DOJ-OGR-00021572.pdf

Case 22-1426, Document 78, 06/29/2023, 3536039, Page142 of 217 SA-396 M6SQmax1 27 1 submission about the Court has to consider the weight and 2 reliability of the evidence when determining a factor -- a 3 sentencing factor that is going to increase the guidelines, 4 especially by the amount that this is going to increase it by. 5 And this one uncorroborated, unadmitted, unreliable message pad 6 is not sufficient for that purpose. So if we're relying on a 7 factual record argument, there is not enough of evidence in the 8 record to support that the conspiracy ended in November or 9 December of 2004. Therefore, the 2003 guidelines must apply. 10 11 THE COURT: Okay. I have a question about the leadership enhancement, as I said, but anything else you want 12 to raise that you didn't have the opportunity to raise in your 13 papers, Mr. Everdell? 14 MR. EVERDELL: Your Honor, just one point about that 15 same book issue. I think there was a section of the 16 government's brief where they were trying to show -- this was 17 the point about the Court's discretion. We argued the Court 18 has discretion to sentence as if it were the 2003 guidelines. 19 I realize that might not be where the Court is headed, but I 20 would point out -- 21 22 THE COURT: You mean as a variance argument. 23 MR. EVERDELL: Exactly. In that section, the 24 government made reference to an argument that the defendant was 25 receiving money into the 2007 time period. I believe they pointed to $7 million. I think that is an extreme stretch, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021572