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Sentencing Of Jan. 6 “Shaman” Jacob Chansley Was Excessive

Sentencing Of Jan. 6 “Shaman” Jacob Chansley Was Excessive

At sentencing, Judge Lamberth reportedly said of Chansley, “He made himself the image of the riot, didn’t he? For good or bad, he made himself the very image of this whole event.” But media coverage should have had nothing to do with the sentencing.

Everyone has seen Jacob Chansley.

He is one of the most recognizable figures from the Jan. 6 Capitol incursion.  With a bare-chest and a tattooed torso, he wore red, white and blue face paint, donned a fur-pelt and a horned Viking headdress, and grasped a U.S. flag in one hand and a bullhorn in the other.

Iconic images of Chansley in his shaman costume made him the public face of those who entered the Capitol on Jan. 6. For this, and not anything he actually did that day, Chansley was sentenced to three and a half years in federal prison.

This was the steepest punishment so far imposed on any of the Jan. 6 participants – and it was totally unjustified, both in fact and in law.

Chansley’s Actions on Jan. 6

The government conceded that Jacob Chansley had no role in organizing the events of Jan. 6, and that he engaged in no violence or property damage that day.

According to the government’s sentencing memorandum, Chansley entered through the open doors of the Capitol at 2:14 p.m. on Jan. 6 and was “among the first 30 rioters inside the U.S. Capitol building on that day”:

“At approximately 2:16 p.m., the defendant and other rioters ascended the stairs to the second floor on the Senate side of the U.S. Capitol building.5 In a clearing on the second floor, the defendant and other rioters were met by a line of U.S. Capitol Police officers who instructed them to leave the building peacefully. The defendant challenged U.S. Capitol Police Officer K. R. to let them pass, ultimately using his bullhorn to rile up the crowd and demand that lawmakers be brought out.

Instead of obeying the instructions of the U.S. Capitol Police to leave the building, the defendant traversed another staircase to the third floor of the Senate side of the U.S. Capitol building. At approximately 2:52 p.m., the defendant entered the Gallery of the Senate alone.

The defendant then proceeded to scream obscenities in the Gallery, including “time’s up motherfuckers,” while other rioters flooded the Chamber below.

The defendant then left the Gallery and proceeded down a staircase in an attempt to gain entry to the Senate floor. There, the defendant once again encountered Officer K.R., who again asked him to leave the building. The defendant insisted that others were already on the Senate floor and he was going to join them. Officer K.R. then followed the defendant on to the Senate floor.

The defendant then scaled the Senate dais, taking the seat that Vice President Mike Pence had occupied less than an hour before. The defendant proceeded to take pictures of himself on the dais and refused to vacate the seat when Officer K. R., the lone law enforcement officer in the Chamber at the time, asked him to do so. Instead, the defendant stated that “Mike Pence is a fucking traitor” and wrote a note on available paper on the dais, stating “It’s Only A Matter of Time. Justice Is Coming!”

Chansley then called others up to the dais and led them in the following prayer:

“Thank you Heavenly Father for gracing us with this opportunity … to allow us to send a message to all the tyrants, the communists, and the globalists, that this is our nation, not theirs. That we will not allow America, the American way of the United States of America to go down … Thank you for filling this chamber with Patriots that love you … Thank you for allowing the United States of America to be reborn. Thank you for allowing us to get rid of the communists, the globalists, and the traitors within our government.”

Finally, at approximately 3:09 p.m., after Chansley had spent eight minutes on the Senate floor, he shouted “Freedom!” into his bullhorn and was escorted by police from the building.

Criminal Charges

Having heard that federal law enforcement sought to make contact with him, Chansley contacted the FBI and self-surrendered without incident on January 9, 2021.

Two days later, on January 11, 2021, Chansley was indicted on six counts:

  1. Civil Disorder in violation of 18 U.S.C. § 231(a)(3)
  2. Obstruction of an Official Proceeding in violation of 18 U.S.C. § 1512(c)(2)
  3. Entering and Remaining in a Restricted Building, in violation of 18 U.S.C. § 1752(a)(1)
  4. Disorderly and Disruptive Conduct in a Restricted Building, in violation of 18 U.S.C. § 1752(a)(2)
  5. Violent Entry and Disorderly Conduct in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(A)
  6. Parading, Demonstrating, or Picketing in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(G)

Pretrial Detention

Since that day, Chansley has been held without bail, and he has remained in solitary confinement for over 22 hours per day in what his lawyer has described as a “Khmer Rouge-like protocol.”

The government argued that because the flagpole Chansley carried that day had a pointed finial at the top, he had engaged in a crime with a “dangerous weapon” – they described it as a “six-foot spear” –  and therefore presented a danger to the community that required him to be held without bail.

Despite the fact, brought out at a hearing, that the finial was not affixed to the top of the pole and would have fallen off if Chansley tried to point it at anyone, the court nevertheless agreed with the government and denied bail.

Meanwhile, federal courts were releasing other Jan. 6 defendants who were charged with real crimes of violence:

For example, in U.S. v. Chad Jones, the court did not impose pretrial detention where Jones used a flagpole to bash in the window to the Speaker’s Lobby.  (Ashli Babbitt was trying to crawl through this broken window when she was shot and killed by Capitol Police Lt. Michael Byrd.)

The court also released Vitali Gossjankowski, another Jan. 6 defendant who was accused of having Tased a federal law enforcement officer multiple times while trying to access a restricted part of the Capitol allegedly causing the officer to suffer a heart attack

Same with defendant Mark Leffingwell, who was charged with pushing past a wall of law enforcement officers who were attempting to keep people out of the Capitol and repeatedly punching an officer.

The list goes on.

But Chansley’s case has always been different.  Indeed, in his order denying Chansley’s pretrial release, Judge Lamberth described him as the “mascot of QAnon.”

And it was because of that, more than anything else, that resulted in Chansley’s outrageous treatment and sentence at the hands of the U.S. government.

Chansley’s Plea

On September 1, 2021, Chansley executed a written plea agreement to the second count of the indictment – Obstruction of an Official Proceeding – in violation of 18 U.S.C. § 1512(c)(2), a crime that carries a statutory maximum of 20 years’ incarceration (and one whose  unconstitutionality as applied to the Jan. 6 defendants I wrote about here).

In connection with his guilty plea, Chansley signed a written statement of facts that had been drafted by the prosecution and that included the narrative stated above.

The court then adjourned the case to Nov. 17 for sentencing.

Chansley’s Sentencing

In the federal system, criminal sentences are determined in the first instance by the U.S. Sentencing Commission’s Sentencing Guidelines.  The defendant’s crime of conviction dictates a base offense level that can be increased or decreased based on certain aggravating or mitigating factors.

Points are then calculated based on the defendant’s criminal history.

Once the offense level and points are identified, a sentencing grid with the levels listed on the y-axis and criminal history points listed on the x-axis is used to determine the range of sentences the judge can choose from.  Here is a copy of the sentencing table published on the U.S. Sentencing Commission’s website:

The judge can impose a sentence anywhere within the guideline range without having to justify the decision.  If, however, the judge wants to sentence a defendant above or below the guideline range, he must explain his reasons on the record for doing so.

Under the sentencing guidelines, the base offense level for Obstruction of an Official Proceeding is 14.

But the federal prosecutors in Chansley’s case argued that two aggravating factors elevated his offense level.

First, the prosecutors maintained that Chansley used “threatening language towards lawmakers” and left a threatening note for the Vice President.  They claimed that this triggered an 8-level enhancement under Section 2J1.2(b)(1)(B) of the guidelines.

Second, the government asserted that an additional three-level enhancement was warranted under Section 2J1.2(b)(2) of the sentencing guidelines because Chansley’s offense “resulted in substantial interference with the administration of justice.”

Because Chansley accepted responsibility for his actions, he was entitled to a three-level reduction in his offense level pursuant to guideline Section 3E1.1.

After doing the math, Chansley’s offense level came out to 22.

With a total offense level of 22 and a criminal history category of I, Chansley’s guideline imprisonment range was between 41 to 51 months.

The government requested that Chansley be sentenced to 51 months, but Judge Lamberth sentenced him to the bottom of that range – 41 months.  A copy of the judgment of conviction can be found here.

The problem is, neither of the level enhancements urged by the government and adopted by the court were appropriate.

Threatening Language

To begin, the government’s assertion that Chansley used “threatening language towards lawmakers” misstated the applicable standard. To justify an 8-level enhancement under Section 2J1.2(b)(1)(B), a defendant must “threaten to cause physical injury to a person.”

That didn’t happen.

To be sure, Chansley admitted that when he was met by U.S. Capitol Police officers on the second floor of the Capitol, he “us[ed]his bullhorn to rile up the crowd and demand that lawmakers be brought out.”  He also acknowledged that he declared to a nearly empty Senate Chamber occupied by only a handful of rioters that “Mike Pence is a fucking traitor!”

But neither of these statements was a threat, let alone one of physical injury necessary to trigger the 8-level bump-up.

Moreover. the Supreme Court has held that the First Amendment protects “vehement, caustic, and sometimes unpleasantly sharp attacks” as well as “threats of vilification or social ostracism.”  Chansley’s remarks were therefore constitutionally protected and the government was not allowed to punish him for them.

Chansley’s written note to Vice President Pence was not a closer call. That note read, “It’s only a matter of time. Justice is coming!”

Here’s a copy of the note from the government’s sentencing memorandum:

“Justice” can take many forms and is susceptible of several innocent interpretations – electoral justice at the ballot box, civil or criminal justice in the courtroom, or (as Chansley was probably thinking) karmic justice.  In any case, even if Chansley meant the word “justice” to mean physical violence in the abstract, the Supreme Court explained in U.S. v. Williams that “abstract advocacy of illegality” is constitutionally protected speech.

Indeed, it was not inadvertent that federal prosecutors did not charge Chansley with violating 18 U.S.C. § 871 – the federal criminal statute that proscribes threatening to inflict bodily harm upon the Vice President. The facts simply did not support such a charge. And, for the same reason, they did not support the sentence enhancement.

Intent to Obstruct the Administration of Justice

Further, the 8-level enhancement also would only apply if Chansley had scribed the note with the intent to obstruct the administration of justice.

But the phrase “administration of justice” is defined in the commentary to the sentencing guidelines as including “felony investigations” “indictments,” “verdicts” and “judicial determinations” – in other words, proceedings that part of or antecedent to a court proceeding.

The certification of electoral votes by Congress is a purely legislative procedure, however, and has nothing to do with our civil or criminal justice system.

For the same reason, the 3-level enhancement under Section 2J1.2(b)(2) – a bump-up that applies when the charged crime “resulted in substantial interference with the administration of justice” – was equally inapplicable.

Conclusion

“Without these enhancements, Chansley’s offense level would have been a 12. Given his lack of criminal history, Chansley’s guidelines range thus would have been between 10 to 16 months.”*  And because Chansley had been in custody for nearly one year, he likely would have been released with time served.

Instead, he’s going to spend the next several years in federal prison.

Earlier on in the case, in one of his filings with the court, Chansley’s lawyer said:

“It is no secret the Defendant’s image has become the media driven face of January 6. It is no secret the Defendant’s costume, fur, horns, bare tattoo ridden torso, and iconic dental perfection has caused Defendant to be the go-to image, day-in-day-out, for traditional and social media throughout the world when reporting, discussing, castigating, pitying, insulting, parodying, demonizing, supporting and explaining the events and people involved in the events of January 6.”

Exactly right.

It’s apparent that Biden’s DOJ viewed Chansley as the personification of Jan. 6 itself.  That’s why, instead of recommending a sentence that actually fit the evidence, Chansley’s prosecutors urged that the court adopt baseless sentencing enhancements.

And Judge Lamberth went along with it. At sentencing, Lamberth reportedly said of Chansley, “He made himself the image of the riot, didn’t he? For good or bad, he made himself the very image of this whole event.”

Lamberth shamefully allowed media coverage, rather than the facts of the case and the applicable law, to shape his rulings regarding Chansley’s pretrial detention and sentence.

Jacob Chansley said that justice was coming.  Boy, was he wrong.

———-

* These sentences were corrected to reflect the sentencing guidelines and enhancements number of months.

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Comments

Three years in the slammer for trespassing while wearing a goofy outfit does seem harsh.

    henrybowman in reply to Dennis. | November 28, 2021 at 6:58 pm

    And the left is high-fiving it.

    If being a narcissistic, self-promoting goofball were criminal, Bernie Sanders would be in permanent solitary.

      pensive53 in reply to henrybowman. | November 29, 2021 at 2:30 pm

      while we are on the topic of DEMOCRATIC RACISM TOWARDS REPUBLILCANS let me point out a few things. THE KKK was started by the DEMONCRATS and BIDEN IS A RACIST. This man, who was sentenced so harshly is mentally ill. THIS IS ANOTHER EXAMPLE OF BIDEN’S RACISM……. PUNISH A MENTALLY ILL MAN LIKE THIS. About compensation for BLACKs. What about compensating the families of the mentally ill, who were institutionalized and the families of the mentally retarded who were put into terrible training schools?????? THIS SENTENCING IS JUST ANOTHER EXAMPLE OF COMMUNIST JOE BIDENS RACISM; PREJUDICE; and all his other sins and crimes. IF THIS MAN SHOULD BE LOCKED UP WHILE MENTALLY ILL, THEN THE PRESIDENT SHOULD BE HOSPITALIZED IN ONE OF THOSE INSANE ASYLUMS THEY PUT THE MENTALLY ILL IN, along with Kamala and Pelosi and Schumer and Schiff and HILLARY, THE STUPID.

    thalesofmiletus in reply to Dennis. | November 29, 2021 at 2:40 pm

    I can’t believe the insanity defense didn’t work — I mean, just look at the guy!

It’s excessive and the next GOP POTUS should grant a pardon to him and everyone else.

    anarchyisfreedom in reply to TheOldZombie. | November 28, 2021 at 6:31 pm

    Wrong. There’s not much difference in Pepsi or coke. They’re both poison.

    We should ignore them into obscurity.

      Only a person who has no taste would claim that there isn’t much difference between Pepsi or Coke. Of course that non-proper noun and trademarked “coke” could well mean cocaine and equating Pepsi to cocaine is insane.

      So a tasteless insanity of a comment fully deserving of the “downvotes”.

They need to stop pleading guilty. This is INSANE. The point of pleading is to get a lighter sentence.

Instead they’re using that as an excuse about how they’re GUILTY OF INSURRECTION LUL and going insane with sentencing. This is the 4th or 5th one that is absolutely off the reservation.

    anarchyisfreedom in reply to Olinser. | November 28, 2021 at 6:33 pm

    Control through fear is what ‘they’ do.

    Dennis in reply to Olinser. | November 28, 2021 at 6:37 pm

    I don’t think they’d get much sympathy from a DC jury.

    Milhouse in reply to Olinser. | November 28, 2021 at 9:15 pm

    Yes, but the previous few were from that 0bama judgebitch Tanya Chutkan. I expected better from Lamberth, who until now has had such a good record.

    randian in reply to Olinser. | November 29, 2021 at 5:33 am

    They need to stop pleading guilty.

    It’s the overcharging. No chance he risks a 20 year sentence for what he did.

    Admittedly, yes they should stop pleading in theory.
    In practice, these defendants have already (for the most part) been imprisoned in terrible circumstances for a year, subjected to repeated indignities, punished for meeting with their lawyers, punished for speaking up, punished by being dragged into court at random times and having new charges tossed at them, punished by having every single penny of their savings stripped away to pay their lawyers, punished by being fired from their jobs, and so on. Historically, a human being in such circumstances can be convinced to do anything, to sign confessions written by others which admit to things they never did, to mouth memorized platitudes in front of cameras, to grovel before their tormentors and beg for scraps.

    There are at a minimum three years left in this administration, so any prisoner knows they can be abused in this fashion at least that long while awaiting a trial date that constantly drifts forward and facing one-sided evidence that trickles out whenever the prosecution wants to whip up the mob against them and poison the jury pool even more than the toxic sludge it is now.

    Thomas Jefferson would weep.

Tossing a CIA implant into a jail cell with two doors. Mmmm hmmm.

“He made himself the image of the riot, didn’t he? For good or bad, he made himself the very image of this whole event.”

Where is it codified in U.S. law or statute that if one is perceived as making oneself an image of any political, religious, social, or cultural movement is to be regarded as a guideline in sentencing?

Can we expect then that if a Antifa protester wraps herself in an Anarchist flag while tossing molotov cocktails at police cars does that mean a judge can impose a tougher sentence (very unlikely, I know) because she is now the image of Antifa’s mostly peaceful protests?

    henrybowman in reply to JRaeL. | November 28, 2021 at 7:28 pm

    “Where is it codified in U.S. law or statute that if one is perceived as making oneself an image of any political, religious, social, or cultural movement is to be regarded as a guideline in sentencing?”

    In at least two recent impeachments. Both of the same guy.

Maybe the horns made him look too much like a scapegoat— which is what they seem to be looking for.

Wait a minute. HE made himself the image of the event?? I believe that would be the media. He’s been locked up and mistreated for 10 months, and was likely coerced to plead guilty to crimes he never committed, because Dems wanted that very colorful image they created to be the image of the event..

I’m disappointed in Royce Lamberth. I’d always thought he was one of the good guys.

And no, he didn’t himself the image of the riot, the very image of the whole event; the news industry did that. For that to be a factor in his sentencing is a denial of due process. Further, the costume was 100% constitutionally protected speech; to punish him for it violates the first amendment. (The same, as you pointed out, goes for his note on Pence’s desk as well as the language he used; it is unconstitutional to use any of it to enhance his sentence.)

Since he accepted a plea bargain, I wonder if he can appeal? Either way, he should write a book when he gets out, try to make his notoriety good for something positive.

    Edward in reply to Rand. | November 29, 2021 at 10:54 am

    If he filed an appeal, with his luck he’d find himself in Sullivan’s court and risking further sentencing, perhaps an added ten years for wasting Sullivan’s time.

Chansley was an idiot, most of all for accepting a plea bargain. Force the government to prove the charges. If his lawyer advised him to take the plea, he’s idiot as well.

It is becoming increasingly difficult to discern what behavior is acceptable and what is not. We watched summer of 2020 riots, looting, arson, assaults with police retreating. Consequences: None. We watched the protests on January 6th and practically every person who was there (except the FBI plants) was dragged back and charged with a misdemeanor but locked up in squalid conditions in the DC prisons (which likely is the best that they can do). Consequences: Severe. Now we are witnessing another round of looting, robberies and assaults in California (even hitting Home Depot to steal the “tools of their trade”. Consequences: None.
Moral of the story: If the crime fits the radical leftist agenda, Lady Justice is just plain blind to everything. If the crime fits the Constitutional definition, Lady Justice knocks the person out with the scale. Go figure!

” Made himself the image…”
Yes they sure did, I would hope I had the fortitude not to take the plea bargain as I think they didn’t have a case.
If they want to give 20 years for a walk through the building they will soon and nothing you can do about it.

The DC court system is biased. The majority of Federal government is against them. Are the defense attorneys trying to plead them out instead of mounting a strong defense. Where are the defense teams trying to release the videos and get testimony from the major players? Where are the press conferences demanding their clients get bail. I’m not seeing it so I’m not believing it.

Isn’t this the same Judge Lamberth wo refuse to accept that Michael Flynn was “NOT GUILTY”; To the extent that he tried to bring in Merrick Garland to make his case before the Court of Appeals, until Trump pardoned Flynn? I think Judge Lamberth has to go along with Judge Amy Jackson….they are too political and not jurists.

Excessive is how you do a show trial. Otherwise there’d be no point.

Lucifer Morningstar | November 29, 2021 at 10:03 am

6.Parading, Demonstrating, or Picketing in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(G)

Funny that. I’ve never read where the Capitol Police have ever arrested or charged any liberal activists under 40 U.S.C. § 5104(e)(2)(G) for their shenanigans in demonstrating in a Capitol building when doing so to protest against Republicans. Ain’t selective prosecution just grand?

We’ve gone from- When the government protects itself first to the government ONLY protects itself… Penalties for entering a government building without violence should not carry a higher penalty than looting a private business with violence. And yes, an unarmed mob is violence…

Lucifer Morningstar | November 29, 2021 at 10:24 am

So Chansley did a deal with the federal prosecutors and pled guilty to a crime (Obstruction of an Official Proceeding in violation of 18 U.S.C. § 1512(c)(2)) that carries a maximum sentence of 20 years in federal prison. Pulls a 3 years sentence and everyone is outraged over that fact? Well then, perhaps if he had a competent defense lawyer they’d have made sure that plea deal also included a stipulation that the federal prosecutor could not seek an “enhanced” prison sentence. But it didn’t and they did. And seeing as how Chansley is depicted as a major player in the Jan 6th “insurrection” he’s damn lucky he didn’t get a twenty years sentence. And that’s the truth.

    I hope that one day you will be charged with some minor Federal property trespass violation, arrested, arraigned, kept in solitary confinement for ten months and, being unable to afford* better representation, if you even had any at all, were advised by that sorry excuse for a defense counsel to accept the plea being offered by the Department of (In)Justice.

    * Unable to afford, in great part because you no longer have a job due to your arrest, better representation than a fourth rate DC Public Defender who most likely, from a political perspective, would prefer if you and all the others at the almost a riot were to be hanged.

      Lucifer Morningstar in reply to Edward. | November 29, 2021 at 1:52 pm

      You’re post is moot and irrelevant for one reason. I’m not stupid enough to believe breaking and entering into a federal building (any federal building but especially that particular federal building) in which a special joint session of Congress was convened to certify the 2020 presidential election would be treated as a “minor federal property trespass violation” nor would the consequences for such action be minor. So I would take the wise action, and not pull such a fucking stupid stunt like Chauncy and the rest of them pulled. That’s for sure.

      And I would at least read the terms of any plea deal with my lawyer at my side as many times as necessary to understand exactly what the hell I’m agreeing to. And I certainly wouldn’t agree to enter a plea of guilty to an alleged crime that could lead to 20 years in federal prison without a stipulation that the prosecution couldn’t ask for any bogus “sentence enhancements” to increase my time in prison. In fact, if they wanted a guilty plea then they’d better be prepared to offer the minimum sentence possible. Otherwise, no fucking deal. Period.

I would like to point out that the sum and entirety of what nearly all of the J6 rioters were charged with could have been prevented with… a locked door.

I mean, seriously? We have the most important people (in their minds at least) in the whole US in a building that can’t even lock the doors. I’ve seen convenience stores with twenty bucks in the till which had better security.

Ameer Benno, excellent job. I learn several new things. Keep up the good work. Personally did not care what happened to the Q-man actor, but I know have more questions about him.

Wondering if he can appeal based on what you listed or since he pleaded guilty if he is stuck.