The resounding impact of the Supreme Court’s decision to neuter an obstruction charge used in Jan. 6 cases will face fresh scrutiny Wednesday when a rioter’s resentencing tests whether prison terms in such cases must be reduced.

Since the high court’s June decision, scores of rioters have asked judges to push back or reconsider already-imposed sentences. Prosecutors have said in court filings that a “case-by-case” analysis of the obstruction cases is underway to determine how to move forward and whether harsher sentences can stand.

Now, attorneys are preparing to put the litmus test to Thomas Robertson, a former Virginia police officer, who was sentenced to more than seven years in prison after a jury in 2022 convicted him of six charges, including obstruction of an official proceeding.  

Prosecutors said Robertson entered the Capitol with the first wave of rioters and “used his specialized training” in law enforcement to impede officers attempting to push back the mob, using a large wooden stick to strike at least two officers.  

The rioter’s 87-month sentence was initially vacated and ordered redone in May due to a separate ruling by a federal appeals court that affected the guidelines for his sentencing. But the appeals court also said the rioter’s lower court judge could consider the Supreme Court’s then-pending decision on the obstruction charge when handing down a new sentence. 

At Robertson’s resentencing, a federal judge will determine how much time – if any – the Supreme Court justices’ ruling should shave off the rioter’s prison term. 

Prosecutors say that sentence shouldn’t budge. But Robertson’s counsel is seeking a much lower term, suggesting the rioter has been a “model inmate” for the last three years on top of his sentencing guidelines having now dramatically changed. 

More than 350 rioters were charged with obstruction of an official proceeding after the Capitol attack. The statute, Section 1512(c)(2), makes it a crime to “corruptly” obstruct, impede or interfere with official inquiries and investigations by Congress. 

The Justice Department initially used it to prosecute rioters who interrupted Congress’s certification of the 2020 presidential election results, but one rioter, Joseph Fischer, challenged that approach, contending that prosecutors unlawfully retooled a charge that once criminalized document shredding to encompass the conduct of those who stormed the Capitol that day. 

The Supreme Court sided with 6-3 with Fischer, not along ideological lines, writing that it would be “peculiar” to conclude that Congress “hid away” a catchall provision reaching far beyond the evidence destruction that initially prompted the legislation.

“The better conclusion is that subsection (c)(2) was designed by Congress to capture other forms of evidence and other means of impairing its integrity or availability beyond those Congress specified in (c)(1),” Chief Justice John Roberts wrote for the majority. 

Justice Ketanji Brown Jackson, who sided with the court’s conservative majority, claimed that there is still a path forward for such Jan. 6 cases. Offering a roadmap to prosecutors, she suggested that Congress’s certification of the electoral vote inherently involved certain records, including the electoral votes themselves.  

“It might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding ‘in ways other than those specified in (c)(1),’” Jackson wrote. “If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed.” 

At the recent sentencing of Michael Sparks, the first rioter to enter the Capitol building on Jan. 6, the Justice Department tested out its own route in the already-tried case.  

Prosecutors contended at the sentencing last week that Sparks’s obstruction conviction should still hold weight in deciding his sentence, despite their dismissing the count following the Supreme Court’s ruling.  

Their argument was twofold and focused specifically on evidence Sparks destroyed: the rioter permanently shuttered his Facebook account after the FBI informed him of a warrant for his arrest, and he erased text messages between himself and another rioter.  

“This was a targeted effort,” Assistant U.S. Attorney Emily Allen told the judge last week.

Sparks’s attorney countered that deleting a Facebook account could not qualify as obstruction, when apps like Snapchat or Signal automatically delete content as part of their services.  

But U.S. District Judge Timothy Kelly sided with prosecutors, ruling that the context of Sparks’s actions – that the erasures occurred once he knew he was wanted by authorities – is key. The judge chose to weigh the offense and significantly depart from federal guidelines to sentence Sparks to more than four years in prison. 

Handing down that sentence, Kelly also noted that a jury found Sparks guilty of obstructing Congress’s certification of the 2020 election, despite the later dismissal. 

“I do find you had that intent, too,” the judge said. 

In Friday filings for Robertson’s case, Assistant U.S. Attorney Elizabeth Aloi pointed to Sparks as the first defendant convicted at trial of the obstruction charge where the government did not also proceed to sentencing on that count. She brought Kelly’s harsh sentence to the attention of Robertson’s judge, suggesting a similar roadmap for Robertson’s own resentencing. 

“The applicable guidelines calculation did not account for Sparks’ clear intent to disrupt a government function,” Aloi wrote.