I recently completed my representation of a defendant charged in the events of January 6, 2021 at the United States Capitol. I am not going to use his name because he has served his sentence and wants to rebuild his life. My client was charged with eleven (11) criminal counts, the most serious of which were two charges of Assault on a Police Officer and Obstruction of an Official Proceeding (a count dismissed after trial as a result of the Supreme Court’s decision in Fisher v. United States). The charges arose out of a tug of war between four Capitol Police Officers on one side of a set of bicycle racks that had been loosely connected to form a temporary barrier and a group of protestors on the other. During the back and forth pushing, one of the officers – who was not near my client – fell backwards and knocked her head against some concrete stairs. Another officer – who was in front of my client – fell down but suffered no injuries. As part of its plea offer, the Government insisted that my client plead to both assaults, which would have resulted in a sentencing guideline range of 78-97 months after upward adjustments for the use of a dangerous weapon (the bicycle rack) and serious bodily injury. If the Government had offered my client a plea consistent with this actual conduct, his guideline would have been 46-57 months.
My client rejected the plea offer and elected for a non-jury trial. The district court found him not guilty of the more serious assault charge; indeed he was ultimately found guilty of only four of nine felony counts. His total adjusted sentencing guideline (without any reduction for acceptance of responsibility) was 63-78 months (because of no three level downward adjustment for acceptance of responsibility). My client was originally released on bond, but it was revoked as the result of another arrest while on pre-trial release. By the time of sentencing, he had served almost thirty-three months.
There is a publicly available chart that show the data for almost every person charged in the events from January 6, 2021. The chart contains: (1) Probation’s sentencing guideline calculation; (2) the sentence requested by the Government; (3) the sentence requested by the defense; and (4) the sentence imposed by the Court. At every level of relative culpability, the chart reveals that the district court judges in Washington, D.C. have imposed sentences significantly below those requested by the prosecution. In this case, the Government’s incredible and unjustified sentencing recommendation was 98 months, or almost 65 percent higher than the bottom end of the sentencing guideline range. The Government’s position ignored the court’s verdict, the sentencing guidelines for the case, the requirement to avoid sentencing disparity among similarly situated defendants – and instead acted as though sentencing were the functional equivalent of negotiating over a vase at a flea market where the seller asks for an astronomical price, hoping the naive buyer will agree. In essence, the Government argued that my client should be held responsible at sentencing for the criminal conduct of everyone else at the Capitol that day.
The defense asked for a sentence of time served based upon the facts of the case, my client’s personal factors, and the sentences imposed by other judges for similar offenses. The district court judge sentenced my client to 36 months and he was released from custody a few days later.
The Government must have known that its sentencing recommendation in this case was totally out of proportion with the defendant’s conduct and guideline range. Why in the world did the prosecutors make it then? See the caption of this blog post.