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Case 1:20-cr-00330-PAE Document 662 Filed 06/15/22 Page 14 of 29

(Posner, J.) (“A judge might reasonably conclude that a sentence based almost entirely on
evidence that satisfied only the normal civil standard of proof would be unlikely to promote
respect for the law or provide just punishment for the offense of conviction.”). Accordingly, the
Court should exercise its discretion to vary from the 2004 Guidelines and sentence Ms. Maxwell
under the 2003 Guidelines. See id. (the § 3553(a) sentencing factors “are broad enough and
loose enough to allow the judge to dip below the guidelines range if he is justifiably reluctant to
impose a sentence most of which rests entirely on a finding of fact supported by a mere
preponderance of the evidence”).

II. The Five-Point Adjustment Under USSG § 4B1.5 Does Not Apply.

Probation and the government seek to substantially increase Ms. Maxwell’s Guidelines
range by adding a five-point adjustment under USSG § 4B1.5 applicable to a “Repeat and
Dangerous Sex Offender Against Minors.” That one adjustment increases Ms. Maxwell’s
advisory sentencing range from 168-210 months to 292-365 months – a roughly 75% increase.
But § 4B1.5 was intended to apply only to habitual sexual offenders who present a high risk of
recidivism and pose “a continuing danger to the public.” USSG § 4B1.5, cmt. background. The
facts of this case fall far outside the scenarios that Congress and the Sentencing Commission
were trying to address with § 4B1.5. Here, the government concedes that the defendant is not a
danger to the public, there is no evidence that the defendant herself is sexually attracted to
minors, the conduct that gives rise to the adjustment ended almost 20 years ago, and there is no
evidence that the defendant has re-offended and no concern that she will ever re-offend.
Moreover, the application of § 4B1.5 to Ms. Maxwell would lead to absurd results that the
Sentencing Commission did not contemplate. Section 4B1.5 therefore does not apply.

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