UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Case No. 1:21-cr-708-RCL-1
LEO CHRISTOPHER KELLY,
Defendant.
MEMORANDUM ORDER
The defendant, Leo Christopher Kelly, asks the Court to reconsider its September 27, 2023,
memorandum order denying his request for release pending appeal. Mem. Order, ECF No. 142.
Mr. Kelly believes this Court should reconsider its earlier decision because the Supreme Court
recently granted certiorari in United States v. Fischer to consider whether the D.C. Circuit erred
in construing 18 U.S.C. § 1512(c) to include acts unrelated to congressional investigations and
evidence. Fischer v. United States, No. 23-5572, 2023 WL 8605748 (Mem), at *1 (U.S. Dec. 13,
2023); Pet. for Cert., Fischer v. United States, No. 23-5572 (filed Sept. 11, 2023). Additionally,
Mr. Kelly asks the Court to reduce his sentence pursuant to 18 U.S.C § 3582(c)(2), based on a
recent amendment to the Sentencing Guidelines that provides an offense level reduction for certain
offenders with zero criminal history points. U.S.S.G. § 4C1.1. The government opposes both
requests. Upon consideration of the parties’ briefing, the record, and the applicable law, the Court
will GRANT Mr. Kelly’s motion for reconsideration, DENY his motion for release pending
appeal, and DENY his motion for a sentence reduction.
I. BACKGROUND
The Court has previously summarized Mr. Kelly’s conduct. See United States v. Kelly,
No. 21-cr-708 (RCL), 2023 WL 5275154, at *8 (D.D.C. Aug. 16, 2023). The Court will assume
1 familiarity with Mr. Kelly’s case and recount only those facts and procedural details necessary to
resolve the motions now before it.
On May 9, 2023, a jury unanimously found Mr. Kelly guilty of several counts stemming
from his participation in the Capitol Riot on January 6, 2021. Id. at *1. At trial the jury heard
evidence that “Mr. Kelly pushed past lines of police officers, engaged in disruptive conduct on the
Senate floor, and made various statements evincing his intent to stop the certification of President
Biden as winner of the 2020 presidential election.” Id. at *8. More specifically, the jury learned
that:
After [Mr. Kelly] entered onto restricted Capitol grounds, he personally observed tear gas, law enforcement perimeters, and rioters climbing scaffolding. [Mr. Kelly] saw another rioter violently bash in the window of the Parliamentarian’s Door and [Mr. Kelly] entered the building shortly after as alarms blared overhead. [Mr. Kelly] personally observed violent property destruction, including another rioter bashing in an office door and rioters ransacking the Parliamentarian’s Office. [Mr. Kelly] joined the crowd confronting a vastly outnumbered line of police officers as [Mr. Kelly] and others chanted “USA USA USA!” and “WHOSE HOUSE? OUR HOUSE!” [Mr. Kelly] reached the front of the mob and stood face-to-face with police officers who repeatedly directed the rioters to leave. Defying commands, [Mr. Kelly] brazenly pushed his body through the police line and charged forward with the flood of rioters behind him. [Mr. Kelly] moved upstairs to enter the Senate Floor, where only a small number of rioters made it on that day. [Mr. Kelly] walked straight to the dais where he rustled through official certification paperwork on the Vice President’s desk and took videos of those documents. [Mr. Kelly] also took a photograph of the “threatening note” that fellow rioter Jacob Chansley left for the Vice President. [Mr. Kelly] filmed himself and other rioters as they shared a message that they were “send[ing] a message to all the tyrants, communists, and globalists that this is our nation and not theirs.” [Mr. Kelly] then proceeded to take photos of documents on the desk of the Republican Party floor staff who were responsible for managing the Electoral College vote. [Mr. Kelly] only left the Senate Chamber after a group of law enforcement officers arrived.
Gov’t Opp’n to Def.’s Mot. for Reconsideration 7–8 (“Gov’t Opp’n”), ECF No. 144 (internal
citations omitted); see also Gov’t Opp’n to Def.’s Mot. for New Trial 14–18, ECF No. 122; Def.’s
Reply to Gov’t Opp’n 7 (“Def.’s Reply”), ECF No. 146.
2 The jury found Mr. Kelly guilty of obstruction of an official proceeding in violation of
18 U.S.C. § 1512(c)(2) (Count One), entering and remaining in a restricted building or grounds in
violation of 18 U.S.C. § 1752(a)(1) (Count Two), disorderly and disruptive conduct in a restricted
building or grounds in violation of 18 U.S.C. § 1752(a)(2) (Count Three), entering and remaining
on the floor of Congress in violation of 40 U.S.C. § 5104(e)(2)(A) (Count Four), entering and
remaining in certain rooms in the Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(C)
(Count Five), disorderly conduct in a Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(D)
(Count Six), and parading, demonstrating, or picketing in a Capitol Building in violation of
40 U.S.C. § 5104(e)(2)(G) (Count Seven).
On July 13, 2023, Mr. Kelly moved for new trial and judgment of acquittal. ECF No. 118.
The Court denied that motion. Kelly, 2023 WL 5275154, at *9. On August 18, the Court sentenced
Mr. Kelly to 30 months’ incarceration and 12 months’ supervised release on Count One, 12
months’ incarceration and 12 months’ supervised release on Counts Two and Three, and 6 months’
incarceration on Counts Four, Five, Six, and Seven. J. 3–4, ECF No. 135. The Court set each term
of incarceration and supervised release to run concurrently and ordered Mr. Kelly to pay a $190
special assessment, $5,000 fine, and $2,000 in restitution. Id. at 3–4, 8. On September 14, Mr.
Kelly moved for release pending appeal under 18 U.S.C. § 3143(b)(1). ECF No. 139. The Court
denied that request. Mem. Order. Mr. Kelly self-surrendered to the Bureau of Prisons on October
18 and began serving his term of incarceration. Def.’s Mot. 4, ECF No. 143.
On January 18, 2024, Mr. Kelly moved this Court to reconsider its order denying his
motion for release pending appeal. Id. Mr. Kelly also requested a sentence reduction pursuant to
18 U.S.C. § 3582(c)(2) based on the addition, with retroactive effect, of U.S.S.G. § 4C1.1 to the
3 federal sentencing guidelines. Id. The government opposed, Gov’t Opp’n, and Mr. Kelly replied,
Def.’s Reply. These motions are now ripe for review.
II. LEGAL STANDARDS
A. Motion for Reconsideration
“The Federal Rules of Criminal Procedure do not address the legal standard applicable to
motions to reconsider interlocutory decisions, but courts in this District have applied the ‘as justice
requires’ standard under Federal Rule of Civil Procedure 54(b).” United States v. Caldwell,
No. 21-cr-28 (APM), 2022 WL 203456, at *1 (D.D.C. Jan. 24, 2022) (first citing United States v.
Hassanshahi, 145 F. Supp. 3d 75, 80 (D.D.C. 2015); and then citing United States v. Hemingway,
930 F. Supp. 2d 11, 12 (D.D.C. 2013)). “[A]sking ‘what justice requires’ amounts to determining,
within the Court's discretion, whether reconsideration is necessary under the relevant
circumstances.” Cobell v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C. 2005). One basis for
reconsideration is where a “a controlling or significant change in the law or facts [has occurred]
since the submission of the issue to the Court.” Singh v. George Washington Univ., 383 F. Supp. 2d
99, 101 (D.D.C. 2005) (alteration in original) (internal quotation marks and citation omitted).
B. Motion for Release Pending Appeal
18 U.S.C. § 3143(b)(1) states that the Court “shall order the release” of a person who has
been “found guilty of an offense and sentenced to a term of imprisonment, and who has filed an
appeal” if it finds: “(A) by clear and convincing evidence that the person is not likely to flee or
pose a danger to the safety of any other person or the community if released[,]” and “(B) that the
appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result
in,” as relevant here, “(iv) a reduced sentence to a term of imprisonment less than the total of the
time already served plus the expected duration of the appeal process.” 18 U.S.C. § 3143(b)(1). The
burden of showing that both requirements are met lies with the defendant. See United States v.
4 Perholtz, 836 F.2d 554, 555–56 (D.C. Cir. 1987) (per curiam) (noting “the required showing on
the part of the defendant” under 18 U.S.C. § 3143(b)).
C. Motion for Sentence Reduction
Courts may modify terms of imprisonment once they have been imposed when “a
defendant . . . has been sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 944(o) . . . after
considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a
reduction is consistent with applicable policy statements issued by the Sentencing Commission.”
18 U.S.C. § 3582(c)(2).
“On April 27, 2023, the [Sentencing] Commission submitted to Congress an amendment
to the federal sentencing guidelines often referred to as ‘Amendment 821’ or the ‘2023 Criminal
History Amendment.’” Material Relating to the 2023 Criminal History Amendment, United States
Sentencing Commission, https://perma.cc/SQ9L-74Q2 (last visited Feb. 20, 2024). “Part B,
Subpart 1 of Amendment 821 creates a new Chapter Four guideline at § 4C1.1 decreasing by two
the offense levels for defendants who did not receive any criminal history points and whose instant
offense did not involve specific aggravating factors,” including that “the defendant did not use
violence or credible threats of violence in connection with the offense.” U.S. Sentencing
Commission Votes to Allow Retroactive Sentence Reductions and Announces Its Next Set of Policy
Priorities, United States Sentencing Commission (Aug. 24, 2023), https://perma.cc/7LJ7-G8DF;
U.S.S.G. § 4C1.1(3). Amendment 821 became effective on November 1, 2023. It has retroactive
effect pursuant to the policy statement at § 1B1.10. See U.S.S.G. § 1B1.10(d).
Courts follow a two-step approach when determining whether a sentence reduction is
warranted under 18 U.S.C. § 3582(c)(2). Dillon v. United States, 560 U.S. 817, 826 (2010). First,
5 the court determines whether a defendant is eligible for a sentence reduction and to what extent.
Id. at 827. The court must “‘determin[e] the amended guideline range that would have been
applicable to the defendant’ had the relevant amendment been in effect at the time of the initial
sentencing.” Id. (quoting U.S.S.G. § 1B1.10(b)(1)). If the defendant is eligible for a sentence
reduction, the court moves on to step two, which is “to consider any applicable § 3553(a) factors
and determine whether, in its discretion, the reduction authorized by reference to the policies
relevant at step one is warranted in whole or in part the under particular circumstances of the case.”
Id. “This understanding of § 3582(c)(2) [is] a narrow exception to the rule of finality.” Id.
III. DISCUSSION
There are two discrete motions before the Court: (1) Mr. Kelly’s motion for reconsideration
of this Court’s September 27, 2023, ruling denying his motion for release pending appeal; and
(2) Mr. Kelly’s motion for a sentence reduction pursuant to 18 U.S.C § 3582(c)(2). The Court will
consider each motion in turn.
A. Mr. Kelly Is Not Entitled to Release Pending Appeal
Mr. Kelly’s motion for reconsideration is, in effect, a second request for release pending
appeal. Because the Court denied his first request, he must, as a threshold matter, satisfy the Court
that reconsideration is warranted. See Hassanshahi, 145 F. Supp. 3d at 80. Otherwise, the Court
will stand by its prior ruling.
The Court is satisfied—and the government does not meaningfully contest—that
reconsideration is warranted in light of the Supreme Court’s decision to grant certiorari in Fischer.
See Gov’t Opp’n (arguing against release pending appeal, not reconsideration); Fischer, 2023 WL
8605748 (Mem), at *1 (granting certiorari). This Court denied Mr. Kelly’s previous motion in part
because it “depend[ed] on speculation that the Supreme Court will grant certiorari.” Mem. Order 3.
6 Because that speculative possibility has come to pass, the Court finds a “significant change in
the . . . facts since the submission of the issue to the Court” warranting reconsideration. Singh,
383 F. Supp. 2d at 101. Accordingly, Mr. Kelly’s motion for reconsideration is GRANTED and
the Court will consider anew his motion for release pending appeal.
To prevail on his motion for release pending appeal, Mr. Kelly must show that (1) he is not
likely to flee or pose a danger to the safety of any other person or the community if released, (2) the
appeal is not for the purpose of delay, (3) the appeal raises a substantial question of law or fact,
and (4) he is likely to obtain a reduced sentence to a term of imprisonment less than the total of
the time already served plus the expected duration of the appeal process. See 18 U.S.C.
§ 3143(b)(1); Perholtz, 836 F.2d at 555.
1. The Court finds by clear and convincing evidence that Mr. Kelly is not likely to flee or
pose a danger to the safety of the community. The Court would not have permitted Mr. Kelly to
self-surrender unless he satisfied this requirement. See J. 3; see also 18 U.S.C. § 3143(a)(1)
(requiring detention pending sentence unless the Court “finds by clear and convincing evidence
that the person is not likely to flee or pose a danger to the safety” of others). The government does
not contest this point and the Court takes it as conceded. See Gov’t Opp’n 4–10.
2.
The Court finds that Mr. Kelly’s appeal is not for the purpose of delay and raises a
substantial question of law. Mr. Kelly intends to argue on appeal that his conduct on January 6
was not proscribed by 18 U.S.C. § 1512(c)(2). See Defs.’ Mot. 6. The Supreme Court recently
granted certiorari to consider the scope of § 1512(c)(2) and whether it applies to conduct like the
defendant’s. Fischer, 2023 WL 8605748 (Mem), at *1; Pet. for Cert., Fischer. A substantial
question within the meaning of § 3143(b) is a “close question or one that very well could be
7 decided the other way.” Perholtz, 836 F.2d at 555 (internal quotation marks omitted). “The
question of whether [the] Defendant’s admitted conduct violates § 1512(c)(2) meets this standard.”
United States v. Adams, No. 21-cr-354 (APM), 2024 WL 111802, at *2 (D.D.C. Jan. 10, 2024).
Although the Supreme Court may have granted certiorari merely to clarify the Fischer majority’s
“fractured” holding, see United States v. Carrell, No. 23-cr-139 (BAH), ECF No. 75 at 4
(D.D.C. Jan. 4, 2024), the Court’s decision indicates that the defendant raises at least a “close
question,” see United States v. Munchel, No. 21-cr-118 (RCL), ECF No. 264 at 4 (D.D.C. Jan. 25,
2024); Adams, 2024 WL 111802, at *2.
3.
All that remains is whether Mr. Kelly is likely to obtain “a reduced sentence to a term of
imprisonment less than the total of the time already served plus the expected duration of the appeal
process” if he prevails on appeal. 18 U.S.C. § 3143(b)(1)(B)(iv). The Court finds that he is not. As
a result, his motion for release pending appeal is DENIED.
Mr. Kelly was convicted of one felony and six misdemeanor counts. That felony count is
at risk if the Supreme Court reveres Fischer and cabins 18 U.S.C. § 1512(c)(2). Assuming his
§ 1512(c)(2) count drops away, Mr. Kelly will still be guilty of two class A misdemeanors,
including entering and remaining in a restricted building or grounds in violation of 18 U.S.C.
§ 1752(a)(1), and disorderly and disruptive conduct in a restricted building or grounds in violation
of 18 U.S.C. § 1752(a)(2), and four class B misdemeanors, including entering and remaining on
the floor of Congress in violation of 40 U.S.C. § 5104(e)(2)(A), entering and remaining in certain
rooms in the Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(C), disorderly conduct in a
Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(D), and parading, demonstrating, or
picketing in a Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(G). See 18 U.S.C. § 3559.
8 Although Mr. Kelly suggests that the guideline range applicable on resentencing if his § 1512(c)(2)
conviction is vacated would be 0-6 months, he apparently expects the Court to impose a term of
incarceration closer to two months. See Def.’s Mot. 7–8. Mr. Kelly has already served
approximately 4 months. See id. at 4 (noting self-surrender on October 18, 2023).
“The current median time interval from the filing of a notice of appeal to disposition in the
D.C. Circuit is 11.3 months.” Id. at 9 & n.2. Mr. Kelly filed his notice of appeal on August 25,
2023, so the Court will assume that his appeal will be completed by approximately August 2, 2024.
ECF No. 137. Mr. Kelly self-surrendered on October 18, 2023. Def.’s Mot. 4. Accordingly, he will
have served a maximum of roughly 9.5 months—the interval between October 18, 2023 and
August 2, 2024—before the expected end of the appeal process. The question the Court must
decide is whether the sentence Mr. Kelly is likely to obtain if he prevails on appeal is less than the
9.5 months he will have served if he is incarcerated through the beginning of August 2024. See
Munchel, ECF No. 264 at 5–6 (applying the same logic); Adams, 2024 WL 111802, at *2 (same).
The Court concludes that Mr. Kelly is not likely to receive a sentence to a term of less than
9.5 months’ incarceration. 1 Although the guidelines range at sentencing—24 to 30 months—is
significantly higher than the 12 month statutory maximum for Mr. Kelly’s class A misdemeanors,
the Court imposed a sentence at the high-end of the guidelines (30 months) because it reflected the
seriousness of Mr. Kelly’s conduct. Sentencing Tr. 23:11–17, ECF No. 145. The Court cannot
predict how it would resolve any dispute between the parties concerning the applicable guidelines
range or the propriety of imposing consecutive sentences, but it is highly unlikely that the Court
1 It is not a comfortable position for the Court to pontificate on the outcome of a hypothesized resentencing without the benefit of a full resentencing hearing. But that is what the law requires, see 18 U.S.C. § 3143(b)(1)(B)(iv), and it is Mr. Kelly’s motion that has placed the Court in this posture. The Court’s mind is not fixed, however, as the following analysis reflects only the Court’s preliminary assessment of what it is likely to do and is not determinative of what the Court will in fact do should Mr. Kelly be entitled to resentencing. The Court remains open to Mr. Kelly’s arguments and allocution.
9 would reduce the 30-month sentence it imposed to less than 9.5 months. The Court is much likelier
to impose a sentence of at least 12 months, and perhaps greater if the Court decides to impose any
sentences consecutively. The Court is likely to impose such a sentence even if it requires an upward
variance from the guidelines.
Indeed, Mr. Kelly’s conduct was more harmful and egregious than the typical case
represented by the guidelines range generated for defendants with only class A and class B
misdemeanors stemming from the Capitol Riot. See United States v. Murray, 897 F.3d 298, 308–09
(D.C. Cir. 2018). Mr. Kelly physically confronted a police officer and led rioters past a line of
officers. Gov’t Opp’n 8. Once in the Senate Chamber, Mr. Kelly rustled through certification
paperwork, including paperwork belonging to the Vice President, and took photographs and videos
of sensitive certification-related materials. Id. Mr. Kelly photographed a threatening note left for
Vice President Pence by Jacob Chansley and filmed himself making an impromptu speech at the
Senate dais which communicated his intent to obstruct Congress from certifying the 2020
presidential election. Id. Moreover, Mr. Kelly demonstrated at sentencing that he still does not
appreciate the seriousness of his conduct. Sentencing Tr. 22:1–3. The Court has already noted this
case’s similarities to United States v. Chansley, No. 21-cr-3 (RCL). Sentencing Tr. 22:21–23:7.
That case provides the appropriate reference for Mr. Kelly’s conduct, not the class B misdemeanor
and petty offense cases cited in Mr. Kelly’s motion. See Def.’s Mot. 7–8.
Mr. Kelly also cites Adams and United States v. Sheppard, No. 21-cr-203 (JDB)—neither
of which were decided by this Court—to suggest that an upward variance would be unwarranted
because those defendants were equally as culpable as Mr. Kelly, yet those courts determined that
they were unlikely to resentence them outside the guidelines. Def.’s Reply 5. But the claim of
equal culpability is belied by the facts. Mr. Kelly, unlike the defendant in Sheppard, the facts of
10 which Mr. Kelly quotes at length, did not merely chant slogans and videotape riotous conduct. See
Def.’s Reply 5 (quoting Sheppard, ECF No. 142 at 7 (D.D.C. Jan. 11, 2024)). He led the mob past
a police line, entered the Senate Chamber, interfered with and recorded sensitive certification-
related documents, and engaged in an impromptu speech which amply demonstrated his purpose
that day—to bring the government to a halt—and in fact prolonged the certification delay by
continuing the rioters’ occupation of the Senate Chamber. Gov’t Opp’n 8. That conduct is worse
than Mr. Sheppard’s.
At bottom, even if Mr. Kelly is not ultimately guilty of 18 U.S.C. § 1512(c)(2) as a
consequence of the Supreme Court rendering a defendant-favoring decision in Fischer, it is evident
that his conduct was intended to obstruct government business including the constitutionally
mandated transfer of power. The court’s sentence must reflect the seriousness of his specific
conduct and the need for general and specific deterrence. 18 U.S.C. 3553(a)(2). It is highly unlikely
that a sentence of less than 9.5 months, let alone 2 months, would be sufficient to effectuate those
purposes. The Court will consider an upward variance from the revised guidelines range if needed
to effectuate the purposes of punishment set forth in the § 3553(a) factors.
B. The Court Will Not Reduce Mr. Kelly’s Sentence
Mr. Kelly’s motion for a sentence reduction requires the Court to answer two questions:
(1) whether he is eligible for a sentence reduction under the new U.S.S.G. § 4C1.1; and (2) if so,
whether a reduction is warranted after considering the applicable 18 U.S.C. § 3553(a) factors under
the particular circumstances of this case. The Court finds that Mr. Kelly fails at both steps.
Consequently, his motion for a sentence reduction is DENIED.
First, to qualify for a two-level reduction under § 4C1.1, a defendant must have zero
criminal history points and not fall under any of several enumerated exclusions. U.S.S.G. § 4C1.1.
11 One such exclusion is for defendants who “use[d] violence or credible threats of violence in
connection with the offense.” Id. § 4C1.1(3). If a defendant used violence or credible threats of
violence in connection with the offense of conviction, they are ineligible for the two-level
reduction. At issue here is the applicability of that exclusion to Mr. Kelly.
“Offense” for § 4C1.1 purposes “means the offense of conviction and all relevant conduct
under § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear
from the context.” Id. § 1B1.1 cmt. n.1(I); see id. § 4C1.1(b)(1). Relevant conduct includes “all
acts and omissions committed, aided, abetted, counseled, commanded, induced, produced, or
willfully caused by the defendant,” as well as certain acts and omissions of others committed as
part of “a jointly undertaken criminal activity.” Id. § 1B1.3(a)(1). § 4C1.1 and other guidelines
provisions that use these terms do not define “violence” or “credible threats of violence.” United
States v. Yang, No. 23-cr-100 (JDB), 2024 WL 519962, at *3 (D.D.C. Feb. 9, 2024); United States
v. Bauer, No. 21-cr-386-2 (TNM), 2024 WL 324234, at *2 (D.D.C. Jan. 29, 2024). As a result,
this Court, like others to consider § 4C1.1, will look to the plain meaning of these terms as
evidenced by dictionary definitions contemporary with the provision’s enactment. See Yang,
2024 WL 519962, at *4; Bauer, 2024 WL 324234, at *2.
Black’s Law defines “violence” as “[t]he use of physical force, usu[ally] accompanied by
fury, vehemence, or outrage; esp[ecially], physical force unlawfully exercised with the intent to
harm.” Violence, Black’s Law Dictionary (11th ed. 2019); see also Violence, Oxford English
Dictionary (2014) (defining “violence” as the “deliberate exercise of physical force against a
person”); Yang, 2024 WL 519962, at *4 (looking to Merriam-Webster Online); Bauer, 2024 WL
324234, at *2 (looking to Webster’s Third New International Dictionary). A “credible” threat of
violence is one that “offer[s] reasonable grounds for being believed or trusted.” Credible, Merriam-
12 Webster, https://perma.cc/TYM4-KE3B (last visited Feb. 21, 2024); see also Yang, 2024 WL
519962, at *4 (same); Bauer, 2024 WL 324234, at *3 (“[A] ‘credible threat of violence’ is a
believable expression of an intention to use physical force to inflict harm.”). Courts will look to
“contextual evidence” to determine whether a threat is credible. United States v. Johnson, 64 F.4th
1348, 1352 (D.C. Cir. 2023).
The Court finds that Mr. Kelly used violence within the meaning of § 4C1.1(3). Mr. Kelly,
while at the vanguard of an angry and agitated crowd of rioters, tried to push past a line of officers.
Gov’t Opp’n 8. After one of the officers used his body to prevent Mr. Kelly from advancing, Mr.
Kelly raised his arm, placed his finger on the officer’s chest, engaged in “a few . . . seconds of
tussling and physical contact” with the officer before being pushed back, and then side-stepped
past the officer after he became distracted by another rioter. Id. at 13; see also Def.’s Reply 7. In
other words, Mr. Kelly deliberately used physical force against the body of a police officer.
Importantly, he used this force in an attempt to overcome the officer’s resistance to granting him
access to the inner recesses of the Capitol. That Mr. Kelly’s use of force was accompanied by
“fury, vehemence, or outrage” is evident from context since Mr. Kelly placed himself at the front
of a riotous mob and decided to make physical contact with the officer only after the officer
prevented him from breaking through the police line. Violence, Black’s Law Dictionary
(11th ed. 2019). Moreover, Mr. Kelly’s actions were decidedly confrontational. Cf. Yang, 2024
WL 519962, at *4 (declining to characterize physical conduct as violent because the defendant’s
body language was “overtly nonconfrontational”). And he did not passively react to the officer;
Mr. Kelly was intent on getting past him and affirmatively used physical means to achieve that
goal. See Bauer, 2024 WL 324234, at *3 (distinguishing an “immediate reaction” from an
“aggressive confrontation”).
13 Contrary to defendant’s argument, a finding that Mr. Kelly used “violence” does not,
strictly speaking, require “indicia of an intent to harm or injure the officer,” nor does it require
“evidence of the conversational content” with the officer. Def.’s Reply 7. It suffices that Mr. Kelly
used physical force against an officer while at the vanguard of an angry and aggressive crowd in
order to overcome the officer’s resistance to his (and the crowd’s) obstructive goal of reaching
further inside the Capitol. See Yang, 2024 WL 519962, at *4 (focusing on the “degree of
aggressiveness” associated with the defendant’s individual conduct). Had Mr. Kelly placed his
finger on the officer’s chest to protect himself from falling forward after being pushed by a surging
crowd, the Court would have reached a different result. See Yang, 2024 WL 519962, at *4. Instead,
he placed his finger on the officer’s chest to overcome the officer’s resistance to letting him pass.
When placed in its proper context, Mr. Kelly’s conduct involved the use of violence, and he is not
eligible for an offense-level reduction under § 4C1.1.
Second, even if Mr. Kelly were eligible for a two-level reduction under the new U.S.S.G.
§ 4C1.1, the Court, in its discretion, would still decline to decrease his sentence because the
30-month sentence it imposed was carefully calibrated by the Court to reflect his specific conduct.
See Dillion, 560 U.S. at 827. The Court has already discussed the special seriousness of Mr. Kelly’s
actions on January 6. See discussion supra, III.A.3. Indeed, if the guidelines range applicable at
sentencing had been lower—e.g., the 18-24 month range that Mr. Kelly alleges would have applied
had Amendment 821 already been in effect—the Court likely would have varied upwards to
impose a higher sentence because only a higher sentence would have sufficed to effectuate the
purposes of punishment set forth in the 18 U.S.C. § 3553(a) factors. Def.’s Mot. 10. Accordingly,
the Court is well within its discretion to decline to revisit or modify that sentence now, even
assuming Mr. Kelly were entitled to a two-level reduction under the zero-point offender guideline.