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Case 1:20-cr-00330-PAE Document 662 Filed 06/15/22 Page 24 of 29 IV. The Two-Point “Undue Influence” Enhancement Under USSG § 2G1.3(b)(2)(B) Does Not Apply. Finally, it would be improper for the Court to apply a two-level enhancement on the grounds that a participant in the criminal activity “unduly influenced a minor to engage in prohibited sexual conduct.” USSG § 2G1.3(b)(2)(B). First, it would constitute impermissible double-counting to apply § 2G1.3(b)(2)(B) to the offense conduct related to “Jane,” Annie Farmer, and Carolyn because it would punish Ms. Maxwell for the same harm that was fully accounted for in the base offense level for Counts Three, Four, and Six. “Impermissible double counting occurs when one part of the Guidelines is applied to increase the defendant’s sentence to reflect the kind of harm that has already been fully accounted for by another part of the Guidelines.” United States v. Watkins, 667 F.3d 254, 261 (2d Cir. 2012). Ms. Maxwell was convicted of conspiring to “entice” and “coerce” minors to travel to engage in prohibited sexual conduct and “enticing” minors to engage in commercial sex acts. (S2 Ind. 4] 12, 24, 27).'° Webster’s Dictionary defines the word “entice” to mean “‘to attract artfully or adroitly or by arousing hope or desire; tempt” and the further explains that the word “tempt” “implies the presenting of an attraction so strong that it overcomes the restraints of conscience or better judgment.”!! Similarly, Webster’s Dictionary defines the word “coerce” to mean “to compel to an act or choice” and further explains that the word “compel” “typically suggests overcoming of resistance or unwillingness by an irresistible force.”'” Accordingly, the base offense level for !0 Count Three charged a conspiracy to transport minors with intent to engage in criminal sexual activity. S2 Ind. [f 16-19. Although this offense does not contain an element of “enticement” or “coercion,” the offense conduct for Counts One, Three, and Five (the three conspiracy counts) was consolidated under Count Three for the purposes of sentencing, pursuant to the Court’s order. See Dkt. 657. "| Available at Meriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam- webster.com/dictionary/coerce (accessed June 15, 2022). 2 Available at Meriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam- webster.com/dictionary/compel (accessed June 15, 2022). 20 DOJ-OGR-00010441