By Joseph M. Hanneman
A federal appeals court on Aug. 18 struck down the use of so-called “split sentences” in Jan. 6 cases—imposing both prison and probation for petty-offense misdemeanors such as the often-used charge of “parading, demonstrating, or picketing in a Capitol building.”
The 2–1 ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit could affect a large number of Jan. 6 cases where the U.S. Department of Justice recommended—and district judges imposed—sentences with jail and probation for “parading” convictions.
The appeal involved the conviction of James Leslie Little, 52, of Claremont, North Carolina, on a single count of parading, demonstrating, or picketing in a Capitol building.
In March 2022, U.S. District Judge Royce Lamberth sentenced Mr. Little to 60 days in jail, followed by three years of probation.
Mr. Little told the FBI he didn’t have any intention to go into the Capitol “but that he got caught up in the moment.”
The statement of facts in the case said Mr. Little walked around the Capitol, “smiling and fist-bumping other people,” and eventually went into the Senate Chamber and took photos of himself.
He sent a text to the person who later reported him to the FBI that read, “We just took over the Capital (sic).”
The recipient wrote back and accused him of treason. “If you don’t condemn this, never bother speaking to me again!”
The Court of Appeals said the split sentence is not allowed.
“The only question on appeal is whether that sentence is authorized by statute. It is not,” wrote Circuit Judge Justin R. Walker for the appeals court majority. “Probation and imprisonment are alternative sentences that cannot generally be combined. So the district court could not impose both for Little’s petty offense.”
Judge Walker—appointed to the bench by President Donald Trump—was joined by Senior Circuit Judge Judith Rogers—an appointee of President Bill Clinton—in the majority opinion. Dissenting was Circuit Judge Robert Wilkins, who was appointed by President Barack Obama.
The Court of Appeals vacated Mr. Little’s sentence and remanded the case back to U.S. District Court for resentencing.
Parading is one of the most frequently charged crimes in Jan. 6 cases. Judges in U.S. District Court in Washington have disagreed on the use of split sentences for federal petty offenses. Some judges have refused to use split sentences even when encouraged to do so by federal prosecutors.
The Court of Appeals said that under the Sentencing Reform Act of 1984, five options are available for convictions under the Federal Criminal Code: probation, a fine, imprisonment, probation with a fine, and imprisonment with a fine.
“In other words, the Code’s text and structure show that probation and imprisonment may not be imposed as a single sentence,” the ruling said. “They are separate options on the menu.”
Sentencing rules allow judges to impose intermittent imprisonment—jail or home detention—as part of probation, the ruling said, but the federal code prohibits supervised release for petty offenses.
Judge Lamberth issued a memorandum opinion on March 14, 2022, stating that he felt it important to have Mr. Little under court supervision so he didn’t participate in more illegal conduct.
“Stated plainly, the Court must not only punish Little for his conduct but also ensure that he will not engage in similar conduct again during the next election,” Judge Lamberth wrote.
“Some term of imprisonment may serve sentencing’s retributive goals,” the judge said. “But only a longer-term period of probation is adequate to ensure that Little will not become an active participant in another riot.”
Defendants such as Mr. Little “present a unique challenge for the court at sentencing,” Judge Lamberth wrote.
Mr. Little’s conduct calls for imprisonment to reflect the seriousness of the crime, the judge said, but it also demands “lengthier involvement from the court to afford adequate deterrence to criminal conduct and protect the public from further crimes of the defendant.”