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Case 1:20-cr-00330-PAE Document670 _ Filed 06/22/22 Page18 of 55 In a memorandum dated June 15, 2022, the defendant urges the Court to adopt a sentencing range of 51 to 63 months’ imprisonment, which reflects a small fraction of the applicable sentencing Guidelines range. The defendant reaches this low number by disputing four aspects of the Probation Office’s calculation. For the reasons set forth below, the Court should reject the defendant’s Guidelines objections in their entirety. It would be both strange and anomalous for the Sentencing Guidelines to recommend such a short sentence for a defendant who spent years sexually exploiting teenage girls. The Sentencing Guidelines do not provide for a such an outcome. A. The 2004 Sentencing Guidelines Manual Applies In the ordinary course, the Sentencing Guidelines instruct courts to use the Guidelines Manual in effect on the date that the defendant is sentenced, which here would result in applying the 2021 Guidelines Manual (the “2021 Manual”). U.S.S.G. § 1B1.11(a). Where, as here, the current Guidelines Manual provides a higher range than the Manual in effect at the time of the offense conduct, using the current manual would violate the Ex Post Facto clause. U.S.S.G. § 1B1.11(b)(1); Peugh v. United States, 569 U.S. 530, 544 (2013). Here, the 2021 Manual calls for a substantially higher guidelines calculation than the Government seeks. For example, under the 2021 Manual, the base offense level would be 30 before any enhancements are applied, whereas the 2004 Sentencing Guidelines Manual (the “2004 Manual’) provides for a base offense level of 24 before enhancements. In other words, under the 2021 Manual, the offense level is at least six levels higher. Compare U.S.S.G. § 2G1.3(a) (2004) with U.S.S.G. § 2G1.3(a)(2) (2021). As a result, the Court may not apply the 2021 Manual, but the Supreme Court has made clear that subsequent increases in the Guidelines may be a reason the sentencing court may deviate upwards from the applicable Guidelines, and sentencing courts are “free to give careful consideration to the 16 DOJ-OGR-00010553