EFTA00156337

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK 
x 
UNITED STATES OF AMERICA 
v. 
GHISLAINE MAXWELL, 
Defendant. 
x 
S2 20 Cr. 330 (AJN) 
11ENIORANDUM OF GHISLAINE MAXWELL IN SUPPORT OF 
II E:R OB JECTIONS TO THE PRESENTENCE INVESTIGATION REPORT 
Christian R. Everdell 
COHEN & GRESSER LLP 
Bobbi C. Stemheim 
Law Offices of Bobbi C. Stemheim 
Jeffrey S. Pagliuca 
Laura A. Menninger 
HADDON, MORGAN & FOREMAN P.C. 
Attorneys for Ghislaine Maxwell 
EFTA00156337

TABLE OF CONTENTS 
Page 
I. 
The 2003 Guidelines Apply to the Offense Conduct 
 1 
A. 
A Jury Must Determine the End Date of Criminal Conduct that Dictates 
Which Guidelines Book Applies Consistent with the Ex Post Facto Clause. 
3 
B. 
The Trial Record Is Insufficient to Support a Finding that the Offense 
Conduct Continued Past November I, 2004 
4 
C. 
The Goals of Sentencing Are Not Served by Applying the More Onerous 
2004 Guidelines Based Solely on Epstein's Conduct 
8 
II. 
The Five-Point Adjustment Under USSG § 4B1.5 Does Not Apply 
10 
A. 
Ms. Maxwell Does Not Present a Continuing Danger to the Public.  
 11 
B. 
Applying § 4BI.5 Would Lead to Absurd Results. 
 14 
III. 
Ms. Maxwell Does Not Qualify for an Aggravating Role Adjustment Under USSG 
§ 3B1.1 
 16 
A. 
Ms. Maxwell Did Not Supervise Another Criminal Participant 
 16 
B. 
The Criminal Activity Was Not "Otherwise Extensive" 
 19 
IV. 
The Two-Point "Undue Influence" Enhancement Under USSG § 2G I.3(b)(2)(B) 
Does Not Apply. 
20 
V. 
The Correct Sentencing Range is 51-63 Months Under the 2003 Guidelines 
22 
CONCLUSION 
23 
EFTA00156338

TABLE OF AUTHORITIES 
Page(s) 
Cases 
Apprendi v. New Jersey, 
530 U.S. 466 (2000) 
4 
Blakely v. Washington, 
542 U.S. 296 (2004) 
4 
Kimbrough v. United States, 
552 U.S. 85 (2007) 
15 
Peugh v. United States, 
569 U.S. 530 (2013) 
1, 4 
Stinson v. United States, 
508 U.S. 36 (1993) 
14 
United States v. Bennett, 
37 F.3d 687 (1st Cir. 1994) 
8 
United States v. Booker, 
543 U.S. 220 (2005) 
4 
United States v. Bronneyer, 
699 F.3d 265 (2d Cir. 2012) 
12, 13 
United States v. Cavern, 
550 F.3d 180 (2d Cir. 2008) 
15 
United States v. Cordoba-Murgas, 
233 F.3d 704 (2d Cir. 2000) 
7 
United States v. Dorvee, 
616 F.3d 174 (2d Cir. 2010) 
15 
United States v. Gigante, 
94 F.3d 53 (2d Cir. 1996) 
7 
United States v. Harris, 
79 F.3d 223 (2d Cir. 1996) 
3 
United States v. Julian, 
427 F.3d 471 (7th Cir. 2005) 
3, 4 
EFTA00156339

United States v. McGrain, 
No. 6:20-cr-06113 (EAW), 2022 WL 287350 (W.D.N.Y. Feb. 1, 2022) 
13 
United States v. Patterson, 
576 F.3d 431 (7th Cir. 2009) 
21 
United States v. Pope, 
554 F.3d 240 (2d Cir. 2009) 
14 
United States v. Reuter, 
463 F.3d 792 (7th Cir. 2006) 
9, 10 
United States v. Sanchez, 
30 F.4th 1063 (11th Cir. 2022) 
13 
United States v. Santos, 
No. 21-10381, 2022 WL 1196761 (5th Cir. Apr. 22, 2022) 
13 
United States v. Skys, 
637 F.3d 146 (2d Cir. 2011) 
16 
United States v. Suarez, 
No. 21-1721, 2022 WL 1449174 (3d Cir. May 9, 2022) 
13 
United States v. Torres, 
901 F.2d 205 (2d Cir. 1990) 
3 
United States v. Tykarsky, 
446 F.3d 458 (3d Cir. 2006) 
3 
United States v. Watkins, 
667 F.3d 254 (2d Cir. 2012) 
20 
Statutes 
Child Protection and Sexual Predator Punishment Act of 1998 
12 
Protection of Children from Sexual Predators Act of 1998 
11, 12, 14 
Other Authorities 
Meriam-Webstercom Dictionary, Merriam-Webster, https://www.merriam-
20 
webster.com/dictionary/coerce (accessed June 15, 2022) 
United States Sentencing Guidelines (2003) 
United States Sentencing Guidelines (2004) 
passim 
passim 
iii 
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Ghislaine Maxwell respectfully submits this memorandum in support of her objections to 
the Presentence Investigation Report ("PSR") and her claim that the correct sentencing range 
under the United States Sentencing Guidelines ("USSG" or the "Guidelines") is 51-63 months, 
not the 292-365 month range calculated by the U.S. Probation Office ("Probation") in the PSR. 
As set forth more fully below, the lower range is correctly calculated because (1) the 2003 
Guidelines apply to Ms. Maxwell's offense conduct, not the 2004 Guidelines; and (2) the 
enhancements under § 4B1.5 (repeat and dangerous sex offender against minors), § 3B1.1 
(aggravating role), and § 2G1.3(b)(2)(B) (use of undue influence) do not apply.' 
ARGUMENT 
I. 
The 2003 Guidelines Apply to the Offense Conduct 
Before determining the applicable sentencing range, the Court must first resolve the 
threshold issue of whether the 2003 Guidelines or the 2004 Guidelines applies to the criminal 
conduct in this case. It is well-settled that it is a violation of the Ex Post Facto Clause for a 
sentencing court to apply a version of the Guidelines that did not come into effect until after the 
criminal conduct was complete if it provides for a higher sentencing range. See Peugh v. United 
States, 569 U.S. 530, 532-33 (2013) ("Mhere is an ex post facto violation when a defendant is 
sentenced under Guidelines promulgated after he committed his criminal acts and the new 
version provides a higher applicable Guidelines sentencing range than the version in place at the 
time of the offense."). 
There is no dispute that the 2004 Guidelines, which took effect on November 1, 2004, 
call for a much harsher sentence than the 2003 Guidelines. If the Court applied all of the same 
This memorandum sets forth arguments concerning the proper Guidelines calculation. Ms. Maxwell's arguments 
for why the Court should grant a substantial downward variance from the advisory Guidelines range are addressed in 
a separate submission entitled Sentencing Memorandum on Behalf of Ghislaine Maxwell. 
EFTA00156341

enhancements that were applied in the PSR, the recommended sentencing range under the 2003 
Guidelines would be roughly 75% less than the recommended sentencing range under the 2004 
Guidelines: 168-210 months based on a Combined Adjusted Offense Level of 35 under the 2003 
Guidelines versus 292-365 months based on a Combined Adjusted Offense Level of 40 under 
the 2004 Guidelines.2 The parties dispute, however, whether the offense conduct ended before 
or after November 1, 2004, and whether a court or a jury must make that finding. See USSG § 
1B1.11, cmt. n.2 (the "last date of the offense of conviction" is the "controlling date for ex post 
facto purposes"). 
Probation and the government assert that the 2004 Guidelines apply because the second 
superseding indictment (the "S2 Indictment") generally alleges that the criminal conduct ended 
"in or about 2004" and the Court should find based on the trial testimony and other evidence that 
the offense conduct continued "through the end of 2004." See PSR at 58. That is legally and 
factually incorrect. For the reasons set forth more fully below, the Court must apply the 2003 
Guidelines in this case because (1) the jury, not the Court, must determine the end date of the 
criminal conduct when that fact dictates which Guidelines book applies consistent with the Er 
Post Facto Clause; (2) even if the Court may make that determination, the trial record is 
insufficient to find that the offense conduct continued past November 1, 2004, the effective date 
of the 2004 Guidelines; and (3) it would not serve the goals of sentencing to apply the harsher 
2004 Guidelines in this case when the record is clear that Ms. Maxwell was no longer actively 
participating in the offense conduct by 2002 or 2003 at the latest. 
2 The five-point difference in the total offense level is driven by the base offense level. Under the 2003 Guidelines, 
the applicable base offense level is 19. See UM § 2O1.1(a)( I) (2003). Under the 2004 Guidelines, the applicable 
base offense level is 24. See USSG § 261.3(a) (2004). Ms. Maxwell disputes the application of many of the 
enhancements as discussed in Sections 11-IV, infra. 
2 
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A. 
A Jury Must Determine the End Date of Criminal Conduct that Dictates 
Which Guidelines Book Applies Consistent with the Ex Post Facto Clause. 
As set forth above, it would be a violation of the Ex Post Facto Clause for the Court to 
sentence Ms. Maxwell under the 2004 Guidelines absent a finding that the offense conduct 
continued past November 1, 2004. That finding must be made by a jury, not the sentencing 
court. Because the jury never made such a finding here, the Court cannot apply the 2004 
Guidelines and must instead apply the 2003 Guidelines. 
Several appellate courts, including the Second Circuit, have held that if the end date of 
the offense conduct dictates whether, consistent with the Ex Post Facto Clause, a harsher penalty 
may apply to the defendant, then that fact must be resolved by a jury. See United States v. 
Julian, 427 F.3d 471, 480-482 (7th Cir. 2005) ("As it is the lifespan of the conspiracy that 
determines whether, consistent with the Ex Post Facto Clause, the defendant may be subject to 
the enhanced penalty [of 18 U.S.C. § 2423], the question whether the alleged conspiracy 
continued beyond the effective date of the new penalty is one that must be submitted to the 
jury."); United States v. Tykarsky, 446 F.3d 458, 478-480 (3d Cir. 2006) ("[B]ecause the 
communications spanned two different versions of the statute [18 U.S.C. § 2422] with different 
minimum penalties, the question of whether the violation extended beyond the effective date of 
the amended version was one that had to be resolved by the jury."); United States v. Harris, 79 
F.3d 223 (2d Cir. 1996) (noting that when the offense conduct for a continuing criminal offense 
is alleged to straddle the date when the applicable penalty increased, the jury must determine 
whether the criminal conduct continued past the date of the change for purposes of the Ex Post 
Facto Clause); United States v. Torres, 901 F.2d 205, 226-27 (2d Cir. 1990) (same), overruled 
on other grounds as recognized by United States v. Marcus, 628 F.3d 36 (2d Cir. 2010). 
3 
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In each of these cases, the ex post facto violation resulted from an increase in the 
applicable statutory penalty, as opposed to the applicable sentencing range under the Guidelines. 
However, the Supreme Court has clearly held that it is also a violation of the Ex Post Facto 
Clause to apply a later version of the Guidelines that increases the recommended sentencing 
range if the criminal conduct was complete before the later version took effect. See Peugh, 569 
U.S. at 532-33 ("[T]here is an ex post facto violation when a defendant is sentenced under 
Guidelines promulgated after he committed his criminal acts and the new version provides a 
higher applicable Guidelines sentencing range than the version in place at the time of the 
offense."). An ex post facto violation is an ex post facto violation regardless of whether the 
increased penalty resulted from a change in the statute or a change in the Guidelines. Hence, if 
the end date of the offense conduct dictates whether it is permissible to apply a later Guidelines 
book consistent with the Ex Post Facto Clause, the jury must find that fact. 
Here, the S2 Indictment alleges only that the criminal conduct ended "in or about 2004" 
and does not specify whether the conduct continued into November and December 2004. Nor 
was the jury asked to make a specific finding as to the end date of the offense conduct. Because 
the jury did not make the necessary factual finding, the Court cannot apply the 2004 Guidelines 
and must instead apply the 2003 Guidelines.' 
B. 
The Trial Record Is Insufficient to Support a Finding that the Offense 
Conduct Continued Past November 1, 2004. 
Even if the Court can determine the end date of the offense conduct for Guidelines 
purposes, the record does not support a finding that the conduct extended past November 1, 
3 Although the issue is properly framed as an ex post facto issue, it would also violate Ms. Maxwell's Sixth 
Amendment rights for the Court, and not the jury, to determine when the offense conduct ended. See Apprendi v. 
New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); United States v. Booker, 543 U.S. 
220 (2005); see also Julian, 427 F.3d at 482 (failure to have the _uy determine the end date of the conspiracy for a 
post facto purposes was a violation of the defendant's Sixth Amendment rights). 
4 
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2004, as the government asserts. The government's claim is based solely on (I) 
vague 
recollection that she stopped performing sexualized massages for Epstein in 2005 when she was 
18 years old (Tr. 1525, 1549), and (2) two message pad slips that were never admitted in 
evidence. (GX 4-B, GX 4-F). Such meager and unreliable evidence is insufficient to support a 
finding that the offense conduct continued into the last two months of 2004, especially when that 
determination has such a significant effect on the recommended sentencing range. Instead, the 
credible evidence in the trial record established, at most, that Epstein was receiving sexualized 
massages in his Palm Beach residence through the summer of 2004, before the 2004 Guidelines 
took effect. 
recollection that she was 18 when she stopped seeing Epstein cannot be 
credited. (Tr. 1525, 1549). 
memory of the timeline of events—in particular, her age 
at the time of the relevant events—was demonstrably inconsistent and unreliable. For example, 
initially testified that she was 14 years old when 
first took her to 
Epstein's Palm Beach residence, which would have been in 2001. (Tr. 1518-19, 1525; GX-11). 
However, when 
was confronted on cross-examination with her prior deposition 
testimony in 2009, she agreed that 
first took her to Epstein's house in May or June 2002 
when she was 15 years old, as she stated in her deposition. (Tr. 1570-73). Then on redirect 
changed her testimony yet again and testified that she first went to Epstein's house when 
she was 13 years old, which would have been in 2000. (Tr. 1693). 
also testified that 
she was "15, going to be 16" when she recruited her friend 
to give Epstein massages, 
which would have been towards the end of 2002 or early 2003. (Tr. 1544). However, according 
to the message pad slips that were admitted in evidence, the earliest of which dates to January 
2003, 
did not begin calling the Palm Beach residence until April 2004 when 
was 
5 
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17. (GX-3-B). 
further testified that she had trouble remembering details of the events 
in question and affirmed that she "[doesn't] remember the times and dates" of her visits to 
Epstein's Palm Beach residence. (Tr. 1525, 1559). 
The government asserts that 
recollection can be credited because even if she 
cannot recall the year that an event took place, she has been consistent about how old she was 
when the event took place. (PSR at 53). As set forth above, this claim is flatly contradicted by 
the record. If 
could not accurately remember how old she was when she first met 
Epstein, the Court should not credit her recollection of how old she was when she last saw him. 
memory of when she stopped seeing Epstein was not only unreliable, but also 
contradicted by the other evidence in the record. 
herself testified that her last 
interactions with Epstein were when she returned from Georgia after giving birth to her son on 
March 14, 2004. (Tr. 1548-49). 
stated that she went back to Epstein "four or five 
times" because she needed money to buy things for her son, but eventually gave up when it 
became clear that she was too old for Epstein. (Tr. 1549).4 The message pads that were 
admitted in evidence corroborate that these interactions occurred from approximately late spring 
through summer 2004, when 
was 17 years old. (See GX-3-E (undated message from 
"=M 
"; surrounded by messages dated April 29 and May 2 and included in a book 
of messages from 2004); GX-3-I (July 6 message from a 
'; included in a book 
of messages from 2004); GX-1-B (July 30 message from a 
a"; 
next to a message 
dated August 12, 2004 and included in a book of messages from 2004). Accordingly, the trial 
memory of her interactions with Epstein around the time of the Georgia interlude was also inconsistent 
and contradictory. On the one hand, 
testified that she left Florida in 2003 "to escape the traumatic events" 
that had happened in Palm Beach and traveled to Georgia where she became pregnant with her child. (Tr. 1548-49, 
1617, 1668). On the other hand, 
testified that she continued to visit Epstein in Palm Beach while she was 
pregnant. (Tr. 1549). 
6 
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evidence indicates that 
stopped performing sexualized massages for Epstein at the latest 
in the summer of 2004, not in 2005.5
The two message pad slips cited by the government (GX 4-B, GX 4-F) do not support a 
finding that the offense conduct lasted beyond November 1, 2004. Although these two messages 
were labeled as government exhibits along with the rest of the message slips in the same book 
(GX 4-A-K), these messages were never admitted in evidence. The Court admitted the message 
slips from three other message books (GX 1-3) because 
and 
recognized 
their signatures and/or handwriting in those books and could establish a business records 
foundation for their admission. (Tr. 877-889, 1772-1790). The government presumably did not 
have anyone who could do the same for GX 4 or it would certainly have admitted the message 
slips from that book as well. The Court should not rely on two isolated, unauthenticated 
documents in determining when the offense conduct ended, especially when they would almost 
single-handedly increase the recommended sentencing range by over 10 years. Cl United States 
v. Cordoba-Murgas, 233 F.3d 704, 708 (2d Cir. 2000) (acknowledging that enhancements based 
on relevant conduct may result in sentences that are "excessive, inappropriate, and unintended 
under Sentencing Guidelines" when imposed "without regard to the weight of the evidence 
proving the relevant conduct"); United States v. Gigante, 94 F.3d 53, 56 (2d Cir. 1996) (holding 
that, for sentencing purposes, "the preponderance standard is no more than a threshold basis for 
adjustments and departures, and the weight of the evidence, at some point along a continuum of 
sentence severity, should be considered") (emphasis in original). 
5 In her 2007 interview with the FBI, which the government cites in its own objections to the PSR, 
stated 
that she went to Epstein's residence "over 100 times for 
proximately three years beginning when she was 14 years 
old." See PSR at 54. According to that timeline, 
last visited Epstein when she was 17. 
7 
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Furthermore, it would be improper for the Court to rely on 
recollection and the 
message slips to find that the offense conduct lasted until 2005 because the government alleged 
in the S2 Indictment that the offense conduct ended "in or about 2004," not "in or about 2005." 
The initial indictment charged Ms. Maxwell with offenses that lasted "up to and including in or 
about 1997." (Ind. ¶¶ 9, 13, 15, 19). The S2 Indictment, which the government filed after it had 
located and interviewed =0, 
charged offense conduct that lasted "up to and including in or 
about 2004." (S2 Ind. ¶¶ 11, 17, 23, 27). The expanded end date of the S2 Indictment was based 
solely on 
anticipated testimony and corroborating evidence. Yet the government 
alleged that the offense conduct ended in 2004, even though the government knew 
recollection of when she last visited Epstein and was aware of the two message slips when it 
filed the S2 Indictment. The Court should hold the government to its allegations and not allow it 
to expand the end date of the offense conduct for purposes of sentencing. See United States v. 
Bennett, 37 F.3d 687, 700 (1' Cir. 1994) ("In determining 'the last date of the offense of 
conviction' for ex post facto purposes and ... Application Note [2 of § 1B1.11], it is only 
reasonable to hold the Government to its own alleged dates."). 
For these reasons, the record is insufficient for the Court to find that the offense conduct 
continued past November 1, 2004, the effective date of the 2004 Guidelines. The Court must 
therefore apply the 2003 Guidelines to avoid an ex post facto violation. 
C. 
The Goals of Sentencing Are Not Served by Applying the More Onerous 
2004 Guidelines Based Solely on Epstein's Conduct. 
If the Court finds that the offense conduct continued past November 1, 2004, it should 
nevertheless vary downwardly and sentence Ms. Maxwell as if the 2003 Guidelines apply. The 
variance would account for the fact that Ms. Maxwell had stopped actively participating in the 
offense conduct by 2003 at the latest, when the earlier Guidelines were in effect. Such a 
8 
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variance would provide just punishment for the offense and promote respect for the law because 
it would punish Ms. Maxwell only for the conduct for which she was directly responsible, rather 
than artificially inflating her sentence based on two months' worth of Epstein's criminal conduct 
in which she was not involved. 
There is no evidence in the record that Ms. Maxwell did anything in furtherance of the 
conspiracy in November or December 2004. In fact, the evidence clearly showed that by that 
time, Ms. Maxwell was in a committed relationship with another man and 
had 
taken over responsibility for scheduling the massage appointments at the Palm Beach residence. 
Ms. Maxwell's assistant 
testified that by 2002 Ms. Maxwell had "moved 
on" from Epstein, had stopped coming to the office, and had begun a long-term relationship with 
Ted Waitt. (Tr. 2370-71, 2374, 2378-80). 
testified that 
whom he 
recalled seeing for the first time towards the end of his employment in 2002, "immediately took 
over" responsibility for answering the phones and scheduling the massage appointments at the 
Palm Beach residence as soon as she was hired. (Tr. 832-33). 
testified that Ms. 
Maxwell called her to schedule massage appointments only in "the first year or two" and that 
called her thereafter. (Tr. 1527). In sum, the record is clear that by 2002 or 2003 at 
the latest Ms. Maxwell had stopped actively participating in the offense conduct and had been 
replaced by 
Applying the 2004 Guidelines would significantly increase Ms. Maxwell's sentencing 
range based on a finding by a mere preponderance that her co-conspirator Epstein engaged in 
offense conduct in the final two months of 2004 that Ms. Maxwell had nothing to do with and 
was not personally responsible for. That result would be fundamentally unjust and contrary to 
the purposes of sentencing. See United States v. Reuter, 463 F.3d 792, 793 (7th Cir. 2006) 
9 
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(Posner, J.) ("A judge might reasonably conclude that a sentence based almost entirely on 
evidence that satisfied only the normal civil standard of proof would be unlikely to promote 
respect for the law or provide just punishment for the offense of conviction."). Accordingly, the 
Court should exercise its discretion to vary from the 2004 Guidelines and sentence Ms. Maxwell 
under the 2003 Guidelines. See id. (the § 3553(a) sentencing factors "are broad enough and 
loose enough to allow the judge to dip below the guidelines range if he is justifiably reluctant to 
impose a sentence most of which rests entirely on a finding of fact supported by a mere 
preponderance of the evidence"). 
II. 
The Five-Point Adjustment Under USSG & 4B1.5 Does Not Apply. 
Probation and the government seek to substantially increase Ms. Maxwell's Guidelines 
range by adding a five-point adjustment under USSG § 4B1.5 applicable to a "Repeat and 
Dangerous Sex Offender Against Minors." That one adjustment increases Ms. Maxwell's 
advisory sentencing range from 168-210 months to 292-365 months — a roughly 75% increase. 
But § 4B1.5 was intended to apply only to habitual sexual offenders who present a high risk of 
recidivism and pose "a continuing danger to the public." USSG § 4B1.5, cmt. background. The 
facts of this case fall far outside the scenarios that Congress and the Sentencing Commission 
were trying to address with § 4B 1.5. Here, the government concedes that the defendant is not a 
danger to the public, there is no evidence that the defendant herself is sexually attracted to 
minors, the conduct that gives rise to the adjustment ended almost 20 years ago, and there is no 
evidence that the defendant has re-offended and no concern that she will ever re-offend. 
Moreover, the application of § 4B1.5 to Ms. Maxwell would lead to absurd results that the 
Sentencing Commission did not contemplate. Section 4B1.5 therefore does not apply. 
10 
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A. 
Ms. Maxwell Does Not Present a Continuing Danger to the Public. 
It is clear from the Guidelines commentary and the Congressional intent underlying the 
creation of § 4B1.5 that the adjustment does not apply to Ms. Maxwell. The Sentencing 
Commission created § 4B1.5 after the passage of the Protection of Children from Sexual 
Predators Act of 1998 (the "Act"). See Pub. Law 105-314 (Oct. 30, 1998). As part of the Act, 
Congress directed the Sentencing Commission to review and amend the Sentencing Guidelines 
applicable to several offenses involving child sexual abuse and exploitation, including the 
enticement and transportation offenses charged in the S2 Indictment, to ensure they were 
"appropriately severe." Id., Section 502. Congress also specifically directed the Sentencing 
Commission to review the guidelines applicable to these and other sexual abuse offenses and 
promulgate amendments "to increase penalties applicable to the[se] offenses ... in any case in 
which the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of 
a minor." Id., Section 505. In response, the Sentencing Commission created § 4B1.5, which was 
added to the Sentencing Guidelines on November 1, 2001. See USSG, App's C, amend. 615. 
The legislative history of the Act makes clear that the purpose of the law, and § 4B1.5 
specifically, was to protect children from habitual sexual predators and to inflict severe 
punishments on repeat (and often violent) offenders who present a significant risk of recidivism. 
Congress was particularly concerned about the danger these defendants pose to the community 
because they are typically far more likely to re-offend than other criminal defendants — a fact 
which numerous members of Congress cited as a primary justification for the passage of the Act. 
• 
"Constituents deserve to be protected from society's worst offender-- the repeat 
sexual predator.... [T]he recidivism rates of sex offenders are astonishingly 
high — released rapists are 10 times more likely to repeat their crime than other 
criminals. The Congress has a responsibility to address the issue by passing a 
bill that would put an end to this cycle of violence repeated by a single 
perpetrator." Child Protection and Sexual Predator Punishment Act of 1998, 
Hearing Before the House Judiciary Committee, Subcommittee on Crime, 105th
11 
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Cong. (Apr. 30, 1998) (testimony of Rep. Louise Slaughter (D-NY)), available 
at 1998 WL 210930. 
• "These strong sentencing provisions are important because the recidivism rates 
for sex offenders and pedophiles are 10 times higher than that of other 
criminals. Frankly, chances are that these predators will strike again." Child 
Protection and Sexual Predator Punishment Act of 1998, Proceedings and 
Debates Before the House of Representatives, 1056 Cong., 2 nd Session (Jun. II, 
1998) (comments of Rep. Deborah Pryce of (R-OH)), available at 144 Cong. 
Rec. H4491-03, 1998 WL 306835. 
• 
"Sentences for child abuse and exploitation offenses will be made tougher. In 
addition to increasing the maximum penalties available for many crimes against 
children and mandating tough sentences for repeat offenders, the bill will also 
recommend that the Sentencing Commission reevaluate the guidelines 
applicable to these offenses and increase them where appropriate to address the 
egregiousness of these crimes." Protection of Children from Sexual Predators 
Act of 1998, Proceedings and Debates Before the Senate, 1056 Cong., 2nd
Session (Sept. 17, 1998) (statement of Sen. Orrin Hatch of (R-UT)), available 
at 144 Cong. Rec. SI0518-02, 1998 WL 636904. 
The Congressional intent underlying the Act was clear: the criminal statutes and the Sentencing 
Guidelines needed to be amended to impose harsher sentences on these sorts of dangerous, 
repeat sexual offenders to make sure that they do not "strike again." 
The Sentencing Commission adopted this rationale in promulgating § 4B1.5. The 
commentary to the guideline explains that the adjustment should only apply to defendants who 
present a continuing danger to the community because there is a significant risk that they will re-
offend if they are released from prison. See USSG § 4B 1.5, cmt. background ("This guideline is 
intended to provide lengthy incarceration for offenders who commit sex offenses against minors 
and who present a continuing danger to the public." (emphasis added); see also United States v. 
Broxmeyer, 699 F.3d 265, 285 (2d Cir. 2012) ("We further note that this guideline [§4B1.5] is 
intended to identify `repeat sex offenders,' who pose `a continuing danger to the public." (citing 
USSG § 4B1.5 cmt. background)). The title of the enhancement itself reflects that it should only 
be applied to "Repeat and Dangerous" sex offenders. USSG § 4B1.5. 
12 
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The case law bears this out. The adjustment is typically applied to defendants (virtually 
all of whom are male) who repeatedly and often violently sexually abuse or exploit children for 
their own sexual gratification and who are caught soon after or while still engaging in that 
behavior. See, e.g., Broxnzeyer, 699 F.3d at 284-88; United States v. Suarez, No. 21-1721, 2022 
WL 1449174, at *1-*2 (3d Cir. May 9, 2022); United States v. Santos, No. 21-10381, 2022 WL 
1196761, at *1-*3 (5th Cir. Apr. 22, 2022); United States v. Sanchez, 30 F.4th 1063, 1067-76 
(11th Cir. 2022); United States v. McGrain, No. 6:20-cr-06113 (EAW), 2022 WL 287350, at *1-
*6 (W.D.N.Y. Feb. I, 2022). 
In sharp contrast, Ms. Maxwell has never been accused of any sex offenses—or any 
crimes, for that matter—in the almost 20-year period since the conduct at issue in this case 
ended. There is absolutely no evidence that Ms. Maxwell is attracted to minors or has the sort of 
uncontrollable impulses that would compel her to re-offend. According to the trial record, it was 
Epstein who had such proclivities, whereas Ms. Maxwell's role was to facilitate Epstein's sexual 
abuse. Indeed, after she moved on from Epstein in the early 2000s, Ms. Maxwell was involved 
in two long-term relationships with men who had young children and was actively involved in 
their lives without even the slightest hint of impropriety. Most importantly, the government 
concedes that Ms. Maxwell is not a danger to the community. The government never made that 
assertion in connection with Ms. Maxwell's numerous bail applications and there is no evidence 
whatsoever to support such a claim. Put simply, Ms. Maxwell is not "dangerous" and there is no 
risk that Ms. Maxwell will ever "repeat" the offense. Accordingly, there is no basis to apply 
§ 4B1.5, which is meant to apply only to "Repeat and Dangerous" sex offenders. 
The government asserts that § 4B1.5 should apply as long as the offense conduct fits 
within the text of the guideline, to which it claims to be faithfully adhering. See PSR at 60. It is 
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not. The government ignores the background commentary to § 4B1.5, which explicitly states 
that the adjustment only applies to sex offenders "who present a continuing danger to the 
public." USSG § 4B1.5, cmt. background (emphasis added). In doing so, the government 
rejects an authoritative statement from the Sentencing Commission about the proper 
interpretation and application of § 4B1.5. See Stinson v. United States, 508 U.S. 36, 38 (1993) 
("[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative 
unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly 
erroneous reading of, that guideline."). The government is not at liberty to reject the Sentencing 
Commission's instructions, and neither is the Court. 
Applying § 4B1.5 to Ms. Maxwell would directly contradict the intent of Congress and 
the explicit instructions of the Sentencing Commission and would improperly add over 10 years 
to her sentencing range. It was not meant to be applied in cases where the defendant is not a 
danger to the community and poses no risk of recidivism. It should not be applied here. 
B. 
Applying § 4B1.5 Would Lead to Absurd Results. 
Applying § 4B1.5 would also yield a sentencing range for Ms. Maxwell that is 
significantly higher than the range for a proven recidivist sex offender — i.e., the type of 
defendant that Congress and the Sentencing Commission were so clearly targeting with § 4B 1.5. 
The Court should not interpret a guideline in such a way that it would lead to such obviously 
absurd results. See United States v. Pope, 554 F.3d 240, 246 (2d Cir. 2009). 
Section 4B1.5 contains two prongs — one that applies to defendants who have been 
convicted of at least one prior sex offense (USSG § 4B 1.5(a)) and one that applies to defendants 
who have not been convicted of a prior sex offense (USSG § 4B1.5(b)). As discussed above, the 
purpose of the Act and § 4B1.5 was to increase the sentences given to repeat sex offenders. It 
follows that convicted sex offenders who re-offend after being released from prison should 
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receive more serious punishment than those defendants who have never been convicted of a sex 
offense. In this case, the reverse would happen. If we assume for the sake of argument that Ms. 
Maxwell had been convicted of a prior sex offense and that § 4B1.5(a) therefore applied, Ms. 
Maxwell's recommended sentencing range under the 2004 Guidelines would be 262-327 months 
based on a Combined Adjusted Offense Level of 35 and a criminal history category of V. See 
USSG §§ 4B1.5(a)(1)(A) & (a)(2)(B) (2004). By contrast, if we assume the facts—La, that Ms. 
Maxwell has never been convicted of a prior sex offense and § 4B 1.5(b) therefore applies—her 
recommended sentencing range under the 2004 Guidelines is 292-365 months based on a 
Combined Adjusted Offense Level of 40 and a criminal history category of I. See USSG §§ 
4B 1.5(b)(1) & (b)(2) (2004). Accordingly, Ms. Maxwell is subject to a substantially higher 
Guidelines range than a defendant who had been previously convicted of a sex offense. Such a 
result would be unjust and contrary to the express purpose of § 4B1.5.6
Furthermore, by applying § 4B1.5 Ms. Maxwell would face the same sentencing range 
that Jeffrey Epstein would face for the same offenses, even though he was indisputably the more 
culpable offender. It would be fundamentally unjust and contrary to the goals of sentencing for 
the Court to apply the Guidelines in a way that would create no meaningful distinction between 
the most serious offenders and those with lesser culpability. See United States v. Dorvee, 616 
F.3d 174, 186-87 (2d Cir. 2010) ("[A]dherence to the Guidelines results in virtually no 
distinction between the sentences for [less culpable] defendants ... and the sentences for the most 
dangerous offenders.... This result is fundamentally incompatible with § 3553(a)."); see also 
United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (citing Kimbrough v. United States, 
6 A similar disparity would occur under the 2003 Guidelines, which should apply in this case for the reasons already 
discussed. 
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552 U.S. 85, 108-09 (2007) ("[A] district court may vary from the Guidelines range based solely 
on a policy disagreement with the Guidelines, even where that disagreement applies to a wide 
class of offenders or offenses."). Section 4B1.5 should therefore not apply. 
III. 
Ms. Maxwell Does Not Qualify for an Aggravating Role Adjustment Under USSG § 
3B1.1. 
A. 
Ms. Maxwell Did Not Supervise Another Criminal Participant. 
Under the plain language of USSG § 3B1.1 and its commentary, Ms. Maxwell does not 
qualify for an aggravating role enhancement. The Guidelines are clear that for any of the three 
aggravating role enhancements to apply, the Court must first find that Ms. Maxwell supervised at 
least one other criminal participant in the offense. USSG § 3B1.1, cmt. n.2 ("To qualify for an 
adjustment under this section, the defendant must have been the organizer, leader, manager, or 
supervisor of one or more other participants." (emphasis added)); United States v. Skys, 637 F.3d 
146, 156 (2d Cir. 2011) (citing USSG § 3B1.1, cmt. n.2). A "participant" is defined as "a person 
who is criminally responsible for the commission of the offense, but need not have been 
convicted." USSG § 3B1.1 cmt. n.1; Skys, 637 F.3d at 156. 
There is no evidence in the trial record that Ms. Maxwell supervised another criminal 
participant in the offenses against '=" 
, or 
which form the basis for the 
three offense groups in the PSR. See PSR ¶¶ 89-90.7 According to the trial testimony, the only 
criminal participants in the offenses involving ``M'' and 
were Epstein and Ms. 
Maxwell. There is certainly no support in the record that Ms. Maxwell supervised Epstein. In 
fact, the record is clear that the opposite is true: Epstein directed and managed Ms. Maxwell, 
7 Because the Court ruled that 
is not a victim of the offenses of conviction, Probation and the government 
agree that the conduct related to ' 
' cannot be treated as a separate offense group and is not subject to a 
Guidelines analysis. See PSR at 58-59. We therefore do not address the application of any enhancements or 
adjustments based on evidence related to M." 
Regardless, there is no evidence in the record that Ms. Maxwell 
supervised another criminal participant in her offense conduct. 
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