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be N Ww ws Oo OY ~] oO WO Ww a OY 20 21 22 23 24 25 Case 1:2 M6SQmaxl issue of to cast 0-cr-00330-PAE Document 779 Filed 08/22/22 Page 20 of 101 the Ex Post Facto Clause being implicated. 20 They want t this as purely a Sixth Amendment issue and cited cases along properly ended implicates whether or not an occur if framed. the la the Apprendi lines. This decision of ter guidelines i Under th cases that we've cited, your Honor, that that is an issue line of really in the Apprendi ex pos t facto law. Honor 1s not decision. minimum that took ef ended. could do that, long as it there was no Apprendi issue there. overruled by clearly wasn't that whe sili, cla the Tykarsky an Apprendi opinion that we cited dec just, for ision. In that case, Fect potentially a But this is an ex post when th fac eo) ex post s applied. It cases. is fac for the jury to decide, ns and it is not to issue conduct to violation will we think focused on example, highlight for the Court. there was an increase in th fter th for your That That is not a Sixth Amendment e mandatory conduct t's intere issue on an ex post ther or not the o use is a decision a judge could make a didn't increase beyond the st Tha (e) sting that at the time the law wa tatutory maximum, ns s that you finding and increase it as SO t decision later got the Supreme Court, facto not responded to that argument, but at basis. for the jury to make. and we thin the time of a Sixth Amendment Apprendi issue. Tykarsky, it They resolved This decision about Ffense conduct ended at a certain time, if triggers an increase that implicates the ex post facto The government has k that that is a SOUTH E RN DISTR GI PORT ERS, (212) 805-0300 DOJ-OGR-00014767