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Case 1:20-cr-00330-PAE Document 662 Filed 06/15/22 Page 12 of 29 Furthermore, it would be improper for the Court to rely on Carolyn’s recollection and the message slips to find that the offense conduct lasted until 2005 because the government alleged in the S2 Indictment that the offense conduct ended “in or about 2004,” not “in or about 2005.” The initial indictment charged Ms. Maxwell with offenses that lasted “up to and including in or about 1997.” (Ind. 79 9, 13, 15, 19). The S2 Indictment, which the government filed after it had located and interviewed Carolyn, charged offense conduct that lasted “up to and including in or about 2004.” (S2 Ind. 9§ 11, 17, 23, 27). The expanded end date of the S2 Indictment was based solely on Carolyn’s anticipated testimony and corroborating evidence. Yet the government alleged that the offense conduct ended in 2004, even though the government knew Carolyn’s recollection of when she last visited Epstein and was aware of the two message slips when it filed the S2 Indictment. The Court should hold the government to its allegations and not allow it to expand the end date of the offense conduct for purposes of sentencing. See United States v. Bennett, 37 F.3d 687, 700 (1* Cir. 1994) (“In determining ‘the last date of the offense of conviction’ for ex post facto purposes and ... Application Note [2 of § 1B1.11], it is only reasonable to hold the Government to its own alleged dates.”). For these reasons, the record is insufficient for the Court to find that the offense conduct continued past November 1, 2004, the effective date of the 2004 Guidelines. The Court must therefore apply the 2003 Guidelines to avoid an ex post facto violation. C. The Goals of Sentencing Are Not Served by Applying the More Onerous 2004 Guidelines Based Solely on Epstein’s Conduct. If the Court finds that the offense conduct continued past November 1, 2004, it should nevertheless vary downwardly and sentence Ms. Maxwell as if the 2003 Guidelines apply. The variance would account for the fact that Ms. Maxwell had stopped actively participating in the offense conduct by 2003 at the latest, when the earlier Guidelines were in effect. Such a DOJ-OGR-00010429