Extended discussion of issues surrounding upcoming federal sentencing of Oath Keepers
Over at Lawfare, Roger Parloff has this remarkable new piece titled “Should Nine Oath Keepers Receive Terror-Enhanced Sentences?”. This lengthy piece examines an array of intricate sentencing issues and it starts this way:
This week, a federal judge will begin handing down sentences for nine members of the Oath Keepers paramilitary group for their roles in the Jan. 6 insurrection, including six convicted of seditious conspiracy. The government seeks 25 years imprisonment for the group’s founder and leader that day, Elmer Stewart Rhodes III, and sentences ranging from 10 to 21 years for the other eight. Six of those sentences, if imposed, would become the longest to date for any Capitol Siege rioter.
The sentences, which will be imposed by U.S. District Judge Amit Mehta of Washington, D.C., raise difficult questions with no close precedents. Although at least 15 people have been sentenced for seditious conspiracy since the U.S. Sentencing Guidelines took effect in 1987, all previous cases involved people prosecuted for conduct “tantamount to waging war against the United States,” a term of art in the sentencing guidelines that the government concedes is not met here.
Among many other items noted, this piece notes that, in some of these cases, federal prosecutors are seeking enhanced punishment based on acquitted conduct:
Three of the nine defendants being sentenced were acquitted of seditious conspiracy. One of those defendants was actually acquitted of all three conspiracy counts charged. Yet, for sentencing purposes, the government treats those three the same as if they’d been convicted of all counts.
It is true that under controlling D.C. Circuit precedent, a sentencing judge can take into account conduct for which a defendant has been acquitted if the judge believes the conduct was nevertheless proven by the lower preponderance-of-the-evidence standard — which is all that is required for sentencing purposes. Nevertheless, as I’ll discuss later, I will be surprised if Judge Mehta effectively overrides the jury verdict in this manner….
Absent the conspiracy allegations of which Caldwell was acquitted, Caldwell’s acts would have most likely resulted in either no charges at all or class A misdemeanor charges carrying a maximum one-year jail term. Yet the government seeks 14 years imprisonment for him — just two months less than career criminal Schwartz received for, inter alia, four assaults with a dangerous weapon on police officers.
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