UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 22-40 (JEB)

SANDRA WEYER,

Defendant.

MEMORANDUM OPINION

On June 6, 2023, following a two-day bench trial, Defendant Sandra Weyer was

convicted of the felony of Obstruction of an Official Proceeding, in violation of

(c)(2) (Count I), as well as four misdemeanors: Entering and Remaining in a Restricted

Building or Grounds, in violation of

(a)(1) (Count II); Disorderly and

Disruptive Conduct in a Restricted Building or Grounds, in violation of

(a)(2)

(Count III); Disorderly Conduct in a Capitol Building, in violation of

(e)(2)(D)

(Count IV); and Parading, Demonstrating, or Picketing in a Capitol Building, in violation of

(e)(2)(G) (Count V). All arose from her conduct at the United States Capitol on

January 6, 2021. This Court sentenced Weyer last September to 14 months of incarceration on

the felony, 12 months on Counts II and III, and 6 months on Counts IV and IV, all to run

concurrently. Weyer filed a notice of appeal on September 28, and she started serving her

sentence on November 15.

On December 31, two weeks after the Supreme Court granted certiorari in Fischer v.

United States, Defendant filed the instant Motion for Release Pending Appeal. She argues that

the grant of certiorari raises a “substantial question” about the validity of her § 1512(c)(2)

1 conviction and asks the Court to release her from prison because resolution of the issue in her

favor would likely result in a reduced sentence that is less than the amount of time she has

already served. Finding that Weyer has satisfied all the criteria for release pending appeal, the

Court will grant the Motion.

I. Legal Standard

Under

(b)(1), a court shall “order the release” of an individual pending

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 — (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term

of imprisonment, or (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.” Defendant bears the

burden of satisfying both § 3143(b)(1)(A) and § 3143(b)(1)(B). See United States v. Perholtz,

, 555–56 (D.C. Cir. 1987) (recognizing a “required showing on the part of the

defendant”); United States v. Libby,

(D.D.C. 2007); United States v.

Bledsoe,

, at *3 (D.D.C. Jan. 30, 2024).

II. Analysis

A. Flight Risk or Danger

The Court finds by clear and convincing evidence that Defendant is not likely to flee and

would not pose a danger if released. Weyer complied with all pretrial release conditions for a

period of over two years. She has strong community ties and no prior adult criminal history. See

ECF No. 55 (Def. Sentencing Memo) at 2–3; ECF No. 56 (Presentence Investigation Report) at

12. There is no indication of recent violence or other incidents that would disturb these findings.

2 While it sought no pre-trial detention and raised no objection to Weyer’s release pending

sentencing, the Government now cautions the Court that she may be more likely to flee given her

experience with confinement. See ECF No. 69 (Gov’t Opp.) at 5. It further warns the Court

that, with another potentially controversial presidential election around the corner, Defendant

would be released into “the same political maelstrom that led her to commit her crimes in the

first place.”

The Court is unpersuaded that she would engage in such behavior again. In

addition, as Judge John Bates of our district recently explained, Defendant “is not facing a

lengthy sentence from which [she] might be highly motivated to flee,” and the fact that she has

now served over three months in prison may actually make her “more likely to comply with

conditions on release.” United States v. Sheppard,

, at *2 (D.D.C. Jan. 11,

2024); see also Bledsoe,

, at *3 (rejecting similar argument by Government

partly because Defendant “complied with the conditions of release pending trial and

sentencing”); United States v. Adams,

, at *1 (D.D.C. Jan. 10, 2024) (similar).

The Court therefore finds that § 3143(b)(1)(A) is satisfied.

B. Substantial Question of Law

Section 3143(b)(1)(B) raises more nuanced issues. It is widely recognized that the

provision requires a two-part inquiry: “(1) Does the appeal raise a substantial question? (2) If so,

would the resolution of that question in the defendant’s favor be likely to lead to reversal?”

Perholtz,

. A substantial question for purpose of § 3143(b) is “a close question or

one that very well could be decided the other way,” as opposed to one that is “fairly debatable”

or “fairly doubtful.” Id. at 555–56 (citations omitted).

It is clear that in light of the Supreme Court’s grant of certiorari in Fischer, Defendant’s

appeal of her conviction raises a substantial question and is not for the purpose of delay. The

3 question presented in Fischer is whether § 1512(c)(2), which prohibits obstruction of official

proceedings, “include[s] acts unrelated to investigations and evidence.” Pet. for Writ of

Certiorari at i, Fischer v. United States, No. 23-5572 (U.S. Sept. 11, 2023). Like the defendant in

Fischer and those in many other January 6 cases, Weyer was convicted under § 1512(c)(2)

“based on evidence that [she] obstructed Congress’s electoral vote certification by rioting in the

United States Capitol.” Sheppard,

, at *3. The question that the Supreme

Court will resolve in Fischer thus “cuts to the core of [Weyer’s] conviction — whether [her]

conduct in the Capitol is prohibited by § 1512(c)(2),” id., and its decision to grant certiorari

“means at a minimum, that this case poses a close question.” Adams,

, at *2

(quotation marks omitted); see also Bledsose,

, at *4 (noting that Fischer’s

fractured appellate decisionmaking “strongly suggests a ‘close question’ that is far from

frivolous”). The Court therefore joins others in this district and finds that Defendant’s appeal

raises a substantial question. See Adams,

, at *2; Sheppard,

,

at *3; Bledsose,

, at *4.

C. Likely Reduced Sentence

Even if the Supreme Court’s decision were to result in the reversal of Weyer’s § 1512

conviction, asserts the Government, she does not show that this would likely lead to a reduced

sentence that would expire before her appeal concludes. See Gov’t Opp. at 6. It submits that the

remedy for Weyer is not immediate release since “the statute directs the Court to order the

defendant release[d] only once she has served the amount of time she is likely to serve upon

resentencing, not immediately.” Id. (citing

(b)(1)(B)). Since Weyer was also

convicted of four misdemeanor offenses, the Government argues, this Court should resentence

her, following any reversal and remand, to 12 months in prison, as her conduct on January 6

4 justifies such a sentence.

. In such an event, Weyer’s sentence would not expire by the

time the Supreme Court decides Fischer — i.e., by the aspirational end of its term in June 2024

— and she is thus not eligible for release pending appeal under § 3143(b)(1)(B). See id. at 9.

Once again, the Government’s position does not convince the Court. Assuming the

resolution of the question in Fischer is in Weyer’s favor, the Court would likely not sentence her

to much more than the time she has already served. Her 14-month sentence was driven by her

§ 1512(c) felony conviction, which carries a base offense level of 14 under the U.S. Sentencing

Guidelines. See ECF No. 68 (Pl. Mot. for Release Pending Appeal) at 2; U.S.S.G. § 2J1.2

(Obstruction of Justice). The 12-month and 6-month sentences imposed on the remaining

misdemeanor counts were in turn influenced by the Sentencing Guidelines’ rule that the Court

impose the total punishment on each count of conviction to the extent allowable by statutory

maxima. See Pl. Mot. For Release Pending Appeal at 8; U.S.S.G. § 5G1.2(b).

Without the § 1512(c) conviction, the Court would group Defendant’s § 1752(a) counts

and apply Sentencing Guideline § 2A2.4 (Obstructing or Impeding Officers) with a base offense

level of 10. It would give Weyer credit for satisfying the criteria for a two-level Zero Point

Offender downward adjustment. See U.S.S.G. § 4C1.1. Taken together, an offense level of 8

with a criminal-history category of I would result in a guideline range of 0–6 months in Zone A.

See U.S.S.G. § 5A. The sentence that the Court would impose on the petty offenses in Counts

IV and V would then likely run concurrently with the § 1752(a) counts. See

(a)

(“Multiple terms of imprisonment imposed at the same time run concurrently unless the court

orders or the statute mandates that the terms are to run consecutively.”). Only an unlikely

upward variance would yield a sentence greater than six months.

Given that Defendant has already served over three months in prison, she would be

5 unlikely to receive more if her § 1512(c) conviction were reversed. Defendant’s release pending

appeal is thus warranted under § 3143(b)(1).

III. Conclusion

For the foregoing reasons, Defendant's Motion for Release Pending Appeal will be

granted. A separate Order consistent with this Opinion will be issued this day.

/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge

Date: February 27, 2024

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