Thread by @Brandi_Buchman

TODAY: Proud Boy and seditious conspiracist Joe Biggs, who breached the Capitol not once but twice, who said Jan. 6 was a "warning shot" to a "weak" govt, who wanted to "get radical" and find "real men" to stop the transfer of power, is sentenced today. Hearing at 10am ET.

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Biggs has been in prison this whole time. He will report to prison for his sentence. He's not going on probation before he serves time folks. The ruling about what's he's limited to do comes after he's out...on probation.

It's hard to say what would have happened had Biggs testified.

And now we begin again.
Proud Boy Zachary Rehl enters the courtroom in his orange jumpsuit and you can hear the jangling and clanking of his shackles at his feet.

Kelly begins with an explanation of something he said earlier re: Would he make a finding to impose exact same sentence had calculations came out differently. Kelly says he paused because calculations are so complex in this case...

Kelly continued: What he said was regardless of whether the terrorism adjustment applieid, he would have ruled same way.

Kelly stlil has a cough going this afternoon.

Kelly tells Rehl the hearing will proceed over four steps - this is basically the 101 rehash for sentencing proceedings that he is giving before he gets into specific details/guidelines that apply to Rehl.

Both Rehl and Pattis have had opportunity to review the presentence report; the government has no factual objections to it.
Kelly proposes to Pattis to resolve what they've laid out re: factual objections Rehl has

Pattis had objection to content in PSR about Biggs interview with FBI, but that won't impact Kelly's decisioin one way or the other; Pattis acknowledges and accepts. Rehl also objected to inclusion of something he said about a "waste of time to delete electronic data"

Kelly will keep that in there, he thinks that is factually accurate recounting of the record. Pattis says he still objects but it makes sense.

Kelly addresses Rehl; Before we proceed any further, I want to make sure you are satified with your attorney.
Rehl: Yes your honor, I am, thanks.

Recall, Rehl fired his atty Carmen Hernandez after the verdict came down.

Kelly: We turn to the guidelines next...

Kelly: For counts 1 and 4, there have been args made that I should not use 2j1.2 (guideline for 2 and 3) and question is whether I should use some other guideline 1 and 4... for all reasons I laid out on record w/regard to Biggs earlier, I will proceed on all counts using 2j1.2

Now argument on specific offense characteristics and
Pattis begins: The guidelines call for enhancements on admin of justice...these are not offenses related to admin of justice but to obstruct an official proceeding.

Pattis understands the court takes the position that they are close enough
He notes judges in this district have agreed w/Kelly's decision. Respectfully, they disagree around administration of justice. Kelly calls Pattis position reasonable but he just comes out the other way

Kelly: I do think that with regard to this particular enhancement, again, the offense involved causing or threatening to cause physical injury to people or property to effect the adminisitration of justice.
(light paraphrase)

Pattis hasn't made a factual arg here, but evidence in this case warrants the enhancement; Kelly says.
And he does find that Rehl assaulted an officer.

Kelly: I was at trial, i watched the govt's video evidence, and I think its clear that the man the govt ID'ed as Rehl in fairly distinctive attire. He did spray a chemical irritant of some kinid at the officers.

K: You can see a tight stream of spray cominig from item in Rehl's hands in video and because jury convicted him of entering into conspiracy with object to stop the count, forcibily stop transfer of power, corruptly obstructing proceeding, i can conclude that enhancement applies

The enhancements for counts 1-4 around knocking down the fence will be applied; its similar to what he said around Biggs earlier.

Pattis now asks to speak to AUSA Erik Kenerson. They move away from the mics. Kenerson stands with hands in pockets as Pattis faces him. They talk briefly and retake their seats.

Kelly: Adding add'l levels to count 1-4, I arrive at offense level 27 after application of additional specific offense characteristics.
The next question was issue of count 5 - what I would conclude w/regard to whether aggravated assault cross-reference should apply...

Kelly: What we heard this morning - the govt had a scattershot argument kind of about a lot of dififerent conduct. I didn't need to reach conduct that was acquitted conduct, but I relied on Rehl's spraying of officer and Donohoe's assault to conclude...

Kelly cont: ...I do have a basis to find, upon the preponderance of evidence, they were aggravated assaults under the meaning of the guideline.

Pattis asks for another moment. He speak to Rehl directly. He tells the court after a moment, he explained to Rehl, this isn't a "mail order" hearing. In effect, he's making sure Rehl is not being short-changed with args since a lot of this was covered w/Biggs already

Kelly acknowledges this, appreciates it and says, of course, Rehl, Pattis will have as much time as necessary to bring up any concerns or arguments

The guideline for count 5 is 14 and stays there w.o any increase requested by govt.

Now, does terrorism adjustment apply to next count;
This is obviously something that effects Rehl's guideline specifically, Kelly says. So Pattis will argue.

Pattis is rehashing similar argument from earlier around Biggs; Kelly says as far as the law goes, he'll incorporate and rely on what he said to Biggs this am: there are 2 boxes that would need to be checked for this terrorism enhancement to apply.

First, is whether a partic statute is violated, and 1361, count 6, is on that list, Kelly says.

Second, is to conclude whether offense was calculated to intimidate, coerce govt conduct

Rehl may not have knocked down the fence himself, but the jury considered him liable, presumably under Pinkerton liability and by that end, Kelly says, "your responsibility in this conduct stems from your own intent: to use force against this govt"

Judge Kelly will apply the terrorism enhancement to count 6 for Proud Boy Rehl. Offense level to 32.
Govt asked to apply departure, he's already laid out reasons why he won't do that but he summarizes for Rehl.

Onto obstruction of justice adjustment: it would be a two level adjustment that would apply if judge agrees to apply it. He'll hear from the govt first.

Kenerson: Rehl did in fact assault officers on Jan. 6. The court found that today by preponderance of evidence.

"At trial, he denied committing that assault no less than 15 times"

AUSA Kenerson: There was a flat denial. I think itis very clear that perjury is reason to apply obstruction offense and that is precsiely what Rehl did.
It was flat denial, he says again.

Kelly: Did you also rely on testimony from Rehl that he thought those pushing aganist the barrier were looking for stages that day? I was struck by that testimony as well.
Kenerson says it is factored in. the court did not believe the stmt.

We were trying to save as many trees as we could in our argument to court, but we agree, that statement rises - its absurd enough to rise to that level as well, Kenerson says.

Some of his testimomy that they were looking for stages, claims he couldn't see assaults, couldn't hear assault, thats part and parcel with perjury enhancement, Kenerson says.

Pattis argues. He says he is in a tough spot. Contends Rehl's memory was bad.
Kelly isn't buying that: "I do find he committed perjury at trial... and he shot some substance from a cannister that looks like pepper spray/chemicals folks were using against offices on west front."

Kelly says Proud Boy Zachary Rehl "denied assaulting someone before being confronted with this evidence and the denials continued after as the testimony progressed. I think that is perjury testmony."

Judge Kelly now sets Proud Boy Zach Rehl's sentencing guidelines as 30 years to LIFE. Recall, DOJ wants just 30 years.

Kelly reads back to Rehl the req's for sentencing and now govt will now argue its recommendation.

AUSA Erik Kenerson: Zachary Rehl deserves every day of the sentence the govt has requested for him here. We acknowledge the significance of that request and its at the low point of what court just recommended

What Rehl did on and leading up to Jan. 6 warrants the terrorism enhancement.
The effectiveness of terrorism is not just the body count... part of what makes it effective is ability to sow fear... shake confidence in institutions...

Kenerson: it's that legacy of fear - thats the legacy of the terrorism brought about by this conspracy. One thing want to highlight that our institutions were up to task, govt agrees, it is indeed fortunate. But that is not guaranteed.

Kenerson: inspector loyd testified at trial, we don't know what would have happened had rioters got into senate or house chamber [whle legislators were still there] that's talking about jan. 6 writ large

Kenerson notes PBs brought 200 member strong fighting force; they also relied on the "normies"

Kenerson: And there are many ways these defendants are lucky Jan. 6 did not turn into a mass casualty event. It did not and we're fortunate it did not, but we should not forget... the conspiracy the Proud Boys brought about could have turned it into that.

Kenerson:... Every bit of extra security taken at the Capitol now makes it much less easy for those who want to peaceably voice ther protest.

Kenerson: Whats particularly pernicious in this conspiracy is the glorification of violence... the willingness to brawl in support of their cause to achieve results they could not otherwise.
Thats why Rehl helped raise an army to join PBs, he argues

Rehl relied on "vigilante violence" - looked at it as a solution.
He used the most violent videos of PBs attacking people in Nov 2020 to recruit members for Jan. 6. He endorsed violence as one piece of a strategy to "take back the country."
That began for him in 2019.

Kenerson speaks of basic rights afforded, to vote, to file a lawsuit, to peacefully protest: Rehl was keenly aware of rights being exercised by president during 2020 election and he still chose violence as a means to an end

Rehl's statement of "fuck them storm the capitol" as the first breach was happening and his assault of law enforcement with some sort of irritant spray, Kenerson wants to address.

Kenerson: As we heard many times during trial, he was son and grandson of police officer. He encouraged ongoing violence aganist police and then he used violence aganist police himself and used that to break a standstill

Kenerson says Rehls testimony was "combative, evasive, incredible"
Ken: the notion that ppl were just looking for the stages, just defies all credibility whatsoever.

Rehl tried to explain away text messages,
Kenerson: He has no respect for the usual process and ironically for the constitution until this day.
Thats where the irony of his military service comes in as well.

Kenerson: The letter of support and claims that he cared about constitution, but he cared so little about the integrity of this trial, he lied 15 times to this court..

Kenerson says Rehl "tried to craft a narrative to fit the evidence" and the jury saw through that
He has shown how little the court can trust his expressions of remorse or contrition.

Ken: Rehl has continued to show contempt for court; called the trial political propaganda and denied he received a fair and speedy trial. post trial interviews he clamed the trial was blacked out.
(We know that definitiely aint true!)

Pattis is up for remarks. He uses an old favorite from trial: "If you shoot at the king you best kill him"
No one shot at the king on Jan. 6, he says.
He adds: Trump, who garnered 74M votes, told ppl the election was stolen...

If there's a greater danger to a democracy than an insurrection, it's a stolen election, Pattis says.
Regular people are being turned into prisoners because of Trump's claims. As he argues to Kelly, Pattis says he admits he thinks this argument wont go far in this court.

Kelly cuts in and says those factors (Trump's lies) are a "modest mitigating factors"
And he tells Pattis, as he said already today, there were "many many many avenues to get justice" to ensure the election wasn't stolen if thats what ppl believed.

Kelly says the rights are still there and robust (to protest or reject election outcomes).
K: To try and compare our situation to others where ppl think violence was justified, i don't think advances your argument

Pattis again, hammering argument about how, in effect, scary govt has become because of these prosecutions.
Kelly pushes back, there must be respect for law.

Kelly: The overall challenge to our institutions is not lost on me, but when it comes to respect for law, it weighs heavily on the govt side when the very people who make the laws, were not able to do their job [on Jan. 6]

Pattis arguing back. And he says, on Jan. 6 when he turned on tv, there was "15 seconds of footage" and then it was over. (Can confirm, it wasnt) He argues charges and claims about Jan. 6 are overblown, exaggerated

Pattis on terrorism enhancements (there are a variety that could have been applied) and he says, all of them involve catastrophic consequences except for one applied here; pattis says the destruction of $32k fence was trivial, made no political point

Sometimes I show the law all the respect I can muster and I'm afraid its not enough, Pattis says as he exchanges a back and forth with Kelly

P: The govt recites a series of cases and as court noted earlier, these are all cases with terr. enhancement but the role was to prepare people to kill, engage in mass casualty events.... these men went in unarmed and went in to stop a proceeding and did for several hours...

Pattis continues to argue that it was expected the certification would take a long time, be delayed etc.

Seeking leniency, Pattis notes Rehl's lost his military pension, lost time w/his wife and children. He adds: don't think the public needs protection from Rehl...i think all 300M of need to take a long hard look at ourselves

Pattis: i wont claim he is a victim but I would submit he's another canary in the coal mine.

Pattis calls Biggs' 17 years sentence breathtaking.
He says Rehl's wife did not want to speak in court today because she was afraid of Kelly and thought Kelly didn't like her and that would influence his sentencing.
(I don't recall this at all. Kelly was quite polite to her)

I can understand not wanting to say something that would influence the judge negatively if your husband is on the stand. But for Pattis to tell the judge that she was scared to talk today because of how Kelly treated her, seems a very odd choice to make.

We're on a short break right now. Rehl may speak on his own behalf; Pattis said he warned him about it.
It seemed Rehl was ready to do so before we got to the break.

And we're back. Rehl will address the court. He thanks the court and begins.
I originally did Pattis I had 10 pages in mind but he reminded me this isn't a War and Peace novel. To focus on what's important in this room. His daughter, wife.
He starts crying.

Rehl takes about a minute to gather himself. Pattis puts his hand on his back.
Rehl: ive spent all my life trying to do the right thing not just for myself but my family. i let them all down. its hard seeing them here under these circumstances, but its my fault.

A complete lapse in judgment cost me everything. The military benefits, those for his daughter's college education.
Rehl: i might have lost everyone in this room and depending on what happens in this room today, that may still be a possibility.
He is crying hard, sniffing.

Rehl: I am done pedaling lies for people who do not care about me.

I want to apologize to prosecution team as well. I blamed you or others for why trial turned out the way it did instead of myself, he adds.

Jan. 6 was a despicable day and I did things I regret, Rehl says.
He is sobbing hard as he addresses how sorry he is to his family. He wants to be sent to Fort Dix because its close to them.

Rehl ends his remarks, his face is flush red as he sits down. The tears were rocking his body, his leg bounced around a bit. He was very upset.

Kelly will now render a sentence.
(He also tells Pattis that he will give Biggs a chance to request a specific location for his detention, he realizes that didn't occur earlier)

Rehl also described today that he wouldn't waste time on mindless politics; he expressed reverence for right to vote.

Kelly describing how rights are exercised by Americans daliy and "how they empower all of us to make our country, in many ways, the envy of the world."
Kelly: But with freedom and those rights, comes responsibilities. What you can't do is what jury found you did here.

Kelly: What happened on 1/6 not only physically damaged property and hurt people, it hurt an important American custom that supports the rule of law and the constitution. that day broke our tradition of a peaceful transfer of power.

Kelly: Notice i said had, we dont have it anymore, until we restart it again.
That day didnt honor our Founders, its the knd of thing they put checks and balances on to prevent.
Jan. 6 was a national disgrace, he adds

Kelly: Not sure you exercised quite the same level of (leadership) control as some of your co-defendants but you did spray that officer and then you lied about it. I don't know what to say, in the law we call those bad facts.

Kelly is in shock as to what Rehl said after: "We should have held the Capitol. I'm proud of what we accomplished. Everyone should have showed up armed and taken the country back the right way."
Kelly, "i mean, my god!"

Kelly, noting his millitary, education background: it pains me to see someone with that amount of support in the community before me to talk about what we're talking about here.
Rehl wipes his face as Kelly says this.

"The statements afterward are chilling" and I have to consider need for general and specific deterrence, Kelly explains

Kelly agrees wth Pattis, says we were in far worse straits with violence in society in 60s and 70s but people must know, they cannot resort to violence.

NOW: Judge Tim Kelly sentences Proud Boy Zachary Rehl to 15 YEARS.

Kelly say it is a serious sentence, then remarks: "I probably never in my life will approach this: this was 15 years below guidelines and 15 years below what govt requested. I wonder if I will ever sentence someone to 15 years below the guidelines in my career."

It is a miracle, a miracle, that there wasn't a greater loss of life, Kelly says of Jan. 6. But he explains his sentencing decision and remarks that he doesnt think Rehl intended to kill people as the terrorism enhancement requested

Now, Kelly goes down the list of expectations for Rehl:: substance abuse testing, participate in mental health treatment program supervised by probation; no association with anyone who advocates violence against the govt

Folks, that will end it for me here today. I'll have a more in-depth story up later for @emptywheel.
emptywheel.net/2023/08/31/pro…

@emptywheel I will be back tomorrow for sentencing hearings for Dominic Pezzola at 10AM and Ethan Nordean at 2PM.