Sentence Reduction for J6 Defendant Ordered By Appeals Court May Have Implications For Other Defendants
The D.C. Circuit Court of Appeals finds Brock did not “substantially interfere with administration of justice” – ruling could apply to other J6 defendants as well
On Friday, the United States Court of Appeals for the District of Columbia Circuit (i.e. the “D.C. Circuit”) reversed a federal trial-level judge’s determination that January 6 Defendant Larry Brock had “substantially interfered with administration of justice.” That trial-level determination had significantly enhanced Brock’s prison sentence for felony obstruction of an official proceeding (i.e. Congress’ January 6, 2021 certification of the 2020 Presidential election) under 18 U.S. Code Section 1512(c)(2). The D.C. Circuit ordered resentencing:
With the news this week, a major ruling from the D.C. Circuit was missed by many. A panel ruled that Larry R. Brock Jr., should be resentenced after rejecting the use of an enhancement for “substantial interference with the administration of justice." …https://t.co/6I1WITNNCD
— Jonathan Turley (@JonathanTurley) March 2, 2024
JUST IN: The D.C. Circuit has ruled that some Jan. 6 defendants had their sentences improperly lengthened by district judges' decisions to label their crimes "interference with the administration of justice." https://t.co/Yzz8QDhysW pic.twitter.com/9HCchVa8H4
— Kyle Cheney (@kyledcheney) March 1, 2024
In a unanimous opinion from the D.C. Circuit Court of Appeals, Judge Patricia Millett said prosecutors' use of a “substantial interference with the administration of justice” charge to enhance the prison sentence of Larry Brock was too broad. https://t.co/dcsKW0zY9x
— The Washington Times (@WashTimes) March 2, 2024
Brock, a 1989 graduate of the U.S. Air Force Academy, A-10 Warthog pilot, and retired Air Force Lieutenant Colonel with 29 years of Air Force service, had been sentenced to 24 months’ imprisonment in a federal penitentiary.
The Daily Caller has the story:
A federal appeals court found Friday that some Jan. 6 defendants’ sentences were wrongly lengthened when judges determined they interfered “with the administration of justice.”
A D.C. Circuit Court of Appeals three-judge panel sided Friday with Jan. 6 defendant Larry Brock, rejecting the Department of Justice’s (DOJ) argument that a sentencing enhancement designed for defendants who disrupt judicial proceedings should be applied to defendants who disrupted Congress’ certification of the 2020 presidential election. Brock was sentenced last year to two years in prison for obstructing an official proceeding.
“We must apply the Guideline as written, and Brock’s interference with one stage of the electoral college vote-counting process— while no doubt endangering our democratic processes and temporarily derailing Congress’s constitutional work — did not interfere with the “administration of justice,” Judge Patricia Millett, an Obama appointee, wrote in the opinion.
The panel also included judges Cornelia Pillard, an Obama appointee, and Judith Rogers, a Clinton appointee….
The panel found that the “administration of justice” applies to “judicial, quasi-judicial, and adjunct investigative proceedings, but does not extend to the unique congressional function of certifying electoral college votes.”
Sentencing Specifics
The “sentencing enhancement” at issue is found in the 2021 version of the United States Sentencing Guidelines (U.S.S.G.), which are used by all federal judges to sentence federal criminal defendants found guilty of or pleading guilty to federal crimes. Here, Brock had been found guilty at a bench trial by D.C. Senior District Judge John D. Bates of felony obstruction of an official proceeding under 18 U.S. Code Section 1512(c)(2) for his participation in the events of January 6, 2021, including Brock’s entering into the Capitol building and the Senate floor for a period of time.
To find the appropriate sentencing range, Judge Bates first went to U.S.S.G. Section 2J1.2, entitled “Obstruction of Justice,” which indicates in the “Statutory Provisions” section that it is the correct guideline to use for 18 U.S.C. § 1512, and indicates that the federal “Base Offense Level” for this statutory criminal violation is “14.” In subsection (b)(2), the Guidelines say: “If the offense resulted in substantial interference with the administration of justice, increase by 3 levels.” This made the modified guideline offense level 17, not 14.
Then, Judge Bates used the federal U.S.S.G. Sentencing Table, available here, and correctly crossed the modified offense level of 17 with Brock’s Criminal History Category of I (i.e. no criminal history – a clean record) to come up with a range of 24-30 months’ imprisonment. And even though federal judges are not bound by the ranges in the Sentencing Table of the Guidelines, it has been my experience as a federal court law clerk (for about 3 and 1/2 years) that they almost always stay within that range, unless something truly extraordinary is going on. Here, Judge Bates sentenced Brock to 24 months, or two years, in federal prison, which fit the applicable range.
The Effect of the Court of Appeals’ Decision
The effect of the D.C. Circuit’s decision is to force the trail judge, in this case most likely still Judge Bates, to resentence Brock without the 3-level sentencing enhancement (“we vacate Brock’s sentence for his Section 1512(c)(2) conviction and remand to the district court for resentencing without the application of Section 2J1.2(b)(2)’s sentencing enhancement”), making his new offense level 14, not 17. Crossing offense level 14 with Criminal History Category I in the 2021 U.S.S.G. Sentencing Table, you find a Guideline Sentencing Range of 15-21 months, which Brock’s resentencing judge will almost certainly stick to. This will result in a sentence reduction of 3-9 months’ imprisonment for Brock, and since Brock has a federal prison release date of December 3, 2024, he could be released as soon as his resentencing judge conducts the resentencing!
The D.C. Circuit’s decision could also, as the Daily Caller suggested (without explanation as to why), lead to sentence reductions for other J6 defendants as well. That is because the D.C. Circuit’s Order is now binding on all D.C. federal trial courts, and any J6 defendant who has been sentenced with the 3-level offense level sentencing enhancement for “substantial interference with the administration of justice,” which there are several of, can move for a sentence reduction, which the sentencing court is bound to honor. And, any J6 defendants not yet sentenced cannot have the 3-level enhancement applied to their sentencing. In all cases, the sentencing reduction will not necessary be 3-9 months, as it was for Brock, because other defendants might have other crimes of conviction or serious criminal histories; it all depends on where on the Sentencing Table those defendants fall. But they will be significant in each case, as they are here.
Surprise ruling could affect dozens of 1/6 defendants
US Court of Appeals for the DC Circuit vacates sentence given to 1/6 defendant.
Court rules that a sentence enhancement given to combat veteran Lt. Col. Larry Brock (Ret.) was improper and should not have been applied. pic.twitter.com/n2YHdkvB7z
— National Conservative (@NatCon2022) March 2, 2024
Overturned!
An appeals court in Washington unanimously ruled that a Jan. 6 defendant’s sentence was improperly enhanced, a move that could impact numerous other Jan. 6 cases.
On Friday, the U.S. Court of Appeals for the D.C. Circuit ruled that Larry Brock, who was convicted… pic.twitter.com/2IOW7QAG75
— Carm (@Carmtans) March 1, 2024
Other January 6 Federal Court Proceedings
We previously reported on J6 defendant Jacob Chansley’s sentence reduction of 14 months – see Ameer Benno’s (Legal Insurrection contributor and Equal Protection Project litigation ninja) excellent coverage here: Sentencing Of Jan. 6 “Shaman” Jacob Chansley Was Excessive.
And, the U.S. Supreme Court has decided to review whether the criminal statute, 18 U.S.C. § 1512, felony obstruction of an official proceeding, even applies to the J6 Defendants like Brock. Oral argument in that case, Joseph Fischer v. United States, is set for April 16, 2024.
…The ruling could force the reduction of dozens of such sentences for Jan. 6th rioters. This comes as the Supreme Court will hear another challenge over the use of the federal obstruction law against J6 defendants. The case could also impact the Trump prosecution in Washington.
— Jonathan Turley (@JonathanTurley) March 2, 2024
We will keep you updated on the J6 proceedings, which continue unabated.
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Comments
Most J people should not have been charged at all, and Dem damage to their lives has already been done.. What should happen is Pelosi and others involved being held accountable, their assets taken and redistributed to J6 victims.
It sounds like backtracking to a more defensible position, instead of throwing the whole thing out as a hoax to hunt dissent from the narrative.
This law is known as Sarbanes Oxley and was written to regulate banks and financial institutions.
Anyone in the banking industry knows SO and is shocked that it was used to oppress protestors.
Is appears the water is starting to flow and the democrat’s finger in the dike will not be able to hold it back much longer.
From the opinion…
(emphasis added)
As one of the lawyers for a J6 defendant pointed out, there is likely no small number of J6ers who pleaded guilty based on the sentencing enhancement of this statute as it was used by the government….which is likely exactly why the government used it. A defendant is simply more likely to plead guilty to a crime in exchange for a ‘reduced’ sentenced when the alternative may be several more years in in prison, at least. What happens to all those defendants? Probably nothing unless a court vacates those plea agreements, which I’m not even sure is possible.
Trump had better clean house if he’s lucky enough to win. And, whomever he selects as a running mate, he needs to select someone who terrifies both the Democrats and the GOP establishment more than he does. Because if he doesn’t, he’ll sure get Impeached and removed the minute he begins to destroy the Deep State, starting with the FBI.
This entire J6 Fiasco is intended to stifle political dissent.
GUT the FBI and DOJ. They have become Stalinist tools to destroy political enemies.
So much of this has the undertones of the sedition act from the Adam’s administration/Jefferson administration
Much of federal law doesn’t even seem like it should it exist – they shouldn’t have jurisdiction.
It’s amazing that not that long ago – early 20th century – Republicans and Democrats understood that if they wanted to pass the Volstead Act to ban alcohol production and sale, they would FIRST have to amend the Constitution.
Less than a decade or so after that, the federal government started its endless campaign to ban anything it wanted and no one, left or right, even gave amending the Constitution a passing thought. It’s been downhill ever since.
It’s not a coincidence that banning alcohol followed the extension of the vote to women. The entire nanny state is the result of female enfranchisement.
To MattMusson
The amendment creating prohibition (18) actually preceded the amendment granting of the vote to women nationally (19).
Today’s excuse is usually the “commerce clause.” But if the commerce clause suffices today to ban, say, gas stoves or high-capacity magazines, why wasn’t it sufficient back in the day when they wanted to (effectively) ban the commercial production and transportation of alcohol? The clause was meant to allow Congress to make interstate commerce regular. In no way was it meant to empower Congress to obstruct, interfere with, and/or prevent the movement of goods in interstate commerce, and Congress at one time knew this.
The Nanny State was a consequence of industrialization. That’s when there became demand for parochialism towards “workers”. Prior to then, such infantalization of other men would have been considered absurd.
Trump must pardon the J6’s as the first step to healing the nation.
The harsh sentencing of the J6 defendants is unmistakable.
Since the DC Republican primary just concluded, I was curious to know the number of “active” Republicans that participated. The sum total of votes for Nikki Haley and Donald Trump was < 2000.
This proves to me that Republicans should be a granted a change of venue for any trial in DC. There is no such thing as a jury of peers for Republicans in the District.
Despite popular belief, there is no guarantee of “a jury of one’s peers” contained in the Constitution.
Machs nicht. The 6th Amendment states that a defendant has the right to a speedy and public trial of an impartial jury. There are issues with both “speedy” and “impartial” in DC.
Cornell Law School begs to differ, from here:
https://www.law.cornell.edu/wex/Jury_of_one's_peers
“…the defendant has the constitutional right to have a jury of their peers at trial (note that “peers” often means citizens, See Citizen; also note that a blue ribbon jury would violate this right). This right can be found in the Sixth Amendment of the U.S. Constitution.. (emphasis added — ed).”
Congress could fix this problem by dissolving the DC district court, forcing DOJ to indict and try people in the federal districts (with their local juries) in which they allegedly committed their crimes.
Would you want to be tried by a jury of Democrats if you’re a conservative?
Holland has professional jurists, who are trained and that is their job for a year (or something like that). Not sure even that would work in Democrat weaponised America though???
Wouldn’t a change of venue, especially to a totally Red jurisdiction, be a thing of beauty?
The DC system is not backtracking, they are powering down to deny President Trump the liberation-of-concentration-camp optics in freeing political prisoners.
Look for the charges to be dropped by the end of the year.
For those interested, this is an article behind a paywall from William Shipley who defends many J6 defendants, not all of his posts are behind a paywall, and the income for subscriptions goes to support his J6 defense work.
https://shipwreckedcrew.substack.com/p/dc-court-of-appeals-decision-could?utm_source=profile&utm_medium=reader2
I think Shipley’s insights are a must-read, not just on the J6 but on Trump’s cases as well. Unlike many other TV legal talking heads, Shipley tackles these issues from the perspective of a CURRENTLY practicing criminal defense lawyer who spent 20+ years at DoJ. In addition to his substack, I enjoy listening to him on Leslie McAdoo’s X-spaces where he’s usually joined by some other practicing lawyers.
Cases like this are why qualified immunity for judges and the prosecution team is bs. Those people, the judge and prosecution knew this was an improper interpretation of the clearly written law and ignored it.
The judge, Graves and everyone on the prosecution teams should spend 3-9 months in a federal lock up as part of their sentence enhancement. That type of behavior will end pretty quick.
Yet Democrats are determined NOT to extend immunity to Trump, who unlike every President before him has enjoyed this protection…even ones who have purposely undermined America (don’t look so guilty Barry, peace be upon you).
I get the need for immunity BUT when a judge specifically treats one set of “alleged” criminals in a much more lenient way than another set of “alleged” criminals, and does this wilfully, then there needs to be some kind of checks and balances to remove this kind of behaviour from the system.
“Cases like this are why qualified immunity for judges and the prosecution team is bs.”
Well, it would be nice if “qualified immunity” were a bit more “qualified.”
The “sentencing enhancement” at issue is found in the 2021 version of the United States Sentencing Guidelines (U.S.S.G.)
Wait a minute. The crime committed was committed only 6 days into that year. Is it possible the guidelines were revised in the first 6 days of 2021? Yes. Is it likely? No.
So, these were (aside from the issue noted by the panel) sentencing guidelines not in effect at the time of the crime? How is that no ex post facto?
IANAL. But, I imagine the Sentencing Guidelines aren’t materially different than the Manual for Court-Martial. Even though not much changes year-to-year in the MCM, it’s published every year. I suspect the Sentencing Guidelines are published every year, as well. It’s likely that the relevant sentencing guidelines existed in 2020, 2019, 2018 etc.
What are the odds that before J6 that the Justice Department was using Sarbanes-Oxley rules applied to civil unrest? Dis they apply that sentencing enhancement to the people who attacked the Oregon federal courthouse?
Any new guidelines could have been considered and adopted in one year, while going into effect on 1 January of the next.
The “judges” that used this expanded “sentencing enhancement beyond the bounds of its normal textual connotation and interpretive commentary” should be charged for obstructing the administration of justice.
It sure seems like judicial “errors” are the only things without any consequences – ever.
“What else than ignorance of the law is it that excuses judges themselves for all their erroneous decisions? Nothing. They are every day committing errors, which would be crimes, but for their ignorance of the law. And yet these same judges, who claim to be learned in the law, and who yet could not hold their offices for a day, but for the allowance which the law makes for their ignorance, are continually asserting it to be a ‘maxim’ that ‘ignorance of the law excuses no one;’ (by which, of course, they really mean that it excuses no one but themselves; and especially that it excuses no unlearned man, who comes before them charged with crime.)”
Lysander Spooner
An Essay On The Trial By Jury, pg. 180-181
at least make them pay the legal fees for the other parties involved from any future compensation not from state or federal money.
Appellate Court Judge: “What happens if I pull on this string?”
DC Prosecutor: “The case unravels, your Honor.”
“…a sentencing enhancement designed for defendants who disrupt judicial proceedings should be applied to defendants who disrupted Congress’ certification of the 2020 presidential election.”
Seems a lot of
persecutorsprosecutors are trying to stretch laws into domains where they don’t apply. Why should faceless regulators have all the fun?Not if they plead out, even if an insane sentence was used as inducement.
Two billion dollars of BLM’s savage anarchy with no arrests, much less convictions, while Trump supports are brutalized in Soviet Gulag conditions for “parading”. Trump will pardon them all if reelected, but their lives and those of their families have been irreparably damaged. If Trump wins, the Republicans take the Senate and hold the House they should pass a reparations bill to compensate for this lawlessness.