January 6 case summaries

Summary of facts: Pleaded guilty to interfering with a law enforcement officer during the commission of civil disorder. Cross-checked a police officer with a lacrosse stick that had a Confederate flag attached to it.

Judgment: The guidelines range was calculated by the judge as 8 to 12 months*, and the government requested 8 months. Blair was sentenced to 5 months of incarceration.
*The judge calculated the guideline range to technically be 18 to 24, but due to the plea agreement and the nature of the assault, the judge is operating with 8 to 12 as the starting point (p. 43):

The Court: The starting point always is the guidelines range. I've calculated them at 18 to 24 months because your conduct qualifies as aggravated assault, but as I said at the beginning, you know, I've viewed the video. It is not the most serious assault of any that I've seen. I agree with Mr. Roberts about that, and so I think the eight to 12 range is a more accurate starting point in this case.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did (indirectly) explain why:
This is specifically in response to questions about the aggravated assault enhancement, but generally explains the government’s thinking in this case (p. 11) Prosecution: Now, the plea agreement technically gives us the option of arguing for a higher guideline calculation and a higher corresponding sentence than the guidelines as calculated in the plea agreement. I think the language is pretty clear, but I should emphasize we are not doing that. We are only advocating for a sentence at the low end, actually, of the lower range as contemplated by the plea agreement. That being said, because we, the government, have to try to be consistent, when we can as much as possible, throughout all these cases involving the Capitol riot and maybe even other cases frankly, we are endorsing the guidelines as calculated by the probation officer in the report.
There were no other statements from the sentencing hearing regarding terrorism. 

Excerpts/Misc: Blair self-reported his extensive antisemitic beliefs and far-right radicalization to the FBI. He had a 4-inch knife in his backpack.

Summary of facts: Pleaded guilty to civil disorder. Helped lift a bike rack and push it against a line of officers with other rioters to breach a police barrier, pushed a police officer, encouraged other insurrectionists to break windows, and struck Capitol windows with his flagpole.

Judgment: The guidelines range was calculated by the judge as 8 to 14 months and the government requested 11 months (middle of the guidelines range). Cooke was sentenced to a year and 1 day of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and didn’t explain why. There were no other statements from the sentencing hearing regarding terrorism.

Summary of facts: Pleaded guilty to obstructing, impeding, or interfering with law enforcement officers during a civil disorder on Jan 6. Entered Capitol grounds multiple times, and encouraged/led a line of rioters to try and break the police line.

Judgment: The guidelines range was calculated by the judge as 0 to 6 months, and the government recommended 4 months (slightly above the midpoint of the guidelines). Cortez was sentenced to 4 months of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no other statements about terrorism during the hearing.

Summary of facts: Pleaded guilty to civil disorder on Jan 6. Part of a crowd that pushed through Rotunda doors into the Capitol and made it all the way to the Senate chamber.

Judgment: The guidelines range was calculated by the judge as 0 to 6 months, and the government requested 5 months (high end of the guidelines range). Griswold was sentenced to 75 days (~2.5 months) of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no other statements from the sentencing hearing regarding terrorism.

Summary of facts: Found guilty by a jury of obstructing a civil proceeding (and 4 other misdemeanors). Entered the Capitol building, encouraged other insurrectionists outside to come inside, and interfered with an arrest (tried to pull an insurrectionist away from a cop who was arresting him). Lied under oath during his trial.

Judgment: The guidelines range was calculated by the judge as 21 to 27 months, the government requested 87 months. Hale-Cusanelli was sentenced to 48 months of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no other statements from the sentencing hearing regarding terrorism.

Excerpts/Misc: The defendant had statements about wanting a civil war and has a history of extremely antisemitic, racist, misogynistic, and violent comments (including dressing up as Hitler and saying babies born with disabilities should be shot in the head) which were a big factor in the judge’s decision (p. 87):

The Court: I don't think the guidelines as calculated by me appropriately account for your racist and antisemitic motivation. I also believe the extensive damage and injuries caused on January 6th with your fellow rioters require additional punishment beyond what my calculation allows. I also think that your intervention in the arrest by Officer Shephard requires additional punishment beyond what my calculation envisions. As I've indicated, though, I don't think the full eight-level enhancement envisioned in the probation office's calculation is appropriate, given your culpability here. My sentence also reflects a concern about unwarranted sentence disparities, and I think that this sentence appropriately fits in relation to the other obstruction sentences rendered in January 6th cases.

The probation office calculated additional enhancements:

1. 2J1.2(b)(1)(B) for causing or threatening physical injury to a person in order to obstruct the administration of justice
2. 2J1.2(b)(2) for the offense resulting in substantial interference with the administration of justice
3. 3C1.1 for further obstruction of justice by giving false testimony under oath during his trial (said he didn’t know Congress meets in the Capitol)

The judge found 1 & 2 inapplicable.

Summary of facts: Pleaded guilty to Count 2 of the indictment (Civil Disorder and aiding and Abetting 18:231(a)(3) and (2)). Hamner was one of the first to breach the barriers. He pulled down a fence, allowing other rioters to enter Capitol grounds, helped pull away bike racks that police were using as a protective barrier, and grabbed a big metal sign and used it as a battering ram against the police line.

Judgment: The guidelines range was calculated by the judge as 24 to 30 months*, and the government recommended 60 months (under the guidelines calculation where the aggravated assault enhancement applied). Hamner was sentenced to 30 months of incarceration.

*There was an extensive debate over whether the offense conduct constitutes aggravated assault (which has different & higher guidelines calculations). Ultimately, the judge decided that the offense conduct did not constitute an aggravated assault, which led to a significantly different guidelines calculation than if it had been applied. See the excerpt section for more on this.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no other statements about terrorism during the hearing.

Excerpts/Misc:

Aggravated assault debate:

• The Court: This defendant pled guilty to obstructing, impeding, and interfering with officers, and everyone agrees that you start with § 2A2.4 of the guidelines, which is helpfully entitled "Obstructing or Impeding Officers." The base offense level under that guideline starts you off at level 10. But under that there's a specific offense characteristic that permits an increase of three levels under (b)(1)(A) if the offense involved physical contact or (B) a dangerous weapon was possessed or its use was threatened, then it goes up three more levels. And there are other increases that don't necessarily apply in this situation. I do find -- and I'll set out in more detail in a moment -- that a dangerous weapon was possessed, or at least its use was threatened, and that this would, if that guideline was where we stopped, lead to an offense level of 13. But, § 2A2.4 has a subsection (c) that's a cross reference that leads you to another guideline. (p. 7)
• The Court: The conduct here fits the definition of an assault. And Count 2 is punishable for more than one year, so it is a felonious one. But is it an aggravated one? We don't have aspect (B), the serious bodily injury, and we don't have (C), the strangling or suffocation. So do we have (A), the use of a dangerous weapon with intent to cause bodily injury? How do the guidelines define a dangerous weapon? Again, you have to look at the application notes for the aggravated assault guideline, and it says, "Dangerous weapon" has the meaning given that term in § 1B1.1, application note 1. And that includes any instrument that's not ordinarily used as a weapon -- could be a car, it could be a chair, it could be an ice pick -- if that instrument is involved in the offense with the attempt to commit bodily injury. Application note (1)(E) says a "dangerous weapon" means an instrument capable of inflicting death or serious bodily injury, or an object that is not an instrument capable of it, but closely resembles one, or something the defendant used in a manner that created the impression that the object was an instrument that could cause bodily injury, such as when someone pretends to have a gun. I find that the massive sign being pushed into and over the police line was capable of inflicting serious bodily injury and would qualify as a dangerous weapon, even if it's not something ordinarily utilized as a dangerous weapon. And this is supported by docket 28-1, the FBI 302 containing police eyewitness accounts of the size, weight, and sharp corners of the sign and its supporting metal frame and wheels. But just having a dangerous weapon isn't enough for (A), there has to be evidence of the intent to cause bodily injury. The government says there can be little serious dispute on that issue. And that seems to be the probation office's basis for applying the cross reference. But the government bears the burden by a preponderance and I don't see what the evidence of this defendant's state of mind is. Couldn't one also find that the goal was to push them back, disrupt the line and interfere and obstruct, as opposed to causing bodily injury? (pp. 9-11)
• The Court: All right. At the time of the detention hearing I said, "This ruling is not based on a finding that the defendant threw the sign; that's not depicted in the video. However, the billboard did not 'move toward the police line' -- as the defense had put it -- on its own. It was plainly being used." But then I said, "It was plainly being used in an aggressive, offensive manner to disrupt or dislodge the line of officers, and the defendant plainly participated, albeit close to the end of its journey." And while the sign itself largely passed over the heads of the officers, we do have to take into account the fact that it was being held by the huge stand and with huge wheels, which have now been turned vertical and they're not horizontal on the ground. And the FBI 302 provided by the government includes an account of an officer who turned to face the wheel coming straight at his head. But even he said, in docket 28-1, he saw rioters actively pushing the sign into and against the police line. He believed this was done by the rioters in order to breach the police line. So I don't believe the government has proved by a preponderance that this meets the definition of aggravated assault in subsection A, the use of a dangerous weapon with the intent to cause bodily injury by a preponderance of the evidence. And if it did, then we'd have to deal with the question of if that use of the dangerous weapon is what elevates the base offense level to 14, why it would be fair to then add on the extra four points for the use of the same weapon as a special offense characteristic? But I don't think I have to address that because I'm not going with that theory of an aggravated assault. (pp. 12-13)
• The Court: But it's also the government's position that Count 2 falls into category (D), an assault that involved an intent to commit another felony. So what's the other felony? The government says Count 1, 18 U.S. Code § 111(a)(1) and (b). And it says that the assault committed in Count 2 involved an intent to commit Count 1, another felony. But the cases the government relies upon all involve something of a different nature, an assault on an officer when you're committing a robbery, when you're trying to get away from a drug offense or some other offense. And those cases seem inapposite to the specific thing I'm being asked to do here. Count 1 charges using the same large metal sign to assault, resist, oppose, impede, intimidate, or interfere with the same officers engaged in their very same official duties. And the government's asking me to find that the defendant committed the assault on the officers with the sign, in Count 2, with the intent to commit the felony offense of assaulting, impeding, and interfering with officers based on the exact same facts in Count 1, and that is another, quote/unquote, felony offense from the charge of impeding and interfering with the officers. But I'm concerned that the case law doesn't go that far, even if some sort of elements/Blockburger type analysis would let you find the offenses to be different because they have different elements. And the only cases in which that finding has been made in this courthouse so far that the parties have identified are cases in which the parties took the issue off the table in the plea agreement. And the extra problem that we have in this case is we're not using the 231 offense as another felony for the 111 offense. We're going the other way. You're saying the intent to commit the 111 offense was the other felony for purposes of Count 2. But, for a violation of 111(a)(1) to even be a felony, if you don't have physical contact with the victim, your acts have to involve the intent to commit another felony. So, the other felony for Count 1 has to be Count 2. So, I don't see how the interference with officers during a civil disorder can be the other felony that's the necessary element to charge a felony violation of § 111, while at the same time § 111 is the other felony that makes the interference with the officers an aggravated assault. The government noted that the cross reference was applied in the Leffingwell case. But in that case the defendant pled to a § 111 violation. He did have physical contact with not one, but two victims. And most important, he agreed not to dispute the application of the guideline at the time of the plea. And that was the reason I gave on the record for using the aggravated assault guideline. Similarly, Judge Friedrich, in the Creek case, had an agreed-guideline calculation in front of her. She was less troubled by the double counting issue. But there the defendant pled guilty to § 111 and the 231 was the other felony, so you only had to make the cross reference in one direction. Also, her defendant had physically grabbed an officer and forcefully dragged him across the plaza and thrown a strap weighted down with some metal objects in it at him. (pp. 13-15)
• The Court: But there's no reason to believe that this is meant to be based on just the hypertechnical alignment of elements. Because when the guideline, at least in the gun context, tells you, well, you'd use the guideline for that offense instead of the firearms offense, it seems clear that it means something other than another gun possession offense. And it seems that the government's approach strips the provision of any meaning. It strikes me that if the Commission is asking: Did you commit the assault with the intent to commit some other offense? it didn't mean with the intent to commit that exact same assault, just charged differently. They could have easily defined "another offense" as any offense with any different elements that's a different offense, but they didn't. It's also important to note that the cross reference says you go to aggravated assault if the assault on the police officer involved the intent to commit another felony, not the same intent needed to satisfy the elements of another felony, not that it was committed during the commission of another felony. This suggests that the guideline is meant to cover just the situation in the cases that you cited, where the assault on the police officer is intended to facilitate or further or advance or succeed in the commission of or evasion of apprehension for a second, different crime. And the reason this is important, I think as I've already said, is if we use the guidelines specifically designated for an assault on officers, § 2A2.4, starting at the base level of 10, add the three levels for the possession and threatened use of a dangerous weapon -- which is indisputable here -- you get to a level 13. You adjust for his acceptance of responsibility and you're at a level 11. But, if you utilize § 2A2.2 for aggravated assault, you start at a base level of 14. You add four levels for the same use of the same dangerous weapon and now you're at level 18. So you're already eight levels higher, but you're not done yet because under § 2A2.2 you get to add six levels for -- under § 3A1.2 for an official victim, if the victim was a government officer and the offense of conviction was motivated by that status. That adds six levels. But, the application notes explain that that enhancement is not available under § 2A2.2 because that guideline specifically incorporates the notion that it's a police officer involved from the start. So they incorporate that notion, but you end up at a lower guideline. So, under aggravated assault you're now up to level 24. You get three levels for acceptance of responsibility, level 21. We have a difference of ten levels on the guidelines chart for the exact same set of facts… So he's at a criminal history category of Roman numeral V. Under § 2A2.2, the recommended advisory sentencing guideline range at level 11, category V, would be 24 to 30 months. Under § 2A2.4, the advisory sentencing guideline range for an aggravated assault at category V would be 70 to 87 months, which I note already far exceeds the statutory maximum of 60 months anyway. So you've got two guideline calculations for the exact same set of facts and a violation of a statute for which no guideline is even assigned in the manual that produce a 46-month -- or almost four-year -- difference on the low end and a 57-month -- so four and three-quarters -- difference on the high end, and the second one starts higher than the statutory maximum you could ever get, in any event. Therefore, given the fact that the showing necessary for the application of the cross reference under subsection A has not been made, given the government's inability to produce evidence to establish the defendant's intent to cause bodily injury by a preponderance of the evidence, given the circularity involved in the government's proposal, that I find that subsection D applies, and that is that the assault, which is the offense of conviction, involved an intent to commit another felony when the other felony is the exact same assault that likely wouldn't be a felony unless it was committed with the intent to commit another felony. And finally, at best, the cross reference is ambiguous. And under such circumstances the Rule of Lenity requires the adoption of the definition that favors the defendant. I find, for purposes of this case only -- and certainly not every criminal case and not every January 6 case -- that the appropriate guideline calculation in this case is the 24 to 30 months under § 2A2.2. (pp. 20-24)

Summary of facts: Pleaded guilty to assaulting, resisting, or impeding officers. Was part of a group fighting a police line. Head hit officers with stolen riot shields, struck an officer with his hand, pretended to offer aid to an officer to trick him, and then grabbed that officer by the neck, pulling the officer into the crowd. The officer was then assaulted, tased, and robbed of his badge and radio by other rioters while in the crowd and suffered a traumatic brain injury and a heart attack from the assault. Head had a knife in his pocket but didn’t use it.

Judgment: The guidelines range was calculated by the judge as 100 to 125 months, but because Head pled to a charge with a maximum of 96 months and the government recommended 96 months. Head was sentenced to 90 months of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no other statements about terrorism during the hearing.

Excerpts/Misc:

There is a discussion of/debate over the restraint enhancement for Head’s wrist hold of the officer (pp. 6-11).

Head serving time during the pandemic also impacted the judge’s calculation (p. 50): The Court: I also have to consider the fact that the guidelines don't always talk about all of the circumstances and it is important to take into consideration that the early portion of your incarceration in this case took place during the pandemic, when the isolation was particularly severe, being cut off from family and counsel was particularly difficult, and so the time you were serving before today was harsher. And just giving you credit for time served doesn't account for that sufficiently. So I've taken that into consideration as well.

Summary of facts: Pleaded guilty to obstructing an official proceeding on Jan 6. Entered the Capitol building and took selfies on the floor of the Senate. Had a backpack with latex gloves and rope and was wearing protective goggles.

Judgment: The guidelines range was calculated by the judge as 15 to 21 months, and the government requested 18 months (middle of the guidelines range). Hodgkins was sentenced to 8 months of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did explain why (pp. 27-30):

Additional context – he was one of the first J6 people to accept a plea deal and the first felony case to reach sentencing so the DOJ is still determining their prosecution strategy and seeing how judges respond to their arguments.

Prosecution: So back to the need for deterrence and why we're framing this in the context of domestic terrorism is because the need to effectuate general deterrence is really almost never higher. It's especially, especially strong in the context of cases involving domestic terrorism. And the guidelines themselves recognize this need for sort of enhanced care and enhanced punishment. Even though we're not seeking the departure under 3A1.4, note four, that's a departure that applies to conduct that squarely fits Mr. Hodgkins. It does not require a finding of domestic terrorism. That note, that departure grounds is for conduct that is calculated to influence or affect the conduct of government by intimidation or coercion without respect to whether it qualifies as an offense of domestic terrorism under any of the statutes. So to us, although we're not seeking the upward departure, we do believe that it's important to focus the Court's attention on the fact that the commission was certainly interested in increasing penalties and attention to this kind of conduct.

The Court: Can you give me that citation again?

Prosecution: Yes, it's 3A1.4, application note four. It makes it clear that -- it says, the first part – so the context here is that these are victim-focused enhancements. So 3A1.4 generally is meant for victims of a circumscribed crime called a federal crime of terrorism, and that's not what we have here; that's clearly not what we have. Application note four says that even when this enhancement -- it's a big enhancement, the 12-level enhancement isn't going to apply, it says there may be cases in which, A, the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or B, blah, blah, blah where it would be – essentially in such cases an upward departure would be warranted. And it makes it clear that this is sort of a carve out. You don't have to have -- although this guideline only applies to federal crimes of terrorism, the application note applies more broadly than that.

The Court: But isn't the application note simply clarifying what the guideline is about?

Prosecution: I think the -- I read the application note -- the guideline is an enhancement, and the application note to me is a suggestion for an upward departure.

The Court: I see your point. So you're saying that 3A1.4 doesn't literally apply, but the principles that underlie it might justify a departure?

Prosecution: Well, actually I think I'm saying the reverse. I think that 3A1.4, note four -- yes, yes, your Honor. 3A1.4, the adjustment I think does not apply. I think that the application note that cues an upward departure would apply. But I want to make it clear that we're not seeking that upward departure here, in large part because when we look at the nature and circumstances of Mr. Hodgkins' -- the facts and circumstances of his offense and his guidelines range, we believe that the 15 to 21 month guideline range is sufficient here, and that's why we're not seeking the upward departure.

The Court: I see, okay. I understand that, thank you.

Prosecution: But we think it's just -- it's cuing the courts, when they're considering how to sentence conduct like this, that this is very serious conduct that desperately needs to be deterred. And the case law also recognizes this, although more so in the context of a specific deterrence. They're essentially teeing up for sentencing courts that we really, really need to generally deter conduct associated with domestic terrorism. And so here, imposing the 18-month recommended sentence will be just punishment for Hodgkins; it will hold him accountable for his serious criminal conduct. And equally as important, it will send a loud and clear message to other would be rioters that if and when they're caught, they will be held accountable; and that people who might be contemplating a sequel to the January 6th attack will stand down and there won't be a next time. So that Hodgkins and others -- other would be rioters will turn back instead of again and again and again pressing ahead.

Other statements about terrorism during the hearing include:

Prosecution characterizes Jan 6 as an act of domestic terrorism (pp. 23-24): “January 6th was an act of domestic terrorism. And we concede that Mr. Hodgkins himself is not under the legal definition a domestic terrorist, we're not asserting that he is. But he was part and parcel of an act of domestic terrorism that was going on around him, and that context is relevant when the Court is deciding how to sentence him.”

Defense argues otherwise, with definitions and examples (pp. 43-46): “And it's not domestic terrorism for a lot of reasons. First, to my knowledge, of the 500 folks arrested, no one's been charged specifically with terrorism. But secondly, when I look at the U.S. Patriot Act of 2001, when I look at the UN Security Council Resolution 1566 in 2004, when I look the federal criminal code at Title 18 United States Code, all of these give definition of terrorism. And in each, they have a -- they say the same thing essentially. It's the threatening, conspiring or attempting to hijack airplanes, boats, buses, other vehicles; it's any crime committed with the use of a weapon or dangerous device where the intent of the crime is determined to be an endangerment to public safety or substantial property damage for more than just mere personal reasons or monetary gain. And when I look at the Department of Defense's, a definition I'm very familiar with, we look at it as groups that have organization, leadership, funding and the ability to carry out violence against government or targeted people groups… And just one last point on this, and then I'll move on. If we're going to label this protest a domestic terrorism, then please consider this: That's dangerous, because where do we draw that line. For example, if we're going to label a protest that turns into a riot an act of domestic terrorism, then we ought to be prepared to label a protest that leads and resulted in the death of two people and 604 arrests and an estimated $550,000,000 of property damage to 1,500 separate locations in Minneapolis; or what we see in nightly protests in Portland by Antifa that seek to burn down government courthouses and buildings. Those are protests that turn into riots, those are not domestic terrorism. It has an impact on the First Amendment, and we need to be very careful.”

Excerpts/Misc: Judge explaining downward variance (p. 77):

The Court: Well, in imposing sentence, the Court has concluded that a downward variance is warranted in this case, but not a variance as substantial as the variance that the defense seeks. In my view, a downward variance is appropriate because Mr. Hodgkins has no criminal record of any type. This is, as far as I can tell, his first brush with the law in any way. He also accepted responsibility and pled guilty exceptionally early in the process. He didn't threaten or engage in any acts of violence; didn't damage any property; did not encourage anyone else to engage in acts of violence or destruction. And in the words of the Government, he has taken significant steps towards his rehabilitation.

Summary of facts: Pleaded guilty to assaulting, resisting, or impeding officers with a dangerous weapon on Jan 6. Languerand threw two stick-like objects and a large hard-plastic traffic bollard at the police line. He also threw other wooden objects, a pepper spray container, a bottle filled with liquid, and a heavy audio speaker at the police line. He picked up a riot shield and used that against the police line.

Judgment: The guidelines range was calculated by the judge as 46 to 57 months, and the government recommended 51 months (middle of the guidelines). Languerand was sentenced to 44 months of incarceration.

The judge varies downward due to Languerand’s difficult childhood (p. 41): The Court: And with that, I'm now going to read the sentence. And I say again, that this sentence would be higher and, indeed, would be probably in the mid-range, as the government has requested, but that I believe that the defendant's difficult circumstances and his current attitude do support a modest reduction from that sentence, from the mid-range down to a variance, actually, at 44 months.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There was one statement about terrorism during the hearing when the defendant said that he wasn’t a terrorist in his statement to the court (p. 26): Languerand: And like I said, now that I see that things didn't go how so many people said they were going to go, I realize that this wasn't what I thought it was and I may have involved myself in something that was not what it seemed to be. And I am a patriot. I do love this country. I'm not a terrorist. I have no intention of engaging in anything like that again.

Summary of facts: Pleaded guilty to interstate communication of threats. Meredith traveled to D.C. after the riots had ended. He texted a relative threatening to shoot Nancy Pelosi and was arrested with a trailer that had a firearm, an assault rifle with a telescopic sight, 2,500 rounds of ammunition, and multiple large-capacity ammunition feeding devices.

Judgment: The guidelines range was calculated by the judge as 37 to 46 months, and the government recommended a middle of the guidelines sentence.*. Meredith was sentenced to 28 months of incarceration which represents a downward variance from the guidelines calculation, but an upwards variance from the plea agreement**.

*The judge decides to use a different guidelines calculation than the options agreed upon in the plea agreement so the government recommends a midrange sentence within those guidelines (p. 42): Prosecution: The government here is recommending a sentence within the mid-range of the -- whatever guidelines that the Court has determined apply here because defendant came to the District of Columbia, he was in close proximity to his victim. He had weapons, he said he was going to use them. And when being able to -- being asked to ramp down his rhetoric, his threats, he continued.

**The judge explaining his guidelines calculation vs. the two agreed-upon guidelines in the plea deal (p. 35): The Court: So, therefore, I find that at level 12, adding six levels for the conduct evidencing the intent to carry out the threat, and six more for the official victim, we end up with the total offense level at level 24. You subtract three levels for the defendant's acceptance of responsibility, that brings you to level 21. His criminal history category, given his lack of prior convictions, is Roman numeral 1. The parties have agreed that no departures are appropriate. And, therefore, the recommended advisory sentencing guideline range -- which I am not bound to follow, they are not mandatory, they are recommended -- is 37 to 46 months. I note that if either of the six-point enhancements were not applied and we were just at level 15, as was contemplated in the plea agreement, the advisory sentencing guideline range would be 18 to 24 month. I don't see any valid argument for why the official victim enhancement would not apply, so I don't see how the advisory guideline range could be less than that. But if neither of the enhancements applied, then the advisory sentencing guideline range would be 6 to 12 months.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no other statements about terrorism during the hearing.

Excerpts/Misc: The plea agreement specified specific guideline ranges, but the judge found that he could use a higher range – that the PSR calculated – because the probation office isn’t bound by the plea agreement.

Summary of facts: Pleaded guilty to aiding and abetting obstruction of an official proceeding on Jan 6. Kept repeatedly returning to restricted Capitol grounds after being dispersed by police.

Judgment: The guidelines range was calculated by the judge as 15 to 21 months, and the government requested 18 months (middle of the guidelines range). Michetti was sentenced to 9 months of incarceration – see excerpts section for information on why the judge varied downward.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no other statements from the sentencing hearing regarding terrorism.

Excerpts/Misc: One of the reasons the judge varies downward is because Michetti has successfully complied with a long period of home arrest (pp. 46-47): THE COURT: You've been on home detention for the last 18 months, and you've complied with all of your conditions. Ms. Furst, I know that, you know, those are simply the conditions that were imposed, and he's expected to comply with them, but I do think that that is something the Court can consider by way of variance because it is a restriction on your liberty. Had you been detained, the Court certainly could credit you day for day with each day that you were detained. This is a type of detention so while it is certainly not a one-for-one credit, I think that the Court can properly take that into account and your conduct while on that release… That said, I agree with probation that at least some variance under the guidelines range is in order in consideration for the time that you've spent on home detention, the collateral effect that your loss of income will have on your daughter, your lack of any previous criminal record, and the positive changes that you seem to have made in your life.

Summary of facts: Pleaded guilty to obstruction of an official proceeding and assaulting, resisting, or impeding officers. Miller threw a beer can at police, used a police barricade as a ladder to get closer to the Capitol, encouraged other insurrectionists by counting “one, two, three, push!” as they fought a police line, threw batteries at police, and sprayed a fire extinguisher at the police line.

Judgment: The guidelines range was calculated by the judge as 41 to 51 months, and the government recommended 51 months. Miller was sentenced to 33 months of incarceration. Judge explaining the downward variance (pp.73-74): The Court: So what I'm going to do is I'm going to -- in light of Mr. Miller's age, barely 22 at the time of this, intoxication, exemplary record, I am going to vary downward somewhat. I'm going to vary downward by two levels from a level 22 to a level 20, and I'm going to impose a term of incarceration of 33 months.”

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no other statements about terrorism during the hearing.

Excerpts/Misc: Miller was young (22) and drunk and high at the time of the event.

Summary of facts: Pleaded guilty to conspiracy to obstruct an official proceeding and assaulting, resisting, or impeding officers. Neefe and his co-defendant (Smith) had extensive planning conversations about storming the Capitol. Neefe procured a wooden baton ahead of time and brought it with him to the Capitol. He entered the Capitol grounds and helped push a large (8 by 10 ft.) metal sign into a police line. Neefe then entered the Rotunda and refused to leave for 40 minutes.

Judgment: The guidelines range was calculated by the judge as 41 to 51 months, and the government recommended 46 months. Neefe was sentenced to 41 months of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no other statements about terrorism during the hearing.

Excerpts/Misc: Neefe also made online comments about wanting to lynch black people.

Summary of facts: Pleaded guilty to assaulting, resisting, or impeding officers using a dangerous weapon. Palmer threw a wooden plank at the police line, sprayed a fire extinguisher, and then threw the empty fire extinguisher at the police line, threw the fire extinguisher a second time, and finally threw a 4 to 5-foot flagpole at the police line like a spear. After pleading guilty, Palmer posted an online fundraiser where he gave a different version of events than what he agreed to in his plea which substantially minimized his culpability. Because of this, the judge found that he did not get the 2-level reduction for accepting responsibility due to this posting.

Judgment: The guidelines range was calculated by the judge as 63 to 78 months, and the government recommended 63 months. Palmer was sentenced to 63 months of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why (pp. 9-10): The Court: In the plea agreement, the government has reserved the right to request an upward departure for the promotion of terrorism as set forth in §3A1.4(a) but has not done so. There were no other statements about terrorism during the hearing.

Summary of facts: Pleaded guilty to assaulting, resisting, or impeding officers using a dangerous weapon on Jan 6. Ponder hit an officer with a pole, breaking the officer’s riot shield and the pole. He then got a stronger pole and hit a second officer. Then swung the pole at a police line, striking a third officer.

Judgment: The guidelines range was calculated by the judge as 57 to 71 months, and the government recommended 60 months (low end of the guidelines). Ponder was sentenced to 63 months of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no other statements about terrorism during the hearing.

Summary of facts: Found guilty by a jury of two counts of civil disorder and one count each of obstruction of an official proceeding, entering and remaining in a restricted building or grounds with a firearm, and obstruction of justice. Recruited members of the Texas Three Percenters (right-wing extremist anti-government militia) to come with him to the Capitol. Reffitt waved insurrectionists up the stairs into the Capitol. Brought a gun, flexi-cuffs, and megaphone and wore body armor and a helmet. Also had an AR-15 in his car. After Jan 6, Reffitt directed Texas Three Percenters to delete their messages and threatened to shoot his children if they turned him into the F.B.I.

Judgment: The guidelines range was calculated by the judge as 87 to 108 months, and the government recommended 180 months. Reffitt was sentenced to 87 months of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did request the terrorism enhancement and did explain why (pp. 82-83): Prosecutor: “To answer Your Honor's question, it's not just his conduct on January 6 and it's not just his statements before January 6. It's also everything that he is doing and planning. He was planning to overtake our government. He wasn't just trying to stop the certification of the vote. And so we included all of the extra language that did not come out of trial about his future plans. He wasn't done… But to answer Your Honor's question, the terrorism enhancement is warranted here because of all of those factors, including that the defendant planned to attack our government both on January 6 and afterwards. And we do believe that the language applies. The defendant's offense was calculated to influence or affect the conduct of government by intimidation. And the second sentence after that, Your Honor, says, "In such cases, an upward departure would be warranted."

The judge denied the terrorism enhancement with a lengthy analysis of other J6 cases where defendants made credible, violent threats to overthrow the government to avoid sentencing disparities. The full quote and analysis is in the excerpts section below.

There were other statements about terrorism during the hearing:

Prosecution calling Reffitt a domestic terrorist (p. 102 & 103): Prosecution: And we talk about why he's different from many of the people who have been sentenced before. He didn't just want President Trump to stay in power. He wanted to physically and literally remove Congress. That is -- we believe he is a domestic terrorist. We ask for him to be labeled one. Ms. Kerkhoff [Capitol Police officer who gave a victim statement earlier in the hearing] just said it. What he was doing was terrorism...

Prosecution: Understood, Your Honor. We do believe that what he was doing that day was terrorism. We do believe that he is a domestic terrorist.

Excerpts/Misc:

Defense points out Reffitt is the first J6 defendant where the government has argued for a terrorism enhancement and also the first to go to trial (p. 77): Defense: “... if you look at what the government is arguing, that Mr. Reffitt's actions were to affec the conduct of government by intimidation or coercion, we're not just talking about January 6 cases. We're talking about a lot of activities that went on in this country, and yet, this is the only case, the only case where the government has asked for a terrorism enhancement. And likely, this is the only case where the defendant has gone to trial. So I don't think it takes rocket scientry to figure out why the government is asking for the enhancement in this case. I mean, this could apply to almost every January 6 case, that somebody took their actions to influence and affect the conduct of the government by intimidation or coercion. It could affect any rioting case throughout the United States. It could affect anybody who engages in a sit-in in some sort of congressional committee. I think we've really got to be real here and ask why is the government asking for this enhancement when it could apply to all these other cases, some far worse activities than Mr. Reffitt engaged in. And as I said, I don't think it takes a rocket scientist to figure out why.”

Judge going through other J6 cases who didn’t get a terrorism enhancement and denying the enhancement to avoid sentencing disparities (pp. 83-87): The Court: Let me just for the record -- and I know a lot of this is in the sentencing memoranda, and I'm not going to mention every case. I think there are a large number that make the point that I'm going to make here, which is there are a lot of cases where defendants committed very violent assaults and even possessed weapons in their cars or hotel rooms nearby that received -- did not receive this departure. And some of these defendants also made statements in line with the extremely disturbing statements Mr. Reffitt made. So I do want just for the record to highlight a few, the first being… The first being Languerand, 21-35. In this case Judge Bates imposed a sentence of 44 months' imprisonment after the government asked for 51 months' imprisonment. In that case the defendant, at the Lower West Terrace, threw objects, including a traffic cone, at officers. He got a police riot shield and held it in front of him as he was confronting cops defending the Lower West Terrace archway. He bragged about the riot on social media afterwards. He posted, "Next time we come back with rifles. It's not a game." He likened the riot to the American Revolution saying "violence isn't always the answer, but in the face of tyranny, violence may be the only answer." He posted that the Declaration of Independence justified overthrowing the government. Though there's no confirmation, he did post that he brought guns to the Capitol. During a search of his trailer, authorities found a target list and pages with militaristic language referring to Washington, D.C. They also found reference to QAnon. And this defendant, unlike Mr. Reffitt, has a prior history of making threats and being belligerent with officers. In the Fairlamb case, Judge Lamberth imposed a sentence of 41 months' imprisonment after the government asked for 44 months of imprisonment. This defendant joined a crowd of rioters who pushed through a line of officers and took a police baton from the ground. This defendant recorded a video saying, "What patriots do? We fucking disarm them and then we storm the fucking Capitol." He later punched an officer in the face while screaming at them, "Are you an American? Act like a fucking One." After the riot, he filmed a video threatening future violence. "They pulled the pin on the grenade, and the blackout is coming. What a time to be a patriot." Again, that's Fairlamb, 21-120. In the Ponder case, 21-259, Judge Chutkan imposed a sentence of 63 months' imprisonment after the government asked for 60 months' imprisonment. That defendant assaulted three police officers by swinging metal poles at them, shattering a riot shield and striking one in the shoulder. After he was arrested that day and released, he came back to the Capitol to participate further in the riot. As he was being arrested, he told the rioters, "Do not give up." He told police, "When our country is being attacked with like we are, we have to fight. That is what the Second Amendment was built on." This defendant also had a lengthy criminal history. The Meredith case, 21-159, Mr. Reffitt's memo mistakenly labeled this case as Cleveland, but Meredith is the defendant's last name, not Cleveland. In this case Judge Berman Jackson imposed a sentence of 28 months' imprisonment after the government asked for a mid-guideline range sentence. In that case there was disagreement over which range applied. The government was arguing for 37 to 46 months. The defendant had arrived in D.C. too late to attend the rally. He made violent statements over text in the days surrounding the riot. For instance, he said, "Thinking about heading over to Pelosi's." And then there's an expletive I won't say. "Her speech and putting a bullet in her noggin on live TV," with a purple devil emoji. "Ready to remove several craniums from shoulders. I'm so ready to FK some traitors up. I'm going to collect a shit tone of traitors' heads. It's not just me. Someone has to take the trash out. FK these mother fuckers. I'm going to run that" again "Pelosi over while she chews on her gums." This defendant had a handgun and a rifle in his hotel and over 2,500 rounds of ammunition… But the point that I've made repeatedly is you have a lot of highly disturbing comments, not just isolated comments but comments that are tied in with assaults and in some cases trespass on the Capitol, in some cases into the Capitol building, and in some cases pretty egregious physical assaults. In none of those cases did the government seek any of these departures, whether it be under 3A1.4(a), Application Note 4, under 5K2.0, or under 5K2.6. So for those reasons and a real effort on the Court's part to ensure that there's not unwarranted sentencing disparity between various defendants, I am not going to -- I'm going to exercise my discretion to not impose a departure here.

Judge criticizing the government for appearing to add a trial penalty (pp. 104-106): The Court: I know. But the government knows what its evidence is before it pleads it out. You all are not pleading out cases before you, maybe not the judges, but you know full well what the scope of the evidence is. So you're reaching plea agreements based on that knowledge. The judges might not have the benefit of seeing a defendant, as I had in this case, basically confess in multiple venues, real-time confession again and again. It was incredible. Arguably, this case could have been tried in two days.

Prosecution: We agree. The facts that we adduced at trial were, in part, because we were at a trial posture.

The Court: But I don't think it's fair to say that you discovered something in trial that you wouldn't know in a normal case at the time of plea.

Prosecution: Sorry, I didn't mean to say that we discovered, but the record itself.

The Court: The judge certainly learns a lot more, clearly. I didn't have any idea what his role was from your briefing. So you are aware of the evidence you possess. What I summarized here, you were aware of that when you made those sentencing recommendations to those judges.

Prosecution: We are, but those judges are not aware of the same level of factual detail that Your Honor is after having sat through a trial.

The Court: But again, that's suggesting that there's a plea penalty. You are, and you're making recommendations that are way different than you're making in this case, way different.

Prosecution: We believe the defendant's conduct warrants it, but we also believe that the facts that were adduced -- this record is more fully developed than any of the other records --

The Court: Understood. My point is simply that it's fully developed for the government when it walks in and negotiates a plea and takes a plea in a courtroom. It's not fully developed for the judge, but the government is making recommendations in these cases that are pretty close in line to what judges are doing in those cases. They're not recommending departures. They're not, you know, recommending high end and all of that, and that's just my point. There's a cost for going to trial, and the guidelines make pretty clear what that cost is. And the government needs to be really careful going forward that recommendations it's making in cases that have similar facts are going to be taken into account by judges in this court, because we are trying to be really fair and really even in how we're sentencing defendants. And so this defendant has some frightening claims that border on delusional, and they are extraordinarily concerning to the Court. Other defendants did, too. And that's the only point I'm making, Mr. Nestler.

Summary of facts: Pleaded guilty to assaulting, resisting, or impeding an officer on Jan 6. Struck an officer multiple times with a flagpole until it broke, and joined a group of rioters to push a giant metal sign into the police line like a battering ram. Was on pre-trial release for a gun charge when he went to D.C. on Jan 6.

Judgment: The guidelines range was calculated by the judge as 37 to 46 months, and the government recommended 46 months (top of the guidelines). Richardson was sentenced to 46 months of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no other statements about terrorism during the hearing.

Excerpts/Misc: Richardson was 72 at the time of sentencing.

Summary of facts: Found guilty by a jury of obstruction of an official proceeding, civil disorder, entering and remaining in a restricted building or grounds while carrying a dangerous weapon, disorderly and disruptive conduct in a restricted building while carrying a dangerous weapon, and tampering with a document or proceedings. Entered the Capitol and blocked police officers while holding a giant walking stick at port arms. Recruited his co-defendant and a neighbor to come to the Capitol with him, and planned their trip by buying gas masks and MREs and organizing the transportation. Brought a gun but left it in his car. Took an obscene selfie in the Capitol crypt. After finding out there was a warrant for his arrest, Roberson destroyed his and his codefendant’s phones. While on supervised release, Robertson created an arsenal of illegal weapons (30+ weapons, including an M4, numerous automatic weapons, and an explosive device), and talked multiple times about killing himself and police officers in an armed confrontation if they came back to his house. Was an active-duty police officer during Jan 6.

Judgment: The guidelines range was calculated by the judge as 87 to 108 months, and the government recommended 96 months. Robertson was sentenced to 87 months of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no other statements about terrorism during the trial.

Excerpts/Misc: Significantly exaggerated his military service.

Summary of facts: Pleaded guilty to assaulting, resisting, or impeding officers, civil disorder, obstructing an official proceeding, and committing an act of physical violence on the Capitol grounds on Jan 6. He entered the Capitol building twice, chased an officer up multiple flights of stairs, smoked weed in the Rotunda, swung a plastic bottle at an officer’s head, and sprayed water across the line of officers as they struggled with rioters.

Judgment: The guidelines range was calculated by the judge as 41 to 51 months, and the government recommended 46 months (midpoint of the guidelines). Rubenacker was sentenced to 41 months of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why.

There was one statement about terrorism during the hearing: The Court: And so with – if I view the offense conduct in a more holistic manner than you do – and you have raised that argument in other contexts that I will get into shortly – why couldn't Mr. – Officer Goodman be considered a victim of the overall conduct that this defendant's actions, on January 6th, contributed, as a collective force as a member of this riot, to proximately cause terror in the hearts of the police officers who were overwhelmed that day? (pp. 16-17)

Excerpts/Misc: There is an extensive debate over the grouping and subsequent guideline calculation of the counts & if “administration of justice” was intended to include things like electoral vote certification, read more at pp. 31-81.

Summary of facts: Pleaded guilty to assaulting, resisting, or impeding officers while using a dangerous weapon on Jan 6. Thompson helped seize riot shields and distributed them to other rioters to use against the police line. He helped through a large speaker at the police line, picked up a metal baton from the ground, and swung it at the police line.

Judgment: The guidelines range was calculated by the judge as 46 to 57 months, and the government recommended 48 months (low end of the guidelines). Thompson was sentenced to 46 months of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no other statements about terrorism during the trial.

Excerpts/Misc: Prosecution explaining why they didn’t ask for a higher sentence: Prosecutor: The only reason why the government is not asking for a higher sentence, which frankly would be appropriate given the violence in the lower West Terrace and the threat to our democracy that this violence caused, is because of his cooperation, which was early and extensive and, I think, unique. I don't know of any other defendant who pled guilty to a 111(a) or (b) offense without having been arrested first. He agreed to cooperate. He met multiple times with the government. I met with him three times for probably about ten hours. (pp. 25-25)

Summary of facts: Found guilty by a jury of assaulting, resisting, or impeding officers with a dangerous weapon; obstructing officers during a civil disorder; entering and remaining in a restricted building or grounds, while carrying a dangerous weapon; engaging in disorderly or disruptive conduct in a restricted building or grounds, while carrying a dangerous weapon, and engaging in physical violence in a restricted building or grounds, while carrying a dangerous weapon. Brought body armor (his NYPD vest), MREs, and his NYPD firearm with him to D.C., and wore the body armor when he went to the Capitol. Attacked a police officer with a flagpole, then tackled the officer and tried to rip off the officer’s gas mask, which choked the officer. Former Marine and retired NYPD officer.

Judgment: The guidelines range was calculated by the judge as 210 to 240 months, and the government recommended 210 months. Richardson was sentenced to 120 months of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no other statements about terrorism during the hearing.

Excerpts/Misc: Judge talking about the original intent of body armor enhancement and ruling it applies to Webster: (pp. 11-15) The Court: Okay. Thank you, Mr. Monroe. So, you know, look, it is a novel application, it seems to me. You know, based on my research -- and I don't think the parties have really found any cases except for the one case out in Michigan, the Walker decision, where this enhancement has been applied to anything other than drug trafficking cases and cases of armed robbery, there were some Hobbs Act cases and the like -- you know, you sort of scratch the surface on these things and you find out more than you ever bargained for. But the origin of this enhancement actually dates back to 2002. There was an act or a section of a -- there was an act passed by Congress, it's called the James Guelff and Chris McCurley Body Armor Act of 2002. It is Section 11009 of Public Law 107-273, which you can find at 116 Stat. 1819. And the sense of Congress was that body armor had been a -- it had been greater trafficking of body armor; states were not in a position to enforce and monitor the trafficking of that body armor. The sense of Congress that it posed, that is, body armor posed a threat to the community because criminals who wore body armor during the commission of a violent crime were a greater threat than those who were not, and the sort of predicate -- you know, the preambulatory clauses in the Act referred to several shootings and murders, actually, of the police officer after whom the act is actually named. And Congress, it was a sense of Congress that it directed the Sentencing Commission to add an enhancement, and that such an enhancement should at least involve two levels. And they specifically define what body armor meant and they specifically -- and wanted body armor to apply only in cases of crimes of violence as they were defined not in the Guidelines but in 18 U.S.C. 16, which is a slightly broader definition than some of the Guidelines definitions of crime of violence. And in 2004 -- I think 2003, I take it back, the Sentencing Commission did just that, they adopted this Guideline for the first time, went into effect. And, you know, the history of it, it's not terribly notable other than the fact that it mentions that Congress had directed the Sentencing Commission to do this. But they did want to emphasize, the Sentencing Commission did emphasize in the sort of explanatory notes that the definition includes offenses that involve the use or attempted use of physical force against property, as well as persons. This is a crime of violence, so, you know, oddly enough, you could be wearing body armor and destroy property potentially and could be given the enhancement. And, you know, the emphasis also this is an enhancement that applies to use; that is, the active employment, as opposed to just merely possessing it in connection with. And, you know, look on the facts of the case, I think the enhancement does apply by a preponderance of the evidence. You know, the facts are that Mr. Webster did bring the body armor with him to Washington, D.C.; he brought it with him along with a gun, along with military rations that he ate. And although he left the gun behind him that day, he wore the body armor. And his testimony at trial was that he had worn it for warmth but he also wore it -- and these were his words -- and wore it for his own safety, and you have to query what his own safety was, and it undoubtedly, at least in part, was the fear of being shot, whether by what he thought may be walking the streets of Washington, D.C., bad elements in Washington, D.C., or something else. And in terms of his use of it during the crime itself, look, I think a reasonable viewing of the evidence, plus the testimony, suggests that it did contribute to the offense in the sense that it emboldened Mr. Webster to behave the way that he did. He may not have been as emboldened by his actions that day had he not been wearing that body armor. You know, he was approaching a line of police officers. He himself is a former police officer. He would have known that those police officers had guns with them, and that charging at, as he ultimately did, attacking those police officers, could bring gunfire. Did he process all of that in his head? Only he knows. But certainly the evidence, it seems to me, by clear and convincing evidence, would establish the use of body armor. And the government did cite this Ninth Circuit case that essentially says, look, wearing the body armor constitutes active employment of the body armor, as opposed to just mere possession of it. So I think for those reasons, it does apply, and so I am going to apply the four-level enhancement. That said, I am going to take it into account in terms of how I ultimately do sentence and whether I vary in the manner that the defense has requested.

Judge saying that the oversized impact of the enhancement will be taken into account for a variance on the sentence (pp. 15-17): The Court: I don't think anybody here is suggesting that the wearing of the body armor here sort of falls within the heartland of what both Congress and the Sentencing Commission contemplated. You know, as I said, every Circuit Court decision I have found involves the use of body armor either in connection with drug trafficking or in connection with an armed robbery, and clearly Congress did not contemplate the use of body armor in the circumstances that we have here, which is assaultive contact, even albeit with a dangerous weapon but not a firearm. So for all tho those reasons, I do think the four-level enhancement does apply. And that said, I do think -- and I will, as we talk through this, that'll be reflected in the ultimate sentence as my view that the enhancement is not only sort of not only heartland conduct, but as we'll talk about momentarily, the consequence of the enhancement is extremely draconian. The addition of those four levels in this case adds, at least by my calculation, six years to nine and a half -- over nine and a half years to the bottom end of the Guidelines -- I'm sorry, six and a quarter years to seven years and ten months to the Guidelines Range. Six and a quarter years is greater than all but two other defendants, to my knowledge, have gotten in any January 6th prosecution. So it cannot be that a single enhancement justifies a sentence whose enhancement is greater than any other sentence that's imposed so far by any judge in this Court for any conduct that has been prosecuted and convicted and sentenced for events arising out of January 6th. So while the ultimate Guidelines here do end up with a 17 and a half minimum, they're driven in large part by the six-year increase caused by that four-level enhancement. And I'm not suggesting that absent that enhancement, we're talking about light Guidelines, because it still would result in, I think, an 11 and a half year bottom end. But, nevertheless, you get a sense of how impactful the Guidelines are when you sort of think about actually how many years it adds to the Guidelines calculation and compare that to the sentences that have been handed out so far for the conduct surrounding January the 6th. So bottom line is, I will apply the four-level enhancement, I'll take that into account in terms of the request for the variance, and so that'll be the ruling of the Court.

Summary of facts: Pleaded guilty to assaulting, resisting, or impeding law enforcement officers. Sprayed a line of officers with a chemical irritant spray. While police were recovering from the spray, insurrectionists stole their shields and gear, leading to the second breach of the east Columbus doors to the Rotunda. Then he entered the Capitol Rotunda. Brought & wore goggles and gloves.

Judgment: The guidelines range was calculated by the judge as 24 to 30 months, and the government recommended 30 months. Willden was sentenced to 24 months of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no statements about terrorism during the hearing.

Excerpts/Misc: Prosecution on why a dangerous weapon enhancement wasn’t pursued (p. 15): Prosecutor: One of the reasons why the government didn't pursue an enhancement based on dangerous weapon is because we weren't able to state definitely, based on our evidence, whether he brought the spray from home or whether he obtained it from, perhaps, an individual he met there or stood next to in the crowd.

Prosecution on Willden’s Proud Boys membership (p. 18): Prosecution: So while there's a clear affiliation with Proud Boys that has been going on for some time, we were not able to, sort of, link that affiliation to the events of January 6 or Mr. Willden's intent when getting onto the plane to Washington, D.C., on January 6th.

Judge pointing out that the majority of Jan. 6 sentences are on the low end (p. 20): The Court: All right. In looking at the chart, the government's chart, that lists all the convictions and focusing in on the 111 comparators, if -- like they do in the Olympics, if you throw out the high and the low -- the low being Judge Friedrich's six-month sentence, and then Judge Lamberth sentenced someone at the top of the guidelines -- it seems to me that all of the convictions -- or the sentences cluster around a range from about 20 percent below the low end of the guidelines and 20 percent above the high -- the low end of the guidelines as well. In fact, you know, probably the most common is the low end of the guidelines sentence within that range.

Judge saying that the trend of lower sentences has impacted the decision in order to avoid sentencing disparities (pp. 33-34): The Court: The Court is to impose a sentence that avoids unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. The government has provided a chart that lists a number of the January 6th defendants -- defendant sentencings. I have closely analyzed the other January 6th defendants who were convicted under 18 U.S.C. § 111 by researching the dockets in those cases, including the applicable guidelines ranges. The parties have also provided useful comparator information in their respective sentencing memoranda. As I indicated earlier, the Court makes the observation that if one knocks out the longest sentence and the lowest one, the others group around the range of 20 percent below and 20 percent above the applicable low end of the guidelines for each particular offender. But the Court notes that defendant's guidelines were lower than other comparators because the government could not analyze the chemical spray that defendant utilized. The Court also recognizes that probation has recommended a low-end guideline sentencing.

Willden’s history of substance abuse also made an impact on the judge who stressed the need for substance abuse treatment while incarcerated.

Summary of facts: Found guilty by a jury of obstruction of an official proceeding. Williams moved a bike rack barrier created by police officers in order to allow other insurrectionists and himself to scale the stairs to the Capitol. He entered the Senate Wing, went to the Crypt, stole police’s water (that was to be used in case of chemical irritant sprays), smoked marijuana in the Rotunda, and overran a police line.

Judgment: The judge calculated the guidelines range as 57 to 71 months, and the government requested 64 months. Williams was sentenced to 60 months of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no other statements from the sentencing hearing regarding terrorism.

Excerpts/Misc:

Questioning by the judge of why the government has kept Jan 6 felony restitution at $2,000 (pp. 59-60): The Court: Okay. Before you leave, Mr. Franks, I just want to talk a little bit about restitution and some other matters that were brought up in the PSR. So at the outset of the prosecutions of the events arising out of January 6th, the government was requesting or including in plea agreements a $2,000 restitution amount for defendants convicted or entering pleas of guilty to a felony and, at the outset, this was based on an estimated damage amount of, you know, 1.3 or -4 million. As of April 5, 2022, the damages are now creeping up closer to $3 million as a result of what occurred on January 6th in terms of damages to the -- to the Capitol --

Defense: That is correct, Your Honor.

The Court: -- Building, and because of the loss suffered by the U.S. Capitol Police. And yet, I think the government is still just requesting a $2,000 restitution amount here. Is that simply for the obvious reason that that is the same amount that the government's been requesting for restitution from other defendants, even if the circumstances are totally different -- they've pled guilty, it was before the estimate, the cost estimate -- the loss estimate went up? But the government is still sticking to that $2,000 figure?

Prosecution: Yes, Your Honor. The government --

The Court: Why? Why, when all of the circumstances have changed?

Prosecution: I don't have an answer personally, Your Honor. I know that that is what our position is at this point, is that we're maintaining the request for $2,000 for every felony defendant who is sentenced.

Summary of facts: Pleaded guilty to obstruction of an official proceeding and assaulting, resisting, or impeding certain officers on Jan 6. Wilson hit officers with PVC pipe, threw it at the police line, and helped pull a riot shield from an officer. He then pushed that officer to the ground and pushed another officer.

Judgment: The judge calculated the guidelines range as 41 to 51 months, and the government requested 46 months (middle of the guidelines range). Wilson was sentenced to 51 months of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no other statements from the sentencing hearing regarding terrorism.

Summary of facts: Pleaded guilty to assaulting, resisting, or impeding officers. Shined a strobe light in the eyes of officers in the police line. Threw a pole and helped throw a large speaker at the police line. When an officer was dragged into the crowd, Young held the officer’s arm back so the officer couldn’t radio for help and so that other insurrectionists could take his radio and badge. Young also handed a stun gun to another rioter and showed him how to use it – that rioter then used the stun gun on the officer. Young also grabbed and pushed another officer who had just been pulled into the crowd. Young brought his 16-year-old son with him on January 6th and encouraged him to participate.

Judgment: The guidelines range was calculated by the judge as 77 to 96 months, and the government requested 86 months. Young was sentenced to 86 months of incarceration.

Terrorism enhancement (U.S.S.G. §3A1.4, n. 4): The government did not request the terrorism enhancement and did not explain why. There were no other statements from the sentencing hearing regarding terrorism.