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May 22, 2023
Extended discussion of issues surrounding upcoming federal sentencing of Oath Keepers
Over at Lawfare, Roger Parloff has this remarkable new piece titled "Should Nine Oath Keepers Receive Terror-Enhanced Sentences?". This lengthy piece examines an array of intricate sentencing issues and it starts this way:
This week, a federal judge will begin handing down sentences for nine members of the Oath Keepers paramilitary group for their roles in the Jan. 6 insurrection, including six convicted of seditious conspiracy. The government seeks 25 years imprisonment for the group’s founder and leader that day, Elmer Stewart Rhodes III, and sentences ranging from 10 to 21 years for the other eight. Six of those sentences, if imposed, would become the longest to date for any Capitol Siege rioter.
The sentences, which will be imposed by U.S. District Judge Amit Mehta of Washington, D.C., raise difficult questions with no close precedents. Although at least 15 people have been sentenced for seditious conspiracy since the U.S. Sentencing Guidelines took effect in 1987, all previous cases involved people prosecuted for conduct “tantamount to waging war against the United States,” a term of art in the sentencing guidelines that the government concedes is not met here.
Among many other items noted, this piece notes that, in some of these cases, federal prosecutors are seeking enhanced punishment based on acquitted conduct:
Three of the nine defendants being sentenced were acquitted of seditious conspiracy. One of those defendants was actually acquitted of all three conspiracy counts charged. Yet, for sentencing purposes, the government treats those three the same as if they’d been convicted of all counts.
It is true that under controlling D.C. Circuit precedent, a sentencing judge can take into account conduct for which a defendant has been acquitted if the judge believes the conduct was nevertheless proven by the lower preponderance-of-the-evidence standard — which is all that is required for sentencing purposes. Nevertheless, as I’ll discuss later, I will be surprised if Judge Mehta effectively overrides the jury verdict in this manner....
Absent the conspiracy allegations of which Caldwell was acquitted, Caldwell’s acts would have most likely resulted in either no charges at all or class A misdemeanor charges carrying a maximum one-year jail term. Yet the government seeks 14 years imprisonment for him — just two months less than career criminal Schwartz received for, inter alia, four assaults with a dangerous weapon on police officers.
Prior related post:
May 22, 2023 at 10:48 PM | Permalink
Comments
The defendants present very moving arguments for leniency. I do not have a heart of stone. I am indeed moved. It is therefore with mixed emotions and with a heavy heart that I must agree with the the government's sentencing recommendations in every respect. So ordered!
Posted by: judge anon | May 23, 2023 7:22:55 PM
Latest news from the defense bar:
In: Throw away the key.
Out: You can't judge a person by the worst moment of his life.
You gotta love the defense bar, really. They pretend to be so compassionate -- until they see a politically incorrect defendant, and then the snarling begins. It's enough to give hypocrisy a bad name.
Posted by: Bill Otis | May 24, 2023 9:54:51 AM
I'll note (again) that even the high end of government recommendations are still much lower than the sentences imposed the last time that a (smaller) group violently took over the capitol.
Posted by: tmm | May 24, 2023 10:40:53 AM
Bill:
Is there some spokesperson for the defense bar that has taken this position? I am not aware of any. Check your prejudice.
My thoughts are: (1) the cert petitions on acquitted conduct remain pending. If I were a judge, I would be very hesitant to consider acquitted conduct at sentencing right now and as a defense lawyer, I don't think acquitted conduct should be considered. However, 18 USC 3661 says "[n]o limitation shall be placed on the information concerning the background, character or conduct of a person . . ." for the purpose of determining what sentence to impose. That statutory language is what prompted DOJ to tell the Sentencing Commission they had no authority to address acquitted conduct. I think the Constitution trumps the statute, but I am hoping the Supreme Court will grant cert in one or more of these cases and answer that question.
(2) I don't think the terrorism enhancement should apply if the article is correct that their convictions don't meet the definition in the statute. The text of 3A1.4 is not ambiguous and the commentary that recommends a departure is just commentary post-Kisor.
(3) These cases pose a tough challenge under the 3553(a) factors. On the one hand, they have no criminal history. On the other, this is not a run of the mill obstruction of an officer case. And if they had gotten their hands on Pence or a member of Congress, who knows what would have happened. My guess is the judge will do less than the government wants, but still lengthy sentences. General and specific deterrence may feature prominently in the analysis. I rarely think general deterrence is a practical thing to achieve in any one case, but with the publicity here, maybe that's different. I don't know.
Posted by: defenergirl | May 24, 2023 1:37:10 PM
defendergirl --
"Is there some spokesperson for the defense bar that has taken this position? I am not aware of any."
judge anon, above: "The defendants present very moving arguments for leniency. I do not have a heart of stone. I am indeed moved. It is therefore with mixed emotions and with a heavy heart that I must agree with the the government's sentencing recommendations in every respect. So ordered!"
And read the comments section for a while to see how graphically the attitude toward the Jan 6 defendants contrasts with the more typical attitude toward defendants.
"Check your prejudice."
Check you zealousness for child rapists.
Posted by: Bill Otis | May 24, 2023 3:49:49 PM
"you gotta love the defense bar, really. They pretend to be so compassionate -- until they see a politically incorrect defendant, and then the snarling begins. It's enough to give hypocrisy a bad name." Somewhat over-heated and overbroad, wouldn't you say? Bill Otis, why do you assume Judge Anon is a defense attorney? Seems more like a tongue in cheek comment from a prosecutor or judge. In any event, my experience it's usually the prosecutors who are the hypocrites. In all their self-righteousness and holier than thou arrogance, they hide exculpatory evidence, intimidate witnesses, and put words in the mouths of their cooperating rats.
Posted by: anon3 | May 24, 2023 5:20:15 PM
anon3 --
"In all their self-righteousness and holier than thou arrogance, they hide exculpatory evidence, intimidate witnesses, and put words in the mouths of their cooperating rats."
Could you tell us who represents those "cooperating rats"? Defense lawyers maybe?
Goodness gracious.
Posted by: Bill Otis | May 24, 2023 11:12:44 PM
Anon3,
I love your use of the word, “rats.” You said the quiet part out loud.
Is your, “Snitches get stitches,” hoodie in the wash?
Posted by: TarlsQtr | May 26, 2023 3:49:04 PM
TarlsQtr --
I wonder if some in the defense bar could tell us their own role in making sure the stitches get delivered. Having a member of the gang flip on your client can't be a good feeling, and we can't have that!
Posted by: Bill Otis | May 27, 2023 5:29:45 PM
