Case 1:21-cr-00005-ABJ Document 31 Filed 01/27/22 Page 1 of 24 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA v. Case No. 21-cr-5 (ABJ) MARK JEFFERSON LEFFINGWELL, Defendant. GOVERNMENT’S SENTENCING MEMORANDUM The United States of America, by and through its attorney, the United States Attorney for the District of Columbia, respectfully submits this sentencing memorandum in connection with the above-captioned matter. For the reasons set forth herein, the government requests that this Court sentence Mark Leffingwell to 27 months’ incarceration, three years of supervised release, $2,000 in restitution, and a mandatory $100 special assessment. I. INTRODUCTION The defendant, Mark Leffingwell a 52-year-old resident of Seattle, Washington who is on disability due to a combat injury, participated in the January 6, 2021 attack on the United States Capitol—a violent attack that forced an interruption of the certification of the 2020 Electoral College vote count, threatened the peaceful transfer of power after the 2020 Presidential election, injured more than one hundred law enforcement officers, and resulted in more than a million dollars’ worth of property damage. Leffingwell, a military veteran who once defended the Constitution from all enemies, foreign and domestic, willingly betrayed his nation and became an enemy of the United States on January 6. He flew across the country from his home in Seattle and made his way to the District of Columbia, where he, like thousands of others, marched on the Capitol. He made it as far as the 1 Case 1:21-cr-00005-ABJ Document 31 Filed 01/27/22 Page 2 of 24 entrance to the Senate Wing where lawmakers and their staffers were secreted away from their own workplace, fleeing the violence and destruction wrought by the rioters. By the time Leffingwell made it to the Senate Wing entrance, U.S. Capitol Police Officers and Metropolitan Police Department Officers had formed a protective line to prevent further entry into the Capitol. Before Leffingwell made his way to the breach, that same entrance had been overrun by rioters who streamed through the Capitol, looting, vandalizing, and otherwise terrorizing a temple of American democracy. But Leffingwell was not content to merely stand inside the threshold. Positioned at the front of the line of rioters stacked hundreds deep behind him, Leffingwell chanted at the officers standing before him to “join us!” in the rioters’ efforts to assault the Capitol.1 When some in the crowd shouted for the rest of the crowd to “back up,” Leffingwell rebuked them, shouting “If you back up, you’ll never get back in!”2 When U.S. Capitol Police Officers D.A and W.H tried to repel Leffingwell and the gathering crowd, Leffingwell struck both officers in the head.3 Before Leffingwell could escape back into the crowd, he was apprehended. The government recommends that the Court sentence Leffingwell to 27 months’ incarceration, which is within the advisory Guidelines’ range of 24-30 months, which the government submits is the correct Guidelines calculation. A 27-month sentence reflects the gravity of Leffingwell’s conduct, but also acknowledges his relatively early admission of guilt, the significant injuries he incurred while serving our country, and lack of criminal history. 1 See Exhibit 3 (Annotated Metropolitan Police Department body-worn camera clip). 2 Id. 3 See Exhibits 1 and 2 (U.S. Capitol Police surveillance video and annotated U.S. Capitol Police surveillance video, respectively). 2 Case 1:21-cr-00005-ABJ Document 31 Filed 01/27/22 Page 3 of 24 II. FACTUAL BACKGROUND A. The January 6, 2021 Attack on the Capitol On January 6, 2021, hundreds of rioters, Leffingwell among them, unlawfully broke into the U.S. Capitol Building in an effort to disrupt the peaceful transfer of power after the November 3, 2020 presidential election. Many rioters attacked and injured law enforcement officers, sometimes with dangerous weapons; they terrified congressional staff and others on scene that day, many of whom fled for their safety; and they ransacked this historic building—vandalizing, damaging, and stealing artwork, furniture, and other property. Although the facts and circumstances surrounding the actions of each rioter who breached the U.S. Capitol and its grounds differ, each rioter’s actions were illegal and contributed, directly or indirectly, to the violence and destruction that day. See United States v. Matthew Mazzocco, 1:21-cr-00054 (TSC), Tr. 10/4/2021 at 25 (“A mob isn't a mob without the numbers. The people who were committing those violent acts did so because they had the safety of numbers.”) (statement of Judge Chutkan). The day started out calmly enough. As set forth in the PSR and the Statement of Offense incorporated into Leffingwell’s plea agreement, a joint session of Congress had convened at approximately 1:00 p.m. at the U.S. Capitolto certify the vote count of the Electoral College of the November 3, 2020 Presidential election. By approximately 1:30 p.m., the House and Senate adjourned to separate chambers to resolve a particular objection. Vice President Mike Pence was present and presiding, first in the joint session, and then in the Senate chamber. As the proceedings continued, a large crowd gathered outside the U.S. Capitol. Temporary and permanent barricades were in place around the exterior of the building, and U.S. Capitol Police were present and attempting to keep the crowd away from the building and the proceedings 3 Case 1:21-cr-00005-ABJ Document 31 Filed 01/27/22 Page 4 of 24 underway inside. At approximately 2:00 p.m., certain individuals forced their way over the barricades and past the officers, and the crowd advanced to the exterior of the building. Members of the crowd did not submit to standard security screenings or weapons checks by security officials. The vote certification proceedings were still underway, and the exterior doors and windows of the U.S. Capitol were locked or otherwise secured. Members of the U.S. Capitol Police attempted to keep the crowd from entering; however, shortly after 2:00 p.m., individuals in the crowd forced their way in, breaking windows and assaulting law enforcement officers along the way, while others in the crowd cheered them on. At approximately 2:20 p.m., members of the House of Representatives and the Senate, including the President of the Senate, Vice President Pence, were forced to evacuate the chambers. All proceedings, including the joint session, were effectively suspended. The proceedings resumed at approximately 8:00 p.m. after the building had been secured. Vice President Pence remained in the United States Capitol from the time he was evacuated from the Senate Chamber until the session resumed. See Statement of Offense ¶¶ 1-7; Draft PSR ¶¶ 12-18. Injuries and Property Damage Caused by the January 6, 2021 Attack The D.C. Circuit has observed that “the violent breach of the Capitol on January 6 was a grave danger to our democracy.” United States v. Munchel, 991 F.3d 1273, 1284 (D.C. Cir. 2021). Members of this Court have similarly described it as “a singular and chilling event in U.S. history, raising legitimate concern about the security—not only of the Capitol building—but of our democracy itself.” United States v. Cua, No. 21-cr-107, 2021 WL 918255, at *3 (D.D.C. Mar. 10, 2021); see also United States v. Fox, No. 21-cr-108 (D.D.C. June 30, 2021) (Doc. 41, Hrg. Tr. at 14) (“This is not rhetorical flourish. This reflects the concern of my colleagues and myself for what 4 Case 1:21-cr-00005-ABJ Document 31 Filed 01/27/22 Page 5 of 24 we view as an incredibly dangerous and disturbing attack on a free electoral system.”); United States v. Chrestman, No. 21-mj-218, 2021 WL 765662, at *7 (D.D.C. Feb. 26, 2021) (“The actions of this violent mob, particularly those members who breached police lines and gained entry to the Capitol, are reprehensible as offenses against morality, civic virtue, and the rule of law.”). In addition, the rioters injured more than a hundred members of law enforcement. See Staff of Senate Committees on Homeland Security and Governmental Affairs and on Rules and Administration Report, Examining the Capitol Attack: A Review of the Security, Planning, and Response Failures on January 6 (June 7, 2021), at 29, available at https://www.hsgac.senate.gov/imo/media/doc/HSGAC&RulesFullReport_ExaminingU.S.Capitol Attack.pdf (describing officer injuries). Some of the rioters wore tactical gear and used dangerous weapons and chemical irritants during hours-long hand-to-hand combat with law enforcement officers. See id. at 27-30. Moreover, the rioters inflicted significant emotional injuries on law enforcement officers and others on scene that day who feared for their safety. See id; see also Architect of the Capitol, J. Brett Blanton, Statement before the House of Representatives Committee on House Administration (May 19, 2021), available at https://www.aoc.gov/sites/default/files/2021- 05/AOC_Testimony_CHA_Hearing-2021-05-19.pdf (describing the stress suffered by Architect of the Capitol employees due to the January 6, 2021, attack). Finally, the rioters stole, vandalized, and destroyed property inside and outside the U.S. Capitol Building. They caused extensive, and in some instances, incalculable, losses. This included wrecked platforms, broken glass and doors, graffiti, damaged and stolen sound systems and photography equipment, broken furniture, damaged artwork, including statues and murals, historic 5 Case 1:21-cr-00005-ABJ Document 31 Filed 01/27/22 Page 6 of 24 lanterns ripped from the ground, and paint tracked over historic stone balustrades and Capitol Building hallways. See id; see also United States House of Representatives Curator Farar Elliott, Statement Before the House Appropriations Subcommittee on the Legislative Branch (Feb. 24, 2021), available at https://docs.house.gov/meetings/AP/AP24/20210224/111233/HHRG-117- AP24-Wstate-ElliottF-20210224.pdf (describing damage to marble and granite statues). As set forth in the Statement of Offense, the attack resulted in substantial damage to the U.S. Capitol, requiring the expenditure of nearly $1.5 million. B. Defendant’s Role in the January 6, 2021 Attack on the Capitol Leffingwell flew from his home in Seattle, Washington to Philadelphia, Pennsylvania, where he met up with a friend before driving down to Washington, D.C. for the events of January 6. By his account, Leffingwell came to the District on January 6 to show support for former President Trump, and to join what he hoped would be a large presence at the rally that would bring into question the results of the election. As the rally ended and the crowd made its way to the Capitol, Leffingwell and his friend stopped to get lunch before eventually rejoining the crowd in front of the Capitol, which, at that point, had already been assaulted by the first wave of several hundred violent rioters. 6 Figure 1: Lower West Terrace when Defendant Leffingwell ascended Case 1:21-cr-00005-ABJ Document 31 Filed 01/27/22 Page 7 of 24 Instead of turning around or simply staying back after seeing the chaos and destruction before him, Leffingwell pressed forward onto the restricted Capitol grounds and up onto the Upper West Terrace, making his way to the Senate Wing entrance that had been attacked nearly two hours before Leffingwell arrived. By that point, a small, combined force of United States Capitol and Metropolitan Police Officers had reformed a line to rebuff additional rioters from gaining entrance to the Senate Wing of the Capitol. Leffingwell was positioned directly in front of the regrouped line of officers. Figure 2: Senate Wing Doors with Leffingwell at the front of the crowd As he stood at the front of the crowd of rioters behind him, Leffingwell chanted not only “stop the steal!” but also “shame!” and “join us!” directed at the police officers standing in front of him. 7 Case 1:21-cr-00005-ABJ Document 31 Filed 01/27/22 Page 8 of 24 Figure 3: Leffingwell chanting at the Senate Wing Doors Appearing to respond to the pleas of the line of officers, some of the crowd began to call back to the rioters behind them to “back up!” Rather than back up, Leffingwell called out for the rioters to stand their ground, shouting “If you back up, you’ll never get back in!”4 At that point, the line of officers began pressing on the crowd, including Leffingwell, to back them out of the threshold of the Senate Wing doors. Leffingwell had a choice: either comply with the direction of the officers or fight back. He chose the latter. He first punched Officer D.A. in the head, and then as he continued to swing, he punched Officer W.H. in the head, before eventually punching Officer D.A. once more.5 4 See Exhibit 3 beginning at approximately 54 seconds. 5 See Exhibit 2 at beginning at approximately 1 minute 30 seconds. 8 Case 1:21-cr-00005-ABJ Document 31 Filed 01/27/22 Page 9 of 24 Figure 4: Leffingwell punching Officer D.A. After he struck the two officers, Leffingwell tried to back out of the doors and into the safety of the sympathetic crowd behind him, but he was apprehended and taken to the ground. He was then escorted by Capitol Police Officers to another part of the Capitol building where he was arrested on scene. III. THE CHARGES AND PLEA AGREEMENT On January 11, 2021, a federal grand jury returned an indictment charging Leffingwell with Civil Disorder in violation of 18 U.S.C. § 231(a)(3), two counts of Assaulting, Resisting, or Impeding Certain Officers in violation of 18 U.S.C. § 111(a)(1), Entering and Remaining in any Restricted Building or Grounds in violation of 18 U.S.C. §§ 1752(a)(1), Disorderly and Disruptive Conduct in a Restricted Building or Grounds in violation of 18 U.S.C. § 1752(a)(2), Disorderly 9 Case 1:21-cr-00005-ABJ Document 31 Filed 01/27/22 Page 10 of 24 Conduct in a Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(D), and Act of Physical Violence in the Capitol Grounds or Buildings in violation of 40 U.S.C. § 5104(e)(2)(F). On April 9, 2021, a federal grand jury returned a superseding indictment amending some of the language of the original indictment and adding one count of Engaging in Physical Violence in a Restricted Building or Grounds in violation of 18 U.S.C. § 1752(a)(4). On October 26, 2021, Leffingwell pled guilty to Count Two, Assaulting, Resisting, or Impeding Certain Officers in violation of 18 U.S.C. § 111(a)(1). IV. STATUTORY PENALTIES Leffingwell now faces sentencing on Assaulting, Resisting, or Impeding Certain Officers in violation of 18 U.S.C. § 111(a)(1). As noted by the plea agreement and the U.S. Probation Office, Leffingwell faces up to 8 years of imprisonment, a fine up to $250,000, and a term of supervised release of not more than three years for Count Three, Assaulting, Resisting, or Impeding Certain Officers. V. THE SENTENCING GUIDELINES AND GUIDELINES ANALYSIS As the Supreme Court has instructed, the Court “should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” United States v. Gall, 552 U.S. 38, 49 (2007). “As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark” for determining a defendant’s sentence. Id. at 49. The United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) are “the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions” and are the “starting point and the initial benchmark” for sentencing. Id. at 49. 10