This is an opinion column. The thoughts expressed are those of the author.
Sentence Handed down in First Felony Case From January 6 protest.
Shipwreckedcrew 7/20/2021 9:02 AM
Judge Randolph Moss, Image: dcd.uscourts.gov
On Monday, Federal District Judge Randolph Moss presided over the first sentencing hearing of a January 6 protest defendant who pled guilty to the felony charge of “obstructing official business” under 18 U.S.C. § 1512. Defendant Paul Hodgkins was the first person to plead guilty to a felony back in early June.
The sentencing range “recommended” by the United States Sentencing Guidelines was 15-21 months. The Biden Justice Department prosecutor asked Judge Moss to sentence Hodgkins to 18 months in prison. Hodgkin’s attorney asked for a sentence of probation with no jail time.
Judge Moss did the typical meandering explanation done by nearly all federal judges to explain his thinking and rationale for sentencing Hodgkins, and ended up sentencing him to 8 months, almost one-half less than the lower end the guideline range, and 10 months less than the sentence requested by the government.
While many will argue that Hodgkins should never have been prosecuted – he certainly shouldn’t have been charged with a felony – Judge Moss sentenced him to only two months more than Michael Curzio who pled guilty to the petty misdemeanor of “parading” inside the Capitol. This is one of the misdemeanor charges being most often applied in the “tourist protester” cases where the defendants did nothing more than walk inside the Capitol with the crowd, remain a few minutes, and then leave.
Curzio had been detained in custody pending trial based on a prior criminal history in Florida, including a conviction for attempted murder. But once he reached six months in detention, the maximum time he would serve for his petty misdemeanor charge, he pled guilty, was sentenced to “time served” and released.
The arguments by the DOJ prosecutor and defense attorney Patrick Leduc in Hodgkins’ case took up one of the key issues at the heart of these cases both in terms of the government’s charging decision and the determination of a sentence. This issue involves the premise of the criminal justice system that responsibility for criminal conduct is an individualized determination. The actions of others in a “crowd”, “protest” or “riot” situation should not impact individualized sentencing unless a conspiracy has been alleged and proven.
The prosecutor repeatedly made reference to the actions of the crowd, the riot, “domestic terrorism”, threats to democracy, etc., all of which are relevant only in the “collective” sense. As to Hodgkins – who conspired with no one and planned nothing – they are relevant only in the sense that he was not alone when he was inside the Capitol.
Hodgkins attorney argued forcefully that Hodgkins is not responsible for the actions of others. He admitted his own conduct and that he broke the law. What others might or might not have done around him – without his involvement -- is not conduct he should be made responsible for in sentencing him for his crime. Hodgkins attorney made the poignant point that as a veteran with over 30 years of service on active duty and in the reserves, he has been shot at by terrorists. If January 6 is also “terrorism” it gets difficult to see where the line is drawn.
Judge Moss, appointed by President Obama in 2014, made all the right claims and observances that lefties and liberals supporting the Biden Administration wanted to hear from him about the January 6 “riots”, threats to democracy, blah, blah, blah. He read from their hymnal as everyone expected him to do.
But he also made note that Hodgkins would be sentenced for his individual conduct which included no violence and no property destruction by him personally. Hodgkins has no criminal record, he admitted his responsibility for his conduct early, and he made a heartfelt statement of regret during the sentencing hearing.
Having spent more than 30 years practicing criminal law in federal courts, I’m highly confident that the various district court judges in the District of Columbia have informally agreed on how they are going to dispose of these cases that are resolved by plea agreements. The very purpose behind the creation of the Sentencing Guidelines was to eliminate wide disparities in sentences given to defendants by different judges when the defendants had committed the same crime.
Federal courts use an “assigned judge” system. A judge is assigned to a case when the indictment is filed and that same judge remains assigned to that case all the way through sentencing.
Before there were “guidelines”, a defendant’s sentence could be heavily influenced by nothing more that the “luck of the draw” in terms of the judge assigned to a case. It was not uncommon to have situations where nearly identical facts ended up with vastly different outcomes because of the broad discretion given to federal judge sentencing defendants in criminal cases.
For example, prior to the creation of the guidelines a defendant who pled guilty to possessing one pound of marijuana might have been sentenced to five years in prison by one federal judge with a “Say Not To Drugs” mindset, while in the courtroom right next door another federal judge might impose a sentence of five years probation on a different defendant on the same facts, based on that judge’s view that drug offenses are too harshly punished. With almost no oversight on their discretion at the appellate level, such radically different sentences would have stood for the individual defendants.
The guidelines were designed to bring some consistency and predictability into the sentencing process. In the government’s Sentencing Statement it quoted the Supreme Court on the application of the guidelines as follows:
The United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) are “the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions” and are the “starting point and the initial benchmark” for sentencing.
One factor Judges must consider by statute in determining an appropriate sentence is the need to avoid “unwarranted disparities” in sentences among defendants convicted of similar crimes. The judges in the District of Columbia are going to collectively sentence hundreds – presumably – defendants for nearly identical conduct. Judge Moss has now set a benchmark for “non-violent” January 6 protesters who engaged in no property destruction. The Guideline Range of 15-21 months will repeat itself in numerous cases where the defendant has no prior record, engaged in no violence, and committed no property destruction.
As noted above, I do not think Judge Moss decided to give less than one-half the time in custody asked for the government in a vacuum. A very troublesome public perception problem will arise if another federal judge now sentences a different January 6 defendant with similar facts to 15-18 months as Judge Moss chose not to do for Hodgkins.
The sentencing guidelines themselves and the Supreme Court have said that the guideline calculations are meant to address cases within the “heartland” of the criminal conduct defined by statute. Extraordinary cases – based on either aggravating or mitigation factors – can be taken outside the guideline range because they do not fall within the “heartland” of cases.
The sentence imposed by Judge Moss says that he does not view the felony violations of § 1512(c) as seriously as the prosecutors. He paid lip service to all their concerns, but then determined that Hodgkins’ case was outside the “heartland” of felony obstruction cases covered by the statute when he sentenced Hodgkins to only about one-half of what the guidelines called for. Taking his case outside the “heartland” by departing down to 8 months as Judge Moss has done is commentary by him on his view of the offense itself. Pay attention to what he did, not what he said.
I expect that Judge Moss is not alone among his colleagues.
The Biden Justice Department approach to the January 6 prosecutions has taken the District of Columbia Court hostage. The government has filed hundreds of more cases due to how it has chosen to pursue the January 6 cases than it would have otherwise done so. Each case taxes the resources of the court and the time of the Judges. They don’t have less work to do in order to allow them to handle the January 6 caseload created by DOJ – these cases are in addition to all the other cases already on their individual dockets.
This may be the first signal from the Bench to DOJ that it might want to rethink the approach it has taken. It expresses in real terms – the time in custody for a violator – disagreement with the prosecutors with respect to the fervor with which DOJ is chasing down every last potential defendant.
Eight months is not a lot of “bang for their buck” when it comes to the resources being expended.
Will DOJ take the hint?
Shipwreckedcrew spent more than 22 years as an Assistant United States Attorney working in two different offices in the Western United States, beginning in 1992 at the end of the Administration of the first President Bush, and departing in 2013 during the second term of Barack Obama. He is a veteran of more than 40 federal criminal jury trials taken to verdict -- as lead counsel in all but the very first one -- and has appeared more than 15 times before Ninth Circuit Court of Appeals. He has been in private practice since 2013. He is a regular contributor to Human events, he has been a regular presence on Twitter since 2018, and was a contributor at Red State from May 2020 to July 2021. He writes primarily on legal issues and politics, and is a nationally recognized expert in conservative media in the areas of federal criminal matters and decisions from the Supreme Court. You can also find his work at Shipwreckedcrew@substack.com. follow him on Twitter: @shipwreckedcrew
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