaker 05: and that ex post facto principles just dictate that proposition. [00:17:58] Speaker 05: So do you dispute the notion that there's something different between the existence of a resumption or not? [00:18:03] Speaker 02: So I think the proper inquiry under Gardner, Your Honor, is whether there was a significant risk of increasing the length of his incarceration. [00:18:09] Speaker 02: And so whether, you know, the jots and tittles of the presumption between the two guideline regimes don't matter unless it would have been clear in 2000, 2005, or 2008 to a reasonable parole commissioner that this presumption actually does, under Garner, significantly increase the risk of lengthening his incarceration. [00:18:27] Speaker 02: And under this court's opinion in Daniel, [00:18:29] Speaker 02: which was a general case with multiple plaintiffs, not about money damages. [00:18:33] Speaker 02: The court was very clear that in order to prevail, a prisoner would have to show that as applied to him or her, the significant risk was manifest. [00:18:42] Speaker 02: And so I think this presumption, whatever the effect of the presumption, there's nothing in the record to suggest, and in fact, the record contradicts, that there was a significant risk of increasing the length of Mr. Johnson's incarceration as a result of whatever the presumption might have been in any of these hearings. [00:18:58] Speaker 05: And when you say the record does that, that's because of what happened in 2010? [00:19:01] Speaker 02: I think that's because of what happened in 2010. [00:19:03] Speaker 02: It's because of the reasons the commission gave at each of his parole hearings. [00:19:06] Speaker 02: So in each of his hearings, if you go through them, the commission departs upward because it says that Mr. Johnson was on bond for a rape and then committed another rape and then hadn't obtained psychological counseling and treatment while he was in prison. [00:19:21] Speaker 02: And so you can go through that. [00:19:22] Speaker 02: That's Appendix 50 to 52 for the 2000 hearing, Appendix 57 for the 2005 hearing, [00:19:28] Speaker 02: and Appendix 64 for the 2008 hearing. [00:19:31] Speaker 02: Just to give you an example of what I'm referring to, on Appendix 64 the Commission says it made another, quote, decision above the current total guideline range, end quote, because Johnson was, quote, a more serious risk, end quote, than his score indicated. [00:19:45] Speaker 02: So I think if you actually look at what the Commission did, it's very clear that it would have done the same thing under either set of guidelines, and I think the Commission has confirmed that [00:19:55] Speaker 02: When in 2010, it did what a responsible official is supposed to do, which is say, you know, gee, there might be an ex post facto issue here. [00:20:01] Speaker 02: We have this district court litigation. [00:20:03] Speaker 02: We should make sure that we're not going anywhere near violating a clearly established right and just go ahead and recalculate all of his parole hearings using the prior enacted guidelines. [00:20:12] Speaker 05: And so your argument would be the same even if Daniel had come along and had been decided in 2000. [00:20:18] Speaker 02: So I think my argument is, yes, I think my argument is much stronger because Daniel's not until 2014. [00:20:23] Speaker 02: But yes, even under Daniel, if you actually look at Daniel, Daniel has a group of prisoners. [00:20:28] Speaker 02: all making undifferentiated claims about the 87 guidelines versus the 2,000 guidelines. [00:20:34] Speaker 02: And Daniel says, you know, look, just looking at these things on their face, it's possible, taking all the inferences in favor of this group of individual plaintiffs, that some plaintiff might have had his rights violated under the ex post facto clause. [00:20:47] Speaker 02: as a de novo matter, because that was an injunctive case, not a money case. [00:20:51] Speaker 02: But I think if you read Daniel and actually apply it to the particulars of this case and this complaint, Daniel itself would have said, no, this is not a cognizable claim. [00:21:05] Speaker 02: Daniel would have said that, why? [00:21:05] Speaker 02: Because in Daniel itself, the court was very clear [00:21:09] Speaker 02: that you had to be able to show relief as applied to your particular case. [00:21:13] Speaker 02: So in Daniel, the court had before it three or four, I forget, maybe five prisoners who all were still incarcerated and who all were seeking an injunction to get them exactly what Mr. Johnson already received, which is a new parole hearing recalculating all of their parole under the prior enacted guidelines. [00:21:32] Speaker 02: What Daniel says is it's possible that that is required in some case, just looking at the two guidelines regimes on their face. [00:21:40] Speaker 02: But in order to state a claim, you'd have to show more. [00:21:42] Speaker 02: You'd have to show that, actually, I'm sorry, to prevail on a claim, you'd have to show that the guidelines as applied to you created a significant risk of prolonging your detention. [00:21:52] Speaker 02: And so I think here. [00:21:54] Speaker 04: So you're effectively arguing the presumption means nothing. [00:21:57] Speaker 04: If you could get to the same result. [00:22:04] Speaker 04: part on this point on the presumption. [00:22:06] Speaker 02: So Judge Edwards, I think I'd say it like this. [00:22:08] Speaker 02: I think if we were in the DC Court of Appeals, and this was some sort of a direct appeal under DC law of whether they properly applied the presumption, it's possible the presumption matters. [00:22:18] Speaker 02: But the standard that amicus has to clear is much higher than that. [00:22:22] Speaker 02: Because under Garner, they have to show that the application of the latter enacted regime created a significant risk [00:22:30] Speaker 02: of prolonging, actually prolonging, the person's incarceration. [00:22:34] Speaker 02: And so Judge Edwards, on this record, I would say that the presumption's not nearly enough to do that because the Commission told us in all of these parole determinations that it would have departed upward and kept Mr. Johnson, would have denied him parole based on the unique circumstances in his record. [00:22:50] Speaker 02: So that's my answer to that, Judge. [00:22:51] Speaker 04: That after-the-fact recalculation is not suspect because it's self-serving. [00:22:56] Speaker 02: I'm sorry, Your Honor. [00:22:57] Speaker 04: That after-the-fact recalculation is not suspect because it's self-serving? [00:23:02] Speaker 02: I don't think so, Your Honor, because it wasn't even done in response to this litigation. [00:23:06] Speaker 02: So the Commission adopted a policy in 2009 when there had been some district court litigation over this issue and said, you know what, we're not going to risk any issue. [00:23:15] Speaker 02: We're going to go ahead and redo everybody's parole that wants it that was convicted under the 87 guidelines. [00:23:21] Speaker 02: And then they went ahead and did. [00:23:22] Speaker 02: So I don't think so, Your Honor. [00:23:24] Speaker 05: So Daniel says at page 63, just concluding the part about the presumption, and we think it reasonable to infer that the presumption of extended uncivility contained at 2,000 guidelines would prolong the 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. [00:23:46] Speaker 05: So it makes it sound like the existence or nonexistence of a presumption was thought by Daniel to be a pretty big deal in the abstract. [00:23:54] Speaker 02: Yes. [00:23:55] Speaker 02: I think in the abstract, the existence or nonexistence of the presumption could be a big deal when you're taking all the inferences in favor of a plaintiff on the 12b6. [00:24:03] Speaker 05: It seems, if Daniel were on the books, that's a pretty, one would say, I think the amicus would say, it's a pretty tough sell to say that if Daniel were on the books, even at the time that these hearings took place, that it still wouldn't have been [00:24:16] Speaker 05: an ex-post-factual or qualified immunity or even for qualified immunity purposes a problem to apply. [00:24:22] Speaker 02: So again, I don't quarrel with your Honor's suggestion that Daniel would, if it had been on the books in 2000, if Garner were replaced with Davis in 2000, this would be a more difficult case for the commissioners, no question. [00:24:33] Speaker 02: But I think if you look at this court's decision in Taylor versus Riley, which is 2012, I think it's about the same time as Daniel. [00:24:38] Speaker 02: What the court there says, and this is quoting from Garner, and this is on page 1114 of the court's opinion, is that Drake, end quote, significant risk, quote, as applied to his own sentence. [00:24:51] Speaker 02: And so I think, you know, in the abstract, this presumption could be significant, but I think in the particular of this case, where you actually know what happened in all of these parole hearings, because they're all on the record, [00:25:02] Speaker 02: It's clear that as applied to Mr. Johnson's own sentence, the presumption wouldn't have made a difference. [00:25:07] Speaker 02: Hence, there's no – or at least would not have made such a difference that it would constitute a significant risk of prolonging his incarceration, which is what Garner requires. [00:25:15] Speaker 02: And I think it's beyond doubt that, you know, even if you disagree with all that, none of this would have been clear to the average parole commissioner in 2008, which is the latest enactment. [00:25:24] Speaker 04: So you – I mean, as I'm hearing you, the recalculation is critical to your argument. [00:25:29] Speaker 02: So I think we would win either way, Judge Edwards, because all we're talking about is qualified immunity and whether it would have been clear in 2008. [00:25:36] Speaker 02: I think the recalculation takes this, I mean, I think that puts it beyond doubt. [00:25:41] Speaker 02: But even if there hadn't been a recalculation, I think it would have still not been clear to the average commissioner in 2008 that what Amicus is suggesting is an ex post facto violation actually was. [00:25:52] Speaker 04: Because of Ford or without regard to Ford? [00:25:54] Speaker 02: Well, I think Ford certainly helps, Your Honor. [00:25:56] Speaker 02: But we wrote our brief before Ford, and we anticipated the rule of Ford, which is based on the DC law in cases like McCray, which is cited both in our brief and in the court's fine opinion in Ford. [00:26:10] Speaker 02: Thank you, Your Honor. [00:26:11] Speaker 02: If there's no further questions. [00:26:12] Speaker 03: All right, thank you. [00:26:14] Speaker 03: Does Mr. Gilstrap have any time to? [00:26:18] Speaker 03: Why don't you take two minutes? [00:26:22] Speaker 01: Thank you, Your Honor. [00:26:23] Speaker 01: I appreciate it. [00:26:24] Speaker 01: Just a few brief points. [00:26:26] Speaker 01: As Judge Srinivasan noted, that language in Daniel is very important and helpful and shows that presumptions do, in fact, matter. [00:26:34] Speaker 01: And the government suggested that we've somehow not shown that, as applied to this case, that that would have, in fact, mattered. [00:26:42] Speaker 01: But we've shown that the presumption did actually flip in 2000. [00:26:45] Speaker 01: And even if you look at the 2010, [00:26:48] Speaker 01: re-sentencing, re-parole commission guidelines that his range of unsuitability was actually shorter compared to his earlier. [00:26:57] Speaker 01: So under Daniel, I think that after the fact, re-parole hearing doesn't solve all the problems. [00:27:06] Speaker 01: On Ford, just very briefly, Ford did not address the issue of qualified immunity. [00:27:11] Speaker 01: And again, to the extent that the government tries to expand Ford as broadly as it has, I think, as Judge Sherner-Rosson recognized, there's real tension with Daniel to the extent that it has construed that broadly. [00:27:27] Speaker 01: Those are the main points I wanted to cover. [00:27:29] Speaker 01: And for those reasons, as well as those stated in our brief, we believe that [00:27:34] Speaker 01: The district court's judgment should be reversed, and the matter remanded for consideration of the Section 1983 damages claim. [00:27:41] Speaker 03: All right, Mr. Gilstrap, you also were appointed by the court to represent as amicus, and you've done an excellent job. [00:27:50] Speaker 03: And unless you are a parole expert normally, you've done an even extraordinary job going through all of these different statutes. [00:27:59] Speaker 01: That is not my job, so I appreciate it, Your Honor. [00:28:02] Speaker 03: Thank you. [00:28:02] Speaker 01: Thank you.