DOJ-OGR-00021037.pdf

Case 22-1426, Document 58, 02/28/2023, 3475901, Page211 of 221 A-411 36 M6SQmax1 1 MR. EVERDELL: No, your Honor. We rest on the papers. 2 THE COURT: I thank you counsel for your thorough 3 briefing. I am prepared to rule. 4 The defendant raises four objections to the 5 calculation of the guideline range contained in the PSR. As we 6 discussed, first, she argues I must apply the 2003 guidelines 7 rather than the 2004 guidelines. Beyond that, she objects to 8 the application of three sentencing enhancements. The 9 government's sole objection to the calculation of the guideline 10 range is that Virginia Roberts and Melissa should be considered 11 victims. So I will address the defense objections and then the 12 government's objections. 13 I begin by determining which of the Guideline manuals 14 apply. Generally, a sentencing court applies the version of the 15 guidelines in effect on the date that the defendant is 16 sentenced. 18 U.S.C. Section 3553(a)(4)(A)(ii). But the Ex Post 17 Facto Clause is violated if a defendant is sentenced under 18 Guidelines issued after she's committed her offense and the new 19 Guidelines provide a higher sentencing range than the version in 20 place at the time of the offense. That's the principle of a case 21 called Peugh v. United States, 569 U.S. 530 (2013). In that 22 case, a sentencing court must -- in the case of a higher range at 23 the time of sentencing than in place at the time of the offense, 24 in that case the sentencing court must apply the guidelines in 25 effect when the offense was committed. SOUTHERN DISTRICT REPORTERS, P.C. ... (212) 805-0300 DOJ-OGR-00021037