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Case 1:20-cr-00330-PAE Document 779 Filed 08/22/22 Page 27 of 101 27 M6SQmaxl 1 submission about the Court has to consider the weight and 2 reliability of th vidence when determining a factor -- a 3 sentencing factor that is going to increase the guidelines, 4 especially by the amount that this is going to increase it by. 5 And this one uncorroborated, unadmitted, unreliable message pad 6 is not sufficient for that purpose. So if we're relying ona 7 factual record argument, there is not enough of evidence in the 8 record to support that the conspiracy ended in November or 9 December of 2004. Therefore, the 2003 guidelines must apply. 10 THE COURT: Okay. I have a question about the 11 leadership enhancement, as said, but anything else you want 12 to raise that you didn't have the opportunity to raise in your 13 papers, Mr. Everdell? 14 MR. EVERDELL: Your Honor, just one point about that 15 same book issue. I think there was a section of the 16 government's brief where they were trying to show -- this was 17 the point about the Court's discretion. We argued the Court 18 has discretion to sentence as if it were the 2003 guidelines. 19 I realize that might not be where the Court is headed, but 20 would point out -- 21 THE COURT: You mean aS a variance argument. 22 MR. EVERDELL: Exactly. In that section, the 23 government made reference to an argument that the defendant was 24 receiving money into the 2007 time period. I believe they 25 pointed to $7 million. I think that is an extreme stretch, SOUTHERN D STR GI (PORTERS, P.C.* (21 2) 805-0300 DOJ-OGR-00014774