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August 18, 2023

In Jan 6 case, split DC Circuit rules sentence for petty offense cannot include imprisonment and probation

As reported in this CNN piece, a "federal appeals court in Washington issued a ruling Friday that jeopardizes the sentences of some January 6 rioters who were convicted of misdemeanors for trespassing at the Capitol and were sentenced to both jail time and probation."  Here is more:

The opinion by DC Circuit Judges Justin Walker and Judith Rogers determined that January 6 rioter James Little couldn’t receive a sentence of prison followed by probation – what is sometimes called a “split sentence” – for his petty offense.  “Probation and imprisonment are alternative sentences that cannot generally be combined,” the appeals court wrote.

Judges in DC’s federal trial-level courts had used these “split sentences” for low-level January 6 offenders to briefly jail them as punishment for their role in the historic attack on the Capitol and then to keep them on probation and under court supervision through the next election....

In his dissent Friday, [Judge] Wilkins wrote that the majority’s ruling robs judges of a tool Congress gave them.  “If petty offenders need a short prison sentence to punish them, to reflect the seriousness of the offense and to deter them from future criminal conduct, they need it regardless of whether they committed one petty offense or two,” Wilkins wrote. “If petty offenders need rehabilitation following imprisonment, they need it regardless of whether they committed one petty offense or two.”

The ruling in US v. Little, No. 22-3018 (DC Cir. Aug. 18, 2023), is available at this link.  Here is how the majority opinion starts:

James Little committed a petty offense.  The district court sentenced him to prison, followed by probation.  The only question on appeal is whether that sentence is authorized by statute.

It is not.  Probation and imprisonment are alternative sentences that cannot generally be combined. So the district court could not impose both for Little’s petty offense.

Here is how the dissent begin:

James Little pleaded guilty to a petty offense under 40 U.S.C. § 5104(e)(2)(G) related to his participation in the January 6, 2021 insurrection at the United States Capitol.  The District Court sentenced him to 60 days’ imprisonment, followed by three years of probation.  On appeal, Little offers several different reasons why his split sentence violates federal sentencing statutes.  The majority agrees.  Because I believe that the majority and Little are mistaken, I respectfully dissent.

August 18, 2023 at 10:43 PM | Permalink


The dissent's reference to "his participation in the insurrection" is just ridiculous. We'd never say that a person walking around as part of the George Floyd riots was "participating in a riot." For the vast majority of the people there, this was a protest, nothing more.

Posted by: federalist | Aug 21, 2023 11:54:43 AM

And what exactly were they protesting?

Posted by: Really? | Aug 23, 2023 10:28:40 AM

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