The Supreme Court’s June ruling that narrowed the federal obstruction charge used against Jan. 6 rioters resulted in the first reduction of a sentence previously handed down to a Virginia police officer involved in the insurrection.
Thomas Robertson, a former Virginia police officer, was sentenced Wednesday to six years in prison — more than a year less than what the judge initially handed down after a jury in 2022 convicted him of six charges, including obstruction of an official proceeding.
The resentencing could spell trouble for federal prosecutors seeking to maintain tough sentences for serious rioters who have already been found guilty and sentenced before the justices handed down their pivotal decision neutering the charge.
Robertson is the first rioter to be resentenced since the Supreme Court’s ruling in Fischer v. United States, where the justices ruled 6-3 that prosecutors wrongly retooled a charge that once criminalized document shredding to encompass the conduct of those who stormed the Capitol on Jan. 6, 2021.
His original sentence of more than seven years 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 that sentence was further undercut by the Supreme Court’s ruling in June.
The Supreme Court’s decision narrowed Section 1512(c)(2) — a statute that makes it a crime to “corruptly” obstruct, impede or interfere with official inquiries and investigations by Congress — in Jan. 6 prosecutions. More than 350 rioters faced the charge following the Capitol attack.
Justice Ketanji Brown Jackson, who broke with her fellow liberals to side with the conservative majority, contended in a concurring opinion that the ruling did not mean those Jan. 6 cases were a lost cause. She argued that Congress’s certification of the electoral vote inherently involved certain records, including the electoral votes themselves, meaning that prosecutions “can, and should, proceed” if that bar is met.
Federal prosecutors formally moved Wednesday to dismiss the charge of obstructing an official proceeding against Robertson, significantly lowering federal sentencing guidelines. However, the government asked for the judge to hand down the same 87-month sentence.
Assistant U.S. Attorney Elizabeth Aloi said that the U.S. Sentencing Commission “failed to anticipate” a crime like the Capitol attack. She said the logic follows Supreme Court Justice Amy Coney Barrett’s dissent in Fischer, which quipped about the riot: “Who could blame Congress for that failure of imagination?”
New rulings aside, the facts of Robertson’s case remain the same, Aloi said. He entered the Capitol with the first wave of rioters and used “specialized training” in law enforcement to impede officers trying to fend off the mob, using a large wooden stick to strike at least two.
“The same is true today,” she told the judge. “Nothing the courts did in Fischer or Brock changes that.”
Brock v. United States — the case from which a federal appeals court ruling initially threw a wrench into Robertson’s sentence — established that a three-level enhancement for conduct that results in “substantial interference with the administration of justice” was improperly applied to the electoral certification process, when it is meant to reference any obstruction of criminal investigations. That enhancement was used in Robertson’s initial sentencing.
Prosecutors contended that the enhancement, and others, could remain if attached to another count against Robertson for violating a different section of the same obstruction statute involved in Fischer.
In court Wednesday, Aloi contended that Robertson’s destruction of cellphone evidence prevented the government from identifying a third co-conspirator in a timely manner — an individual they said was only identified after the other defendant in Robertson’s case, Jacob Fracker, began cooperating.
The evidence Robertson destroyed “may actually have proved essential” to prosecuting the third co-conspirator, a neighbor of Robertson’s who remains uncharged, Aloi said.
Robertson’s lawyer, Mark Rollins, objected to the three-level enhancement, but conceded that two other two-level enhancements — one for assuming an organizing role, and another for the destruction of “especially probative” records — would apply. He said the defense would put the “weight of our argument” on eliminating the three-level enhancement.
U.S. District Judge Christopher Cooper decided that all three enhancements would be applied to Robertson’s sentence, though he said he would have imposed the same prison term had he decided to reject the three-level adjustment at issue.
In court filings, prosecutors also pointed to the judge’s previous remark that his “biggest consideration” was whether Robertson would reoffend. They argued that determination remains unchanged by the Supreme Court’s ruling, too.
Rollins, Robertson’s lawyer, said the rioter has been a “model inmate” for the last three years and that his good behavior should hold weight in his new sentence when combined with the adjusted guidelines range.
He told the court that, on Jan. 6, Robertson engaged in “really bad behavior — and I guess that’s an understatement.” But in retrospect, the riot left Robertson a “broken man.”
“This has taken everything from me,” Robertson told the judge before his new sentence was imposed.