Appellate Court Overturns Excessive Sentence for January 6 Defendant

by Julie Kelly

If the events of January 6 had to be described solely based on the number of criminal charges, the media would be forced to call it a “parade” rather than an “insurrection.”

By far, the most common charge brought against January 6 defendants is violating 40 U.S.C. Section 5104(e)(2)(G)—“parading, picketing, or demonstrating in a Capitol building.” The Class B misdemeanor also has resulted in the most plea agreements in what the Biden Justice Department calls the “Capitol Siege” investigation.

But DOJs use of the parading offense is just another example of how certain laws have been weaponized to criminalize political speech and dissent. In fact, none other than the former chief judge of the federal district court in Washington, D.C. questioned the DOJs unusual application of the parading statute nearly two years ago.

Before sentencing a Tennessee man who had pleaded guilty to the parading count, Judge Beryl Howell admitted U.S. district courts seldom, if ever, handle such trivial charges. “I don’t think it’s any secret to say that federal judges rarely deal with Class B petty offense misdemeanors; this is not our normal diet of criminal conduct, offense conduct,” Howell said during the October 2021 hearing for Jack Jesse Griffth, who spent roughly ten minutes inside the building on January 6.

Specific to demonstrations held in the nation’s capital, Howell further noted that the parading offense is typically reserved for “nonviolent protesters who stand up in a congressional hearing to interrupt a hearing. [For] whatever reason, the U.S. Attorney’s Office decided to bring them federally, with this federal charge, as opposed to in Superior Court, [where] they basically got a $50 ticket.”

The “whatever reason,” as Howell—a brazen partisan appointed by Barack Obama now playing a key role in DOJs dual prosecutions of Donald Trump—undoubtedly knew at the time was to punish American citizens for protesting Joe Biden’s election on January 6. And make no mistake, Howell was not expressing concern that the statute was being unjustly applied to a specific group of political protesters.

To the contrary, Howell wanted to know why prosecutors refused to bring harsher charges against January 6 defendants. “[Though] this offense is classified as a ‘petty offense,’ the nature and circumstances of the offense conduct on January 6th are far more serious than its petty offense status would suggest.” Howell condemned DOJs “muddled approach” in charging many nonviolent protesters with a petty offense comparable to trespassing. “The rioters attacking the Capitol on January 6th were not mere trespassers engaging in protected First Amendment conduct or protest,” Howell ranted. “This caused significant damage to our faith that no matter our political party or views about what is best for this country that we, as Americans, believe in the constitutional process of a peaceful transition of power after an election.”

But Howell didn’t just criticize the DOJ for not filing more serious charges. Howell also grilled prosecutors as to the court’s ability to impose a so-called “split sentence”—both prison time and probation—for a parading conviction. Until that point, prosecutors had only sought either incarceration or probation, but not both.

That changed shortly after Howell’s tirade.

D.C. Appellate Court: “That cannot be right.”

A few months later, in the case of Anthony Mariotto, a man from Florida who also pleaded guilty to parading, the Justice Department for the first time asked for four months in jail followed by three years’ probation. (Judge Reggie Walton sentenced Mariotto to three years’ probation but no prison time.) Seeking jail and probation for the petty offense became de rigueur in parading cases.

Some judges, recognizing a split sentence would violate federal sentencing guidelines, rejected DOJs recommendations. Others did not. (After getting her wish, Howell imposed the split sentence in at least nine parading cases, according to recent DOJ sentencing data.)

Turns out, the judges who refused to grant split sentences in parading cases were correct. An appellate court decision handed down last week could result in nearly 60 split sentences being overturned while further exposing the vengeful abuse of the law by both the DOJ and D.C. judges in January 6 matters.

In a 2-1 opinion, the U.S. Circuit Court for the District of Columbia vacated the split sentence of James Little, who pleaded guilty to parading; in March 2022, Judge Royce Lamberth sentenced Little to 60 days in jail followed by three years’ probation. (Prosecutors asked for 30 days and three years’ probation.) Little appealed the sentence.

Writing for the majority, Judge Justin Walker smacked down DOJ and Lamberth in no uncertain terms: “Probation and imprisonment are alternative sentences that cannot generally be combined. So the district court could not impose both for Little’s petty offense.”

After a bit of sentence diagramming to explain to the DOJ and D.C. court how they (intentionally, no doubt) misread sentencing guidance, Walker condemned their collective overreach. “[Because] the Government’s reading turns probation into a form of post-confinement monitoring, it would let a court impose more monitoring for a petty offense than for more serious misdemeanors and most felonies. It sidesteps the bar on supervised release for petty offenders. And it subjects petty offenders to a term of post-confinement monitoring five times longer than the term imposed on some felons.”

Which, of course, was the point: to treat otherwise peaceful protesters with no criminal record as felons simply for their nonviolent, brief jaunt into a government building on a Wednesday afternoon to disrupt Congress.

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