DOJ-OGR-00011555.pdf

--- Page 1 --- **Document Extraction** **Case Information:** * Case Number: 1:20-cr-00330-PAE * Document Number: 737 * Filed Date: 07/22/22 **Page Information:** * Page Number: 36 of 101 **Text Extraction:** MR. EVERDELL: No, your Honor. We rest on the papers. THE COURT: I thank you counsel for your thorough briefing. I am prepared to rule. The defendant raises four objections to the calculation of the guideline range contained in the PSR. As we discussed, first, she argues I must apply the 2003 guidelines rather than the 2004 guidelines. Beyond that, she objects to the application of three sentencing enhancements. The government's sole objection to the calculation of the guidelines is that Virginia Roberts and Melissa should be considered victims. So I will address the defense objections and then the government's objections. I begin by determining which of the Guideline manuals apply. Generally, a sentencing court applies the version of the guidelines in effect on the date that the defendant is sentenced. 18 U.S.C. Section 3553(a)(4)(A)(ii). But the Ex Post Facto Clause is violated if a defendant is sentenced under Guidelines issued after she's committed her offense and the new Guidelines provide a higher sentencing range than the version in place at the time of the offense. That's the principle of a case called Peugh v. United States, 569 U.S. 530 (2013). In that case, a sentencing court must -- in the case of a higher range at the time of sentencing than in place at the time of the offense, in that case the sentencing court must apply the guidelines in effect when the offense was committed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00011555