Part 3 of 3
C. An Upward Departure Pursuant to Note 4 Applies to Defendants’ Other Convictions
Significantly, an upward departure under Note 4 is also warranted for defendants’ convictions. The upward departure is unnecessary because the adjustment applies, but even if one applied the departure rather than the adjustment, the result would be the same: the aggravating factors described above would warrant offense levels commensurate with those reached by applying the Section 3A1.4 adjustment and the other enhancements sought by the government.
Note 4 states that even where defendants are not convicted of an offense enumerated in 18 U.S.C. § 2332b(g)(5), an upward departure is “warranted” if the defendants’ “offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” Id., cmt. n.4(A). When it adopted Note 4, the Sentencing Commission explained that it is “an encouraged, structured upward departure,” the purpose of which is to provide courts with “a viable tool to account for the harm involved during the commission of these offenses on a case-by-case basis” and to “make[] it possible to impose punishment equal in severity to that which would have been imposed if the § 3A1.4 adjustment actually applied.” Sentencing Guidelines, App. C, amend. 637 (2002) (emphasis added).
The defendants’ offenses of seditious conspiracy (Count One), conspiracy to obstruct an official proceeding (Count Two), obstruction of an official proceeding (Count Three), conspiracy to prevent officers of the United States from discharging their duties (Count Four), and/or interference with law enforcement officers during a civil disorder (Count Five) are not enumerated under 18 U.S.C. § 2332b(g)(5), but—as introduced immediately above—these offenses were “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” U.S.S.G. § 3A1.4, cmt. n.4(A). As their convictions and the underlying evidence reflects, the defendants conspired to, attempted to, and temporarily did
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prevent Congress from certifying the 2020 Electoral College vote and to physically prevent Members of Congress from performing their constitutional duties inside the Capitol building, all through the planned, threatened, and actual use of force.
Application of Note 4 to these defendants’ conduct is consistent with the application of Note 4 in this district and by other courts around the country. Judge Mehta applied upward departures ranging from one to six levels under Note 4 to all eight of the Oath Keepers defendants he has sentenced to date in United States v. Rhodes, et al., No. 22-cr-15.27 Even more recently, Judge Mehta applied a one level upward departure under Note 4 to Audrey Southard-Rumsey, who was convicted of interfering with law enforcement officers during the commission of a of civil disorder, assaulting law enforcement officers, and obstructing an official proceeding in connection with her rampage through the Capitol on January 6. United States v. Southard-Rumsey, No. 21-cr-387.
Other courts have applied Note 4 and, specifically, Note 4(A)—relating to offenses that are not enumerated in 18 U.S.C. § 2332b(g)(5)(B) but are “calculated” to influence or retaliate against the government—in different contexts. In United States v. Doggart, the sentencing court imposed
27 None of the defendants in the Rhodes and Minuta cases (21-cr-28 (APM)) were convicted of a specifically enumerated crime under 18 U.S.C. § 2332b(g)(5)(B). Judge Mehta nonetheless found that the crimes committed by members of the Oath Keepers conspiracy were calculated to influence and retaliate against government conduct and applied upward departures under Note 4 to those defendants’ crimes of conviction, e.g., Seditious Conspiracy and Obstruction of an Official Proceeding. By contrast, four Oath Keepers co-conspirators in the Parker case (22-cr-28 (APM)) were convicted of felony destruction of government property, in violation of 18 U.S.C. § 1361. While those defendants have not yet been sentenced, the government has taken the position that, although the Section 3A1.4 adjustment might apply, the Parker defendants are less culpable than their Rhodes and Minuta co-conspirators. The government therefore asked the Court to use the same methodology for the Parker defendants that it used with the Rhodes and Minuta co-conspirators, and to find that the appropriate Guidelines range is the one determined after application of the Note 4 upward departure. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 54 of 80
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a Note 4(A) upward departure where the defendant was convicted of soliciting the destruction of religious property in connection with his plan to burn down buildings in a Muslim community, seeking to “set[] in motion an armed insurrection against the government of the United States that would force the government of the United States either to respond to” the defendant’s planned attacks, “or to give in and capitulate.” No. 15-cr-39-CLC-SKL (E.D. Tenn. Sep. 16, 2020), ECF 343 at 6. The Sixth Circuit affirmed, agreeing that the defendant’s offense was “calculated to influence or affect government conduct by intimidation or coercion.” United States v. Doggart, No. 20-6128, 2021 WL 5111912, at *2-4 (6th Cir. Nov. 3, 2021). There, the sentencing court upwardly departed from an otherwise applicable guidelines range that called for 51 to 63 months of imprisonment (equivalent to offense level 24 at Criminal History Category I) to a range of 324 to 405 months of imprisonment (equivalent to offense level 41 at Criminal History Category I).28 Id. After departing upward, the court sentenced the defendant to the statutory maximum for his sole offense of conviction, ten years of imprisonment. Id. at *1.
In a separate case in the District of Oregon, the sentencing court applied Note 4 when sentencing multiple co-conspirators convicted of violations under 18 U.S.C. § 372 and related offenses for their roles as part of Ammon Bundy’s 2016 armed occupation of the Malheur National Wildlife Refuge, based on their disagreement with federal land management policies. These co-conspirators, some of whom were armed, formed a convoy, entered the Malheur refuge, and then set up a perimeter blocking the entrance of personnel from the Fish and Wildlife Service and other
28 Since the Court may upwardly depart under Note 4 to impose a sentence that does not “exceed the top of the guideline range that would have resulted if the adjustment under this guideline at been applied,” cmt. n.4, the Court is not limited to an offense level increase of 12 steps as contemplated in Section 3A1.4(a), but can depart higher because Section 3A1.4(b) also calls for an increase of the defendant’s Criminal History Category to Level VI. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 55 of 80
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federal agencies. As they indicated in public statements, the occupiers aimed to “adversely possess” the federal land at the Malheur refuge and to compel the release of two other ranchers who had been convicted of arson on federal land. Although some defendants involved in the occupation claimed their actions were peaceful, certain defendants carried firearms as they patrolled the refuge, including in a fire watchtower where they stood guard, and one of the defendants was a member of the “Washington III%” militia. The court applied a Note 4 upward departure to eleven of the thirteen defendants who had pled guilty (some of whom had agreed to the application of the departure in their plea agreements), departing upward two offense levels (one defendant), three offense levels (four defendants), five offense levels (three defendants), and ten offense levels (one defendant). See United States v. Patrick, No. 16-cr-51-BR-9 (D. Or. Feb. 18, 2018), Sent. Tr. at 43-45. The court then applied four- and two-level departures to two defendants convicted at trial. Id. at 46; United States v. Thorn, No. 16-cr-51-BR (D. Or. Nov. 21, 2017), Sent. Tr. at 12.
Other sentencing courts have also upwardly departed under Note 4, although under Note 4(B), a different subsection than the government relies on here, where defendants’ convictions “involved, or were intended to promote” an enumerated offense under 18 U.S.C. § 2332b(g)(5)(B) but the “terrorist motive was to intimidate or coerce a civilian population” rather than to influence or retaliate against government conduct. See United States v. Harpham, 11-cr-42 (E.D. Wash.), applied in United States v. Harpham, 2012 WL 220276 (E.D. Wash. Jan. 25, 2012) (three offense-level Note 4(B) departure applied to defendant who placed explosive device along the Martin Luther King, Jr. Day parade targeting parade participants); United States v. Cottrell, 04-cr-279 (C.D. Cal.), aff’d, United States v. Cottrell, 312 F. App’x 979, 981 (9th Cir. 2009) (per curiam), superseded on other grounds in 333 F. App’x 213 (9th Cir. 2009) (per curiam) (after application Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 56 of 80
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of Note 4(B), defendant sentenced to 100 months of imprisonment for participating in conspiracy to commit vandalism and arson of SUVs in connection with environmental extremist organization); United States v. Jordi, 03-cr-60259 (S.D. Fla.), aff’d, United States v. Jordi, 418 F.3d 1212 (11th Cir. 2005) (after application of Note 4(B), defendant sentenced to 10 years of imprisonment in connection with conviction for planned bombing of abortion clinics meant to dissuade doctors from performing abortions); see also United States v. Holzer, 19-cr-488 (D. Colo.), ECF 101 at 1-5 (finding that Note 4(B) applied to defendant convicted of attempted arson of a synagogue, but describing 235-month sentence of imprisonment as the result of an upward “variance”).
Here, the Section 3A1.4 adjustment applies to the defendants’ convictions for the federal destruction of property. The Court could also reach the same result by departing upward pursuant to Note 4, in lieu of applying the Section 3A1.4 adjustment and other sentencing enhancements, as the government submits that the appropriate upward departure would result in the same offense levels. The Court need not consider a Note 4 adjustment, though, because the Note 4 equities are adequately addressed by the Section 3A1.4 adjustment and other sentencing enhancements.
VI. CHAPTER THREE: OTHER ADJUSTMENTS
The PSRs apply the appropriate adjustments, given the defendants’ relevant conduct.
A. Section 3B1.1 (aggravating role)
The Guidelines provide for an increase in the offense level if the defendant played an aggravated role in the offense, as an “organizer” or “leader” (four levels) or “manager” or “supervisor” (three levels) of a criminal activity that involved five or more participants. U.S.S.G. § 3B1.1(a), (b). The PSRs correctly apply the aggravating role adjustment by assigning a four level Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 57 of 80
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adjustment to Tarrio, Biggs, and Nordean as organizers/leaders and a three level adjustment to Rehl for his role as a supervisor.
The following non-exhaustive factors are instructive in determining whether to apply the adjustment and, if so, whether to add three or four levels:
[T]he exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
United States v. Olejiya, 754 F.3d 986, 990 (D.C. Cir. 2014) (quoting U.S.S.G. § 3B1.1, cmt. n.4). “No single factor is dispositive.” Id. While the court must examine the degree of “control” the defendant exercised over other criminally culpable individuals, id., this factor “alone does not determine whether the sentence can be increased” pursuant to Section 3B1.1, United States v. Kelley, 36 F.3d 1118, 1129 (D.C. Cir. 1994); see also United States v. Brodie, 524 F.3d 259, 270-71 (D.C. Cir. 2008) (noting the “several” factors that must be considered in addition to “control”).
The Circuit has further explained that it understands “control” to “connote some sort of hierarchical relationship” among the participants in the criminal enterprise. Olejiya, 754 F.3d at 990. “When confronted with a heavily stratified conspiracy, a court must superimpose the § 3B1.1 framework over the organizational chart of the conspiracy and, using the factors [in the commentary in Note 4 to the Guideline], decide where to draw the two relevant lines that determine who qualifies for a § 3B1.1 enhancement.” United States v. Graham, 162 F.3d 1180, 1185 (D.C. Cir. 1998). In this way, the three-point enhancement in Section 3B1.1(b) is a “middle-rung enhancement.” United States v. Otunyo, 63 F.4th 948, 958 (D.C. Cir. 2023).
The aggravating-role adjustment applies to a defendant who “managed” or “supervised” merely one other person, so long as the larger criminal activity that constituted the “relevant Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 58 of 80
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conduct” involved five or more participants. U.S.S.G. § 3B1.1(a), cmt. n.2. Multiple defendants can qualify as a “leader” or “organizer” of the same criminal conspiracy, subjecting them to the same four-level adjustment. Id., cmt. n. 4.
The D.C. Circuit has “found the requisite hierarchical relationship” in several cases. See, e.g., Olejiya, 754 F.3d at 991 (recruited some members and supervised others in check-cashing scheme); Brodie, 524 F.3d at 270-71 (recruited members and “coordinated the group’s efforts”); United States v. Wilson, 240 F.3d 39, 46-47 (D.C. Cir. 2001) (recruited and directed others in bank fraud scheme); United States v. Norman, 926 F.3d 804, 812 (D.C. Cir. 2019) (“recruited, managed-supervised, and took a large share of proceeds”). And when the Circuit has found the “hierarchical relationship” lacking, it is often because the defendant had a different type of relationship with his accomplice. See, e.g., United States v. Johnson, 64 F.4th 1348, 1352-53 (D.C. Cir. 2023) (finding that defendant did not have the requisite hierarchal relationship and control over his estranged wife, particularly given the spousal relationship and that she agreed to help him despite her anger with him).
Moreover, the Circuit has found that a defendant’s leadership position in a workplace, even for a defendant who did not recruit others or “initiate[]” the scheme, can support this managerial-role adjustment if the crime is related to the work. See, e.g., United States v. Bras, 483 F.3d 103, 113-14 (D.C. Cir. 2007) (defendant was manager at construction company and part of conspiracy to bribe government inspectors); United States v. Bikundi, 926 F.3d 761, 801 (D.C. Cir. 2019) (per curiam) (defendant was owner of home health care company and part of conspiracy to alter employee and patient records related to fraudulently obtaining government reimbursements).
The Circuit has also found the adjustment applicable for a defendant’s conviction for conspiring to violate 18 U.S.C. § 1512 based on his conduct, as a federal official, to solicit Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 59 of 80
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kickbacks and then conceal his activities. Kelley, 36 F.3d at 1129. The defendant “sought out both knowing and unwitting accomplices,” instructing them on what to do and how to do it. Id.
Importantly, the Circuit recently reiterated that this Chapter 3 role adjustment is determined by looking broadly at all relevant conduct rather than simply the offense of conviction. Otunyo, 63 F.4th at 958-59.; see also United States v. Olibrices, 979 F.2d 1557, 1560–61 (D.C. Cir. 1992) (holding that a sentencing judge should “take into account the contours of the entire conspiracy,” rather than merely the offense of conviction, when determining whether a Chapter Three adjustment applies to a defendant’s role in the criminal activity). In other words, a defendant should receive the adjustment even if he is not at the top of the hierarchy, so long as he played a managerial or supervisory role anywhere within the criminal activity.
Notably, to qualify for the adjustment, the defendant must have managed or led one or more participants in the scheme, rather than simply controlled the scheme itself. Bapack, 129 F.3d at 1324. However, there is no requirement that, to qualify as a “participant,” a person be “culpable in the same crime of which the supervising defendant was convicted.” Id. at 1325. And indeed, the “participant” need not have been convicted, or even charged. Id. In Bapack, the Circuit affirmed the imposition of the role-adjustment under Section 3B1.1, explaining that the adjustment does not require a finding that a defendant “supervised ‘participants’ who were unindicted co-conspirators or accessories in the crimes of which she was convicted. Rather, it is enough that the ‘participants’ she supervised were culpably involved in uncharged crimes ‘that were part of the same course of conduct or common scheme or plan as the offense of conviction.’” Id. (quoting U.S.S.G. § 1B1.3(a)(2)). Thus, the adjustment was correctly applied to a defendant who supervised nurses in creating a false document, because those nurses violated 18 U.S.C. § 1001, and even though neither the nurses nor the defendant were charged with that crime, it was part of the defendant’s “course
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of conduct or common scheme” of conspiring to defraud the government by submitting false Medicare and Medicaid claims. Id.
The evidence showed that Tarrio, Biggs, Nordean, and Rehl formed an agreement in advance of January 6 that was characterized by a degree of structure and organization that was uncharacteristic of the Proud Boys. The structure and organization centered on the MOSD. It was conceived of and created by Tarrio, who selected Nordean and Biggs as his top lieutenants. Rehl was hand-picked for a leadership role in the chain of command. Tarrio created an encrypted Telegram group chat for the leaders of the MOSD. Ex. 501-1. Those leaders in the chat group (the “MOSD Leaders” group) included Tarrio, Biggs, Nordean, and Rehl, as well as co-conspirators Charles Donohoe, Jeremy Bertino, and John Stewart.29 Id.
Tarrio implemented a set of rules, which were enforced by his deputies. First, the group would be made up exclusively of “hand selected” members who were specifically chosen by the MOSD leadership. Ex. 500-69. Second, the group was subject to strict secrecy requirements, with members forbidden from discussing it with outsiders or even with other Proud Boys. Ex. 613-P. Third, the members were required to observe the chain of command both by following direct orders without question (in one leader’s words, “turn your brains off and follow”) and by conforming at all times to the general norms and expectations set by leadership (“fit in or fuck off”). Ex. 613-E and 503-3.
These rules were introduced and implemented to the hand-selected men of the MOSD. Tarrio, Nordean, Biggs, and Rehl each selected men for the MOSD, and the men were invited into an encrypted message group for MOSD members that had been created by Tarrio. The hand-
29 The plea agreement of Charles Donohoe included a three-level adjustment for his role as manager of the conspiracy. United States v. Charles Donohoe, 21-cr-175-4 (TJK). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 61 of 80
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selected men were valued for their willingness to follow-orders and ability to dole out street-level violence. Once included in the MOSD, subordinate members of MOSD affirmed their eagerness to use violence as part of the group, sending messages to the chat about intentions to “log into minecraft,” Ex. 503-5, “beat the motherfuck” out of Antifa, Ex. 503-17, “break some legs,” id., “kick ass when… it’s time to kick ass,” Ex. 503-23, “storm everyone’s capitols,” Ex. 503-13, “let the bodies hit the floor,” Ex. 507-11, and “stack those bodies in front of Capitol hill,” Ex. 507-10. MOSD’s leaders never expressed any disapproval about such remarks, including those that specifically mentioned violence directed at the Capitol. See Tr. 8515-8517 (Dubrowski).
As January 6 approached, Tarrio was arrested for his public destruction of property on December 12.30 After Tarrio’s arrest, Nordean and Biggs assumed direct operational control over the MOSD, and they assured their subordinates that “the rally’s continuing” and that they had formed a “plan” about which they had consulted Tarrio. Ex. 510-9 and -23. In a private, encrypted message, Nordean instructed his men to meet at the Washington Monument at 10 a.m. and that “from there” the men would be “marching to the Capitol.” Ex. 551. The call to meet at 10 a.m. at the Washington Monument was also broadcast by other MOSD leaders to the MOSD members and Boots on Ground participants. Ex. 510-24 and 512-5.
The men met at the Washington Monument as instructed. Tr. 5482:11-15 (Greene). Consistent with the directives of Biggs, Tarrio, and other leadership, the assembled men were not wearing Proud Boys colors, but many wore tactical equipment such as helmets and plate carriers.
30 While the evidence was excluded under Fed. R. Evid. 403 at trial, Tarrio had bragged about the crimes and taunted law enforcement on social media—unequivocally sending a public message to his men that crimes in furtherance of the Proud Boys’ objectives were fully endorsed by the Chairman. See Tr. 4023-30, 4063-75 (Oral argument on Jan. 18, 2023, concerning the admission of Tarrio’s Parler exhibits). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 62 of 80
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Id. at 5481:20-22 (Greene); see also Ex. 1000 at 00:25-3:05. Nordean and Biggs prominently took control of the march, and Nordean and Biggs frequently addressed the men through a megaphone—telling them that in their view the police and government had failed them. E.g., Ex. 1000 at 4:10-5:33. On the march, Rehl played an integral organizational role, using his radio to ensure that the group of approximately 200 stayed together as it marched towards the Capitol. Id. at 8:15-8:30. He also communicated with co-conspirators who were not present, but who were monitoring events in Washington remotely, about how things were going on the ground. Ex. 509-29.
Nordean, Biggs, and Rehl maintained control over the group as they marched them away from the featured speakers at the Ellipse and, as planned, toward the Capitol. At 12:45 p.m., fifteen minutes before the certification of the Electoral College vote was scheduled to start, Nordean mustered the men into a column and marched them to the First Street side of the Capitol. Ex. 1000 at 19:05-19:20, Ex. 1001 at 00:50-1:15. Nordean, Biggs, and Rehl led the men away from then-President Trump’s speech, which was ongoing. Biggs, Nordean, Rehl, and their men played an integral role in the first breach of the restricted perimeter on January 6. At 12:53 p.m., approximately one minute after Biggs led a “Whose Capitol? Our Capitol!” chant, the crowd surged forward towards a police barricade manned by five officers. Ex. 1001 at 8:07. As the crowd surged forward, Nordean and Biggs attempted to organize the men to stay with and follow them. Id. at 8:18-8:37. Rehl moved to the front of the crowd while yelling, “Fuck them! Storm the Capitol!” Id. at 10:01-10:20; Tr. 12246:5-10 (Miller).
Even as the chaos unfolded, the men maintained command and control through the predetermined rule—follow the commands of leadership or as known in Proud Boys parlance, fit in or fuck off. As acknowledged by defense witness Travis Nugent, the men simply fell back on Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 63 of 80
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the chain of command and followed leadership in their assault on the Capitol. Tr. at 14643:24-14645:4 (Nugent).
The leaders’ command and control persisted throughout the siege. Nordean and Biggs led a smaller group around the grounds of the Capitol until the final push to the building, and Biggs continued to lead a smaller group of men as he twice rampaged through the Capitol. Rehl first asked, then led his group into the Capitol where they entered a private office where Rehl smoked and posed for pictures while flashing the Proud Boys hand gesture. Tr. 12635:8-23, 12639:16 – 12640:24 (Miller); Ex. 115x, 415x and 402-B. Nordean moved around the Rotunda with other Proud Boys, including a Proud Boys member who had twice entered the building with Biggs. And, watching from afar, Tarrio privately took credit for his accomplishment (e.g., “Make no mistake . . . we did this.” (500-84)) and publicly encouraged his men and the crowd to continue the attack (e.g., ““Proud of my boys and my country,” and “Don’t fucking leave.” (Ex. 600-59)).
The Court should therefore apply the PSR’s suggested adjustments to Tarrio, Nordean, Biggs, and Rehl, for an aggravating role.
B. Section 3C1.1 (obstruction of justice)
The PSRs correctly apply Section 3C1.1’s two-level enhancement for obstruction of justice to Tarrio, Biggs, and Rehl. This enhancement applies if “(1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense.” U.S.S.G. § 3C1.1. The commentary to the Guidelines includes a non-exhaustive list of some of the ways that a defendant can obstruct justice. See, e.g., U.S.S.G. § 3C1.1, cmt. n.4(B) (committing perjury); cmt. n. 4(D) (deleting evidence or instructing others to Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 64 of 80
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do so, or attempting to do so); see also United States v. Dunnigan, 507 U.S. 87, 92-95 (1993) (confirming that perjury merits the obstruction enhancement under Section 3C1.1); United States v. Mellen, 89 F. App’x 268, 270 (D.C. Cir. 2004) (affirming application of the enhancement for “advis[ing]” someone else to destroy property to avoid detection, and then destroying the evidence himself). Each of the defendants’ obstruction manifested itself in different ways, and because the facts and circumstances of each defendants’ obstructive conduct was different, the bases for the adjustments are detailed in the sentencing addendums specific to each defendant. See Attachment A (Tarrio), Attachment B (Nordean), Attachment C (Biggs), Attachment D (Rehl), and Attachment E (Pezzola).
C. Section 3E1.1 (no acceptance of responsibility)
The PSRs correctly reject the defendants’ claims to an entitlement to a reduction in offense level based on any alleged acceptance of responsibility. Notably, Pezzola offered to provide pretrial services with a letter that would detail Pezzola’s “partial” acceptance of responsibility. That letter has not materialized. In any event, any such post-facto “partial” acceptance does not make an “acceptance of responsibility” reduction available to the defendants. The Guidelines commentary makes clear that an acceptance reduction “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, cmt. n.2. It will be “rare” for a defendant who proceeds to trial to receive this adjustment. Id. That “rare” situation is when a defendant proceeds to trial to “preserve issues that do not relate to factual guilt.” Id. That is not the case here.
Regardless of any facts conceded by any defendant prior to or during trial, each defendant contested that the government proved the necessary mens rea for the defendant to commit the Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 65 of 80
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conspiracy or obstruction of justice offenses. Each defendant, therefore, denied an essential factual element of guilt: his or her own intent. Indeed, in a different Capitol riot case, Judge Walton rejected this precise argument, holding that a defendant who went to trial and testified about his conduct but denied possessing the necessary mens rea to corruptly obstruct the official proceeding would “absolutely” not be entitled to a reduction for acceptance of responsibility. United States v. Thompson, 21-cr-161 (Nov. 18, 2022), Sent. Tr. at 64. Judge Walton’s conclusion echoes that of circuit courts, which routinely find that district judges do not abuse their discretion or clearly err in denying the acceptance-of-responsibility adjustment for defendants who proceed to trial in obstruction cases contesting whether they possessed the requisite corrupt intent. See, e.g.¸ United States v. Marinello, 839 F.3d 209, 226-27 (2d Cir. 2016), reversed and remanded on other grounds, 138 S. Ct. 1101 (2018); United States v. Petruk, 836 F.3d 974, 977-78 (8th Cir. 2016). A defendant who admits his physical actions but denies his intent necessarily denies his “factual guilt” under Section 3E1.1. See United States v. Jaynes, 75 F.3d 1493 (10th Cir. 1996) (affirming inapplicability of this adjustment for defendant who admitted conduct constituting forgeries but denied any intent to defraud government); United States v. Burns, 781 F.3d 688 (4th Cir. 2015) (affirming inapplicability of this adjustment for defendant who admitted to shooting into car but denied possessing intent to kill).
Moreover, the defendants who testified at trial made it abundantly clear that they have no remorse for their actions. At the conclusion of his testimony, including his lies to the jury about his assault on law enforcement, Rehl summed up his attitude about his conduct with a textbook non-apology, “[i]f you believe that I did anything wrong that day, I really do truly apologize.” The “I’m sorry you feel that way” apology communicates no remorse and accepts no responsibility. During his testimony, Pezzola played the same song with different lyrics. He laid the blame for his Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 66 of 80
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violent and assaultive conduct on the officers who were attempting to protect themselves and control Pezzola and the other rioters. He blamed COVID lockdowns; he blamed his military training; he blamed everyone but the person who was responsible for his actions.
Indeed, even in their PSR interviews, not a single defendant acknowledged their guilty conduct. None of them has “accepted responsibility” for their criminal actions.
VII. GROUPING ANALYSIS
As the PSRs correctly conclude, for each defendant, all counts of conviction should group. Under §3D1.2, “closely related counts” group. All the counts of conviction for each defendant should be placed into one group, as described more fully below.
Counts One, Two, Three, Six, and Seven. Under §3D1.2(b), the counts that “involve the same victim” and “two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan” group. Counts One (seditious conspiracy), Two (conspiracy to obstruct an official proceeding), Three (obstruction of an official proceeding) involve the same victim (Congress or the government itself) and are part of the same common criminal objective: to oppose by force the authority of the United States by preventing Congress from meeting. Counts One, Two, and Three therefore group under §3D1.2(b). Similarly, Counts Six and Seven (destruction of government property) involve the same victim (Congress or the government itself) and were connected by a common criminal objective: to oppose by force the authority of the United States by preventing Congress from meeting. Were Counts Six and Seven determined to involve a different victim (e.g., the Architect of the Capitol), Counts Six and Seven would still group because they embody conduct that is treated as a specific offense characteristic in Counts One, Two and Three (i.e., §2J1.2(b)(1)(B) (“threatening to cause physical injury to a Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 67 of 80
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person . . . in order to obstruct the administration of justice.”)) See U.S.S.G. §3D1.2(c); see also, discussion, infra.
Count Four. Under §3D1.2(c), a count that “embodies conduct that is treated as a specific offense characteristic in” another guideline groups with the guideline for that count. Count Four (conspiracy to prevent officers of the United States from discharging their duties) embodies conduct that is treated as a specific offense characteristic in §2J1.2(b)(1)(B). In Count Four, the jury found the defendants guilty of conspiring to use “force, intimidation, or threat” to prevent Members of Congress and federal law enforcement officers from discharging duties. Those same elements – force, intimidation, or threat – support application of the specific offense characteristic in §2J1.2(b)(1)(B) of “threatening to cause physical injury to a person . . . in order to obstruct the administration of justice.”
Count Five. Just as with Count Four, under §3D1.2(c), a count that “embodies conduct that is treated as a specific offense characteristic in” another guideline groups with the guideline for that count. In Count Five, the jury found all five defendants guilty of interference with law enforcement officers during a civil disorder. That conduct supports application of the specific offense characteristic in §2J1.2(b)(1)(B) of “causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice.” See discussion, supra at Part IV.A.2.
Count Nine. In Count Nine, the jury found Pezzola guilty of assault. As with Counts Four and Five, Pezzola’s assault also supports application of the specific offense characteristic in §2J1.2(b)(1)(B) of “causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice” to Counts One, Two, and Three. Accordingly, Count Nine groups with Counts One through Three under U.S.S.G. §3D1.2(c). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 68 of 80
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In the alternative, the applicable guideline for Count Nine is §2A2.2 (and not §2A2.4) because the assault involved “an intent to commit another felony.” U.S.S.G. §2A2.2 n.1. Accordingly, if evaluated from the opposite direction, Count Nine groups with Counts Three, Four, and Five because those other felonies form the basis for the adjustment in the guidelines for Count Nine, i.e., the other felonies “embod[y] conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to” Count Nine.
Count Ten. In Count Ten, the jury found Pezzola guilty of robbery. As with Counts Four, Five, and Nine, Pezzola’s robbery also supports application of the specific offense characteristic in §2J1.2(b)(1)(B) of “causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice” to Counts One, Two, and Three. Accordingly, Count Ten groups with Counts One through Three under U.S.S.G. §3D1.2(c).
In addition, under §3D1.2(b), the counts that “involve the same victim” and “two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan” group. The assault charged in Count Nine involved the same officer from whom the property was robbed, i.e., Officer Mark Ode. Counts Nine and Ten were carried out as part of the same common criminal objective. Accordingly, the Counts Nine and Ten group, and for the reasons explained herein, supra, Counts Nine and Ten group with the other counts of conviction.
Were the Court to determine that any of the specifical offense characteristics or the adjustment for obstruction of justice do not apply to a particular defendant, then not all counts of conviction would group, and the Court would need to adjust the offense level according to the analysis in Part D of Chapter 3. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 69 of 80
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VIII. UPWARD DEPARTURES
The Court should depart upward from the Guidelines range for each of the defendants’ relevant conduct in this case for the bases explained below and in the sentencing allocution section for each defendant. Specifically, in addition to the application of an upward departure for a federal crime of terrorism under Note 4 of Section 3A1.4, other provisions in the Sentencing Guidelines provide independent bases for the Court to depart upwards from each defendant’s Guidelines range.
First, Section 5K2.7 provides that “[i]f the defendant’s conduct resulted in a significant disruption of a governmental function, the court may increase the sentence above the authorized guideline range to reflect the nature and extent of the disruption and the importance of the governmental function affected.” U.S.S.G. § 5K2.7. This departure “ordinarily would not be justified when the offense of conviction is . . . obstruction of justice . . . unless the circumstances are unusual.” Id.; see also § 3A1.2, cmt. n.5; § 2A2.4, cmt. n.3 (regarding additional relevant bases for applying Section 5K2.7). Here, both the circumstances and the offense are unusual: the defendants sought to disrupt a government function that is integral to our democracy and is mandated by the Constitution itself—the Certification of the votes of the Electoral College. See U.S. Const. amend. XII. Further, seditious conspiracy is an egregious offense for which defendants are rarely convicted and sentenced—and very few defendants have been sentenced since the advent of the Sentencing Guidelines. But when defendants are sentenced for a seditious conspiracy conviction, they typically receive lengthy terms of incarceration. See Part IX.C (recounting other sentences for seditious conspiracy).
Second, an upward departure is equally appropriate under Section 5K2.0(a)(3) to account for the defendants’ “intent to frighten, intimidate, and coerce” federal lawmakers in manner that is Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 70 of 80
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not otherwise accounted for in the Guidelines. United States v. Tankersley, 537 F.3d 1100, 1116 (9th Cir. 2008); see id. at 1112-14 (upholding 12-level upward departure under Section 5K2.0 after the district court concluded that Section 3A1.4 did not apply). As explained in detail at Part V, the defendants intended to and did use force to oppose the government; and they took these actions in order to influence or affect the conduct of government by intimidation or coercion. Absent an application of the adjustment for a federal crime of terrorism, the Guidelines would not otherwise accurately reflect the seriousness of the defendants’ conduct.
IX. SECTION 3553(a) FACTORS APPLICABLE TO ALL DEFENDANTS
The Court’s sentence must be guided by the factors in 18 U.S.C. § 3553(a). The following factors are applicable to all five defendants: the nature and circumstances of the offense, § 3553(a)(1); the need for the sentence to reflect the seriousness of the offense and promote respect for the law, § 3553(a)(2)(A); the need for the sentence to afford adequate general deterrence, § 3553(a)(2)(B); and the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct, § 3553(a)(6). These factors support the government’s requested sentences, through the Guidelines analysis (including an upward departure) and/or an upward variance. The remaining 3553(a) factors are discussed in the sentencing addendums specific to each defendant, see Attachment A (Tarrio), Attachment B (Nordean), Attachment C (Biggs), Attachment D (Rehl), and Attachment E (Pezzola).
A. Nature and Circumstances of the Offense and Need for the Sentence Imposed to Reflect the Seriousness of the Offense and Promote Respect for the Law
These defendants each played a role in an unprecedented conspiracy to oppose the transfer of presidential power. The attack on the U.S. Capitol on January 6 was a criminal offense unparalleled in American history. It represented a grave threat to our democratic norms; indeed, it was one of the only times in our history when the building was literally occupied by hostile Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 71 of 80
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forces—a fact that Biggs noted with pride in the days after January 6. Ex. 611B (Biggs: “The last time that happened was the 1800s, and it was by the British”).
These defendants planned for and launched an attack on the heart of our democracy. This was the “war” that they envisioned; the “revolution” that they had aimed to lead. As January 6 approached, Tarrio called for revolution, posting messages that read, “Let’s ring in this year with one word in mind. Revolt.” And “New Years Revolution.” Ex. 600-52 and -54. During a podcast on December 28, 2020, Nordean called for the use of force against law enforcement and government officials, explaining that “the only thing left is force.” Ex. 608-C. Nordean went on to explain that he didn’t “want” to use force against the government “because the repercussions are unknown” but that he was prepared to “prepare an army” that will “literally replace” the government officials in charge. Id. A few days later, on December 31, 2020, during a podcast recorded with co-conspirator Jeremy Bertino. Nordean explained that “when police officers or government officials are breaking the law . . . you have to use force.” Ex. 609-B. Per Nordean, “this [wa]s the organized militia part of our constitution,” and force is “literally the foundation of every prominent country.” Id. Biggs echoed the same sentiment, when on December 23, 2020, he told another user that he was not “gonna say things that’ll put me in jail tonight” but that “[w]e all know what needs to be done.” Ex. 603-39. Biggs was more explicit on January 2, 2021, when he posted a message that read, “Every law makers who breaks their own stupid Fucking laws should be dragged out of office and hung. The government should fear the people. Not the other way around. You work for us. You don't have ruling power over me. We only allow you to have that privilege. FAFO[.]” Ex. 603-55.
As events at the Capitol unfolded, Tarrio plainly revealed his objective. In a private message with Bertino, Tarrio declared, “this is it” and then referenced the “Winter Palace”—a plan Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 72 of 80
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that discussed storming of government buildings. Tarrio remarked to Bertino that the video of Pezzola breaking the window looked like “George Washington, Sam Adams, and Franklin.” Ex. 530-7. Biggs and Nordean posed with other Proud Boys on the west lawn of the Capitol for a celebratory video in which Biggs stated that “January 6 will be a day in infamy.” Ex. 400-LL and 500-84. Pezzola, once inside the building, filmed a video of himself having a “victory smoke in the Capitol,” and stating, “I knew we could take this motherfucker over if we just tried hard enough… Proud of your motherfucking boy.” Ex. 403-G.
In the days that immediately followed, the defendants continued to bask in the glory of their attack on democracy and attempt at a revolution. They called it precisely what it was. Biggs recorded a podcast-style interview in which he called January 6 a “warning shot” to the government that showed them “how weak they truly are” after being “bitch-slapped . . . on their own home turf.” Ex. 611-B. Biggs explained that “January 7th was warning shot to the government – look, we started this country this way and we’ll fuckin’ save it this way.” Ex. 611-D. Nordean recorded a video of himself describing an encounter with a woman at the bar; in the video he faulted the woman for not appreciating that he “was part of fucking storming the Capitol of the most powerful country in the fucking world… 1776, bitch.” Ex. 470-B and -C. Rehl made social media posts calling January 6 a “historical day,” and he told his mother he was “so fucking proud” of the Proud Boys’ “raid of the capitol.” Ex. 602-52, 545-3.
None of this was mere happenstance or accident. In the months leading up to January 6, 2021, they had brought their army of violence to Portland, Kalamazoo, and Washington, D.C. And then they brought that army of violence to the Capitol to exert their political will. In doing so, these defendants attempted to silence millions of Americans who had placed their vote for a different candidate, to ignore the variety of legal and judicial mechanisms that lawfully scrutinized the Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 73 of 80
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electoral process leading up to and on January 6, and to shatter the democratic system of governance enshrined in our laws and in our Constitution.
For years, these defendants intentionally positioned themselves at the vanguard of political violence in this country. They brought that violence to the Capitol on January 6 in an effort to change the course of American history, and the sentences imposed by this Court should reflect the seriousness of their offenses.
B. Need for the Sentence to Afford Adequate General Deterrence
A significant sentence is necessary “to afford adequate deterrence to criminal conduct” by others. 18 U.S.C. § 3553(a)(2)(B). Here, the need to deter others is especially strong because these defendants engaged in acts that were intended to influence the government through intimidation or coercion—in other words, terrorism. And they were leaders of such efforts. Because these defendants not only contributed to the attack on the Capitol but helped to organize it, their sentences will be noted by those who would foment such political violence in the future.
The attack on the Capitol on January 6 was calculated to interfere with, and did interfere with, one of the most important democratic processes we have: the peaceful transfer of power. As noted by Judge Moss during a different sentencing hearing,
[D]emocracy requires the cooperation of the governed. When a mob is prepared to attack the Capitol to prevent our elected officials from both parties from performing their constitutional and statutory duty, democracy is in trouble. The damage that [the defendant] and others caused that day goes way beyond the several-hour delay in the certification. It is a damage that will persist in this country for decades.
United States v. Hodgkins, No. 21-cr-188, Sent. Tr. at. 69-70. Indeed, the attack on the Capitol means “that it will be harder today than it was [before January 6] for the United States and our diplomats to convince other nations to pursue democracy. It means that it will be harder for all of Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 74 of 80
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us to convince our children and our grandchildren that democracy stands as the immutable foundation of this nation.” Id. at 70.
The justice system’s response to January 6 will impact whether January 6 becomes an outlier or a watershed moment. “By nearly every measure, political violence is seen as more acceptable today than it was five years ago.” Adrienne LaFrance, The New Anarchy: America faces a type of extremist violence it does not know how to stop, THE ATLANTIC, Mar. 6, 2023 (citing a 2022 UC Davis poll31 that found one in five Americans believes political violence would be “at least sometimes” justified, and one in 10 believes it would be justified if it meant the return of President Trump). Left unchecked, this impulse threatens our democracy.
The defendants in this case sought to capitalize on this undercurrent in our society to change the result of a presidential election. They called for using force, intimidation, and violence to get political leaders to stop the certification of the election. They recruited others to this mission. They organized and participated in encrypted messaging groups and meetings to further their plans. Such conduct in leading and instigating an attack like January 6 demands deterrence. It is critical that this Court impose significant sentences of incarceration on all the defendants in this case to convey to those who would mobilize such political violence in the future that their actions will have consequences.
C. Need to Avoid Unwarranted Sentencing Disparities
The crimes these defendants committed align closely with acts of terrorism for which courts have imposed lengthy sentences in other seditious conspiracy cases. And, these defendants are distinct from all other January 6 defendants, including the Oath Keepers, because of their role
31 health.ucdavis.edu/vprp/pdf/Political-Violence-Fact-Sheet%201_7-21-22.pdf Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 75 of 80
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in coordinating and instigating the attack on the Capital with their large numbers. Sentencing these defendants to significant sentences of incarceration will not run afoul of Section 3553(a)(6).
1. Defendants sentenced for seditious conspiracy in other contexts
Since the advent of the Sentencing Guidelines, there have only been a handful of cases in which defendants were sentenced for committing seditious conspiracy in violation of 18 U.S.C. § 2384. In each of these cases, courts imposed lengthy sentences, often imposing the maximum sentence of 20 years of incarceration on this count and finding the conduct was tantamount to waging war against the United States under Section 2M1.1(a)(1). For instance, in United States v. Rahman, ten defendants were found guilty of seditious conspiracy in connection with terror plots related to the 1993 World Trade Center bombing and additional plans to bomb other locations and murder the Egyptian president. Each of the ten defendants, while receiving overall sentences ranging from 25 years to life imprisonment, was sentenced under the Treason guidelines to 20 years for their conviction of 18 U.S.C. § 2384. See 189 F.3d 88 (2d Cir. 1999) (affirming these sentences).
In United States v. Battle, No. 02-cr-399 (D. Or. 2004), the court adopted the sentencing guidelines for Treason and sentenced two co-defendants to 18 years of incarceration after they pled guilty to seditious conspiracy and admitted that the purpose of their conspiracy was to travel to Afghanistan to fight alongside al Qaeda and the Taliban against American and allied forces. See No. 02-cr-399, ECF 373, 374, 537 at 2.
In United States v. Batiste, No. 06-cr-20373 (S.D. Fla. 2009), the defendant was convicted of multiple charges, to include seditious conspiracy, for providing material support to the planning of attacks on federal and civilian targets in the United States. See No. 06-cr-20373, ECF 1451 (Gov. Sent. Memo). Despite never collecting any weapons or harming any victims, the court Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 76 of 80
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adopted the sentencing guidelines for Treason and sentenced Batiste to 13-and-a-half years for his conviction under Section 2384. See No. 06-cr-20373, Sent. Tr. at 46-47, 148.
In United States v. Khan, No. 03-cr-296-2 (E.D. Va. 2004), the defendant was originally sentenced to the statutory maximum of 20 years for violating Section 2384, and life imprisonment overall. In Khan, the defendant attended a terrorist training camp after September 11, 2001, with the intent to proceed to Afghanistan and fight for the Taliban and Al-Qaeda against United States troops. See United States v. Khan, 309 F. Supp. 2d 789, 801-18 (E.D. Va. 2004), aff’d in part, remanded in part on other grounds, 461 F.3d 477 (4th Cir. 2006); see also Khan, No. 03-cr-296-2, ECF 602 (explaining procedural history, including that the incarceration term for the Section 2384 count was later decreased on resentencing after Booker and Dimaya).
In United States v. Al-Timimi, No. 04-cr-385 (E.D. Va. 2004), the defendant was convicted of violating Section 2384 among other charges for encouraging individuals to travel to Pakistan to receive military training from Lashkar-e-Taibi, a designated foreign terrorist group, in order to fight U.S. troops in Afghanistan. The defendant was sentenced to life in prison, including 10 years for violating Section 2384. ECF 132.
These other seditious conspiracy cases show that courts have imposed decades-long sentences of incarceration even for planning and preparing for violence (but not using actual violence) against the United States government. Indeed, the seditious conspiracy statute was created to address such existential threats to our system of government. See Dec. 11, 2022 Mem. Op. (ECF 586) at 4-5 (explaining that the predecessor to the seditious conspiracy statute was enacted at the outset of the Civil War; reenacted the statute in 1871 to “combat private violence by the Ku Klux Klan and like organizations,” and Congress raised the maximum penalty to twenty years after an attack on the Capitol in 1954.); see also United States v. Ali, 528 F.3d 210, 265 (4th
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Cir. 2008) (“[T]hough the district court accurately noted that [the defendant] never ‘injured any people’ and ‘no victim was injured in the United States[,]’ this should not trivialize the severity of his offenses. . . . [W]e cannot wait until there are victims of terrorist attacks to fully enforce the nation’s criminal laws against terrorism.”). Here, the defendants, in fact, acted on their seditious agreement—causing and threatening injury and harm on January 6, and damage to the country’s faith in our electoral process. To avoid unwarranted disparities with other seditious conspiracy cases, the defendants’ sentences should be lengthy.
2. Defendants sentenced in other January 6 cases
These defendants stand out among other January 6 defendants because they literally led the attack on the Capitol—contributing to four pivotal breach points in the first 80 minutes of the riot. The defendants executed these crimes as a result of the steps that they had taken in advance to bring a fighting force to the Capitol on January 6. No other group of defendants had a bigger impact on the events of January 6 than these defendants and the men in their command.
Perhaps the closest corollary to these defendants are the Oath Keeper defendants, who were recently sentenced by Judge Amit Mehta to between three and 18 years of incarceration. Those who led the Oath Keeper defendants repeatedly advocated for civil war—both before and after January 6, 2021—amassed a stockpile of weapons that they brought to the Capitol region, and ultimately directed their members to storm the Capitol, with more than a dozen of their members heeding the call. This conduct warrants sentences consistent with the kinds of sentences historically imposed when defendants are convicted of seditious conspiracy. The conduct of these defendants is more egregious than that of the Oath Keeper defendants and warrants greater sentences. By the time that Stewart Rhodes mustered his group to begin marching towards the Capitol at 1:25 pm (sending the Signal message “Pence is doing nothing. As I predicted.”), these Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 78 of 80
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defendants had already stormed the First Street gates, destroyed the black metal fence, entered the West Plaza, assaulted Officer Ode and robbed him of his shield, and regrouped on the lawn, where Nordean and Biggs took a video of themselves boasting that they had “just stormed the Capitol” and taken the “motherfucking place back.” By 2:32 pm, when Kelly Meggs directed 12 members of Stack One to begin climbing the steps on the east side of the Capitol, these defendants had already pushed through a line of officers to climb the concrete stairs under the scaffolding, Rehl had sprayed an officer in the face, Pezzola had broken open the window at the Senate Wing Door with his stolen riot shield, Biggs had entered and exited the Capitol, and Nordean had ascended to the Upper West Terrace. And unlike the Oath Keeper defendants, whose numbers were limited to a core group of roughly two dozen men and women, these defendants led nearly 200 like-minded men onto Capitol grounds, who also engaged in violent attacks on law enforcement and destruction of government property, thus enabling the defendant’s calculated attempt to forcibly stop the lawful transfer of power.
Any disparity between these defendants and others sentenced for crimes on January 6, including members of the Oath Keepers, is fully warranted based on the defendants’ conspiracy and conduct.
X. CONCLUSION
For the reasons set forth above and further supported by the memoranda filed herewith, the government recommends that the Court impose a lengthy sentence of imprisonment on each defendant. Specifically, Enrique Tarrio should serve 33 years in prison; Joseph Biggs and Zachary Rehl, 30 years; Ethan Nordean, 27 years; and Dominic Pezzola, 20 years. Additional support for these sentencing recommendations is set forth in Attachment A (Tarrio), Attachment B (Nordean), Attachment C (Biggs), Attachment D (Rehl), and Attachment E (Pezzola). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 79 of 80
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Respectfully Submitted,
MATTHEW M. GRAVES
United States Attorney
D.C. Bar No. 481052
By: /s/ Jason B.A. McCullough
JASON B.A. MCCULLOUGH
NY Bar No. 4544953
ERIK M. KENERSON, OH Bar No. 82960
NADIA E. MOORE, NY Bar No. 4826566
On Detail to the District of Columbia
Assistant United States Attorneys
601 D Street NW
Washington, D.C. 20530
/s/ Conor Mulroe
CONOR MULROE, NY Bar No. 5289640
Trial Attorney
U.S. Department of Justice, Criminal Division
1301 New York Ave. NW, Suite 700
Washington, D.C. 20530
(202) 330-1788
[email protected]Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 80 of 80
