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Case 1:20-cr-00330-PAE Document670 _ Filed 06/22/22 Page19of55 current version of the Guidelines as representing the most recent views of the agency charged by Congress with developing sentencing policy.” Peugh, 569 U.S. at 549. Where the Guidelines have increased after the offense conduct has concluded, “the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed.” U.S.S.G. § 1B1.11(b)(1). Furthermore, Application Note 2 provides that “the last date of the offense of conviction is the controlling date” for determining which manual to apply. U.S.S.G. § 1B1.11(b)(1), app. n.2. That is true even if the Guidelines were amended during the course of the offense conduct. The Second Circuit has explained that “[w]here a conspiracy began while one version of the Guidelines was in effect and ended after another version became effective, application of the later version to the coconspirators does not violate the Ex Post Facto Clause.” United States v. Meneilly, 28 F. App’x 26, 32 (2d Cir. 2001) (citations omitted). Here, the offenses of conviction spanned from 1994 up to and including 2004, as set forth in the Indictment, and as the proof established at trial. As a result, for Guidelines purposes, December 31, 2004 is legally the last date of the offense conduct, and the 2004 Manual applies. In her objections to the PSR, the defendant claims that the Ex Post Facto clause requires the jury, and not the Court, to determine the last date of the offense of conviction. The defendant further claims that, as a factual matter, the offense conduct ended before November 1, 2004, the date upon which the 2004 Manual became effective. For the reasons set forth below, the defendant is wrong as a matter of law and as a matter of fact. The Court should apply the 2004 Manual. 17 DOJ-OGR-00010554