Prosecutors may appeal Proud Boys sentences for Jan. 6 Capitol riot

The Justice Department is signaling it intends to appeal the prison sentences handed down to five Proud Boys convicted in the Jan. 6 Capitol riot, according to court filings Monday.

As The Hill reported, “The notice of appeal does not include any legal arguments, and instead alerts the court to prosecutors’ plans.” But it’s widely believed the department hopes to secure longer sentences for the Proud Boy leaders.

Prosecutors had recommended 33 years each for Proud Boys national leader Enrique Tarrio of Miami and former Proud Boys organizer Joseph Biggs, of Ormond Beach, Florida. They’d sought a 30-year sentence for Proud Boys chapter leader Zachary Rehl of Philadelphia and 27 years for chapter leader Ethan Nordean of Auburn, Washington, according to The Associated Press.

The filings follow similar appeals in July regarding the sentences given to five members of Oath Keepers for their actions at the Capitol, according to The Washington Post.

In the Proud Boys’ case, heard in the Washington, D.C., federal court, U.S. District Judge Timothy Kelly sentenced Tarrio to 22 years — the longest sentence thus far related to the Capitol riot. Nordean received a sentence of 18 years, Biggs 17 years and Rehl 15 years.

All four were convicted of seditious conspiracy by a jury in May on allegations they plotted to disrupt the transfer of power from Donald Trump to Joe Biden after the 2020 presidential election.

Prosecutors are also asking for a longer sentence for Dominic Pezzola, a New York member of Proud Boys, who was acquitted of seditious conspiracy but convicted of other serious charges.

The defense attorney for Biggs and Rehl, Norm Pattis, called the appeals “ridiculous.” By text to AP, he wrote that “Merrick Garland needs a new hobby horse,” referring to the attorney general, who oversees the Justice Department.

A spokeswoman for the U.S. attorney’s office told The Washington Post the filing “merely preserves our ability to appeal.” The Post added that “the government typically does not appeal sentences after they are imposed.”

But it has happened. The government this summer filed an appeal of the 18-year sentence for Oath Keepers founder Stewart Rhodes, who was also convicted of seditious conspiracy, as well as sentences of other members of his group. For Rhodes, prosecutors had sought 25 years. The appeal is pending.

AP reported that at least 1,100 people have been charged with federal crimes related to the attack on the Capitol.

Imposing a sentence

According to the Post, the sentences imposed for Rhodes and Tarrio both fell “well below” recommendations in the federal sentencing guidelines. The Post said prosecutors used the guidelines range, the defendant’s criminal history and the severity of the crime to propose a sentence in the middle of the range for each defendant. Judges calculated their own range, but were not bound by either calculation.

“In nearly 60 percent of the Jan. 6 felony cases, the D.C. judges have gone below their own calculated guideline range, and below the prosecution’s sentencing recommendations in 80 percent of all cases, according to a Washington Post database,” the article said. “Sentencing guidelines are not used in most misdemeanor cases.”

Pezzola’s attorney, Roger Roots, called the plan to appeal an “outrageous abuse of power,” per the Post. “These are already the longest sentences in American history for participating in a political demonstration,” he said in a statement. “Congress was only delayed for six hours on January 6. The DOJ is really engaging in overkill.”

The lengths of the sentences have been criticized by some and the potential appeals are now getting a reaction, too.

While noting the seriousness of the crimes for which the men were convicted, Joe Lancaster wrote for Reason, “It feels like sour grapes for the government to go back for more time. Prosecutors sought and received a terrorism enhancement for each of the five defendants, which allows for more severe sentences if the offenses constituted terroristic acts. U.S. District Judge Timothy Kelly disagreed with the prosecutor that the events of January 6 were ‘no different than the act of a spectacular bombing of a building,’ though he did ultimately say that ‘the constitutional moment we were in that day is something that is so sensitive that it deserves a significant sentence.’”