DOJ-OGR-00010437.jpg

Case 1:20-cr-00330-PAE Document 662 Filed 06/15/22 Page 20 of 29 552 U.S. 85, 108-09 (2007) (“[A] district court may vary from the Guidelines range based solely on a policy disagreement with the Guidelines, even where that disagreement applies to a wide class of offenders or offenses.”). Section 4B1.5 should therefore not apply. Til. Ms. Maxwell Does Not Qualify for an Aggravating Role Adjustment Under USSG § 3B1.1. A. Ms. Maxwell Did Not Supervise Another Criminal Participant. Under the plain language of USSG § 3B1.1 and its commentary, Ms. Maxwell does not qualify for an aggravating role enhancement. The Guidelines are clear that for any of the three aggravating role enhancements to apply, the Court must first find that Ms. Maxwell supervised at least one other criminal participant in the offense. USSG § 3B1.1, cmt. n.2 (“To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants.” (emphasis added)); United States v. Skys, 637 F.3d 146, 156 (2d Cir. 2011) (citing USSG § 3B1.1, cmt. n.2). A “participant” is defined as “‘a person who is criminally responsible for the commission of the offense, but need not have been convicted.” USSG § 3B1.1 cmt. n.1; Skys, 637 F.3d at 156. There is no evidence in the trial record that Ms. Maxwell supervised another criminal participant in the offenses against “Jane,” Annie Farmer, or Carolyn, which form the basis for the three offense groups in the PSR. See PSR 4] 89-90.’ According to the trial testimony, the only criminal participants in the offenses involving “Jane” and Annie Farmer were Epstein and Ms. Maxwell. There is certainly no support in the record that Ms. Maxwell supervised Epstein. In fact, the record is clear that the opposite is true: Epstein directed and managed Ms. Maxwell, 7 Because the Court ruled that “Kate” is not a victim of the offenses of conviction, Probation and the government agree that the conduct related to “Kate” cannot be treated as a separate offense group and is not subject to a Guidelines analysis. See PSR at 58-59. We therefore do not address the application of any enhancements or adjustments based on evidence related to “Kate.” Regardless, there is no evidence in the record that Ms. Maxwell supervised another criminal participant in her offense conduct. 16 DOJ-OGR-00010437