Judge rejects terrorism sentencing penalty in Jan. 6 case

Federal prosecutors' first request to draw tougher punishment for a Jan. 6 defendant by classifying his actions as domestic terrorism fell short Monday as a federal judge declined to apply the more severe sentencing guidelines permitted under federal law in such cases.

U.S. District Court Judge Dabney Friedrich said applying the sentencing enhancement to Guy Reffitt, 49, would create an "unwarranted sentencing disparity" with other cases involving similar threats or conduct related to the Capitol riot.

"There are a lot of cases where defendants possessed weapons or committed very violent assaults," Friedrich noted, highlighting that the most severe sentences handed down in Jan. 6 cases thus far were a little more than five years while prosecutors asked for a 15-year sentence against Reffitt. "The government is asking for a sentence that is three times as long as any other defendant and the defendant did not assault an officer."

Reffitt, a member of the Texas Three Percenters militia, became the first Jan. 6 defendant to go before a jury and was convicted on all five felony charges he faced. Evidence and testimony at the trial showed he drove to Washington with an acquaintance the day before the riot, bringing two AR-15 rifles and a pistol along with him. The jury found that he had the pistol on his hip as he engaged in a tense standoff with police at the West Front of the Capitol. Reffitt was pelted with less-lethal weapons and tear gas as he tried to advance up the steps, waving the crowd forward, but he never entered the building himself.

As the sentencing hearing stretched into its fourth hour Monday, Friedrich had yet to announce a sentence in the case. In theory, Reffitt could receive up to 60 years, but defendants are typically sentenced under federal guidelines to terms well below the maximum.

Assistant U.S. Attorney Jeffrey Nestler said Reffitt's discussions before and after Jan. 6 make clear that he was intent on carrying out his repeated threats to drag Speaker Nancy Pelosi and Senate Minority Leader Mitch McConnell from the Capitol building by force. In discussions caught on video, Reffitt was recorded referring to his desire to listen to the lawmaker's heads bouncing down the Capitol steps.

"He was planning to overtake our government. He wasn’t just trying to stop the certification," Nestler said. "He wasn’t done. Jan. 6 was just a preface. ... Mr Reffitt is in a class all by himself."

However, Friedrich said prosecutors had urged much shorter sentences in cases involving people who were directly involved in actual violence against police.

"You’re making recommendations that are way different than you’re making in this case — way different," said the judge, an appointee of President Donald Trump.

Friedrich also said she worried that Reffitt not be unduly punished for deciding to go to trial, rather than enter into a plea bargain with prosecutors.

"His decision to exercise his constitutional right to go to trial should not result in a dramatically different sentence," she said.

Nestler also noted that Reffitt was convicted of having a handgun on his hip while on the Capitol grounds, which Friedrich conceded that was an important distinction from the other cases to reach sentencing thus far.

"Huge, huge … and does the firearm deserve three times the sentence if it was not brandished or used in any way?" the judge asked.

Another unusual aspect of Reffitt's case is that he was convicted of threatening to injure his two children if they discussed his actions on Jan. 6 with authorities. One of those children, Peyton Reffitt, spoke briefly during Monday's hearing to urge leniency for her father. She suggested that Trump was more responsible for the events that day than her father was.

"My father's name was not on all the flags that were there that day that everyone was carrying that day," Peyton said. "He was not the leader."

Several times during Monday's hearing, Friedrich suggested she thought Reffitt suffered from delusions of grandeur and that his decision to go to trial earlier this year was part of his effort to posture as a leader of those fighting the certification of the election.

"He wants to be the big guy — the first to try to storm the Capitol, the first to go trial," the judge said. "Clearly, that’s what he wants."

Reffitt's lawyer Clinton Broden acknowledged that, at times, his client was at the forefront of the crowd on the West Front of the Capitol. However, the defense attorney argued that the angry crowd was determined to surge towards the building whether Reffitt waved them on or not.

"Those people would have come up the stairs regardless of Mr. Reffitt and I think we all know that," Broden said.