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Case 22-1426, Document ON 389 3536039, Page135 of 217 20 Me6eSQmaxl issue of the Ex Post Facto Clause being implicated. They want to cast this as purely a Sixth Amendment issue and cited cases facto issue along the Apprendi lines. But this is an ex post properly framed. This decision of when the offense conduct ended implicates whether or not an ex post facto violation will occur if the later guidelines is applied. Under the cases that we've cited, your Honor, we think that that is an issue for the jury to decide, and it is not really in the Apprendi line of cases. It is focused on ex post facto law. just, for example, highlight for your Honor the Tykarsky opinion that we cited for the Court. That is not an Apprendi decision. That is not a Sixth Amendment In that decision. case, there was an increase in the mandatory Ffect potentially after the o ns minimum that took e conduct ended. t's interesting that at the time the law was that you could do that, a judge could make a finding and increase it as long as it didn't increase beyond the statutory maximum, so there was no Apprendi issue there. That decision later got ait overruled by the Supreme Court, but at the time of Tykarsky, clearly wasn't a Sixth Amendment Apprendi issue. They resolved that This decision about issue on an ex post facto basis. 22 23 24 25 whether or not the it clause is a decision not responded to t offense conduct ended at a certain time, hat argument, for the jury to make. Te triggers an increase that implicates the ex post facto The government has and we think that that is a SOUTHE RN D STR CT REPORT 12) 805-0300 ERS, PeGu 0 DOJ-OGR-00021565