DC Circuit panel rules that Jan 6 rioter should not be subject to key guideline enhancement for “substantial interference with the administration of justice”

March 1, 2024

The DC Circuit today handed down a notable panel opinion in US v. Brock, No. 23-3045 (DC Cir. Mar. 1, 2024) (available here), which afirms a key conviction and reverses a key guideline sentencing determination. Here is how the opinion starts:

Larry Brock participated in the violent January 6th riot at the United States Capitol that forced the evacuation of members of Congress and their staff and prevented Congress’s certification of the 2020 presidential election until the next day. After a bench trial, the court convicted Brock of six crimes, including corruptly obstructing Congress’s certification of the electoral count under 18 U.S.C. § 1512(c)(2). At sentencing, the district court applied a threelevel sentencing enhancement to Brock’s Section 1512(c)(2) conviction on the ground that Brock’s conduct resulted in “substantial interference with the administration of justice[.]” U.S.S.G. § 2J1.2(b)(2).

Brock challenges both the district court’s interpretation of Section 1512(c)(2)’s elements and the sufficiency of the evidence to support that conviction. He also challenges the district court’s application of the three-level sentencing enhancement for interfering with the “administration of justice.” Because the law and the record in this case foreclose Brock’s legal and sufficiency challenges, we affirm Brock’s Section 1512(c)(2) conviction. As for Brock’s sentence, we hold that the “administration of justice” enhancement does not apply to interference with the legislative process of certifying electoral votes. For that reason, we vacate Brock’s sentence for his Section 1512(c)(2) conviction and remand to the district court for resentencing.

The sentencing discussion comprises nearly the last 20 pages of the 37 page opinion in Brock. Here are snippets of the discussion and analysis:

Brock argues that the district court improperly applied a three-level enhancement under the Sentencing Guidelines to his Section 1512(c)(2) conviction for “substantial interference with the administration of justice.” U.S.S.G. § 2J1.2(b)(2); see Brock Opening Br. 18–21. More specifically, Brock argues that “substantial interference with the administration of justice” as used in Section 2J1.2(b)(2) is limited to “judicial type proceedings” and does not encompass the legislative electoral certification process he was convicted of obstructing. Brock Opening Br. 19; see Brock Opening Br. 18–19. The government responds that “‘administration of justice’ * * * refers to the proper administration of law by all three branches of government.” …

With great respect to our district court colleagues’ thoughtfully reasoned efforts to apply this Guideline, we hold that, for purposes of Sentencing Guideline 2J1.2, the phrase “administration of justice” does not encompass Congress’s role in the electoral certification process. Instead, Section 2J1.2’s text, context, and commentary show that “administration of justice” refers to judicial, quasi-judicial, and adjunct investigative proceedings, but does not extend to the unique congressional function of certifying electoral college votes….

[T]he government objects that “[t]here 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.” Gov’t Br. 46–47. Maybe. But that is a policy argument the government can present to the Commission. It is textually indisputable that the Guidelines confine the Section 2J1.2(b)(2) enhancement to those offenses that interfere with the “administration of justice,” not the administration of everything Congress does, or the administration of government, or the administration of all laws broadly. We must apply the Guideline as written, and Brock’s interference with one stage of the electoral college vote-counting process — while no doubt endangering our democratic processes and temporarily derailing Congress’s constitutional work — did not interfere with the “administration of justice.”

The headline of this Washington Post piece about the ruling, “Appeals court ruling means over 100 Jan. 6 rioters may be resentenced,” suggests that lots and lots of already sentenced Jan 6 defendants will benefit from this ruling. But I would guess that most, if not all, of the defedants who entered pleas and received this enhancement may be precluded by an appeal waiver and collateral appeal waivers from seeking correction of an erroneous sentence. (IN a quick google search, I found such a plea agreement in a case that seemed to include application of the enhancement.) DOJ often has a way of insulating its errors, though I hope defendants who are serving extra time based on a legal error make all effort to find some way to have the sentencing error corrected. Perhaps DOJ will be willing to forgo application of the waiver in these cases so that people who should be able to get resentenced have a means to get to court.