DOJ-OGR-00021037.jpg

Case 22-1426, Document 58 02/28/2023, 3475901, Page211 of 221
A-411
M6SQmax1
36
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-00021037