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be N Ww ws Oo OY ~] oO WO a oO = be N Ww = Hs Oo a OY a ~] a oO a Ke) 20 21 22 23 24 25 Case 1:20-cr-00330-PAE Document 779 Filed 08/22/22 Page 37 of101 37 M6SQmaxl United States v. Guerrero, 910 F.3d 72 (2d Cir. 2018). Here, the parties and the probation department agree that applying the current Guidelines would result in a significantly longer sentence than the application of the guidelines in place when the defendant committed her offense, whether that is the 2003 or 2004 guidelines. The controlling date for ex post facto purposes is the last date of the offense of conviction. The 2004 Guidelines becam Fective on November 1, 2004. So I must determine if the last date of the offense was after November 1, 2004. Because it seeks an increased punishment, the government bears the burden of persuasion. The government charged a decade-long conspiracy of sexual abuse that the indictment alleged ended in 2004. It's proof at trial that the conspiracy continued in 2004 related to Carolyn. And the charged conspiracy had to end no later than very early 2005 because that's when Carolyn turned 18 and can no longer be deemed a victim of the federal sex-trafficking offense charged which proscribes conduct with respect to individuals under the age of 18. So the government purports to carry its burden on this issue based on portions of Carolyn's testimony and some message pads regarding what occurred in 2004 and 2005. Let me state clearly, I found, as I said repeatedly in my factual conclusions on the PSR objections, I found Carolyn to be a credible witness, as did the jury. The question before SOUTHERN DISTRICT REPORTERS, P.C.» (212) 805-0300 DOJ-OGR-00014784