by ShipWreckedCrew:
A Transparent Effort to Continue to Demonize the Political Opposition Ahead of the 2024 Election
On July 11, 2023, the Department of Justice filed a Notices of Appeal in eight cases involving members of the Oath Keepers organization who were convicted and sentenced for their involvement on the events of January 6. The eight defendants — charged together in one indictment with the lead charge against each being “Seditious Conspiracy — were convicted in two separate trials, both presided over by Judge Amit Mehta.
Judge Mehta presided over a third Oath Keeper trial with six additional defendants. That case did not involve a “seditious conspiracy charge”, and the five defendants convicted of felonies in that case have not yet been sentenced.
In that third case Michael Greene was convicted only of a single misdemeanor and was cleared of all the felonies filed against him. Michael Greene was represented by myself and Britt Redden at trial. (Humble brag.)
The first Oath Keeper trial began on September 26, 2022, and the third trial ended March 21, 2023. Over 20 weeks in that time period, Judge Mehta heard testimony from witnesses and watched/read exhibits submitted by the Government. He was also privy to a broader body of information concerning the defendants that went beyond the “guilt/innocence” determinations made by the juries.
Judge Mehta devoted two weeks to sentencing hearings involving the eight defendants, including one day-long session with all defendants and their counsel where the two sides battled over sentencing issues and the application of the United States Sentencing Guidelines to this “first of it kind” prosecution as the DOJ regularly described it.
With that all of that information available to him, Judge Metha issued eight sentences ranging from 18 years down to 3 years. Whether “right” or “wrong” on an objective level, no one can question that the sentencing decisions were handled in a deliberate, thoughtful, and individualized manner.
But apparently for the Government, they were not long enough.
Below is a table regarding the sentencing of the eight Oath Keeper defendants — the Sentencing Range as urged by the Government, the Government’s requested sentence, and the sentence actually imposed by Judge Mehta:
The U.S. Probation Office made a sentencing recommendation separate from the recommendations made by the Government listed above. But the Probation Office did not include an “upward departure” for any of the defendants under the “terrorism” enhancement of the guidelines. Such upward departures are fact-dependent, and are based on the totality of the evidence in the case, including evidence about which the Probation Officer might not be fully aware. Whether to give such a departure is a matter left for the Judge.
The sentencing recommendations made by the Government included varying requests from defendant to defendant for such an upward departure for “terrorism” — ranging from a 6-level increase for Steward Rhodes down to a 1-level increase for Robert Moerschel.
Arriving at the numbers listed in the chart above is done through a process set forth in detail in the United States Sentencing Guidelines. In simplified fashion, the process involves 7 steps:
- The guidelines state a “base offense level” — a number from 2 to 38 —for each crime in the federal code — the higher the number, the more serious the crime.
- Added to this “base offense level” are a variety of increases (and a few decreases) based on specific characteristics of the criminal conduct. For example, an “assault” with a dangerous weapon would have added levels for the dangerous weapon. If there was bodily injury, there would be additional levels added depending on the severity of the injury.
- After the specific offense characteristics, there may be additional increases to the offense level relating to the victim of the crime.
- After that, issues such as “extensive planning”, “leadership,” etc., involving how the crime was carried out can result in additional levels.
- All of those determinations result in an “Adjusted Offense Level” from 1 to 43 that is intended to capture all aspects of the crime of conviction.
- A defendant is then placed in a “Criminal History Category” — from I to VI — based on prior criminal convictions and sentences. Defendants with no criminal history are in Category I.
- The Sentencing Guidelines has a chart — I’ve copied part of it below — and the “Guideline Range,” listed in months, is determined based on going down the rows on the left side of the chart to the applicable Adjusted Offense Level, and then across the chart to the applicable “Criminal History Category” column. Where they meet is the recommended “Guideline Range.”
As noted, the column to the left extends down all the way to Level 43. The sentence for any offense reaching Level 43 — for all six Criminal History Categories — is “Life”.
Let’s consider two of the sentencing determinations made by Judge Mehta that the Government now intends to appeal
Judge Mehta agreed with every sentencing enhancement the Government sought for Stewart Rhodes in the determination of his “Adjusted Offense Level” — except one.
The Government sought a six-level “terrorism” enhancement that would have increased his “Adjusted Offense Level” — from Level 33 to Level 39.
At level 33, his Guideline Range was 135-168 months. Defendants with no criminal history are often sentenced at the “bottom of the range” — 135 months.
That number would have reflected the entirety of all the aggravating and mitigating factors called for by the Guidelines. Rhodes used no weapon, he didn’t go inside the Capitol, he didn’t physically confront or assault any person, etc. Going through steps 1 through 7 above would have landed any anonymous “Defendant X” at a sentencing recommendation somewhere around 11 years.
But the Government sought six additional levels under the terrorism enhancement for Rhodes. That increased the Adjusted Offense Level to 39, and , the Guideline Range as suggested by the Government jumped to 262 to 327 months — nearly double what it was without the enhancement.
At sentencing, Judge Mehta gave the Government an upward departure based on “terrorism” that it had asked for — but only 4 levels, not the requested 6 — to Level 37.
The Guideline Range for Level 37 was 210-262 months (not the 262-327 sought).
Judge Mehta imposed a sentence of 216 months — 18 years.
The only thing that the Government didn’t get at sentencing was the 6 level terrorism enhancement the asked for — Judge Mehta gave only 4 levels. He chose 216 months (18 years) — near the bottom of the Guideline Range as determined by him — rather than 300 months (25 years) which was near the top of the guideline range as requested by DOJ.
For that, the Government has now appealed the sentence on the basis that it was unreasonably lenient.
Next consider Roberto Minuta — my client in the second trial. As noted above, the Government asked for a sentence of 204 months — 17 years.
Judge Mehta imposed a sentence 54 months, 4.5 years.
Three significant factors impacted the outcome with respect to the determination of his “Adjusted Offense Level.”
The Government asked for a 3-level enhancement based on Mr. Minuta having a “leadership” role in the offense.
The Government asked for another 2-level increase for “obstruction of justice” based on a claim that he had “discarded” his cell phone.
The Government also sought a 3-level increase for Mr. Minuta under the “terrorism” enhancement.
As determined by the Government, the “Adjusted Offense Level” for Mr. Minuta should have been 35. With a Criminal History Category of I — Mr. Minuta had no prior criminal history — the Government’s recommended Guideline Range was 168 to 210 months, and the Government asked for a sentence of 204 months — 17 years — close to the top of the Guideline Range.
At the sentencing hearing — and consistent with my arguments on behalf of Mr. Minuta — Judge Mehta determined that Mr. Minuta was not a “leader” in connection with the Oath Keeper actions on January 6.
Judge Mehta presided of three trials involving 15 different Oath Keeper defendants, and those trials included testimony from 6 Oath Keeper members. Based on everything Judge Mehta heard and read during the course of those trials, he determined — BASED ON THE EVIDENCE — Roberto Minuta was not an Oath Keeper leader on January 6 no matter how many ways the Government claimed that to be true, and the enhancement was not warranted.
NO ONE — not one single witness — testified in any of the three trials that Roberto Minuta was a leader or organizer of the group of Oath Keepers on Jan. 6, or any part of the group. Yet the Government — right up to sentencing — made that claim over and over agin.
Similarly, Judge Mehta determined that no enhancement was warranted for “obstruction” with regard to Mr. Minuta’s cell phone. As FBI agents conceded under cross-examination by me, they did not know what happened to the cell phone Mr. Minuta’s used to record events on January 6. They could only say that the cell phone was not found during the execution of two search warrants. In mid-Feb. 2021 the service for that particular cell phone was terminated, timing that coincided with him moving his family to Texas, changing cell phone carriers and getting a new iPhone 12 as a part of a promotion for doing so. Shocking, I know.
I asked — “Is it possible that Mr. Minuta’s old iPhone 8 is sitting in a desk drawer in my office in Hawaii?” The Agent answered “It’s possible.” That’s known in the business as “reasonable doubt.”
(FYI — It’s not there.)
Mr. Minuta was charged in the indictment with the crime of “obstruction” based on the allegation he had “discarded” his cell phone. The jury acquitted him on that count.
But at sentencing the Government still wanted a 2-level increase in Mr. Minuta’s “Adjusted Offense Level” based on a claim he “obstructed” the investigation by “discarding” the phone.
Judge Mehta ruled at sentencing that the evidence was not sufficient to show that the phone had been “discarded” and did not include in his guideline calculation the 2-level enhancement for “obstruction” sought by the Government.
NOTE: The use of “acquitted conduct” at sentencing is a controversial subject in federal criminal practice, and the Supreme Court has recently suggested that it intends to take the issue up, with a majority of current Justices having expressed doubts about such use at various times in their judicial careers.
With respect to the “terrorism” enhancement, the Government sought a 3-level increase for Mr. Minuta, but Judge Mehta added only 1 level.
In his final calculation of Mr. Minuta’s “Adjusted Offense Level,” Judge Metha did not include the Government requested enhancements for “leadership” (3 levels) and “obstruction” (2 levels). He also gave only 1 level for terrorism rather than the 3 levels sought by the Government.
Instead of determining the “Adjusted Offense Level” to be 35 as argued by DOJ, Judge Mehta’s calculation came out to a level 28.
The recommended Guideline Range for Mr. Minuta at Level 28 and a Criminal History Category I, was 78 to 97 months.
Read more (Consider subscribing to Ship. All money goes to the J6 defense fund)
