DOJ-OGR-00021581.pdf

Case 22-1426, Document 78, 06/29/2023, 3536039, Page151 of 217 SA-405 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 10 guidelines is that Virginia Roberts and Melissa should be 11 considered victims. So I will address the defense objections 12 and then the government's objections. 13 I begin by determining which of the Guideline manuals 14 apply. Generally, a sentencing court applies the version of 15 the guidelines in effect on the date that the defendant is 16 sentenced. 18 U.S.C. Section 3553(a)(4)(A)(ii). But the 17 Ex Post Facto Clause is violated if a defendant is sentenced 18 under Guidelines issued after she's committed her offense and 19 the new Guidelines provide a higher sentencing range than the 20 version in place at the time of the offense. That's the 21 principle of a case called Peugh v. United States, 569 U.S. 530 22 (2013). In that case, a sentencing court must -- in the case 23 of a higher range at the time of sentencing than in place at 24 the time of the offense, in that case the sentencing court must 25 apply the guidelines in effect when the offense was committed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00021581