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Case 1:20-cr-00330-PAE Document 206 Filed 04/16/21 Page 11 of 22 The only exception is United States v. Nader, 425 F. Supp. 3d 619 (E.D. Va. 2019). In Nader, the court performed a Landgraf analysis in analyzing the retroactivity of the 2003 Amendment, and it appears to be the only previous case in which Congress’ explicit rejection of a retroactivity provision in the 2003 Amendment has even been mentioned. In Nader, however, the court noted the legislative history of the 2003 Amendment but held that only the ‘ext of the amendment was relevant to step one of Landgraf. 425 F. Supp. 3d at 627 (finding legislative history arguments “misplaced within the first step of the Landgraf analysis, which asks only whether the statute at issue contains ... language unequivocally delineating the time period to which it applies”). Nader’s exclusion of legislative history from the Landgraf analysis‘ cannot be reconciled with the Supreme Court’s applications of Landgraf—or, for that matter, with Landgraf itself. See, e.g., Landgraf, 511 U.S. at 264 (considering legislative history); Martin v. Hadix, 527 U.S. 343, 355-57 (1999) (examining “structure and legislative history” as part of first Landgraf step). And as the government acknowledges, “the Second Circuit has considered both the text of the statute and the legislative history” at the first Landgraf step. Opp. 28 (citing Jn re Enterprise Mortgage Acceptance Co., 391 F.3d 401, 406-08 (2d Cir. 2004)). Thus, Nader is not persuasive authority. In short, no court has considered Congress’ explicit rejection of a retroactivity provision in performing a Landgraf analysis of the retroactivity of the 2003 Amendment. In fact, the government cites only three cases that have analyzed the 2003 Amendment under Landgraf at all: the Second Circuit and First Circuit opinions in Weingarten and United States v. Miller, 911 F.3d 638 (1st Cir. 2018), respectively, which were ineffective assistance of counsel cases and * Although the court in Nader explicitly characterized legislative history arguments as “misplaced” within step one of Landgraf, it also omitted them from step two of its Landgraf analysis. Nader, 425 F. Supp. 3d at 627-32. DOJ-OGR-00003663