by Shipwreckedcrew
“Administration of Justice” Means Criminal Justice System, Not Ceremonial Congressional Proceedings
This is taken from the United States Sentencing Guidelines. This Guideline — Sec. 2J1.2 — has been used by the Department of Justice and the United States District Court in the District of Columbia to determine the recommended “Guideline Range” for sentences that should apply to January 6 defendants convicted of a violation of 18 U.S.C. Sec. 1512(c)(2) — “Corruptly Obstructing an Official Proceeding.
For better or worse, I’ve spent the last 30+ years of my professional life dealing with the application of Sentencing Guideline provisions like this one to the “Offense Conduct” as that phrase is interpreted in federal law and the Guidelines. I remember my very first case grappling with the Sentencing Manual’s seemingly indecipherable permutations and variables, and thinking to myself “There is no way I’m ever going to figure this out.”
Understanding how Guideline provisions like Sec. 2J1.2 will be applied at sentencing to the criminal acts of a federal defendant is among the very most important aspects of federal criminal trial work — whether as a prosecutor or a defense attorney.
The calculation starts with the “Base Offense Level. After that a series of “Enhancements” or “Reductions’“ — as provided for in the Guidelines — make that Offense Level go up and/or down. The higher the “Total Offense Level” at the end, the longer the recommended sentencing range.
Prosecutors emphasized facts and arguments that drive Offense Level number up, and defense attorneys emphasize facts and arguments that drive the Offense Level number down.
All sides of the January 6 cases have agreed that Sec. 2J1.2 is the Guideline to be applied to convictions for violating Sec. 1512(c)(2). But that is pretty much where the agreement has always ended.
From the very outset the Government has sought — and almost every judge has agreed — to have the two “Specific Offense Characteristics” that are underlined in the screen-shot above apply to the facts of January 6. As I indicated with the underlined passages, both enhancements require that the “administration of justice” the object of the illegal conduct to which Sec. 2J1.2 is being applied.
It is important to understand that this Section — like every other Guideline — is meant to be used for many different crimes, but not all crimes have the same facts. The way the Guidelines work is you have a “Base Offense Level” that applies to all crimes falling under the Guideline, and then “Specific Offense Characteristics” are set forth that might apply to only some crimes depending the specific facts involved in the crime for which the defendant is convicted.
From the very start there has been a dispute raised by defense counsel as to whether two enhancements — an 8-level increase for violence/property damage and/or a 3-level increase for actually interfering with the “administration of justice” — should apply to actions interfering with the electoral vote certification. The dispute has always been whether that proceeding involved the “administration of justice” as it must for the two enhancements to apply.
The “Base Offense Level” is 14. Apply the two enhancements and the “Adjusted Offense Level” becomes 25.
Just so the stakes regarding the use of these 11 levels are understood:
- Level 14 with no criminal history = Guideline Range of 15-21 months.
- Level 25 with no criminal history = Guideline Range of 57-71 months.
By pleading guilty a defendant gets a 3-level reduction in the Offense Level. That means the Level 25 becomes a Level 22.
- Level 22 with no criminal history = Guideline Range of 41-51 months.
From the fall of 2021 until now, this range of 3-5 years has been the “sweet spot” the Government has aimed for in connection with January 6 defendants who did anything more than simply walk around the inside of the Capitol. And hint of violence — even if not enough to charge an assault — or any participating in property damage, and the DOJ has charged a 1512(c)(2) count with the intention of seeking these two enhancements seeking 11 levels at sentencing.
Almost from the start — more on that below — the Government only offered plea agreements to defendants who wanted to plead guilty (thereby getting the 3 level reduction) if they STIPULATED that the 11 levels of enhancements applied to their case. That meant they were not able to argue at sentencing that the vote certification proceeding did not involve the “administration of justice.”
It has always been a “take-it-or-leave it” offer.
When you realize that the Government now has a conviction rate at trial of around 99.75%, anyone who wanted to realize the benefit of the -3 levels for pleading guilty was FORCED into accepting the DOJ that they stipulate that the +11 levels applied.
But it got worse.
In the cases that went to trial — with near certain convictions being the likely outcomes — defendants were able to argue against the application of the +3 and +8 level enhancements since they had not stipulated to them. The only problem is that every judge except one agreed with the Government and applied both to Sec. 1512 convictions. [There might be one other judge who escaped my attention, but nearly all the Judges applied both enhancements if there was violence or property destruction as part of the offense conduct.]. One Judge issued a written order early on where he explained why his analysis of the language of the Guideline convinced him that the January 6 proceedings before Congress did not fall within the meaning of the phrase “administration of justice.” But for the most part the other 14 Judges in DC did not follow his view.
And this brings me to United States v. Larry Brock, decided this morning (March 1, 2024) by the Court of Appeals for the D.C. Circuit.
Brock was convicted in a bench trial without a jury, i.e., no plea agreement. As a result, at sentencing he was able to argue that the +3 level enhancement in Sec. 2J1.2 did not apply because the electoral vote certification proceeding by Congress did not fall within the long-established meaning of the phrase “administration of justice.” The +8 level enhancement wasn’t at issue because it had not been applied in his case at sentencing — there was no violence or property damage attributable to him.
In a unanimous 3—0 decision, the Court of Appeals agreed with the defendant that the vote certification did not involve the “administration of justice” as that phrase has long been interpreted, and as it is used in numerous statutes and other sentencing guidelines. The three Appeals Court Judges included two appointees of former Pres. Obama and one appointee of former Pres. Clinton. No arguing that the decision came from a “Pro-Trump/MAGA” panel.
With great respect to our district court colleagues’ thoughtfully reasoned efforts to apply this Guideline, we hold that, for purposes of Sentencing Guideline 2J1.2, the phrase “administration of justice” does not encompass Congress’s role in the electoral vote certification process…. “administration of justice” refers to judicial, quasi-judicial, and adjunct investigative proceedings, but does not extend to the unique congressional function of certifying electoral college votes.
THANK YOU!!! That is the argument that defense counsel have raised from the very start only to be waved off time and again by the Judges while DOJ used those 2 enhancements to turn a glorified trespassing charge into 3-5 year federal prison sentences for 300+ people.
More insulting for me personally is the erroneous and abusive application of these guidelines with the “take-it-or-leave-it” demand in the plea negotiations that resulted in defendants being COERCED into accepting their application at sentencing in order to receive the -3 level benefit for pleading guilty.
This was all done in an effort to drive up the number of years in the prison sentences that the Biden Administration was determined to impose on that portion of the political opposition it wanted to demonize as a criminal element.
I want to point to three specific cases where this deliberate approach by DOJ in the use of these now discredited enhancements through plea agreements was driven by its desire to achieve longer prison sentences.
The very first defendant to plead guilty to a Sec. 1512 count and be sentenced was Paul Hodgkins. At sentencing the Government did not ask for the +8 level enhancement, it only sought the +3 enhancement. The Judge applied the enhancement in his Guideline calculation, and Hodgkins recommended Guideline Range was 15-21 months.
That range is only the starting point at sentencing. From there the Court can take into consideration both aggravating and mitigating factors related to the offense and the defendant personally, then make the decision as to what an appropriate sentence is in the case.
The District Judge for Hodgkins’ case determined that 8 months would be a sufficient sentence under all the circumstances that applied.
So in the very first felony case to go to sentencing, the DOJ was told by a Judge what its Sec. 1512(c)(2) Count only deserved an 8 month sentence.
The only way to fix that problem was to make sure that the recommended guideline range was higher than 15-21 months in cases in the future.
Enter Jacob Chansley — the Qanon American Shaman. He also was among the very first defendants to plead guilty — also to a Sec. 1512(c)(2) charge. The facts of his offense were not very different from the facts of Paul Hodgkins. But in his plea agreement the DOJ required him to stipulate to both the +3 and +8 enhancements. The attorney representing Jake at the time of his sentencing did a horrible job — malpractice as I explained here — but that’s a different story.
As set forth above, the additional 8 levels meant his recommended Guideline Range was 41-51 months, and not 15-21 months as it had been for Paul Hodgkins. When Jake was sentenced he could not argue that the enhancements did not apply because his plea agreement prohibited him from doing so. The Judge complied with the terms of the agreement reached by the parties and sentenced Jake to 41 months — almost 3 1/2 years.
That was 33 months longer than Paul Hodgkins got on the same charge four months earlier on very similar facts.
Mission accomplished for DOJ.
With both enhancements in play, Sec. 1512 convictions would likely produce sentences in the range of 3-5 years, and not single-digit months.
Finally — and tragic beyond belief given today’s ruling — is the case of Matthew Perna. I know this sequence of events because I spoke with Matthew’s attorney about how his guilty plea and anticipating sentencing hearing unfolded.
Matthew was among the first 12-15 defendants to plead guilty to the Sec. 1512 charge. When Matthew agreed to plead guilty, his plea agreement only included a stipulation to the +3 level enhancement. There was never any discussion between his attorney and the prosecutors regarding the +8 level enhancement.
Shortly before the Sentencing Statements were to be filed the prosecutors asked to postpone the sentencing date and the filing of the Statements for two weeks without offering an explanation why. Not suspecting what was about to happen, Matthew’s attorney agreed.
Just before filing the Government Sentencing Statement, the prosecutor communicated to Matthew’s attorney that the were going to ask to have the +8 level enhancement applied in addition to the +3 that was agreed to. The consequence was that they were going to be asking the judge to impose a sentence nearly 3 years longer than the two sides had discussed at the time he entered his plea.
There was no guarantee that the Judge would have gone along — given who the Judge was I do not think he would have done so. That only makes the resulting tragedy more horrendous — Matthew would have likely received the sentence he expected and not the longer sentence the Government was going to seek.
But the possibility of a sentence three years longer than he was expecting put Matthew into a depression that he could not escape, and he took his own life. The DOJ’s determination to push for 3-5 year sentences for many January 6 defendants — including Matthew — was more than he could bear.
Today the Court of Appeals ruled that these efforts by DOJ — starting with Jake Chansley — to force the two disputed enhancements down defendants’ throats have been illegitimate from the start. Defense counsel such as myself have always maintained that to be the case. I have fought this battle in multiple sentencings, knowing I was going to lose but wanting to preserve the issue for my clients’ appeal. Now some of those clients will be vindicated with much shorter sentences.
One in particular was sentenced to 54 months and I think his new sentence is likely to be under 24. That’s two sets of birthdays and anniversaries, and two Christmas holidays he won’t miss with his family while in a federal prison.
THIS IS EXACTLY WHY CRIMINAL DEFENSE ATTORNEYS MAKE OBJECTIONS AND ARGUMENTS IN THE TRIAL COURT THAT THEY KNOW THEY ARE GOING TO LOSE — THE APPELLATE COURT MAY AGREE AND IT IS NECESSARY TO MAKE THE OBJECTION TO “PRESERVE” THE ISSUE IN THE INTERESTS OF THE CLIENT.
It is because of explanations like this that readers should not place too much reliance in online legal pundits who are not federal criminal trial lawyers — and should never give too much credence to the analysis of legal issues by non-attorneys.
There is one matter left to be decided that might make this entire issue moot.
They must have had themselves a good laugh when they thought of “obstruct the administration of justice”. It was Democrat election fraud that obstructed the administration of justice.
Democrats… leftists just redefine words and statutes as it serves their goals. Here, they had people who had done nothing but protest but they wanted to show the public that protesting leftist attacks on the Constitution would not be tolerated, so they twisted statutes to allow them to levy extraordinarily harsh penalties for minor offenses.