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Case 1:20-cr-00330-PAE Document670 _ Filed 06/22/22 Page 36 of55 quotation marks omitted); see United States v. Parkins, 935 F.3d 65, 67 (2d Cir. 2019) (citing Sash). And even when Guidelines commentary is explanatory and binding, it is “akin to an agency’s interpretation of its own legislative rules,” and therefore does not control where it is “inconsistent with the regulation.” Stinson v. United States, 508 U.S. 36, 45 (1993) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). If the Guidelines commentary were flatly inconsistent with the plain text of the Guideline itself—because the Guideline squarely applies where the commentary says it should not—the Guideline itself would control. See Sash, 396 F.3d at 522 (“We need not resort to background commentary interpretations when the language of the Guidelines is plain.”). Finally, the defendant’s argument that the public does not need to be protected from her is an available argument under § 3553(a), but it is not a justification for deviating from the text of the Guidelines.* Til. Discussion A. The Defendant’s Conduct Warrants a Term of Imprisonment Within the Guidelines Range of 360 to 660 Months’ Imprisonment 1. The Nature and Seriousness of the Offense The defendant stands convicted of sexually exploiting multiple underage girls. Her crimes were monstrous, and the Court should impose a sentence that reflects her role in serious federal * The defendant also argues that application of the Guideline to her would yield absurd results, because she would have a lower sentencing range if she had been convicted of a prior sex offense, and (she claims) the same sentencing range that Epstein would face. (Def. Mem. 14-16). But Section 4B1.5(a) is structured differently than Section 4B1.5(b), setting floors for the offense level and criminal history category rather than imposing a five-level increase. See U.S.S.G. Amend. 615 (explaining that § 4B1.5(a)’s penalties rely on the prior conviction but § 4B1.5(b) does not). Because the Guidelines have different structures, where—as here—a defendant is near the top of the Guidelines by virtue of her criminal conduct on her one and only conviction, the five-level enhancement is more significant than § 4B1.5’s penalty floors. That result is not absurd, but a reflection of the seriousness of the defendant’s conduct. 34 DOJ-OGR-00010571