WASHINGTON (CN) — A federal judge knocked 15 months off a Capitol rioter’s seven-year sentence on Wednesday, the first resentencing following the Supreme Court’s decision to narrow the Justice Department’s key felony charge in its prosecution of the Jan. 6, 2021.
Thomas Robertson, a former Virginia police officer, was sentenced to 87 months in May 2023 for planning with a fellow police officer to travel to the Capitol and engage in a “counterinsurgency” where he clashed with police while wielding a walking stick and took selfies throughout the building.
A federal jury convicted Robertson was convicted on six counts: obstruction of an official proceeding, civil disorder, entering a restricted building, disorderly conduct in a restricted building, disorderly conduct in the Capitol and witness tampering.
U.S. District Judge Christopher Cooper ordered that Robertson’s prison term be shortened to 72 months, cutting a year and three months from his incarceration period. The new sentence applies to Robertson’s original sentencing date in May 2023, meaning he has already served about 14 of those 72 months.
The Barack Obama appointee held the resentencing hearing to answer a series of questions raised by two appellate cases.
First, the Supreme Court’s 6-3 decision in Fischer v. United States, which narrowed the obstruction charge to explicit document destruction in relation to the Capitol riot. The majority rejected the Justice Department’s argument that, while the charge was formed in the wake of the Enron scandal, an “otherwise” clause allowed such unforeseen obstructive conduct as the Jan. 6 riot to fall under the statute.
Second, a D.C. Circuit Court of Appeals panel found in United States v. Brock that a sentencing enhancement — interfering with the administration of justice — could apply to only judicial proceedings, not the congressional certification of the electoral votes.
Before Wednesday’s decision Justice Department prosecutor Elizabeth Aloi urged Cooper to reaffirm the 87-month sentence, arguing that even without the obstruction charge, the interference enhancement should apply to Robertson’s witness tampering charge since he destroyed the phone he used at the Capitol, and to plan his actions.
Had Robertson not destroyed the phone, she argued, the Justice Department would have been able to attach an additional co-defendant in his case: a neighbor who traveled with Robertson and his fellow officer.
Cooper agreed that the enhancements should apply, but struggled throughout the two-hour hearing with the Justice Department’s request for 87 months. The relevant sentencing guidelines for Robertson’s convictions recommended a sentence between 37 and 46 months.
Were he to accept the government’s position, Cooper said, he would levy a sentence nearly 52% higher than the guidelines recommended.
When pressing Robertson’s defense attorney, Mark Rollins of Washington firm Rollins Chan, Cooper pointed out that percentage argument was not referenced in his sentencing memo. The judge remarked that he was “coming up with the arguments here.”
Yet Rollins didn’t fully jump on that argument. He argued instead that the Justice Department’s request would “mean that Fischer made no difference” and urged Cooper to order a sentence within the guidelines.
The defense lawyer also downplayed his client’s conduct and said that Robertson engaged in “really bad behavior,” but not to the extreme level the government painted.
“Everything that could be taken from a man has been taken from this man,” Rollins said, describing his client as a “broken man.”
In a brief statement, Robertson apologized for his actions, and said his time already sent in prison had persuaded him to never repeat them.
“Jan. 6 was a bad day. My participation in that was a bad thing,” Robertson told Cooper. “I just want to go back to my peaceful existence and life on my mountain.”
In October 2023, Robertson appealed his conviction and sentence to the D.C. Circuit, where he argued that the jury had not been given the correct definition of the term “corruptly” as it applied to the obstruction of an official proceeding charge. In his view, the term should apply only to actions taken for a personal benefit. The three-judge panel found otherwise, ruling against him 2-1 that such a definition almost exclusively applied to bribery and tax cases.
The panel upheld his conviction and sentence in that initial opinion, but remanded his case following its March 1 decision in Brock’s case, since Cooper had also applied the substantial interference of the administration of justice in the case.
Robertson’s case is one of the first examples of how the Justice Department and federal judges at the Washington court are grappling with the Supreme Court’s decision to narrow the obstruction of an official proceeding charge.
The Justice Department has said repeatedly that the decision would not have far-reaching impacts on the largest prosecution in the department’s history because 82% of Jan. 6 defendants were not charged with obstruction — and each of the remaining 249 defendants faced another charge, either a felony or misdemeanor.
In other words, there are zero defendants who were charged only with obstruction, as the Justice Department has emphasized.
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