DOJ-OGR-00021750.pdf

Case 22-1426, Document 87, 07/27/2023, 3548202, Page8 of 35 Ms. Maxwell argues that the District Court's sentence was in error because (1) its four-point enhancement under USSG Section 3B1.1 lacked any support in the record that Ms. Maxwell supervised another criminal participant; and (2) its sentencing decision was predicated on a miscalculation of the applicable guideline range for incarceration and fines in the first instance and a subsequent failure to correct its error by either recalculating the sentence so as to comport with the proper guideline range or provide reasons for its upward departure. 18 U.S.C. Section 3553(c)(2). The conviction must be reversed and the indictment dismissed or, in the alternative, the matter should be remanded for the appropriate hearings. POINT I (Point I in Appellant's Principal Brief) MS. MAXWELL IS A THIRD-PARTY BENEFICIARY OF A NON-PROSECUTION AGREEMENT WHICH, BY ITS TERMS, BARRED THE USAO-SDNY FROM PROSECUTING MS. MAXWELL FOR THESE OFFENSES. In this Circuit, while ordinarily any plea or non-prosecution agreement is confined to enforcement in the district of origin, under U.S. v. Annabi, supra., there is an exception wherein "it affirmatively appears that the agreement contemplates a broader restriction," as is the case here. See Annabi at 672. This exception dictates that the NPA be enforced to protect Ms. Maxwell as a third-party beneficiary to the agreement from prosecution for these offenses. See U.S. v. Cambindo-Valencia, 609 2 DOJ-OGR-00021750