D.C. Circuit vacates enhanced sentence of Jan.6 rioter Larry Brock

 

18 USC 1512 Tampering with a witness, victim, or informant

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or

availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or

attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from—

(1) attending or testifying in an official proceeding;

United States v. Larry Rendell Brock

CADC 23-3045 

MILLETT, Circuit Judge: Larry Brock participated in the violent January 6th riot at the United States Capitol that forced the evacuation of members of Congress and their staff and prevented Congress’s certification of the 2020 presidential election until the next day. After a bench trial, the court convicted Brock of six crimes, including corruptly obstructing Congress’s certification of the electoral count under 18 U.S.C. § 1512(c)(2). At sentencing, the district court applied a three-level sentencing enhancement to Brock’s Section 1512(c)(2) conviction on the ground that Brock’s conduct resulted in “substantial interference with the administration of justice[.]” U.S.S.G. § 2J1.2(b)(2).

Brock challenges both the district court’s interpretation of Section 1512(c)(2)’s elements and the sufficiency of the evidence to support that conviction. He also challenges the district court’s application of the three-level sentencing enhancement for interfering with the “administration of justice.” Because the law and the record in this case foreclose Brock’s legal and sufficiency challenges, we affirm Brock’s Section 1512(c)(2) conviction. As for Brock’s sentence, we hold that the “administration of justice” enhancement does not apply to interference with the legislative process of certifying electoral votes. For that reason, we vacate Brock’s sentence for his Section 1512(c)(2) conviction and remand to the district court for resentencing.

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At sentencing, the parties agreed that Section 2J1.2 of the U.S. Sentencing Guidelines applied to Brock’s Section 1512(c)(2) conviction.1 Over Brock’s objection, however, the district court added a three-level enhancement under Section 2J1.2(b)(2) for “substantial interference with the administration of justice[.]” U.S.S.G. § 2J1.2(b)(2) (2021).2 The district court noted that the application comments to Section 2J1.2 define “substantial interference with the administration of justice” to include “the unnecessary expenditure of substantial government resources.” J.A. 666; see U.S.S.G. § 2J1.2 cmt. n.1. The court concluded that “only a general causal tie is necessary between the defendant’s actions and the unnecessary expenditures by the government[,]” and so “the government only has to show a causal line from the [January 6th] mob * * * [to the] unnecessary expenditure of substantial government resources.” J.A. 667. The district court then applied the enhancement on the basis that Brock was both “convicted of obstructing an official proceeding” and “was part of the mob that caused substantial damage at the Capitol and large expenditure of government resources[.]” J.A. 668.

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Brock challenges both the district court’s interpretation of Section 1512(c)(2)’s actus reus and “corruptly” elements, and the sufficiency of the evidence supporting his conviction under that statute. He separately argues that the district court improperly applied a three-level enhancement to his Section 1512(c)(2) conviction under Section 2J1.2(b)(2) of the U.S. Sentencing Guidelines.

While the law and the record in this case foreclose Brock’s legal and sufficiency challenges to his Section 1512(c)(2) conviction, the district court erred in treating Brock’s obstruction of the electoral certification process as interfering with the “administration of justice.”

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After oral argument in this case, the Supreme Court granted certiorari in Fischer to determine whether Section 1512(c)(2) prohibits obstructive acts unrelated to investigations and evidence. See Fischer v. United States, No. 23-5572, 2023 WL 8605748 (Dec. 13, 2023) (mem.).