New plea deals sets possible new precedent for resolving low-level Capitol riot prosecutions with single misdemeanor with 6 month jail maximum

As reported in this Politico piece, headlined "Virginia couple pleads guilty in Capitol riot," the first set of pleas for low-level participating in the January 6 riots were entered in federal court yesterday.  Here are the details:

A Virginia couple on Monday became the third and fourth defendants to plead guilty in the sprawling investigation stemming from the Capitol riot in January.  However, Jessica and Joshua Bustle of Bristow, Va., became the first to plead guilty in federal court who faced only misdemeanor charges as a result of their actions at the Capitol as lawmakers were attempting to certify President Joe Biden’s electoral college victory.

Under a deal with prosecutors, the Bustles each pleaded guilty to one of the four misdemeanor charges they faced: parading, demonstrating or picketing in a Capitol building. They could get up to six months in jail and a fine of up to $5,000, but will be spared the potential of back-to-back sentences on multiple counts.

The arrangement could serve as a template for hundreds of other misdemeanor-only cases filed related to the Jan. 6 events.  Defense attorneys say it also suggests that prosecutors will not readily agree to more lenient resolutions in Capitol riot cases, such as deferring the case and dismissing it following a period of good behavior.

“There’s no guarantee what the sentence will be in this case,” Judge Thomas Hogan told the Bustles during the afternoon hearing, conducted by videoconference. “I can give a sentence that’s legal up to the maximum in the statute: six months.”

According to a complaint filed by an FBI agent in March, Jessica Bustle posted on her Facebook page on Jan. 6: “Pence is a traitor. We stormed the capital.  An unarmed peaceful woman down the hall from us was shot in the neck by cops.  It’s insane here….Pray for America!!!!”  In another post, Jessica Bustle — who said she’s opposed to taking the coronavirus vaccine — indicated she and her husband were attending a “health freedom” rally separate from then-President Donald Trump’s rally. They later decided to check out what was happening at the Capitol, she wrote.  “My husband and I just WALKED right in with tons of other people.” Bustle also wrote: “We need a Revolution.”...

The Bustles have also agreed to pay $500 apiece in restitution, Hogan said.  Both the Bustles' attorneys and a prosecutor said they were prepared to proceed with sentencing Monday, but the judge declined, saying he would set a sentencing date in 4 to 6 weeks.  “I’m not prepared to do sentencing today. I think we have to look at the case a little bit,” said Hogan, an appointee of former President Ronald Reagan. The judge said he wanted to ensure “consistency and comparability” of sentences among the Capitol riot defendants, none of whom have been sentenced thus far.

Many Capitol riot defendants face the four typical misdemeanor charges the Bustles faced plus a felony charge of obstruction of an official proceeding.  The latter charge carries a potential 20-year prison term. It is not clear how prosecutors have distinguished between nonviolent defendants who face only the misdemeanors and those who had the felony charge added on.

The first guilty pleas in the Capitol riot came in April from Jon Schaffer, a heavy-metal guitarist and self-described lifetime member of the Oath Keepers. He admitted to two felonies: obstruction and entering a Secret Service-restricted area while carrying a dangerous weapon.  Schaffer agreed to cooperate in the government’s ongoing conspiracy case against fellow Oath Keepers.  A total of 16 people are now charged in that case.

The second guilty plea was from a Florida man who went onto the Senate floor during the Jan. 6 unrest, Paul Hodgkins.  At a hearing earlier this month, he pleaded guilty to a felony obstruction charge.  Prosecutors agreed to drop the misdemeanor charges against him, but there was no cooperation element to the deal.  He is tentatively set for sentencing on July 19.

This Reuters piece about these latest pleas details a bit more some of the sentencing specifics around the two earlier pleas:

The first guilty plea came in April, when a founding member of the right-wing Oath Keepers, Jon Schaffer, pleaded guilty to two felony charges of obstructing the certification of the 2020 election and breaching a restricted building. Prosecutors are recommending a sentence of between 3-1/2 and 4-1/2 years of prison time for Schaffer, but his sentence will ultimately be decided by a District of Columbia judge.

A Florida man on June 2 became the second person to plead guilty to storming the Capitol. Paul Allard Hodgkins pleaded guilty to one felony count of obstructing an official proceeding. A judge said federal sentencing guidelines call for Hodgkins to receive sentence in the range of 15 to 21 months.

Prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Harsh penal treatment of some Capitol rioters being criticized by notable progressive 
• Another effective (but still incomplete) look at possible sentencing outcomes for those prosecuted for Capitol riot
• Covering some interesting developments in some Capitol riot prosecutions 
• Noticing a lack of pleas, so far, in Capitol riot prosecutions 
• First public plea deal struck by Capitol rioter, who agrees to cooperate and to reported guideline range of 41 to 51 months in prison
• Second Capitol rioter reaches plea deal with reported guideline range of 15 to 21 months in prison