A Little Law: Federal Sentencing Guidelines

& The Domestic Terrorism Enhancement

Up until 1984, federal judges were free to sentence convicted defendants using their own discretion, cabined only by statutory maximums imposed by law and the rare mandatory minimum (there are a lot more of those now). That led to wide disparity in sentencing, not just in different parts of the country, but sometimes, even in the same courthouse. In a bi-partisan reform effort, Congress passed the Comprehensive Crime Control Act of 1984, which included the Sentencing Reform Act. The SRA created the U.S. Sentencing Commission, which was entrusted with writing the sentencing guidelines.

You’ve probably heard about them. They provide a system for federal judges to impose sentence, based on a defendant’s offense conduct in the case they are being sentenced in and their prior criminal history. The goal is to sentence defendants who commit similar crimes to similar amounts of time in custody. They do that by setting what’s called a “base offense level” for the specific crime a defendant is convicted of and then adjusting it based on aspects of the conduct, for instance, enhancing a fraud based on the dollar amount involved or giving a higher sentence to someone who was a leader/organizer of a conspiracy than to a lower level participant.

Why do I raise the Guidelines tonight? Because Federal prosecutors have asked a judge to impose a 15-year prison sentence in the case of January 6 defendant Guy Reffitt. Reffitt was convicted on five felony counts at trial, including obstruction of Congress’s work to certify the 2020 election, interfering with police, and carrying a firearm to a riot. The allegations against him included threatening to harm his son and daughter when he returned to Texas if they turned him in to the FBI, which his son did.

This is the longest sentence DOJ has recommended in a January 6 case, and while the request is not binding on the judge, it’s worth noting because of how DOJ calculated the Sentencing Guidelines, to get to this recommendation. They did it by characterizing Reffitt’s conduct as domestic terrorism. The Guidelines permit the court to sharply increase a defendant’s sentence where it meets the statutory definition of terrorism. But it hasn’t happened so far in a January 6 prosecution.

So this is a bit of a watershed moment in the sense that DOJ seems to be drawing a line in the sand. On one side of it, people who overran the Capitol, even some of those who engaged in some forms of violence, aren’t being tagged with the terrorism enhancement.

But Reffitt’s conduct, and presumably similar conduct, does qualify for the enhancement. And that could be very instructive if DOJ continues to set its targets higher. Would people involved in fake elector schemes, for instance, if they are ultimately charged, qualify? What about the planners in the Willard War Room or Trump and members of his inner circle should DOJ turn their sites there?

DOJ sets out its rationale for enhancing Reffitt’s sentence for domestic terrorism length, including:

• He “planned and carried out coercive and intimidating acts targeting the U.S. government. He brought a firearm and police-style flexicuffs onto Capitol grounds. Carrying his holstered handgun and clad in body armor that could withstand rifle fire, Reffitt was one of the first rioters to confront United States Capitol Police officers on the stairs on the west side of the Capitol building. There, he intimidated law enforcement officers by advancing toward them at the head of a mob of rioters.”

• “Reffitt’s choice of target—the United States Capitol building—further evidences his intent to intimidate, affect, or retaliate against the government.”

• Reffitt engaged in extensive planning, recruited others, identified the need to bring weapons, made travel plans, and brought “weapons, body armor, and zip ties.”

• “Reffitt’s own statements confirm that he intended for his coercive and intimidating actions to influence or affect government conduct and to retaliate against it. He spoke in detail about his intent to stop legislators from performing their constitutional and statutory duties to certify the Electoral College vote by ‘drag[ging] lawmakers out of the Capitol by their heels with their heads hitting every step.’”

“Reffitt sought not just to stop Congress, but also to physically attack, remove, and replace the legislators who were serving in Congress,” the prosecutors wrote, calling his conduct “a quintessential example of an intent to both influence and retaliate against government conduct through intimidation or coercion,” the statutory definition of terrorist violence subject to harsher punishment. (You can find the full, 58-page sentencing memo here).

The impact of the enhancement is very serious. In this case, on a sentence that would be in the range of 9 to 11.25 years, the government is asking for 15 years.

But beyond the numbers, designating a crime as one of domestic terror has an impact of its own. We don’t know where DOJ is headed or who, if anyone else, it will charge. But based on these criteria, it seems likely Trump and his inner circle would merit consideration for a domestic terrorism enhancement too, if DOJ decides to prosecute him, or those close to him.

For Trump to be charged, DOJ would need to have confidence it could prove some of the facts we’ve heard in the January 6 committee hearings: that Trump planned in advance for a march to the Capitol on January 6, that he summoned the militias, that he was aware there were weapons involved, that he knew Mike Pence’s safety was at risk as was the safety of others in Congress, that he did nothing to strong those threats when he could have. The conduct is not identical to Reffitt, but similarly serious in the essentials.

That notion, that DOJ has already evaluated a case with a nexus to the violent disruption of Congress that is similar and even arguably less serious than the former president’s, and labeled it terrorism, is sobering. And appropriate. Because when you think about it, as we all have, it’s hard to view the former president’s conduct and that of his associates in the final plan to hold on to power, in any other way. Glad DOJ sees it that way, too.

So, that’s it. That’s the point. DOJ has drawn a line, and that line suggests that Trump, if he’s charged (and that’s still apparently a big if at DOJ because of concerns about whether the evidence ads up to proof beyond a reasonable doubt, whether there are legal issues that could impede a conviction on appeal, whether charging a former president sets a bad precedent in a democracy) will also be labeled a domestic terrorist. And he should be.

A little bit more legal nerdy stuff, for those of you who want a little more, or just find yourself having another sleepless night:

• Here’s the language in the Sentencing Guidelines enhancement itself: Where, as here, a defendant’s conviction was not for, or was not “intended to promote,” an enumerated “federal crime of terrorism,” an upward departure (a sentence that is higher than what the Guidelines would suggest) is warranted if “the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”

• The Federal Sentencing Guidelines are non-binding rules that set out a uniform sentencing policy for defendants convicted in the United States federal court system. They went into effect as a mandatory sentencing regime in 1987, but subsequently, the Supreme Court ruled that mandatory guidelines were unconstitutional, because they resulted in a sentence based on facts not proven beyond a reasonable doubt to a jury. So now, they’re advisory, not mandatory.

• Judges begin sentencing by calculating what’s called the “guideline range.” It’s not a set sentence, but rather a range of months, like 0-6 months at the low end, that a judge picks a sentence within. They use the range as a starting point before deciding where to end up.

Since we’ll undoubtedly be talking about the guidelines just about every time we get a sentencing in a criminal case, it’s good to get these basics out there now. Thanks for sticking with me.

Also, many thanks to those of you who saw my tweet that 2.5 years into the pandemic my family has Covid. We’re lucky to be vaxxed and boosted and our cases are mild. I’m being capably cared for by Nurse Dingus. But I’m very grateful for your well wishes!

We’re in this together,

Joyce