DOJ-OGR-00021565.pdf

Case 22-1426, Document 78, 06/29/2023, 3536039, Page135 of 217 SA-389 M6SQmax1 20 1 issue of the Ex Post Facto Clause being implicated. They want 2 to cast this as purely a Sixth Amendment issue and cited cases 3 along the Apprendi lines. But this is an ex post facto issue 4 properly framed. This decision of when the offense conduct 5 ended implicates whether or not an ex post facto violation will 6 occur if the later guidelines is applied. 7 Under the cases that we've cited, your Honor, we think 8 that that is an issue for the jury to decide, and it is not 9 really in the Apprendi line of cases. It is focused on 10 ex post facto law. I just, for example, highlight for your 11 Honor the Tykarsky opinion that we cited for the Court. That 12 is not an Apprendi decision. That is not a Sixth Amendment 13 decision. In that case, there was an increase in the mandatory 14 minimum that took effect potentially after the offense conduct 15 ended. It's interesting that at the time the law was that you 16 could do that, a judge could make a finding and increase it as 17 long as it didn't increase beyond the statutory maximum, so 18 there was no Apprendi issue there. That decision later got 19 overruled by the Supreme Court, but at the time of Tykarsky, it 20 clearly wasn't a Sixth Amendment Apprendi issue. They resolved 21 that issue on an ex post facto basis. This decision about 22 whether or not the offense conduct ended at a certain time, if 23 it triggers an increase that implicates the ex post facto 24 clause is a decision for the jury to make. The government has 25 not responded to that argument, and we think that that is a SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021565