A Washington, D.C., court said Friday that a lower court was wrong to apply a provision boosting the punishment for a Texas man convicted in the Jan. 6, 2021, insurrection at the U.S. Capitol — a ruling that could raise questions about many other Jan. 6 defendants’ sentences.
The U.S. Court of Appeals for the District of Columbia Circuit said the so-called sentencing enhancement did not apply to one of Larry Brock’s six convictions for his participation in the Jan. 6 insurrection. Brock was briefly on the Senate floor during his 38 minutes in the U.S. Capitol during the attack — which the lower court found was enough to be considered “substantial interference with the administration of justice,” making him eligible for a harsher sentence.
The appeals court disagreed. “We hold that the ‘administration of justice’ enhancement does not apply to interference with the legislative process of certifying electoral votes,” said Judge Patricia Millett in a written opinion.
The case may be significant because that enhancement has been used by federal prosecutors in many other cases involving Jan. 6 insurrectionists. The Washington Post reported it could mean more than 100 could have to be resentenced.
The court sent Brock’s case back to district court so the sentence for his felony conviction for obstructing an official proceeding could be reassessed, this time without the enhancement. His initial sentence on that charge was 24 months in prison.
But the court left intact Brock’s five other convictions, with concurrent sentences of six to 12 months each and 24 months of probation.
Millett wrote in her opinion that the electoral certification process that the Jan. 6 rioters sought to interrupt was not the same as a judicial or quasi-judicial proceeding whose disruption would could be seen as obstructing justice, and thus Brock did not qualify for enhanced penalties.
“The multi-step process of certifying electoral college votes—as important to our democratic system of government as it is—bears little resemblance to the traditional understanding of the administration of justice as the judicial or quasi-judicial investigation or determination of individual rights,” she wrote.
“To the extent that law enforcement is present, it is there to protect the lawmakers and their process, not to investigate individuals’ rights or to enforce Congress’s certification decision. After all, law enforcement is present for security purposes for a broad variety of governmental proceedings that do not involve the ‘administration of justice’—presidential inaugurations, for example, and the pardoning of the Thanksgiving Turkey.”
Former president Donald Trump has said the Jan. 6 convicts have been mistreated, likening them to “political prisoners,” and a cottage industry has sprung up in right-wing circles portraying the convicts as victims of political oppression.
Brock is one of the highest-profile Jan. 6 insurrectionists, having been caught on camera as one of the older attackers in the Senate chamber wearing a combat-style helmet and a tactical vest.
The appeals court said Brock, one of many former military personnel who participated in the attack, told other rioters to “calm down” and not to sit in the Senate president’s chair because it would be disrespectful.
But the court also noted that before the attack, Brock called the 2020 election stolen and fraudulent on social media, and told a fellow veteran there needed to be a “plan of action” if Trump was not certified the 2020 winner.
“Brock also outlined ‘[r]ules of engagement[,]’ including avoiding killing law enforcement officers ‘unless necessary[,]’ ‘[a]ttempt[ing] to capture Democrats with knowledge of [the] coup[,]’ and ’[s]hoot[ing] and destroy[ing] enemy communication nodes and key personnel,’” the court said.