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:
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.”
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 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.
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.
We will keep you updated on the J6 proceedings, which continue unabated.
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