Justice vs. Hyperbole: The Distorted Path of Sentencing in January 6 Cases

by SHIPWRECKEDCREW

This is a subject that I have been circling for a quite a while, but my ability to comment directly is limited by my ethical obligations to not comment directly on the facts of a pending case I’m involved in, or to express personal opinions with regard to facts or outcome of such cases. Beyond that it is also just a good practice to not make extra-judicial comments about a particular client, their case, the facts of their case, or the actions of others involved in the case.

So much of what I write below are generalized observations not directly tied to any particular case. There are also comments about cases I was involved in that have been concluded in the District Court.

It wasn’t where I thought I would start this article, but I had an occasion to review the case of Matthew Perna the last few days. If you don’t know, Matthew was one of the earliest J6 defendants to reach a plea agreement with the Government.

The criminal complaint upon which Matthew was arrested charged him only with four misdemeanors. But the indictment later added the felony charge of “Obstructing Congress” which the attorneys now refer to simply as a “1512 Count.” It was common in the first round of indictments — say the first 9 months of 2021 — for the Government to charge a 1512 count and four misdemeanors (two “A” misdemeanors and two “B” misdemeanors). Adding that particular crime dramatically changes the stakes with regard to the possible outcome since a 1512 count carries a maximum sentence of up to 20 years.

Because it is a felony it also brings into play some more consequential guideline enhancements under the Sentencing Guidelines. The Guidelines are where the Judges look for guidance in determining what sentence to impose based on a variety of facts and factors in the case.

But the story of the outcome of 1512 cases, and the trajectory of sentencing in all January 6 related cases, doesn’t begin with what the Government tried to do in Matthew Perna’s case — the story begins with the sentencing in the very first felony case involving Paul Hodgkins.

On May 27, 2021 — slightly less than five months after the events at the Capitol — Hodgkins became the first defendant to plead guilty to the felony 1512 charge. The Plea Agreement that he entered into was set forth in a letter to his attorney.

 
Hodgkins was offered the same plea agreement that was later offered to — and accepted by — Matthew Perna. Among the important provisions of the Offer as set forth in the letter was the following Sentencing Guideline calculations:

 
To understand what some of this language means, below is a screen shot of a portion of the “Sentencing Table” from the Sentencing Guidelines.

 
The “Offense Level” — the numbers in the far right hand column — go down the page to the maximum Level 43.

The “Criminal History Category” at the top has six columns — Categories I to VI. These reflect no criminal history (I) over to career criminal status (VI). The category is determined based on prior criminal convictions.

The “Guideline Range” is found where the Offense Level and Criminal History Category meet in the chart. Paul Hodgkins was an Offense Level 14 in the right hand column, and Criminal History Category I in the top row. The place where those two meet is a Guideline Range of 15-21 months, as stated in the agreement.

When it came time for sentencing, the Government’s Sentencing Statement for Hodgkins made the following request with regard to the sentence to be imposed.

 
The District Judge, only 6 months removed from the events of January 6, imposed a sentence of only 8 months in custody, followed by 24 months of “supervised release” — a form of “probation” that follows a term of imprisonment.

So, as of July 2021 when he was sentenced, Hodgkins’ actual interference with the certification by corruptly obstructing the congressional proceeding was seen by this first judge as a crime worthy of only an 8 month sentence even though the Guideline Range was double that. That was an “L” for the DOJ in the first case.

I actually wrote a Substack article about it: Judge Tells DOJ January 6 Cases are Overcharged.

What I didn’t anticipate in that story was that DOJ would add a trick to its playbook in order to drive the sentences in the direction it wanted them to go — higher.

The next significant case to be decided on a 1512 count involved my client, Jacob Chansley — the “QAnon Shaman” — although I did not represent him at the time of his sentencing.

Jake also pled guilty to a 1512 charge — obstructing Congress — same as Hodgkins. The sentencing guideline provisions he had to agree to under the terms of the plea offer made to him were slightly different than Hodgkins.

 
Rather than have an Offense Level — after enhancements — of only 17, Jake’s plea agreement required him to accept the Government’s calculation that included another sentencing guideline enhancement of +8 levels. That particular provision in the Guideline provision referenced reads as follows:

(B)       If the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice, increase by 8 levels.

Jake had no criminal history, and he received a 3 level reduction for “acceptance of responsibility, just like Hodgkins received. Here was the provision in the plea agreement he had to agree to with regard to the applicable Guideline Range:

 
So that +8 level enhancement, with a guilty plea to the same offense as Hodgkins three months earlier, increased the advisory guideline sentencing range from 15-21 months up to 41-51 months.

That +8 enhancement is driven by the facts in each individual case — as the Government sees them. Remember that the option of the defendant here is to take the offer, or go to trial. There has been no willingness on the part of the DOJ to negotiate on these sentencing enhancements, and only RARELY have they agreed to leave them “open” for the Judge to decide at sentencing.

Chansley did not engage in any act of actual violence or property destruction. To establish the “factual basis” that he “threatened to cause physical injury” here is what the Government wrote in the “Statement of Offense” for Chansley to accept that it claimed supported the +8 level enhancement:

 
That was the difference between Paul Hodgkins without the +8 level enhancement, and Jacob Chansley with the +8 level enhancement. The difference between 1.5 years in prison (only 8 months imposed), and 3.5 years in prison.

For Chansley the Government asked for a sentence of 51 months — the “top of the guideline range” — even though he had no prior criminal history. That’s 33 months longer than it asked for Hodgkins.

The District Judge didn’t go that far, but he did impose a sentence at the bottom of the range — 41 months.

This was in mid-November 2021, and the DOJ had to consider the outcome there to be a “W” even though the sentence was 10 months shorter than had been requested — particularly when comparing the outcome to the earlier sentence of only 8 months given to Hodgkins.

So now the 1512. count was worth 3-4 years in prison if the Government could wedge into the case some additional “facts” no matter how dubious.

This is the important background for Matthew Perna’s case. I have discussed the Perna case with individuals who were actually involved. The plea agreement entered into in Perna’s case involved the same guideline calculations as in the Hodgkins case. The “base offense level” was 14; there was a +3 level enhancement for actually interfering with the Congressional proceedings; and -3 level reduction for acceptance of responsibility. The guideline range was expected to be the same 15-21 month range as with Hodgkins.

But only two documents are filed on the public docket with regard to his guilty plea — the “Statement of Offense” and the “Waiver of Jury Trial.”

Document No. 45 is the “Statement of Offense that would have accompanied the Plea Agreement — filed on December 17. Also filed December 17 is Doc. 46, the written Waiver of Jury trial – another document filed along with the plea agreement.

Not listed on the Docket are Document Nos. 44 and 47, one of which I’m certain is the Plea Agreement. He entered a plea of guilty in open court, so that document was filed.

What I suspect happened is that his guilty plea was voided by his death. When someone dies before sentencing, the case is not “Final” and the guilty plea is voided since the Judge had not yet entered a “Judgment” in the case. Since his guilty plea was voided, the Court removed the plea agreement from the docket.

I was told categorically that the +8 level enhancement (injury or threat of violence) was never even discussed between the prosecution and the defense when the plea agreement was entered into in December 2021.

But in February 2022, when the filing date for Sentencing Statements was approaching, the DOJ prosecutor asked for a two-week extension of the time to file the Statement, and to move the sentencing hearing back as well.

The Sentencing Statements were never filed. Just prior to the filing date, the Government let Perna’s lawyer know that it was going to be asking for the +8 level enhancement at sentencing in addition to the +3 level enhancement discussed by the two sides at the time the plea agreement was entered into. As a result, the Government was going to argue that the guideline range would be the same as Chansley’s — 41 to 51 months — and not the 15 to 21 months reflected in the plea agreement.

The obvious question is “Why would DOJ be allowed to do that?” The answer is that the Plea Agreements include a provision that the guideline calculations are only preliminary, and are subject to change based upon the discovery of additional information not known at the time the Plea Agreement.

I do not believe that the additional information has ever been made public that supposedly supported the decision by the Government to ratchet-up the guideline calculations and the recommended guideline range.

The +8 level enhancement had never been part of the plea discussions, and the possibility of a sentence 3x longer than anticipated was not something Matthew had ever contemplated when he made the decision to plead guilty.

My understanding is that when Matthew’s attorney described to him what the Government was going to ask for at sentencing — a sentence of nearly 4 years in prison rather than the 15-21 months he had been anticipating — Matthew became so despondent over the entire affair that he took his own life.

In my opinion, the decision-making by DOJ regarding the approach to Perna’s sentencing was the product of the different outcomes in Hodgkins and Chansley — 8 months was unacceptable, but 41 months was acceptable to the powers-that-be inside DOJ.

That “learning curve” has — in my view — brought us to the point we are now in all January 6 cases.

But I need to draw on my own experience and history here to provide context for what I’m follows below.

In 21 years as an AUSA I handled a few hundred sentencing hearings. For each hearing I wrote a Sentencing Statement on behalf of the Government. In writing those statements, I carefully reviewed the evidence and what facts I believed were conclusively established by the evidence.

With that information in hand, I then went through the various provisions of the Sentencing Guidelines and made my own JUDGMENTS about the ones I thought applied based on the evidence. I did the calculations and arrived at what I thought was the advisory guideline range. I then wrote a recommendation into the Memorandum for the Court to consider.

I did all that work myself without the requirement for supervisory input or approval. The premise for that was the fact that the AUSA handling the case knew the facts better than any supervisor.

The only time supervisory approval was required was if the recommended sentence was lower than the bottom of the advisory guideline range. In that circumstance an explanation was necessary as to why such a “below guidelines” sentence was appropriate under the facts of the case.

This is not happening in January 6 cases. I’m convinced based on dozens of Sentencing Statements I’ve read in these cases that the line prosecutors are given a single blanket instruction — the Guideline Calculation in every case must include every possible enhancement whether the enhancement is supported by the facts of the case or not.

I have seen ridiculous requests for enhancements under the guidelines based on plainly stupid characterizations of evidence. This is the reason why many — well over a majority — of the actual sentences imposed are less than the sentences being requested by the Government. The Guideline calculations by the Judges are different than those put forward by the Government because the Judges are considering the evidence while the DOJ is focused on hyperbole.

One of my clients faced a Government request to apply an enhancement for “leadership.” One of the arguments was that he was first in a line of co-defendants walking across the Capitol grounds — he was “leading” the group as they walked. I’d never read anything remotely that absurd in dozens of cases over 3 decades in my career where the issue of “leadership” was in play at sentencing.

He was also called a leader by the Government because in an email he was described as a “most trusted leader of the New York chapter” of the Oath Keepers. He was the only member of that “chapter” because there wasn’t even a chapter formed — he was just the only member of the national organization from his area.

The Government also wanted a sentencing enhancement for “obstructing the grand jury” based on the claim that my client “discarded” his cell phone in the weeks after Jan. 6. The ONLY evidence at trial was the testimony of two FBI agents that the phone in question wasn’t found during the execution of search warrants at two different locations. New cell service on a new phone was established two months later — after my client moved his family from New Jersey to Texas. Based on that evidence he was charged with the crime of obstruction based on the claim he “discarded” his phone.

The jury acquitted him on the charge.

But at sentencing the Government wanted an enhancement — and a longer sentence — based on the same claim. Even after the Judge ruled against the DOJ on the same type of effort regarding a different defendant — that the enhancement only applied if the defendant KNEW the grand jury was investigating him — the Government continued to press for the enhancement at the sentencing of my client. There was no evidence he “discarded” the phone (I asked both agents if it was possible that the phone was in my office in Hawaii and they both said “yes”), and there was no evidence he knew he was under grand jury investigation until the date of his arrest. But the Government kept arguing for the enhancement.

This is the approach being taken across the entire spectrum of cases based on what I’ve read, and this is why ridiculously excessive sentences are being demanded by the Government in just about every case.

Which brings me to Christoper Worrell. I cannot write too much on the evidence or circumstances in this case. But the Government’s Sentencing Statement — asking for 14 years — was filed and is a matter of public record.

When announcing his verdict, the District Judge agreed with my argument in closing that the evidence presented by the Government regarding Worrell’s membership in the Proud Boys was irrelevant to the charges against him, and did not factor into this verdicts. Yet when you read the 49 page Sentencing Statement, the references to the Proud Boys begin on Page 1.

There are 70 references to the Proud Boys in the Sentencing Statement, and the Proud Boys are mentioned on 25 different pages — more than half the pages of the entire Statement.

The Sentencing Statement could not be about only Chris Worrell and what he did or did not do on January 6, because the worst thing that Chris Worrell was convicted of was sending a 2-3 second burst of pepper spray in the direction of a line of police officers 15-20 feet away.

Here is how that translated into the Government’s Guideline Calculations for Worrell:

 
Note that even though on an objective level, the charge involving spraying the pepper spray was the more serious offense, the Government instead wants to use the 1512(c)(2) charge — obstructing Congress — because it adds the 11 levels referenced above. The +6 enhancement (risk to officers) is for the pepper spray incident that happened OUTSIDE and BEFORE Congress went into recess.

So the facts are that the 1512(c)(2) offense hadn’t even been committed yet, but the Government wants to add +6 levels without regard to the facts.

The Government had a fall-back plan in the event that the gambit above proved unpersuasive because of — you know — the facts.

 
There it is again. Even though the Judge stated in rendering his verdicts that the evidence about the Proud Boys was irrelevant, the Government returns to the Proud Boys in an effort to drive up the sentencing range. If the +6 enhancement was rejected, they wanted the “almost terrorism” upward departure applied notwithstanding the Judge’s own words.

Which is precisely what I have laid out in a couple of thousand words above.

For Worrell, Offense Level 35 on the Sentencing Table resulted in a recommended guideline range of 168-210 months — 14 to 17.5 years. The Government asked for 168 months.

Remember that the Maximum Offense Level on the Sentencing Table is 43:

 
According to the Government, Worrell’s conduct placed him only 7 levels removed from a Sentencing Range of 30 years to Life, and 8 levels removed from a sentence of Mandatory Life.

Seven levels on a scale of 1-43 is 16% of the Table. So Worrell’s crime was — if you follow the logic — worse than 85% of all potential federal crimes.

The facts are almost entirely beside the point in these cases when it comes to sentencing. I can count on one hand the number of sentencing statements I’ve seen that I though were a fair characterization of the facts of the case. Instead, it is plain and obvious that the effort is aimed at driving a continuing narrative to demonize the political opposition through hyperbole in making the crimes charged in connection with January 6 seem wildly more serious than the actual conduct underlying the crimes.

The dominant media dutifully reports all these sentencing statements as if they are virtuous testaments to the truth when they are almost uniformly the exact opposite. The media reported all the Government’s sentencing calculations and recommended sentences for each of the nine Oath Keeper defendants to be sentenced so far, but I don’t recall a SINGLE dominant media report that the District Judge disagreed with EVERY SINGLE CALCULATION proposed by the Government.

There is a famous Supreme Court quote that should hang on the wall of every Assistant U.S. Attorney’s office, and they should point to it when supervisors are directing them to do things like I’ve highlighted above.

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer… while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

United States v. Berger, Supreme Court 1935.

The first rule of “Justice” should be to treat the facts accurately — and fairly.

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