HUGE decision out of DC Circuit this morning saying the proceedings before Congress on Jan. 6 did not involve the "administration of justice" as that phrase is used in the Sentencing Guidelines.
This will be moot if the SCOTUS throws out the 1512 count altogether in the Fischer.
This will be moot if the SCOTUS throws out the 1512 count altogether in the Fischer.
But this has been a MASSIVE point of conflict between defense counsel and the DOJ/Judges in sentencing J6 defendants on 1512 counts.
That was the "go to" felony for DOJ early on, and the reason for that is the Govt was asking for -- and getting "11" levels of enhancements.
That was the "go to" felony for DOJ early on, and the reason for that is the Govt was asking for -- and getting "11" levels of enhancements.
This is real "inside baseball" stuff, but here is how it worked.
The "Base Offense" level for 1512 is "14".
The higher that number, the longer the recommended sentence.
The Govt was asking for, and the Judges -- except one -- were giving two different enhancements to that "14".
The "Base Offense" level for 1512 is "14".
The higher that number, the longer the recommended sentence.
The Govt was asking for, and the Judges -- except one -- were giving two different enhancements to that "14".
Both enhancements involved interfering with the "due administration of justice".
An "8" level enhancement for violence.
Another "3" level enhancement if proceedings were actually interfered with.
The application of these two enhancements increased the offense level to 25.
An "8" level enhancement for violence.
Another "3" level enhancement if proceedings were actually interfered with.
The application of these two enhancements increased the offense level to 25.
For someone with no criminal history, the recommended sentencing range for a Level 14 is 15-21 months.
For someone with no criminal history, the recommended sentencing range for a Level 25 is 57-71 months.
Difference is 1.5 years and over 5 years in prison.
For someone with no criminal history, the recommended sentencing range for a Level 25 is 57-71 months.
Difference is 1.5 years and over 5 years in prison.
By pleading guilty, the range was lowered to 41-51 months for "acceptance of responsibility."
The Govt plea offers REQUIRED that defendants agree that the two sentencing enhancements apply.
If a defendant refused he/she could go to trial where the convictions are nearly 100%.
The Govt plea offers REQUIRED that defendants agree that the two sentencing enhancements apply.
If a defendant refused he/she could go to trial where the convictions are nearly 100%.
If the 1512 counts are throw out by SCOTUS, this will not matter because most of those defendants will be entitled to resentencing based on a calculation that doesn't involve the two enhancements.
But even if SCOTUS upholds the 1512 convictions, this ruling could require a huge number of cases to come back to District Court for resentencing -- with the new sentences being much shorter than the sentences that were imposed.
By my recollection, only one Judge ruled that these two enhancements did not apply because congressional proceedings did not involve the "Administration of Justice." Every other judge engaged in various forms of linguistic gymnastics to twist the words to fit the facts.
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