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July 16, 2022

Feds seeking (above-guideline) sentence of 15 years for first Jan 6 defendant to be sentenced after trial convictions

Based on a recent AP accounting of the January 6 riot cases, I believe there have already been around 200 defendants sentenced for their activities related to the Capitol riot, but all of those sentences have been handed down after guilty pleas.  As detailed in this Insider article, federal prosecutors are seeking a particularly severe sentence for the first rioter due to be sentenced following a conviction at trial.  Here are the basics:

Guy Reffitt, the first Capitol rioter convicted at trial on charges stemming from the January 6, 2021 insurrection, should receive a 15-year prison sentence for his "central role" in leading a pro-Trump mob that clashed with police protecting Congress, federal prosecutors said in a court filing Friday.

A jury in Washington, DC, needed just hours in early March to find Reffitt guilty on all five charges he faced in connection with the Capitol attack, including obstruction of an official proceeding. Reffitt, of Texas, was also found guilty of entering restricted Capitol grounds with a handgun and with later threatening his children to keep them from reporting him to law enforcement.

In a 58-page court filing, federal prosecutors argued that Reffitt played a pivotal role in "overwhelming officers and showing the mob the way forward at the outset of the riot." The language echoed their description of Reffitt at his weeklong trial, where prosecutors called Reffitt the "tip of this mob's spear" and played video footage of him ascending stairs up to the Capitol in tactical gear, with fellow members of the pro-Trump mob following him.

If ordered, the 15-year sentence would go down as the longest prison term given to a Capitol rioter to date, nearly tripling the more than 5-year sentence Robert Scott Palmer received after throwing a fire extinguisher at police during the January 6 attack. Judge Dabney Friedrich, a Trump appointee confirmed in 2017, is set to sentence Reffitt on August 1....

In a separate court filing Friday, Reffitt's defense lawyer argued that he should receive a sentence of no longer than 2 years in prison. His lawyer, F. Clinton Broden, noted that Reffitt never entered the Capitol.

The Government's lengthy sentencing memorandum is available at this link, and it begins this way:

For Defendant Guy Reffitt’s central role in leading a mob that attacked the United States Capitol while our elected representatives met in a solemn Joint Session of Congress — including his intention to use his gun and police-style flexicuffs to forcibly drag legislators out of the building and take over Congress, and his later threats to harm his children if they turned him into the FBI — the government respectfully requests that this Court sentence him to 15 years of incarceration.

The Court should depart upwards from the PSR’s Sentencing Guidelines range of 9 to 11.25 years (108 to 135 months)2 of incarceration both because Reffitt’s crime “was calculated to influence or affect the conduct of government by intimidation or coercion,” U.S.S.G. § 3A1.4, cmt. n.4, and because the Guidelines’ grouping analysis provides “inadequate scope” for Reffitt’s possession of multiple weapons in the commission of his offenses, see U.S.S.G. § 3D1.4, bkgd. cmt. (upward departure based on grouping); § 5K2.6 (upward departure based on use of weapons).

The defense's sentencing memorandum is available at this link, stresses to the court the "need to avoid sentencing disparities" and it contends that "most if not all defendants who received a sentence of greater than 24 months imprisonment are at a whole different level than Mr. Reffitt."  It concludes this way:

Based upon the foregoing, Undersigned Counsel respectfully suggests that a sentence of no more than 24 months imprisonment is, in fact, sufficient but not greater than necessary to comply with the purposes of 18 U.S.C. § 3553.

Some of many prior related posts:

July 16, 2022 at 07:39 PM | Permalink


Assuming the details are correct, 10-15 sounds about right.

I would note, however, the AP and other Democrat state media are not complaining that this is another case of “mass incarceration,” which will ruin his life and not give him an opportunity to make restitution.

Posted by: TarlsQtr | Jul 16, 2022 9:11:03 PM

TarlsQtr --

Just so. The Lefties. who for years have been yelping about "harm reduction" and rehab and second chances and "re-imagining" incarceration, etc., et al, all of a sudden have become real quite about the Capitol rioters. What a bunch of hack hypocrites.

Posted by: Bill Otis | Jul 16, 2022 10:21:15 PM

I am curious, Tarls and Bill, what makes a sentence of 10-15 years seem "about right" in this case given his offense conduct seems comparable or even much less culpable than lots of folks who have only received 2 years or less?

Do you think lots of other Jan 6 defendants have been sentenced much too leniently or that an extra decade of prison time is justified for Reffitt's failure to plead guilty?

For the record, given that Reffitt did not even enter the Capitol and has no significant criminal history, I think the feds are asking for an excessive prison term. But that has long been par for the course for anyone who exercises his constitutional right to trial and won't waive all sorts of other rights as part of a plea.

Posted by: Doug B. | Jul 17, 2022 2:20:33 PM

Ignoring whether others have received overly lenient sentences I would say that factors unrelated to Jan. 6 itself (such as the threatening his kids) counsels in favor of a much longer term in Mr. Reffitt's case.

As far as I've seen most of them (even people who did in fact inter the Capitol building) were simply acting stupidly and recklessly, they got caught up in a mob and, as mobs do, didn't particularly think about whether what they were doing was a good idea.

Reffitt, on the other hand, appears to have very much planned to do _something_.

Posted by: Soronel Haetir | Jul 17, 2022 5:22:38 PM

You may want to read the defense's sentencing memorandum to see what his daughter had to say about him. It is touching and compassionate. I do wonder how many of those who have received light sentences after a plea testified against him at trial. Apparently, they would not let his daughter testify. Another item is his pre trial confinement. This is very familiar to me. I do also think we have a legal system not a justice system.

Posted by: beth curtis | Jul 17, 2022 7:40:10 PM

Having not looked at the guidelines or the facts of the case, I have no informed opinion about the sentence. My impression is that 15 sounds quite stiff. On the other hand, the defendant might have troubled himself to stay at home and shown more respect for a very important national tradition. Having chosen to act like a punk, he has only himself to blame.

Posted by: Bill Otis | Jul 18, 2022 2:13:49 PM


1. He appeared to be one of the main instigators. In a sports brawl, the first ones involved always get higher penalties even if the entirety of both teams become involved. A lot of people were caught up in it and deserve some leniency. A leader is not one of them.

2. He entered the Capitol with a gun and zip ties. It is fair to say he was open to using both.

3. He threatened witnesses (his kids).

4. This is different. Unlike the leftists, I would come down with the hammer of god on anyone making credible threats to politicians and the judiciary.

Posted by: TarlsQtr | Jul 18, 2022 7:31:41 PM

Tarls: Based even on the feds' version of events, Reffitt was no more an instigator than hundreds of others, he did not enter the Capitol, and his threats were hardly robust. That said, your final comment seems to be an indication that you think many other Jan 6 rioters have gotten sentenced too leniently.

Bill: 15 years is quite stiff, especially compared to hundreds other who got much less despite seeming doing much more. So, another prime example of the trial penalty, with the government seeking a decade more for Reffitt not for his crime, but largely for his decision to exercise his constitutional rights.

Posted by: Doug B. | Jul 19, 2022 12:02:18 AM

Doug --

No, it was not for exercising his rights. It was for his dishonest, belligerent behavior and his falsely denying what he did. It's wrong to punish people for exercising their rights, but perfectly in line to enhance their sentence (which was still within the statutory range) when they lie. He lied, so he got socked. Too bad. Maybe next time he'll be more honest.

P.S. It's something else to see you bridle at the judge using his discretion, when you've spent years campaigning for the idea that judges should have more discretion! Or is it that they should just have more discretion to go down, but less discretion to go up?

P.P.S. If you want to overrule Bordenkircher (which you do), have at it. I think you'll have the same luck as you will wanting to overrule Watts.

Posted by: Bill Otis | Jul 21, 2022 11:23:21 AM

Bill, we have not yet seen in this case how the judge will use his discretion, as Reffitt is scheduled to be sentenced on Aug 1. So this is not at all about bridling at judicial discretion (which I always support, though I want it guided by lots of sensible law and subject to transparency and various forms of review).

I am here troubled by prosecutors seeking a sentence 10+ years longer for the first Jan 6 defendant convicted at trial when his actual "belligerent behavior" appears to be no worse than the behavior of many comparable defendants who pled guilty and got only around 2 years. It is that exercise of prosecutorial discretion that leaves me puzzled and creates the impression of a trial penalty with a sentencing recommendation from prosecutors 2x or 3x more severe based not on the actual offense conduct, but based a defendant exercising his constitutional right to put the government to its burden of proof.

Among my concerns is that prosecutors do not fully and truly explain why such a disparity in sentencing recommendations is justified here. You think it is because Reffitt was "dishonest" and "lied," but an extra 10+ years in prison for dishonesty seems quite severe AND it is not clear that is what is going on. The government's sentencing memo does not assert he lied nor to they seek to justify the disparity in sentencing recommendations on this ground. You might think that serves as an adequate justification, but that is not what DOJ has said to the judge prior to sentencing.

So, Bill, it seems you have some key facts wrong here. But that's okay, I already know you generally think prosecutors can do no wrong, even if the rest of us sometimes do get things wrong.

Posted by: Doug B. | Jul 21, 2022 12:56:49 PM

How many of the other rioters brought a gun, flexicuffs, and threatened their own children?

That sounds especially heinous and deserving of a beat down many of the others were spared.

Posted by: TarlsQtr | Jul 21, 2022 2:58:43 PM

Doug --

"So, Bill, it seems you have some key facts wrong here. But that's okay, I already know you generally think prosecutors can do no wrong, even if the rest of us sometimes do get things wrong."

Here's a partial list of prosecutors I think get things wrong, not just often, but routinely: George Gascon, Kim Foxx, Larry Krasner, Marilyn Mosby, Alvin Bragg, Kimberly Gardner, Keith Ellison. I would have added former DA Chesa Boudin, but, despite the sentencing reform movement's love of him, those far right wing extremist voters of San Francisco just dumped him in a landslide.

I mean, they are far right wing, no??

My, my, my.

Didn't think too much of Democratic rising star Mike Nifong, either.

So who is getting "key facts wrong" in claiming I'm such a kneejerk fan of prosecutors?

You probably believe everything Weldon Angelos says, too.

P.S. You're not getting any stars on your chart for not giving me a call while you were in town for the Angelos event. Sit in the corner!

Posted by: Bill Otis | Jul 21, 2022 6:55:21 PM

Tarls: here is one case referenced in the defense sentencing memo of a person who got less than 4 years: "United States v. Coffman, No. 1:21-CR-00004-CKK: Drove to Washington on January 6 from Alabama in a pickup truck, containing loaded firearms, including a 9mm handgun, a rifle, and a shotgun. Also, inside the pickup truck and in its covered bed were hundreds of rounds of ammunition, large-capacity ammunition feeding devices, a crossbow with bolts, machetes, camouflage smoke devices, a stun gun, cloth rags, lighters, a cooler containing eleven mason jars with holes punched in the lids, and other items. The eleven mason jars each contained a mixture of gasoline and Styrofoam [to serve as bottle-based improvised incendiary weapons (i.e. Molotov cocktails).... [And] before January 6, he had traveled to Washington and attempted to drive to the residence of a United States Senator."

Not a perfect apple-to-apples comparison, but still seemingly pretty comparable. Even if you think Reffitt's conduct was much worse than Coffman's, is it really FOUR TIMES WORSE, so that Reffitt should get 15 years in prison while Coffman got only 46 months? Indeed, I believe the feds only asked for 41 months for Coffman, but now seek 180 months for Reffitt. Again, if you want to say Coffman should have faced a decade or more for comparable behavior and was lucky to get such a break for the feds, so be it. But I have a hard time finding a basis other than that Reffitt went to trial to explain why the feds are seeking nearly five times longer a sentence for Reffitt than they sought for Coffman.

So you understand, I am fully supportive of sentencing giving credit for those who show remorse, admit the truth about their misbehavior (on Jan 6 or at other times). But, if we are to truly respect and honor constitutional rights, it is a very bad practice and very bad look if and when someone seems to face many years, even decades longer punishment when the only clear distinguishing feature of their case is that they exercised their right to trial. Perhaps a 1/3 reduction --- eg, a sentence differential of 4 years after a plea to 6 years after a trial --- makes sense. But sentences that are 3x or 4x longer due to going to trial just seems to me badly out of whack unless one does not truly respect the right to trial and is eager to coerce folks to always give it up.

Posted by: Doug B. | Jul 22, 2022 9:07:55 AM

Fair point, Bill, that it would be more proper to say you think prosecutors are generally never wrong when seeking severe sentences (but often wrong when failing to do so). Kind of like you generally think the Justices are never wrong when ruling for the state in criminal cases (but always wrong when ruling for a defendant).

So, I will refine by saying you are a persistent fan of the application state power in the criminal justice arena. Indeed, I think we are all still waiting for you to cite a single criminal constitutional SCOTUS case with a ruling for the defendant that you think was rightly decided.

Posted by: Doug B. | Jul 22, 2022 9:16:54 AM


Thanks for the example. I do find the disparity shocking. I see nothing wrong with a “plea windfall,” in theory. You at right, however, that the disparity is too great. Coffman should have gotten 8-10 years instead of under four. That’s more than enough of a windfall for saving the taxpayers those resources.

Posted by: TarlsQtr | Jul 22, 2022 1:30:34 PM

Doug --

We always aim to please. Bailey v. United States, 516 U.S. 137 (1995), where ALL the conservative Justices voted for the defendant, whose conviction was correctly reversed.

Now a question for you: Do you think McVeigh's execution was legal and just? Not whether he was properly indicted or whether it's a good case for the death penalty if we are to have a death penalty. Nope. No dancing around. Was McVeigh's execution legal and just?

Posted by: Bill Otis | Jul 22, 2022 5:04:17 PM

Bill, Bailey is a statutory ruling, not a constitutional one. Try again, please.

As for McVeigh, I view his execution as both legal and just --- though I am always inclined to defer my personal assessment of "justice" to those persons tasked in our legal system with delivering justice (assuming there was no prosecutorial misconduct or defense incompetence in presenting the case to those persons). In McVeigh's case, a unanimous jury, with the opportunity to consider, and broad discretion as to how to give effect to, all relevant factual and moral considerations, decided he should die for his crimes. (Though I have heard stories that victims against the death penalty were not able to testify, which is troubling and played a role in the enactment of the federal Crime Victims Rights Act.)

Notably, when a jury decides a defendant should not be found guilty of a crime, we ought to respect that view of justice as well. But sentencing based on acquitted conduct fails to do so.

Posted by: Doug B. | Jul 22, 2022 8:33:11 PM

Doug --

First, thank you for your direct answer on McVeigh.

Second, although Bailey is on the surface a statutory interpretation case, sure, it has, as the Dickerson majority would say, "constitutional footings" in due process, in particular, the defendant's due process right not to be convicted on an inflated version of the statute's defined culpability.

Now if you say that's a rather stretched version of what the Constitution does, I would be disinclined to argue, even while noting that we've got about 70 years' worth of SCOTUS cases that do exactly the same thing or worse.

Posted by: Bill Otis | Jul 22, 2022 9:39:10 PM

Bill, Bailey does not mention due process (or any constitutional doctrine) a single time, nor does it in any way assert or even imply that the statutory interpretation it adopted has any "constitutional footings." Indeed, Congress amended 924(c) after Bailey to reach more conduct, and I am not aware of any SCOTUS of lower court rulings that even suggests Congress did anything to undermine any so-called "constitutional footings." Your peculiar assertion here has no basis in fact or law. I suspect you know better, but want to somehow rehabilitate your mistake in citing Bailey as an example of a constitutional ruling. You would be better off admitting your mistake than contending that a statutory interpretation ruling like Bailey should be read as some mysterious instance of "constitutional footings" that all nine Justices adopted sub silento.

I hope you might try again, as I am still waiting for you to cite a single criminal constitutional SCOTUS case with a ruling for a criminal defendant that you think was rightly decided. This really should not be too hard, since there are literally hundreds of such rulings and there are multiple such rulings based in each of the various clauses of the First, Fourth, Fifth, Sixth and Eighth Amendments (as well as lots of other text of the Constitution as well). The fact that we have now gone multiple rounds in multiple comment threads --- and now and you are trying to pass off a 27-year-old statutory ruling as a constitutional one --- is QUITE telling and reinforces my view that, in the criminal arena, you truly are a big government statist.

Posted by: Doug B. | Jul 23, 2022 12:18:49 PM

Doug --

Like I say, we aim to please. Arizona v. Hicks, 480 U.S. 321 (1987). The Fourth Amendment doesn't say a big search or an extensive search. It just says search.

Still, I can see why you're impatient. As Keith Lynch notes, all these years you've been talking to an imposter! I'm not even a lawyer! I had Jeff Sessions and Bill Barr and Boyden Grey (in addition to you) fooled.

Posted by: Bill Otis | Jul 24, 2022 7:04:40 PM

Thanks, Bill.

I know you are a real lawyer who had to go back 35 years to find a criminal constitutional SCOTUS case with a ruling for a criminal defendant that you think was rightly decided. You effectively keep demonstrating that, in the criminal arena, you truly are a big government statist lawyer.

Posted by: Doug B. | Jul 25, 2022 8:29:51 AM

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