DOJ-OGR-00010555.jpg

Case 1:20-cr-00330-PAE Document670 _ Filed 06/22/22 Page 20 of55 1. The Court, and not the Jury, Determines Which Manual to Apply The defendant claims that a jury must determine which version of the Sentencing Guidelines to apply, but the defendant offers not a single case that has ever so held. That argument is inconsistent with the plain text of the Guidelines and established Second Circuit precedent. The Court should reject this argument. As an initial matter, it is well settled that a question of fact that increases a defendant’s offense level under the Guidelines need not be submitted to a jury. United States v. Fusco, 560 F. App’x 43, 45-46 (2d Cir. 2014); United States v. Morel, No. 10 Cr. 798 (PAC), 2021 WL 2821107, at *2 (S.D.N.Y. July 7, 2021). In addition, with respect to the sentencing court’s determination of which Guidelines Manual to apply, the text of the Guidelines expressly contemplates that the court should determine the last date of the conspiracy. Application Note 2 provides the following example of a calculation of the last date of the offense: “For example, if the offense of conviction (i.e., the conduct charged in the count of the indictment or information of which the defendant was convicted) was determined by the court to have been committed between October 15, 1991 and October 28, 1991, the date of October 28, 1991 is the controlling date for ex post facto purposes.” U.S.S.G. § 1B1.11(b)(1), app. n.2 (2004) (emphasis added). As the underlined language makes plain, the Guidelines direct sentencing courts to make this factual determination, and not juries. As the defendant acknowledges, not one of the cases cited in the defendant’s motion involved increases in the Sentencing Guidelines, and instead, the defendant rests her argument entirely on cases involving Ex Post Facto challenges to increases of the applicable statutory penalties. (Dkt. No. 662 (“Def. Mem.”) at 3-4). The law is clear that, so long as a fact at sentencing does not increase the statutory maximum or minimum penalty, that fact is for the sentencing court 18 DOJ-OGR-00010555