Judge rejects ‘terrorism’ sentencing enhancement for leader of Jan. 6 tunnel confrontation

Amid the most extreme violence on Jan. 6, 2021, David Judd launched a lit object — which appeared to be a firecracker — at a tightly packed tunnel full of police and members of the mob, an effort to clear a path so rioters could derail the transfer of power from Donald Trump to Joe Biden.

On Monday, U.S. District Court Judge Trevor McFadden sentenced Judd to 32 months in prison for his role in the attack — barely a third of the 90-month sentence prosecutors had sought, describing Judd as one of the most egregious offenders in the entire mob.

McFadden largely agreed with DOJ’s characterization, saying Judd was “part of some of the most violent and shocking confrontations with police officers that day,” which he called “a flagrant affront to our system of government.” But that’s where the agreement largely ended.

McFadden’s swept away efforts by prosecutors to apply several enhancements to Judd’s sentence, most notably the so-called “terrorism” enhancement, for what Justice Department lawyers said was his intent to disrupt government functions with force. McFadden discarded their recommendations, noting that Judd didn’t appear to preplan his attack the way terrorists like those in a 2012 attack on a U.S. consulate in Benghazi, Libya, did.

Rather, the judge said, Judd was “in some ways there at the behest of the president,” who had just minutes earlier urged his supporters to march on Congress and protest the certification of the election results.

It’s the second time prosecutors have attempted to apply the terrorism enhancement to a Jan. 6 defendant — both times unsuccessfully — during the sentencing process. Assistant U.S. Attorney Ashley Akers emphasized that the government viewed Judd’s crime as “domestic terrorism” worthy of the enhancement, which would add significant time on to Judd’s recommended sentence.

Invoking the terrorism enhancement can add about 15 years in prison to a defendant’s recommended sentence, set the minimum calculation at 17-and-a-half years, and also flip the person charged into the criminal-history category used for serial offenders.

However, prosecutors asked for only a modest adjustment in Judd's case because the 2 offenses he pled guilty to — assault on a police officer and obstructing an official proceeding — are not on a list Congress has established of crimes of terrorism.

Still, McFadden declined to apply even that adjustment.

The judge noted that in the other case where prosecutors sought the more serious enhancement — against Texas’ Guy Reffitt — prosecutors assembled an extraordinary roster of evidence showing that Reffitt planned his actions on Jan. 6, carried a firearm, was a member of a right wing militia group and threatened a witness afterward. In that case, U.S. District Court Judge Dabney Freidrich rejected the enhancement, sentencing Reffitt to 7.25 years in prison.

McFadden used Monday’s sentencing hearing to strike another blow in a long-running critique of the Justice Department, which he has accused of treating Jan. 6 cases more harshly than rioters charged alongside the social justice protests in the summer of 2020. He said DOJ’s charging decisions in some of those cases cast doubt on Attorney General Merrick Garland’s vow for there “not to be one rule for Democrats and another for Republicans. One rule for friends, one rule for foes.”

Prosecutors have rejected the claim, arguing that Jan. 6 and the concerted assault on the transfer of power stands in stark contrast to the summertime 2020 violence — and is often accompanied by far more compelling video evidence of the crimes. They also noted that in some of the 2020 violence — particularly in Portland, Oregon — federal prosecutors opted against charging defendants who were facing even harsher charges at the state level.

McFadden, however, homed in on cases like the New York Police Department attorneys who threw Molotov cocktails in an empty NYPD police cruiser, whose sentence he said was relatively light compared to the steep penalties DOJ is seeking for some Jan. 6 offenders.

Even after McFadden rejected DOJ’s harshest sentencing enhancements, McFadden decided to apply a so-called “downward variance” to Judd’s sentencing, below the recommended sentencing guidelines, which called for a minimum of 37 months incarceration.

McFadden said he agreed with Judd’s contention that the object he threw at police was more akin to a sparkler than a firework that could have caused actual harm to police officers. Though McFadden said he believed Judd did intend to hurt people in the tunnel — noting that Judd himself fled after lobbing the object.

Under a 2005 Supreme Court case, federal judges are free to sentence defendants outside of guidelines, but courts are required to calculate the recommended range before imposing a sentence.

Judd briefly addressed the court, through tears, apologizing to police officers who defended the Capitol and to his family for causing them pain.