Government's Sentencing Memorandum
USDC, District of Columbia
USA v. Ethan Nordean, Joseph Biggs, Zachary Rehl, Enrique Tarrio, and Dominic Pezzola
Case No. 21-CR-175 (TJK)
by Matthew M. Graves, United States Attorney
8/17/23
https://s3.documentcloud.org/documents/23917711/proud-boys-memo.pdf
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
ETHAN NORDEAN,
JOSEPH BIGGS,
ZACHARY REHL,
ENRIQUE TARRIO, and
DOMINIC PEZZOLA,
Defendants.
Case No. 21-CR-175 (TJK)
GOVERNMENT’S SENTENCING MEMORANDUM
The United States respectfully submits this omnibus Sentencing Memorandum for defendants Enrique Tarrio, Joseph Biggs, Ethan Nordean, Zachary Rehl, and Dominic Pezzola. This Sentencing Memorandum addresses those factors that are common to all defendants, a hearing on which is set for August 29, 2023. Additional support for the government’s sentencing recommendations for each defendant are discussed in Attachment A (Tarrio), Attachment B (Nordean), Attachment C (Biggs), Attachment D (Rehl), and Attachment E (Pezzola).
The government’s Sentencing Memorandum reflects the seriousness of the defendants’ conduct and crimes, as reflected in the jury’s verdict after a four-month trial. After adopting the PSRs’ factual findings,1 Chapter Two specific offense characteristics, and Chapter Three adjustments, including the application of Section 3A1.4 to the defendants’ federal crimes of terrorism, the Court should apply the following Guidelines ranges and impose the following terms of incarceration:
1 As of the date of this filing, final presentence reports (PSRs) are not available. All references to the PSRs herein refer to the drafts that were filed on the docket at ECF 835 – 839.
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Defendant / Offense Level after application of Terrorism adjustment (§3A1.4) / Role adjustment (§ 3B1.1) / Obstruction adjustment (§ 3C1.1) / Adjusted offense level / Criminal History Category / Guidelines Range (in months) / Sentence in years (and months)
Tarrio / 32 / 4 / 2 / 38 / VI / 360 - life / 33 years (396)
Biggs / 32 / 4 / 2 / 38 / VI / 360 - life / 33 years (396)
Nordean / 32 / 4 / 36 / VI / 324 - 405 / 27 years (324)
Rehl / 32 / 3 / 2 / 37 / VI / 360 - life / 30 years (360)
Pezzola / 32 / - / - / 32 / VI / 210 - 262 / 20 years (240)
Table of Contents
I. FACTUAL BACKGROUND ........................................................................................... 5
A. Summary of Evidence ......................................................................................................... 5
B. Victims ............................................................................................................................... 7
C. Scope of the Conspiracy ................................................................................................... 14
II. CHARGES AND STATUTORY PENALTIES............................................................ 15
III. LEGAL STANDARDS ................................................................................................... 16
A. Preponderance of the evidence ......................................................................................... 16
B. Relevant conduct and definition of “offense” ................................................................... 17
IV. CHAPTER TWO – OFFENSE CONDUCT................................................................. 19
A. Counts One – Four: Obstruction of Justice (U.S.S.G. §2J1.2) ......................................... 19
1. Base Offense Level for Counts One - Four ................................................................ 20
2. “Administration of justice” specific offense characteristics (Counts One – Four) .... 22
a) Legal applicability .................................................................................................. 22
b) Section 2J1.2(b)(1)(B) (causing or threatening injury or damage) ......................... 29
c) Section 2J1.2(b)(2) (substantial interference with administration of justice) ......... 33
3. “Extensive scope, planning, or preparation” specific offense characteristic .............. 35
B. Count Five ......................................................................................................................... 39
1. Base Offense Level for Count Five ............................................................................ 39
2. “More than minimal planning” specific offense conduct ........................................... 40
C. Counts Six and Seven. ...................................................................................................... 40
D. Count Nine ........................................................................................................................ 43
E. Count Ten.......................................................................................................................... 43
V. CHAPTER THREE: ADJUSTMENTS FOR CRIMES OF TERRORISM ............. 43
A. All Offenses of Conviction Were Calculated to Influence and Affect the Conduct of Government by Intimidation and Coercion, and to Retaliate Against Government Conduct. ............................................................................................................................ 44
1. Legal Standard ............................................................................................................ 44
2. Analysis ...................................................................................................................... 45
B. The Defendants’ Convictions on Counts Six and Seven are Qualifying Offenses for the Section 3A1.4 Adjustment ................................................................................................ 52
C. An Upward Departure Pursuant to Note 4 Applies to Defendants’ Other Convictions ... 53
VI. CHAPTER THREE: OTHER ADJUSTMENTS ........................................................ 57
A. Section 3B1.1 (aggravating role) ...................................................................................... 57 Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 3 of 80
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B. Section 3C1.1 (obstruction of justice) .............................................................................. 64
C. Section 3E1.1 (no acceptance of responsibility) ............................................................... 65
VII. GROUPING ANALYSIS ............................................................................................... 67
VIII. UPWARD DEPARTURES ............................................................................................ 70
IX. SECTION 3553(A) FACTORS APPLICABLE TO ALL DEFENDANTS ............... 71
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 ................................... 71
B. Need for the Sentence to Afford Adequate General Deterrence....................................... 74
C. Need to Avoid Unwarranted Sentencing Disparities ........................................................ 75
X. CONCLUSION ............................................................................................................... 79
I. FACTUAL BACKGROUND
A. Summary of Evidence
Having already ravaged the streets of Washington, D.C. with violence on two prior occasions in the fall of 2020, Tarrio, Biggs, Nordean, and Rehl hand-selected “rally boys,” including Pezzola, for their return on January 6, 2021. They established a chain of command in which the directives of leadership would be followed without question. They chose the time and place for action—leading their men to a vulnerable entrance on the west front of the Capitol when most other rally-goers were focused on then-President Donald Trump’s speech almost a mile away. They arrived shortly before 1 p.m.—the appointed hour for the Certification to begin. These defendants and the men in their command saw themselves as the foot soldiers of the right—they were prepared to use, and they did use, force to stop the “traitors” from stealing the election. On May 4, 2023, twelve jurors found each defendant guilty for their calculated efforts to oppose the lawful transfer of presidential power.
The defendants and the men they recruited and led participated in every consequential breach at the Capitol on January 6. They began their assault that day at 10 a.m., when Nordean, Biggs and Rehl marched an assembled group of nearly 200 individuals away from the speeches at the Ellipse and directly to the Capitol. They arrived at the First Street gate at 12:50 p.m., and Biggs led the crowd in chants of “Whose Capitol? Our Capitol!” and “Whose house? Our house!” Within three minutes, Nordean, Biggs, Rehl, and Pezzola helped lead the charge up the first street walkway with their men throwing aside bike racks and laying waste to anything that stood in their path. As Biggs proudly declared, “we’ve gone through every barricade thus far.” When the police attempted to reform a line, Nordean and Biggs moved to the front and again led the way. They violently tore down a black metal fence and continued their assault on the Capitol. Nearly an hour Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 5 of 80
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later, at approximately 1:30 p.m., when law enforcement appeared to have successfully controlled the crowd by pushing them back, the men again pushed forward. Nordean, Biggs, and Pezzola gathered at the base of the concrete stairs that led to the doors and windows of the Capitol with many of their co-conspirators and other men they had led to the Capitol. They again surged toward the Capitol and overwhelmed officers that had been battling the crowd for nearly an hour. Rehl sprayed an officer in the face. Pezzola smashed open a window, allowing the first rioters to enter the Capitol at 2:11 p.m., and Biggs entered close behind him with some of his men.
The defendants’ leadership role was no accident. They viewed themselves as revolutionaries, and they believed fully in their cause. From the start of the riot, the defendants and their co-conspirators celebrated their achievement. Tarrio, who was monitoring the attack on the Capitol from afar as it unfolded, posted encouraging messages to his tens of thousands of social media followers, including the following messages: “Proud of my boys and my country,” and “Don’t fucking leave.” Tarrio privately claimed credit for the riot at the Capitol, telling Proud Boys senior leadership, “Make no mistake . . . we did this.” 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.” 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.” 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.”
The defendants’ celebratory statements continued in the days that followed. On January 7, Tarrio addressed the Ministry of Self-Defense (MOSD) members, telling them he was “proud of y’all.” Rehl likewise told the MOSD members he was “proud as fuck what we accomplished Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 6 of 80
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yesterday.” 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.” 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.” 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.”
Their own words leave no doubt. The defendants understood the stakes, and they embraced their role in bringing about a “revolution.” They unleashed a force on the Capitol that was calculated to exert their political will on elected officials by force and to undo the results of a democratic election. The foot soldiers of the right aimed to keep their leader in power. They failed. They are not heroes; they are criminals.
B. Victims
“January 6th will be a day in infamy.”
– Joe Biggs, January 6, 2021, 1:27 p.m.
“To those who wreaked havoc in our Capitol today, you did not win. Violence never wins. Freedom wins . . . As we reconvene in this chamber, the world will again witness the resilience and strength of our democracy . . . The elected representatives of the people of the United States have assembled again, on the very same day, to support and defend the Constitution of the United States . . . Let’s get back to work.”
–Vice President Mike Pence, January 6, 2021, 8:06 p.m.
In his 1981 Inaugural Address, President Ronald Reagan remarked that the peaceful and orderly transfer of power called for by the Constitution is viewed by the rest of the world as “nothing less than a miracle.” These defendants and their followers attempted to subvert that two-centuries old tradition. And while freedom, democracy, and the Constitution prevailed on January 6th, it was not without cost. Alongside the enduring legacy of bravery and honor by those who Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 7 of 80
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defended our country, a harsh reality has emerged—political violence is not some foreign concept that exists only in faraway lands, it exists here too.
The actions of these defendants threatened the bedrock principles of our country—democracy and the rule of law. These defendants sought out and embraced their role as the purveyors of street violence to achieve their political objectives. They loudly and publicly declared themselves the face of the insurgency in the wake of the Presidential Election, and they encouraged others to follow them. These defendants sought out to attack and did attack our democracy, and they publicly led the way on January 6th.The defendants’ crimes also directly harmed individuals on January 6: Congress, legislators, the staffers working inside the Capitol building, and the hundreds of law enforcement officers from across the region valiantly trying to protect the building, the people, and the constitutional process.
Congress was the public face of the peaceful transfer of presidential power and, in these defendants’ eyes, they were “traitors.” Public accounts by many of these Members of Congress illustrate some of the emotional and physical toll these people suffered, and continue to suffer, at the hands of these defendants. And that is precisely what these defendants aimed to accomplish—Tarrio posted a picture of Representatives hiding in the gallery and rejoiced at the government “fearing” the people; Biggs later giddily recounted that the attack left elected representatives “shaking” and in fear.
Some Representatives were initially stranded in the gallery of the House of Representatives after the other members had been evacuated from the floor. One Representative stated, “I really thought, we’re not going to be evacuated. We’re going to die here,” and because of the slim political majority, the rioters “could at any point take any three members either hostage or kill any Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 8 of 80
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three members, and that would have prevented us from certifying the election.”2 Another Representative expressed that, “[i]t was terrifying,” because they “didn’t know if the doors could be locked. And so I was focused on planning my escape if I had to get out.” “That’s what I was concerned about,” she added, “were we going to get out? Were we going to survive? Were they going to come after us?”3 A third explained that the noise from the rioters “sounded like a battering ram trying to beat down the doors.”4 This is not an after-the-fact embellishment, Inspector Thomas Loyd testified that when he arrived at the House gallery to evacuate the Representatives, officers initially resisted opening the doors out of concern that Inspector Loyd may have “been held hostage or had a gun to [his] head.” Tr. 3628:1-24 (Loyd).
Yet another Representative noted that he hadn’t “felt that way in over 15 years, since I was a Ranger in Iraq and Afghanistan.”5 “I had this realization that we were trapped,” the Representative said, so he “started to kind of view this in a tactical way,” explaining the “need to get everyone together, need to get in a defensive position. You don’t want people spread out. You don’t want people to be able to be pulled away from a mob—you need to get in a tight group.”6 And a Representative with a law enforcement background noted that her “police career flashed
2 apnews.com/article/joe-biden-donald-trump-peter-welch-congress-a308bf2a296018e08a3ed5b27b00dbf9 (Jan. 5, 2022); apnews.com/article/jan-6-capitol-siege-lawmakers-trauma-04e29724aa6017180259385642c1b990 (Jan. 5, 2022).
3 Id.
4 lohud.com/in-depth/news/2022/01/04/january-6-capitol-protest-congress-members-recall-escape/6493506001 (Jan. 4, 2022).
5 Id.
6 apnews.com/article/joe-biden-donald-trump-peter-welch-congress-a308bf2a296018e08a3ed5b27b00dbf9 (Jan. 5, 2022); apnews.com/article/jan-6-capitol-siege-lawmakers-trauma-04e29724aa6017180259385642c1b990 (Jan. 5, 2022). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 9 of 80
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through my mind because I came from a job where I went to work every day thinking I might not make it back home.” She continued, “to be there in that moment and thinking—really in the midst of complete chaos—I reserved myself to the fact that, yeah, I could die today. But I’m just like a cop. I’m here doing the right thing, protecting and serving my nation by being here for this process, a peaceful transfer of power.”7
The threat these defendants and other rioters presented to the Members of Congress continued long after the rioters breached the building. Even when they were finally found and later evacuated, they still feared for their lives. One Representative who had served in the military explained that during the evacuation, “I remember the hallways were quiet (when we were evacuating). I was listening so carefully because I was so afraid that we would turn a corner and there would be the rioters.”8
Elected legislators were not the only individuals harmed by the defendants’ conduct. The defendants also specifically targeted and vilified law enforcement in public and private messages in the leadup to January 6. Even after January 6, Nordean continued to vilify police, posting an altered photograph of a law enforcement officer deploying mace against a rioter while referring to law enforcement as the “honorable oath breakers” and telling the public that if they “feel bad for the police, [they] are part of the problem.” Ex. 601-41.
Words on the page will never full capture the horror and heroism that defined the experience of law enforcement on January 6. Radio transmissions between officers on January 6, introduced at trial as Government Exhibits 359 to 398, provide a rare window into the conditions
7 Id.
8 Id. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 10 of 80
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that law enforcement faced that day and the professionalism with which they responded. Sworn law enforcement officers risked their lives to protect not only the Capitol building and the legislators inside, but also the constitutional process itself. Officer David Riggleman stayed in the fight because even though the officers were “greatly outnumbered,” he was committed to protecting the Members of Congress and other stakeholders in the building. Tr. 11645 (Riggleman). Despite all the chaos and terror of the day, Inspector Loyd expressed pride that the U.S. Capitol Police officers carried out their mission—“despite all the chaos that we were involved with, none of the members of Congress sustained physical injuries.” Tr. 3690:21-23 (Loyd).
The Court and the jury heard firsthand from just a fraction of the officers who faced the relentless force of the defendants that day. Officer Shae Cooney described hearing the radio call of a breach, and she testified that the terror that she heard in that transmission caused her to run to the west front. Tr. 6996:12-24 (Cooney). When she saw that rioters had advanced to the black fence, “a little panic came through” because Cooney knew they “weren’t going to have enough” officers. Id. at 6999:1-7. The panic was briefly “paralyzing,” but Cooney promptly joined her outnumbered officers on the line and got in the fight. Id. Officer Cooney came face-to-face with Ethan Nordean just after he tore down the black metal fence. Nordean and Biggs ignored her command to stop as they and others poured into the West Plaza. See, e.g., id. at 7088. Cooney explained that once the rioters were in the west plaza, they were “taking the individual poles on the fence and throwing those at us.” As Officer Cooney battled rioters in the West Plaza, she was personally hit by water bottles and hit in the head with poles and flags, including the American flag. Id. at 7074:9-16. Officer Cooney completed a twenty-hour shift and returned to the Capitol on January 7 after only two hours of sleep. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 11 of 80
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Officer Mark Ode responded to calls of a breach on the west front, and he arrived shortly after Nordean and Biggs tore down the black fence. Just like Officer Cooney, Officer Ode saw officers being assaulted, hit with punches, and having things thrown at them. Tr. 7484:19 – 25 (Ode). Officer Ode recalled the crowd calling law enforcement “traitors.” Id. at 7485:6-11. When Officer Ode attempted to assist another officer who was being assaulted, Pezzola and other rioters “violently and forcefully grabbed” his shield and pulled him to the ground. Id. at 7487:10 – 7488:22. Officer Ode was sprayed with a chemical substance, and Officer Ode fell to the ground with multiple people on top of him. Id. An individual on top of Officer Ode was using his helmet strap to choke him. Id. Officer Ode struggled to breathe, and he believed that he would not make it out of the pile alive. Id. Officer Ode left the front line to decontaminate his eyes and immediately returned to the West Plaza. Id. at 7501-02. The situation was becoming “more intense” and “more officers were intentionally being pulled out and singled out” by the rioters. Id. at 7503:6-13. Officer Ode watched one officer get pulled into the crowd by rioters, and Officer Ode saw “fear in her eyes” as she became separated from her colleagues. Id. at 7503:22-25. Officer Ode eventually responded to the Rotunda where he fought to push rioters such as Nordean out of the building. Id. at 7505-06. Officer Ode did not get home until 2 a.m. Id..
Officer Riggleman responded to the West Plaza shortly before the defendants surged forward up the concrete stairs toward the Upper West Terrace. When he arrived, Officer Riggleman encountered an “enormous crowd” that was “aggressive” and outfitted in tactical helmets and plate carriers. Tr. 11637:14-25 (Riggleman). Officer Riggleman joined officers under the scaffolding and attempted to hold them back from advancing further. Id. at 11641. The crowd surged toward officers, and Officer Riggleman was hit in the face by pepper spray from Barry Ramey, a man who marched with Nordean and Biggs from the Washington Monument. Id. at
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11641. The spray disabled Officer Riggleman’s vision and forced him to retreat to safety while guarding his service weapon. After decontaminating himself, Officer Riggleman got back in the fight even though he was still suffering from blurred vision and a burning sensation and having trouble breathing. Id. at 11644:5-9. Riggleman responded to the Crypt where an outnumbered group of officers again attempted to stop the crowd from advancing. While in the Crypt, rioters such as Gabriel Garcia (a man hand-selected by Tarrio) called the police “traitors.” Id. at 11648. The crowd again surged forward, and Riggleman was pressed against the wall by the force of the rioters, and he was unable to move. Id. at 11651.
Officer Marc Carrion was one of two officers who relentlessly fought for control over the Columbus Doors against overwhelming odds. As Biggs prepared for his second entry through the Columbus Doors, Officer Carrion and a handful of officers had their backs against the Columbus Doors and were trying to keep the mobs of rioters at bay. Officer Carrion recalled calls for help over the radio, yelling and chanting by the crowd, and he described a feeling that all five senses were overwhelmed in that moment. Tr. 14302 (Carrion). Eventually, there were only “five or six [officers] left at the door” and they were being sprayed by rioters, including by James Haffner (whom Nordean and Biggs led to the Capitol). Id. at 14308:2-7. Some of the officers were hit in the eyes, which created the “dangerous situation” for them to be fighting blind. Id. at 14309-10. Officer Carrion testified that the crowd was “hitting us with flagpoles, throwing batteries at us, throwing frozen water bottles at us, all in the hopes of getting us out of there so they could access the door.” Id. at 14308:2-7. Eventually, only Officer Carrion and one colleague, Officer Ryan Salke, remained. They fought to hold the door despite the waves of rioters that continued to push past them. Officer Carrion explained that even though he and Officer Salke had been completely overrun, they continued to work, “just trying to put our bodies in the way, if we can, to minimize
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the amount of people coming in.” Id. at 14315-316. After literally sacrificing his body to the effort, Officer Carrion completed his shift at 11 p.m., went home and washed his uniform, and returned at 7 a.m. Id. at 14320-321.
The officers’ heroism shined through in their testimony, but that heroism came at a tremendous cost. These officers, like countless others, carry with them the physical and mental scars of January 6, and the government anticipates that the Court will hear a more fulsome description of the experience of law enforcement and congressional workers during the omnibus hearing on August 29, 2023.
C. Scope of the Conspiracy
The scope of the defendants’ conspiracy is vast. The defendants organized and directed a force of nearly 200 to attack the heart of our democracy. Other leaders of the conspiracy, including Jeremy Bertino and Charles Donohoe, have pleaded guilty. Dozens of individuals who the defendants commanded or led to the Capitol await trial or have pled guilty.9
The scope of the conspiracy impacts many aspects of sentencing, including each defendant’s culpability for “relevant conduct,” U.S.S.G. § 1B1.3, the Guidelines’ specific offense characteristic for an offense that is extensive in scope, id. § 2J1.2(b)(3), the Guidelines’ adjustment
9 Other charged defendants include: Matthew Greene and William Pepe (No. 21-cr-52 (TJK)); Arthur Jackman, Paul Rae, Edward George, Kevin Tuck, Nathaniel Tuck (No. 21-cr-378 (TJK)); Christopher Kuehne, Louis Colon, Felicia Konold, Cory Konold, William Chrestman, and Ryan Ashlock (No. 21-cr-160 (TJK), Isiah Giddings (No. 22-cr-389 (TJK)), Brian Healion (No. 23-cr-230 (TJK)), Freedom Vy (No. 21-mj-689), Ronald Loehrke and James Haffner (No. 21-mj-672), Christopher Worrell and Daniel Lyons Scott (No. 21-cr-292 (RCL)), Barry Ramey (No. 22-cr-184 (DLF)), Zachary Johnson, Dion Rajewski, Alan “AJ” Fischer, Brian Boele, and James Brett (No. 22-cr-11 (RJL)), Gilbert Fonticoba (No. 21-cr-638 (TJK)), Gabriel Garcia (No. 21-cr-129 (ABJ)), Nicholas Kennedy (No.21-cr-487 (CKK)), Steven Miles and Matthew Lebrun (No. 22-cr-136 (JMC)), Jeffrey Finley (No. 21-cr-526 (TSC)), Marc Bru (No. 21-cr-352 (JEB)), Robert Gieswein (No. 21-cr-24 (TNM)); Tucker Weston (No. 23-cr-174 (RBW)). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 14 of 80
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for aggravating roles in the offense, id. § 3B1.1, the Guidelines’ adjustment for “terrorism” in relation to defendants’ qualifying offenses, id. § 3A1.4(a) and (b), the Guidelines’ recommended upward departure for “terrorism,” id. § 3A1.4, cmt. n.4, and the need to avoid unwarranted sentence disparities, 18 U.S.C. § 3553(a)(6). As explained below, the scope of the conspiracy helps illustrate why the leaders and major participants must receive significant sentences of incarceration.
II. CHARGES AND STATUTORY PENALTIES
As set forth below, Tarrio, Nordean, Biggs, and Rehl were found guilty of Counts One through Six; and Pezzola was found guilty of Counts Three through Seven, Nine, and Ten, which crimes carry the maximum statutory penalties set forth below:
• Count One, seditious conspiracy, 20 years of incarceration;
• Count Two, conspiracy to obstruct an official proceeding, 20 years of incarceration;
• Count Three, obstruction of an official proceeding, 20 years of incarceration;
• Count Four, conspiracy to use force, intimidation, or threats to prevent officers of the United States from discharging their duties, 6 years of incarceration;
• Count Five, interference with law enforcement officers during a civil disorder: 5 years of incarceration;
• Counts Six and Seven10 destruction of federal property: 10 years of incarceration;
• Count Nine, assaulting federal officers: 8 years of incarceration; and
• Count Ten, robbery of personal property of the United States: 15 years of incarceration.
10 Counts Six and Seven, destruction of federal property in violation of 18 U.S.C. § 1361, are specifically enumerated crimes of terrorism as defined in 18 U.S.C. § 2332b(g)(5) and as applied in U.S.S.G. §3A1.4. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 15 of 80
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The government respectfully requests that the Court sentence Tarrio, Nordean, Biggs, and Rehl to terms of incarceration greater than 20 years, meaning that at least some of the counts would run consecutively to one another. The Court may sentence a defendant to a total term of incarceration greater than 20 years—i.e., run the terms consecutively—if the Court determines that such a sentence is necessary to comply with the factors in 18 U.S.C. § 3553(a)(2), that, is, to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, and to protect the public from further crimes of the defendant. U.S.S.G. § 5G1.2(b), (d) (“If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, . . . the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment.”); 18 U.S.C. § 3584(b); see also United States v. Lafayette, 337 F.3d 1043, 1050 & n.11 (D.C. Cir. 2003) (explaining that a court may impose consecutive or “stack[ed]” sentences to achieve a total sentence in excess of the statutory maximum on a single count).
III. LEGAL STANDARDS
A. Preponderance of the evidence
To apply a provision of the Guidelines that the jury did not, by virtue of its guilty verdicts, necessarily already find beyond a reasonable doubt, the Court must make a finding by a preponderance of the evidence. United States v. Watts, 519 U.S. 148, 154 (1997); see also United States v. Bapack, 129 F.3d 1320, 1324 (D.C. Cir. 1997) (“[I]t is the Government’s burden to demonstrate by a fair preponderance of the evidence that an enhancement is warranted.”); U.S.S.G. § 6A1.3, cmt (“The Commission believes that use of a preponderance of the evidence standard is appropriate. . . .”). The Court may consider any relevant information, without regard to whether Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 16 of 80
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the information would be admissible at trial. 18 U.S.C. § 3661. The Court may also consider acquitted conduct, United States v. Settles, 530 F.3d 920, 923 (D.C. Cir. 2008), including an acquittal of a conspiracy charge, United States v. Jones, 744 F.3d 1362, 1368 (D.C. Cir. 2014).
B. Relevant conduct and definition of “offense”
In applying the Guidelines, the Court must consider all “relevant conduct.” And especially in a conspiracy case,11 “relevant conduct” is “broadly defined.” United States v. Khatallah, 41 F.4th 608, 645 n.23 (D.C. Cir. 2022). Under Section 1B1.3(a)(1)(A), a defendant’s “relevant conduct” encompasses both the defendant’s own acts and those that the defendant aided, abetted, counseled, commanded, induced, procured, or willfully caused. And under Section 1B1.3(a)(1)(B), in a “jointly undertaken criminal activity,” such as a conspiracy, a defendant is responsible for all acts of others that were “within the scope of the jointly undertaken criminal activity, in furtherance of that criminal activity, and reasonably foreseeable in connection with that criminal activity.” Finally, a defendant’s “relevant conduct” under the Guidelines includes “all harm that resulted” from the defendant’s acts or the acts of others engaged in the jointly undertaken criminal activity. U.S.S.G. §1B1.3(a)(3).
All of these defendants were convicted of being participants in at least one conspiracy, and thus, by virtue of the jury’s verdict, they are responsible for actions of their conspirators that fall within the parameters of Section 1B1.3(a)(1)(B). It is true that “the scope of the ‘jointly undertaken
11 As Judge Mehta observed at sentencing in United States v. Elmer Stewart Rhodes, et al., No. 22-cr-15 (APM), the Supreme Court has found that “collective criminal agreement, partnership in crime presents a greater potential threat to the public than individual dealings. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality.” Rhodes Sentencing Transcript (May 25, 2023) at 111 (quoting Callanan v. United States, 364 U.S. 587 (1961)). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 17 of 80
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criminal activity’ is not necessarily the same as the scope of the entire conspiracy, and hence relevant conduct is not necessarily the same for every participant.” U.S.S.G. §1B1.3, cmt. n.3(B). But given the nature of the conspiracies here and the conspiracy convictions for these five defendants, each defendant’s “relevant conduct” supports application of each of the Guideline provisions discussed below. See United States v. Khatallah, 314 F. Supp. 3d 179, 189 (D.D.C. 2018) (broadly applying Section 1B1.3 because, in part, “‘[o]nce the conspiracy and the defendant’s knowing participation in it have been established beyond a reasonable doubt, the defendant will be vicariously liable for the substantive acts committed in furtherance of the conspiracy by his coconspirators’”) (quoting United States v. Sampol, 636 F.2d 621, 676 (D.C. Cir. 1980)).
As discussed in greater detail above, the jury found that these five defendants joined a conspiracy, the aims of which included opposing the government through the use of force, obstructing Congress’ certification of the electoral college, and/or using force, intimidation, or threat to prevent members of Congress from discharging their duties that day. Each defendant should thus be liable for his own conduct plus the conduct of all his co-conspirators on the afternoon of January 6, to include the actual or threatened property damage and injury to others caused by those who breached the Capitol. Each of these defendants joined the conspiracy prior to January 6. For example, Tarrio, Nordean, Biggs, Rehl, and other leaders of the Proud Boys organization formed the “Ministry of Self Defense” in the days following former President Trump’s announcement of an election-related rally in Washington, D.C. on January 6. These leaders intentionally recruited men who would follow their top-down leadership and who were prepared to engage in physical violence, if necessary. One of those recruits was Dominic Pezzola, who enthusiastically joined the MOSD on January 2, 2021, and committed to carrying out the Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 18 of 80
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objective of the leaders. Tarrio, Nordean, Biggs, and Rehl organized the Proud Boys return to Washington, D.C., which guidance included what to wear (e.g., no colors), what to bring (e.g., protective gear and communication equipment), and what to do (e.g., fit in or fuck off). Thus, each defendant also bears responsibility for certain conduct by their co-conspirators prior to January 6.
For all of these reasons, the relevant conduct in this case is much broader than a typical January 6-related case.
IV. CHAPTER TWO – OFFENSE CONDUCT
As the Supreme Court has instructed, the Court “should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” United States v. Gall, 552 U.S. 38, 49 (2007). “As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point” for determining a defendant’s sentence. Id. Pursuant to the order of operations set forth in Section 1B1.1(a) of the Guidelines, the operation generally proceeds with a calculation for each offense of the Base Offense Level and Specific Offense Characteristics in Chapter Two, then to any Adjustments and Grouping of counts in Chapter Three, then to Criminal History in Chapter Four, and finally to the determination of the sentence under Chapter Five. These operations are presented in order herein.
A. Counts One – Four: Obstruction of Justice (U.S.S.G. §2J1.2)
The PSRs correctly determine that the appropriate Chapter Two offense guideline for Counts One, Two, Three, and Four is Section 2J1.2 (Obstruction of Justice). All five of the defendants were convicted of multiple crimes for which the Obstruction of Justice guideline applies. As explained herein, there are several Specific Offense Characteristics that apply to the defendants’ convictions. First, an eight-level increase under Section 2J1.2(b)(1)(B) applies because the offense involved property destruction or its threat “in order to obstruct the Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 19 of 80
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administration of justice.” Second, a separate three-level increase under Section 2J1.2(b)(2) applies because “the offense resulted in substantial interference with the administration of justice.” Because both of these characteristics concern the “administration of justice,” they are addressed together herein. Finally, an additional two-level increase under Section 2J1.2(b)(3) applies because the offense was “extensive in scope, planning, or preparation.” As explained below, these Specific Offense Characteristics combine for a total Offense Level of 27 for Counts One – Four.
1. Base Offense Level for Counts One - Four
The applicable Chapter Two Guideline for each of Counts One – Four is Section 2J1.2 (Obstruction of Justice).
Count One (Seditious Conspiracy). Under Section 2X1.1, cmt. n.3, for a conspiracy conviction for which the substantive offense is not covered by a specific guideline, use Section 2X5.1. Under Section 2X5.1, since there is no applicable Chapter Two Guideline for an offense of sedition in the Statutory Appendix, use “the most analogous guideline.” Here, that is Section 2M1.1, “Treason.”12 Under Section 2M1.1(a)(2), if a defendant’s conduct was not “tantamount to waging war against the United States,”13 use “the offense level applicable to the most analogous offense,” which is Section 2J1.2, “Obstruction of Justice.”
12 See United States v. Rahman, 189 F.3d 88, 150-54 (2d Cir. 1999) (affirming that the most analogous offense guideline for seditious conspiracy, in violation of 18 U.S.C. § 2384, is Section 2M1.1); see also United States v. Ford, 216 Fed. App’x 652, 652-53 (9th Cir. 2007) (rejecting a habeas claim that counsel was ineffective for agreeing to stipulate to the use of Section 2M1.1); see also United States v. Elmer Stewart Rhodes III, et al., No. 22-cr-15 (APM) (May 25, 2023), Sent. Tr. at 82 (applying 2J1.2 to Rhodes’s conviction for Seditious Conspiracy).
13 As noted in Part IX.C, infra, for almost every seditious conspiracy conviction (on the “levying war” and “opposing the government by force” prongs) since the advent of the Sentencing Guidelines, the court appears to have applied the Treason Guideline and found that the defendants’ conduct was “tantamount to waging war against the United States.” See U.S.S.G. § 2M1.1(a)(1). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 20 of 80
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Count Two (Conspiracy to Obstruct an Official Proceeding). Under Section 2X1.1, the base offense for a conspiracy conviction is the guideline for the substantive offense, which is 18 U.S.C. § 1512(c)(2). The applicable Chapter Two Guideline for this offense is Section 2J1.2, “Obstruction of Justice.” U.S.S.G. Appendix A.
Count Three (Obstruction of an Official Proceeding). The applicable Chapter Two Guideline for this offense is Section 2J1.2, “Obstruction of Justice.” U.S.S.G. Appendix A.
Count Four (Conspiracy to Prevent Officers of the United States from Discharging Their Duties). Under Section 2X1.1, cmt. n.3, for a conspiracy conviction for which the substantive offense is not covered by a specific guideline, use Section 2X5.1. Under Section 2X5.1, since there is no applicable Chapter Two Guideline for an offense of preventing officers of the United States from discharging their duties in the Statutory Appendix, use “the most analogous guideline.” The “officers” of the United States who were the victims of this count were the Members of Congress and law enforcement officers. See Jury Instructions (ECF No. 767 at 25) (listing “Members of Congress” and “law enforcement officers” as the victims); see also Verdict Form (ECF No. 804) (same). Because the object of the defendants’ conspiracy—preventing Members of Congress from performing their constitutional duties at the Capitol on January 6—was designed to obstruct the administration of justice, the most analogous guideline is Section 2J1.2, “Obstruction of Justice.”14
14 The common criminal objective among the members of the conspiracy was to obstruct the certification of the electoral college proceeding. The victims of this effort—Members of Congress and the federal law enforcement who were protecting them—are indistinguishable for this purpose. Indeed, Judge Mehta applied §2J1.2 to violations of 18 U.S.C. § 372 by members of the Oath Keepers. See United States v. Elmer Stewart Rhodes, et al., No. 22-cr-15 (APM). And the First Circuit agreed that §2J1.2, rather than §2A2.4, was the most analogous guideline for a defendant convicted of violating 18 U.S.C. § 372, when the defendant’s conviction was premised on the defendant conspiring to prevent federal officers from arresting other people, and thus “obstructed the administration of justice.” United States v. Gerhard, 615 F.3d 7, 33 (1st Cir. 2010); see also Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 21 of 80
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2. “Administration of justice” specific offense characteristics (Counts One – Four)
Congress’s Joint Session on January 6 related to the “administration of justice” as used in the Sentencing Guidelines. See United States v. Jensen, No. 21-cr-6 (TJK) (Dec. 16, 2022), Sent. Tr. at 13-16 (holding that the applicable definitions and structure of 2J1.2 apply to the Official Proceeding); see also United States v. Matthew Wood, No. 21-cr-223 (APM) (Nov. 28, 2022), Sent. Tr. at 35-38 (holding that the “administration of justice” in Section 2J1.2 is synonymous with “official proceeding” as defined in 18 U.S.C. § 1515(a)(1), including a “proceeding before the Congress”). Accordingly, the Specific Offense Characteristics set forth at Section 2J1.2(b)(1)(B) (causing or threatening injury or damage) and Section 2J1.2(b)(2) (substantial interference with administration of justice) apply to Counts One – Four. Id.
a) Legal applicability
i. The Electoral College vote involved the administration of justice as defined broadly in the Guidelines.
Section 2J1.2 applies to a variety of obstruction offenses, including all offenses under 18 U.S.C. § 1512 and eleven other statutes found in Chapter 73 of Title 18. See U.S.S.G. § 2J1.2 cmt.; U.S.S.G. Appendix A. The eight-level increase under Section 2J1.2(b)(1)(B) applies if the offense involved property destruction or its threat “in order to obstruct the administration of justice.” A separate three-level increase under Section 2J1.2(b)(2) applies “if the offense resulted in substantial interference with the administration of justice.”
United States v. Rakes, 510 F.3d 1280, 1290 (10th Cir. 2007) (acknowledging that a § 372 conviction for conspiring to impede and thwart the prosecution of other people would constitute “imped[ing] the due administration of the law,” and thus would warrant application of §2J1.2 rather than §2A2.4). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 22 of 80
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Section 2J1.2’s text, purpose, and commentary all support the conclusion that conduct that obstructs Congress’s certification of the electoral vote interferes with the “administration of justice” for purposes of the guideline. Administration of justice, in its broadest sense, refers to the proper administration of law by all three branches of government. Black’s Law Dictionary defines “justice” to include “[t]he fair and proper administration of laws,” and it defines “obstruction of justice” as “[i]nterference with the orderly administration of law and justice.” Black’s Law Dictionary (11th ed. 2019); see also Ballentine’s Law Dictionary 696 (3d ed. 1969) (defining justice to include “exact conformity to some obligatory law”). When defining “contempt” to include “[c]onduct that defies the authority or dignity of a court or legislature,” Black’s Law Dictionary observes that “such conduct interferes with the administration of justice.” Black’s Law Dictionary (11th ed. 2019) (emphasis added). And courts have defined “administration of justice” to mean “the performance of acts or duties required by law,” Rosner v. United States, 10 F.2d 675, 676 (2d Cir. 1926) (quotation omitted), or “the performance of acts required by law in the discharge of duties,” United States v. Partin, 552 F.2d 621, 641 (5th Cir. 1977).
To be sure, the term “administration of justice” is most commonly used in a narrower sense to refer to “interference with the pendency of some sort of judicial proceedings.” In re Kendall, 712 F.3d 814, 828 (3d Cir. 2013); see In re McConnell, 370 U.S. 230, 234, 236 (1962) (defining the term in the contempt context as relating to “the performance of judicial duty”); United States v. Aguilar, 515 U.S. 593, 599 (1995) (stating that the “omnibus clause” of 18 U.S.C. § 1503, which criminalizes obstruction of the “due administration of justice,” requires proof of “an intent to influence judicial or grand jury proceedings”). But there are compelling reasons for concluding that “administration of justice” bears its broader (albeit less common) meaning in Section 2J1.2. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 23 of 80
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First, Section 2J1.2’s context and purpose support the broader reading of “administration of justice” in both subsections (b)(2) and (b)(1)(B). Section 2J1.2 applies to an array of obstruction statutes, including a number that do not involve the “administration of justice” in the narrow sense (i.e., relating to judicial or quasi-judicial proceedings). See U.S.S.G. § 2J1.2, cmt. (listing covered statutes); U.S.S.G. Appendix A (statutory index). Those offenses include concealing or destroying invoices or papers relating to imported merchandise, 18 U.S.C. § 551; obstructing an investigation under the Workforce Innovation and Opportunity Act, 18 U.S.C. § 665(c); obstruction of proceedings before departments, agencies, and committees, 18 U.S.C. § 1505; obstruction of enforcement of state gambling laws, 18 U.S.C. § 1511; obstruction of official proceedings, 18 U.S.C. § 1512; obstruction of a federal audit, 18 U.S.C. § 1516; destruction of documents in agency investigations, 18 U.S.C. § 1519; and interfering with the administration of the Internal Revenue Code, 26 U.S.C. § 7212. Yet under a narrow interpretation of the guideline, the enhancements under subsection (b) would not apply to those statutes. That is good reason to reject such a reading. Cf. United States v. Castleman, 572 U.S. 572 U.S. 157, 167 (2014) (rejecting a reading of 18 U.S.C. § 922(g)(9) that “would have rendered [it] inoperative in many States at the time of its enactment”).
Section 2J1.2’s background indicates that the Sentencing Commission intended the enhancements to reach the type of violent and dangerous conduct at issue in this case. The background notes that Section 2J1.2 broadly covers crimes “of varying seriousness,” including offenses that involve intercepting grand jury deliberations, interfering with an illegal gambling investigation, or obstructing “a civil or administrative proceeding,” and that the underlying conduct may “range from a mere threat to an act of extreme violence.” U.S.S.G. § 2J1.2, cmt. bkgd. Within that range, the enhancements “reflect the more serious forms of obstruction.” Id. The
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Commission thus crafted the enhancements in Section 2J1.2 to cover the most egregious conduct knowing that obstruction-of-justice offenses are not limited solely to interference with judicial proceedings.
Relatedly, limiting subsection (b)’s enhancements to obstruction of judicial proceedings would undermine the purpose of the Guidelines. “A principal purpose of the Sentencing Guidelines is to promote uniformity in sentencing imposed by different federal courts for similar criminal conduct.” Hughes v. United States, 138 S. Ct. 1765, 1774 (2018). The Guidelines therefore seek to achieve “a strong connection between the sentence imposed and the offender’s real conduct.” United States v. Booker, 543 U.S. 220, 246 (2005). The Sentencing Commission reasonably determined, for example, that “causing or threatening physical injury to a person, or property damage, in order to obstruct the administration of justice” is more serious than obstruction not involving such injury or threats and should be punished more severely. U.S.S.G. § 2J1.2(b)(1)(B). And the seriousness of the threatening or injurious conduct does not depend on whether the obstructed proceeding is judicial, legislative, or executive. There is no sound basis for assigning a significantly higher offense level to someone who violently interferes with a court proceeding than someone who violently interferes with a congressional proceeding. See United States v. Rubenacker, No. 21-cr-193 (May 26, 2022), Sent. Tr. at 69 (“There is simply no indication in guideline Section 2J1.2 that the [specific offense characteristics] containing the phrase ‘administration of justice’ were meant to apply to only some of the statutes referenced to this guideline and not to apply to all of the cases involving obstruction of proceedings taking place outside of courts or grand juries; that simply doesn’t make sense.”).
Likewise, the history and context of Section 2J1.2 support the broad application. When originally promulgated, Section 2J1.2 encompassed 18 U.S.C. § 1512, which included obstructive Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 25 of 80
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conduct directed at a witness or victim in connection with proceedings before the Congress. See United States v. Elmer Stewart Rhodes III, et al., No. 22-cr-15 (APM) (May 24, 2023), Sent. Tr. at 171-177. The Sentencing Commission then included enhancements to Section 2J1.2 to address the most serious conduct, “including obstructive conduct before an official proceeding, which [] would include a proceeding before Congress. Id. (applying the specific offense characteristics related to “administration of justice” to all members of the Oath Keepers and explaining that the Sentencing Commission intended for the original 2J1.2 Guideline to be “coextensive with the conduct that is captured in 1503 through 1513”).
Second, Section 2J1.2’s commentary provides a broad definition of “administration of justice.” It defines “[s]ubstantial interference with the administration of justice” to include “a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based on perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources.” U.S.S.G. § 2J1.2, cmt. n.1 (emphasis added). This definition includes interference not only with “court” resources, but also with any “governmental” resources, a term that includes congressional resources. The Supreme Court has held that “commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). Because this commentary is consistent with the plain text of the Guideline, which uses the broad term “administration of justice,” it is authoritative.
It is true that the commentary defines only the term “substantial interference with the administration of justice,” which serves as the basis for the three-level enhancement in Section 2J1.2(b)(2) and does not specifically define the term “in order to obstruct the administration of
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justice,” which serves as the basis for the eight-level enhancement in Section 2J1.2(b)(1)(B). But the relevant term “administration of justice” is identical and should be given the same interpretation in both enhancements. The operative verbs “interfere[]” and “obstruct” carry the same meaning in this context. And the adjective “substantial” in Section 2J1.2(b) does not change the meaning of “administration of justice,” especially since the commentary repeats the word, requiring “the unnecessary expenditure of substantial governmental . . . resources.” U.S.S.G. § 2J1.2, cmt. n.1 (emphasis added). Thus, the term “in order to obstruct the administration of justice” in Section 2J1.2(b)(1)(B) should be read to include obstructive conduct aimed at nonjudicial governmental activities. A different conclusion would lead to the incongruous result of giving two different meanings to the term “administration of justice” within the same guideline. See Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007) (“A standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning.”).
The Electoral College certification vote on January 6 falls comfortably within the meaning of “administration of justice” as used in Section 2J1.2 because it involved Congress’s performance of duties required by law. Specifically, Congress’s certification of the Electoral College vote was an official proceeding required by both the Constitution and federal statutes. See Dec. 28, 2021, Mem. Op. (ECF 263) at Part III.A.1. (“Congress’s Certification of the Electoral College Vote Was an ‘Official Proceeding.’ Under Section 1512(c)(2)”). Application of both Sections 2J1.2(b)(1)(B) and (b)(2) is therefore appropriate here. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 27 of 80
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