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Case 1:20-cr-00330-PAE Document 662 Filed 06/15/22 Page 19 of 29 receive more serious punishment than those defendants who have never been convicted of a sex offense. In this case, the reverse would happen. If we assume for the sake of argument that Ms. Maxwell had been convicted of a prior sex offense and that § 4B1.5(a) therefore applied, Ms. Maxwell’s recommended sentencing range under the 2004 Guidelines would be 262-327 months based on a Combined Adjusted Offense Level of 35 and a criminal history category of V. See USSG §§ 4B1.5(a)(1)(A) & (a)(2)(B) (2004). By contrast, if we assume the facts—i.e., that Ms. Maxwell has never been convicted of a prior sex offense and § 4B1.5(b) therefore applies—her recommended sentencing range under the 2004 Guidelines is 292-365 months based on a Combined Adjusted Offense Level of 40 and a criminal history category of I. See USSG §§ 4B1.5(b)(1) & (b)(2) (2004). Accordingly, Ms. Maxwell is subject to a substantially higher Guidelines range than a defendant who had been previously convicted of a sex offense. Such a result would be unjust and contrary to the express purpose of § 4B1.5.° Furthermore, by applying § 4B1.5 Ms. Maxwell would face the same sentencing range that Jeffrey Epstein would face for the same offenses, even though he was indisputably the more culpable offender. It would be fundamentally unjust and contrary to the goals of sentencing for the Court to apply the Guidelines in a way that would create no meaningful distinction between the most serious offenders and those with lesser culpability. See United States v. Dorvee, 616 F.3d 174, 186-87 (2d Cir. 2010) (“[A]dherence to the Guidelines results in virtually no distinction between the sentences for [less culpable] defendants ... and the sentences for the most dangerous offenders.... This result is fundamentally incompatible with § 3553(a).”); see also United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (citing Kimbrough v. United States, ° A similar disparity would occur under the 2003 Guidelines, which should apply in this case for the reasons already discussed. 15 DOJ-OGR-00010436