UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA Criminal Action No. 21-508 v. Judge Beryl A. Howell LUKE WESSLEY BENDER, et al.

Defendants.

MEMORANDUM OPINION

Pending before the Court are defendants Luke Wessley Bender and Landon Bryce

Mitchell’s Motions for Release Pending Appeal, (“Bender’s Mot.” and “Mitchell’s Mot.,” where

similar “Defs.’ Mots.”), ECF Nos. 146 and 148, in light of the Supreme Court’s grant of certiorari

in United States v. Fischer,

(D.C. Cir. 2023), cert. granted,

(Dec.

13, 2023), to resolve whether

(c)(2) applies to “acts unrelated to investigations

and evidence,” see Pet. Writ of Certiorari § i, Fischer v. United States, No. 23-5572 (Sept. 11,

2023) (presenting the question whether “the D.C. Circuit err[ed] in construing

(c)

. . . which prohibits obstruction of congressional inquiries and investigations, to include acts

unrelated to investigations and evidence”). Section 1512(c)(2) is among the criminal statutes

defendants stand convicted of violating. The government opposes defendants’ motions. See

Gov’t’s Opp’n Bender’s Mot. (“Gov’t’s Bender Opp’n”), ECF No. 149; Gov’t’s Opp’n Mitchell’s

Mot. (“Gov’t’s Mitchell Opp’n”), ECF No. 151. For the reasons stated below, defendants’ motions

are GRANTED, with prospective release dates set pending the Supreme Court’s resolution of

Fischer.

1 I. BACKGROUND

Defendants were convicted, following a stipulated bench trial, on December 7, 2022, of a

single felony offense for Obstruction of an Official Proceeding, in violation of

(c)(2) (Count One), and five misdemeanor offenses, including Entering and Remaining in

a Restricted Building or Grounds, in violation of

(a)(1) (Count Two), Disorderly

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

(a)(2)

(Count Three), Entering and Remaining on the Floor of Congress, in violation of

(e)(2)(A) (Count Four), Disorderly Conduct in a Capitol Building, in violation of

(e)(2)(D) (Count Five), and Parading, Demonstrating, or Picketing in a Capitol Building, in

violation of

(e)(2)(G). Bender Judgment at 1–2, ECF No. 132; Mitchell Judgment

at 1–2, ECF No. 134. During the stipulated trial, the defendants “agreed that having reviewed the

evidence against them the government was able to meet its burden of proving beyond a reasonable

doubt each of the charges against them.” Minute Entry (Dec. 7, 2022). Upon the defendants’

convictions on all counts, the government did not object to defendants continuing on pretrial

release pending sentencing, see Trial Tr. at 72:16–20, ECF No. 97 (Dec. 7, 2022); Bender’s Arrest

Warrant Return on July 29, 2021, ECF No. 5; Minute Entry for Bender’s Initial Appearance (July

30, 2021); Mitchell’s Arrest Warrant Return on October 20, 2021 and Minute Entry for Mitchell’s

Initial Appearance, United States v. Mitchell, No. 21-cr-717 (D.D.C. Oct. 20, 2021).

At the sentencing hearing, on April 20, 2023, the Court determined the applicable advisory

guidelines sentencing range for both defendants. Sentencing Transcript at 35:12–37:19, ECF No.

142 (Apr. 20, 2023). Specifically, Counts One through Three, to which the guidelines apply, are

grouped together pursuant to U.S.S.G. § 3D1.2(c) so that the offense level applicable to the group

is driven by the charge resulting in the highest offense level. On Count One, U.S.S.G. § 2J1.2

2 applied with a base offense level of 14, which was increased by 3 offense levels, pursuant to

U.S.S.G. § 2J1.2(b)(2), “because the offense resulted in the substantial interference with the

administration of justice, specifically the proceedings of Congress,” for a total offense level of 17.

Id. at 36:12–19. 1 As to Count Two, U.S.S.G § 2B2.3(a) applied with a base offense level of 4,

which was increased by 2 offense levels, pursuant to U.S.S.G. § 2B2.3(b)(1)(A)(vii), “because the

trespass occurred at a restricted building or grounds,” but as a result of a cross reference, at

U.S.S.G. § 2B2.3(c)(1) and 2X1.1(a), the offense level was adjusted up to 17 offense levels

“because the offense was committed with the intent to commit a felony offense,” for the same total

offense level of 17 as applied to Count One. Id. at 35:21–36:06. As to Count Three, U.S.S.G.

§ 2A2.4 applied with a base offense level of 10, with no adjustments applied under that guideline.

Id. at 36:07–36:11. The highest total adjusted offense for the group consisting of Counts One,

Two, and Three, see U.S.S.G. § 3D1.2(c), was 17. Id. at 36:19–22. This total adjusted offense

level was reduced by 3 offense levels, under U.S.S.G. § 3E1.1(a) and (b), for the defendants’

acceptance of responsibility, for a total offense level of 14 for both defendants. Id. at 36:23–

37:03. 2

Bender, who is in Criminal History Category III, had an advisory guideline sentencing

range of 21 to 27 months’ imprisonment, id. at 37:04–07, while Mitchell, who is in Criminal

History Category IV, had an advisory guideline range of 27 to 33 months’ imprisonment. Id. at

37:07–11. A sentence within the advisory sentencing range could only be imposed on Count One,

1 The D.C. Circuit issued an opinion on March 1, 2024 in United States v. Brock, No. 23-3045, holding that the sentencing enhancement at U.S.S.G. § 2J1.2(b)(2) does not apply to convictions under

(c)(2) for conduct disrupting Congress’s counting and certification of the electoral college votes on January 6, 2021, but that decision does not influence the outcome in this case, since the Court would have varied upwards by at least three offense levels to account for the significant disruption of a critical and important governmental function as a result of defendants’ offense conduct if the specific offense characteristic at U.S.S.G. § 2J1.2(b)(2) did not apply. 2 The sentencing guidelines are inapplicable to Counts Four or Five, which are Class B misdemeanors each carrying a maximum sentence of six months’ imprisonment. See U.S.S.G. § 1B1.9;

(b).

3 which had a statutory maximum of 20 years, and not on Counts Two and Three, which as Class A

misdemeanors carried a maximum penalty was 12 months’ incarceration. The maximum penalty

for the Class B petty offense misdemeanors in Counts Four, Five, and Six was six months.

at

37:23–38:02.

Both defendants were sentenced at the low end of the applicable the guidelines advisory

sentencing ranges.

at 116:15–122:07. Bender was sentenced to a term of 21 months’

imprisonment on Count One, and the statutory maxima of 12 months’ imprisonment on Counts

Two and Three, and 6 months’ imprisonment on Counts Four, Five, and Six, to be followed by 36

months of supervised release as to Count One and 12 months as to Counts Two and Three, with

terms of incarceration and supervised release to run concurrently.

at 116:19–117:05; see also

(b)(2) (“The punishment for a violation of subsection (a) is . . . imprisonment for

not more than one year[.]”);

(b) (“A person violating section [5104(e)(2)] . . .

shall be . . . imprisoned for not more than six months[.]”). Mitchell was sentenced to a term of 27

months’ imprisonment on Count One, and the statutory maxima of 12 months’ imprisonment on

Counts Two and Three, and 6 months’ imprisonment on Counts Four, Five, and Six, to be followed

by 36 months of supervised release as to Count One and 12 months as to Counts Two and Three,

with terms of incarceration and supervised release to run concurrently.

at 121:21–122:07.

Both defendants were permitted, over the government’s objection as to Mitchell, to self-

surrender to the facility designated by the U.S. Bureau of Prisons (“BOP”). Sentencing Tr. at

132:12–13 (granting both defendants’ motions for self-surrender). According to Bender, he self-

surrendered to BOP on July 6, 2023, Bender’s Mot. at 2, and according to Mitchell, he self-

surrendered to BOP on November 1, 2023, Mitchell’s Mot. at 5.

4 On April 25, 2023, Bender filed a notice of appeal of his conviction on Count One, Notice

of Appeal at 1, ECF No. 138, and on May 1, 2023, Mitchell filed a notice of appeal of his

conviction and sentence on each offense, Notice of Appeal, ECF No. 34, United States v. Mitchell,

No. 21-cr-717 (D.D.C. May 1, 2023). Both defendants have yet to file their appellate briefs, and

both appeals have been held in abeyance pending the Supreme Court’s resolution of United States

v. Fischer,

(D.C. Cir. 2023), cert. granted, No. 23-5572,

(U.S.

Dec. 13, 2023). See Order, No. 23-3056 (D.C. Cir. Jan. 16, 2024); Order, No. 23-3060 (D.C. Cir.

Jan. 30, 2024).

Shortly after the D.C. Circuit’s orders holding each appeal in abeyance pending the

Supreme Court’s resolution of Fischer, on January 17, 2024 and January 26, 2024, defendants

Bender and Mitchell, respectively, filed their pending motions, pursuant to

(b)

and 3143(b) and Fed. R. Crim. P. 46(c) & 38(b)(1), for release pending appeal, given the Supreme

Court’s grant of certiorari in Fischer, see No. 23-5572,

(U.S. Dec. 13, 2023),

arguing that they are not likely to pose a risk of flight or safety to others, and that their appeals and

the grant of certiorari raise a substantial question of law that may result in a prison sentence that

would expire before their appeals conclude. Defs.’ Mots. at 1. For the reasons set forth below,

defendants’ motions are granted, but with delayed release dates.

II. DISCUSSION

Courts are directed to “order the release” of an individual pending appeal upon finding,

“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,”

(b)(1), and, in pertinent part,

“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 . . . or (iv) a reduced sentence to a term of imprisonment less than the

5 total of the time already served plus the expected duration of the appeal process,”

§ 3143(b)(1)(B); see also Charles Alan Wright et al., 3B FED. PRAC. & PROC. CRIM. § 770 (4th

ed.). Defendants bear the burden of showing that both statutory prongs are met. See United States

v. Perholtz,

, 555–56 (D.C. Cir. 1987) (per curiam) (recognizing “the required

showing on the part of the defendant” as to “whether [an] appeal ‘raises a substantial question of

law or fact likely to result in reversal’” (quoting

(b)(1)(B))); see also United

States v. Zimny,

(1st Cir. 2017) (noting defendant has “burden to show

entitlement to release from custody pending appeal under § 3143(b)(1)”); United States v. Libby,

(D.D.C. 2007) (“In enacting § 3143(b), Congress placed the burden as to all

elements bearing on whether to grant bail pending appeal on the defendant.” (quotation marks,

brackets, and citations omitted)). These standards are met as to both defendants.

First, this Court finds, by clear and convincing evidence, that both defendants are “not

likely to flee or pose a danger . . . if released.”

(b)(1)(A). The government notes

that “[p]rior to his sentencing in this case, Bender committed, or was accused of committing,

crimes on four occasions resulting in 16 separate state charges,” and that each of those charges

“resulted in no jail time, a suspended sentence, or had yet to be sentenced” when sentence was

imposed in this case. Gov’t’s Bender Opp’n at 4. The government did not seek pretrial detention,

however, and raised no objection to defendant remaining on release pending sentencing and

allowing defendant to self-surrender following sentencing. See Order Setting Conditions of

Bender’s Release, ECF No. 6; Sentencing Tr. at 126:22–25. Moreover, as the government does

not contest, “[f]rom his arrest, until the day he reported to prison, Mr. Bender was in 100 percent

compliance with the Pretrial Services Agency’s High Intensity Supervision Program, to include

Global Position Systems (“GPS”) monitoring, without any GPS or curfew non-compliance.”

6 Bender’s Mot. at 4. As the Court recognized at his sentencing, Bender apparently “got his life

back on track, that he has the support of family, that he has matured. He is in a committed

marriage. He has goals in his life.” Sentencing Tr. at 110:11–14.

Notwithstanding this record, the government contends that Bender may be more likely to

flee now that he “knows the day-to-day reality of confinement in prison,” Gov’t’s Bender Opp’n

at 4, but this argument ignores that defendant did not flee prior to commencing his imprisonment

and self-surrendered. While the government’s concern that Bender may pose a danger to others

given that “we are now in a presidential election year,” Gov’t’s Opp’n at 5, is legitimate in light

of Bender’s serious offense conduct for which he stands convicted, this concern is mitigated by

Bender’s conduct from the day he was arrested. His concerted efforts to turn his life around bely

concerns that he poses a flight risk or a continued danger to the community. The Court is not

persuaded that Bender would pose a danger to others, where he complied with the conditions of

release pending trial and sentencing, and earned the BOP report of being a “model inmate” since

self-surrendering. Bender’s Mot. at 6; Bender’s Reply at 2.

As to Mitchell, as the government notes, Mitchell concedes that he “did not have ideal

compliance with his conditions of release (in particular, the conditions regarding prompt reporting,

drug use, and drug counseling).” Mitchell’s Mot. at 5. Indeed, during the pendency of this case,

Mitchell was briefly arrested for drug possession, although the Court declined to revoke his pretrial

release.

Barring these challenges, however, Mitchell claims that he “never once fled nor posed

a risk to the safety of others,” and “successfully complied with his conditions of release while on

home confinement and living with his brother and sister-in-law” during the final three months of

his release.

After his sentencing in this case, Mitchell “went directly to Virginia to resolve a

case there, served a sentence, immediately contacted counsel and pretrial services upon his release,

7 and followed every direction [from] pretrial and probation to get a new self-surrender date, prior

to ultimately surrendering to the BOP.” Mitchell’s Reply at 2, ECF No. 152. The government

invokes the same arguments here about Mitchell knowing the realities of prison and it being an

election year, see Gov’t’s Mitchell Opp’n at 4–5, but again, these arguments fail to overcome

Mitchell’s showing that he will not pose a flight risk or a danger to others if released. Mitchell has

also satisfied this prong.

Second, defendants’ appeals “raise[] a substantial question of law or fact.”

(b)(1)(B). Specifically, defendants challenge their convictions on Count One, arguing that

their conduct does not fall within the scope of Section 1512(c)(2), see Bender’s Mot. at 4–5;

Mitchell’s Mot. at 5–7, which argument was rejected by this Court when presented in defendants’

pretrial motions to dismiss, see Memorandum and Order (Nov. 22, 2022), ECF No. 79, consistent

with subsequent rulings by the D.C. Circuit in Fischer, 64 F.4th at 350, and United States v.

Robertson,

, 381 (D.C. Cir. 2023). The Supreme Court granted certiorari to resolve

whether Section 1512(c)(2) applies to “acts unrelated to investigations and evidence.” See Fischer,

(granting petition for certiorari); Pet. Writ of Certiorari § i, Fischer v. United

States, No. 23-5572 (Sept. 11, 2023) (presenting the question whether “the D.C. Circuit err[ed] in

construing

(c) . . . which prohibits obstruction of congressional inquiries and

investigations, to include acts unrelated to investigations and evidence”).

“[A] substantial question” means “a close question or one that very well could be decided

the other way.” Perholtz,

(quotation marks and citations omitted). This is a

“demanding standard . . . to accord with the expressed congressional intent to increase the required

showing on the part of the defendant.”

at 555–56. The question on appeal of whether the

conduct for which defendants have been convicted in Count One falls within Section 1512(c)(2)’s

8 ambit satisfies this standard, as other Judges on this Court considering the same issue have found.

See United States v. Sheppard, No. 21-cr-203 (JDB),

, at *3 (D.D.C. Jan. 11,

2024); United States v. Adams, No. 21-cr-354 (APM),

, at *2 (D.D.C. Jan. 10,

2024); accord Minute Order, United States v. Clark, No. 21-cr-538 (DLF) (D.D.C. Dec. 21, 2023)

(granting defendant’s motion to stay self-surrender date pending resolution of Fischer).

The government correctly argues that “[t]he mere fact that the Supreme Court agreed to

hear Fischer does not indicate that it was wrongly decided.” Gov’t’s Mitchell Opp’n at 6. Indeed,

defendant may be overly optimistic that the Supreme Court’s resolution of Fischer may be

favorable to him, where the D.C. Circuit has twice upheld, over lone dissents, the application of

Section 1512(c)(2) to obstructive conduct designed “to stop Congress from certifying the results

of the 2020 presidential election,” Fischer, 64 F.4th at 335; see also Robertson, 86 F.4th at 375–

76, and the “striking” “near unanimity of [] rulings” by every other Judge on this Court, with one

exception, that “adopted the broad reading of the statute . . . to uphold the prosecution of defendants

who allegedly participated in the Capitol riot,” Fischer 64 F.4th at 338 & n.3 (collecting cases);

see also United States Br. Opp. Pet. Certiorari, Fischer v. United States, No. 23-5572,

, at *20 n.3 (Oct. 30, 2023) (“[E]very other district judge in the District of Columbia has

now rejected the interpretation adopted by the district judge here.” (citations omitted)). 3 At the

3 See also United States v. Gillespie, No. 1:22-cr-60,

, at *3–6 (D.D.C. Nov. 29, 2022) (Howell, J.); United States v. Hale-Cusanelli,

, 325–26 (D.D.C. 2022) (McFadden, J.); United States v. Robertson,

, 232–36 (D.D.C. 2022) (Cooper, J.), aff’d,

(D.C. Cir. 2023), and aff’d,

(D.C. Cir. 2023); United States v. Williams, No. 21-cr-618,

, at *8–17 (D.D.C. June 22, 2022) (Berman Jackson, J.); United States v. Fitzsimons,

, 137–151 (D.D.C. 2022) (Contreras, J.), appeal docketed, No. 23-3123 (D.C. Cir. Aug. 1, 2023); United States v. Bingert,

, 118–28 (D.D.C. 2022) (Lamberth, J.); United States v. McHugh, No. 21-cr-453,

, at *2–12 (D.D.C. May 2, 2022) (Bates, J.); United States v. Puma,

, 96–108 (D.D.C. 2022) (Friedman, J.); United States v. Grider,

, 27–34 (D.D.C. 2022) (Kollar-Kotelly, J.); United States v. Montgomery,

, 69–87 (D.D.C. 2021) (Moss, J.); United States v. Nordean,

, 42– 54 (D.D.C. 2021) (Kelly, J.); United States v. Mostofsky,

, 24–27 (D.D.C. 2021) (Boasberg, J.); United States v. Caldwell,

, 11–34 (D.D.C. 2021) (Mehta, J.); United States v. Sandlin,

, 21–34 (D.D.C. 2021) (Friedrich, J.); but see United States v. Miller,

, 66–79 (D.D.C.) (Nichols, J.), reconsideration denied,

(D.D.C. 2022), and rev’d and remanded sub nom. United

9 same time, Fischer produced three separate decisions, including a dissent, and such fractured

appellate decision-making strongly suggests a “close question” that is far from frivolous. Accord

Adams,

, at *2 (“[T]he Supreme Court’s decision to review Fischer means, at a

minimum, that this case poses a ‘close question.’”).

Third, a reversal of Fischer is likely to result in “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,”

(b)(1)(B)(iv), for both defendants. A favorable ruling for defendants

in Fischer would not result in “reversal” under Section 3143(b)(1)(B)(i), for while such ruling may

require vacatur of defendants’ Section 1512(c)(2) convictions, defendants remain convicted on

five misdemeanor counts. See Perholtz,

(stating the appeal must “raise[] a

substantial question likely to result in reversal of all counts on which imprisonment is imposed”

(emphasis supplied) (citation omitted)). Vacatur of defendants’ Section 1512(c)(2) convictions

would, however, likely “result in . . . a reduced sentence” in their term of imprisonment.

(b)(1)(B).

The government asserts that, based on the Court’s prior calculations of Bender’s guidelines

range as to Counts Two and Three, assuming that his § 1512(c)(2) conviction was entirely

invalidated, his guidelines range would likely have been 6 to 12 months. Gov’t’s Bender Opp’n

at 7–8. The parties agree that, based on the Court’s prior calculations, defendant Mitchell’s offense

States v. Fischer,

(D.C. Cir. 2023), cert. granted, No. 23-5572,

(U.S. Dec. 13, 2023); United States v. Fischer, No. 1:21-cr-234 (CJN),

, at *4 (D.D.C. Mar. 15, 2022) (Nichols, J.), rev’d and remanded,

(D.C. Cir. 2023), cert. granted, No. 23-5572,

(U.S. Dec. 13, 2023); Minute Order, United States v. Lang, No. 1:21-cr-53 (CJN) (D.D.C. June 7, 2022) (Nichols, J.).

10 level would drop from 14 to 8. Mitchell’s Mot. at 8; Gov’t’s Mitchell Opp’n at 7. 4 With Mitchell’s

original Criminal History Category of IV, this would result in a guidelines range of 10 to 16

months, without accounting for the applicable statutory maximum capping the applicable

sentencing range at 12 months, pursuant to U.S.S.G. § 5G1.1. Gov’t’s Mitchell Opp’n at 8.

Mitchell has filed a motion for reduction of his sentence based on the retroactive application of

U.S.S.G. § 4A1.1(e), however, in which he argues that he is entitled to a reduction of two status

points, which would then place him in Criminal History Category III, with a guidelines range of 6

to 12 months for his remaining misdemeanor offenses. See Mitchell’s Mot. at 8; see generally

Mitchell’s Mot. Reduce Sentence, ECF No. 153. Whether that motion is granted and Mitchell

faces a guidelines range of 6 to 12 months or the 10 to 16 months calculated by the government,

should both defendants’ convictions under Section 1512(c)(2) be vacated, their “likely reduced

sentence” would be 12 months’ incarceration, the statutory maximum and within the advisory

guideline sentencing ranges for the Class A misdemeanors in Counts Two and Three. See U.S.S.G.

⸹ 5G1.1(a); see also supra Part I.

As to both defendants, the government argues that they should not be released pending

appeal because their convictions on the five misdemeanor counts could be served “consecutively

to achieve the same period of imprisonment,” after the Court’s consideration of “whether its

sentence [on the misdemeanor counts] was influenced by the vacated obstruction conviction.”

Gov’t’s Mitchell Opp’n at 8, 9 n.1. As support, the government points to the cross reference

potentially applicable to defendants’ convictions on Count Two, for violation of 18 U.S.C.

4 The government also asserts that even with the reversal of his § 1512(c)(2) conviction, the defendants’ applicable sentencing range would remain unchanged, reasoning that his

(a)(1) conviction would be cross referenced to the obstruction guideline, U.S.S.G.§ 2J1.2, because defendants acted with intent to commit an obstruction felony. Gov’t’s Mitchell Opp’n at 7 n.1; Gov’t’s Bender Opp’n at 7–8 n.1. This ignores, however, that statutory maximum of 12 months applicable to this Class A misdemeanor would be the applicable sentencing range. See U.S.S.G. § 5G1.1.

11 § 1752(a)(1), and notes that defendants’ conduct was “substantially worse” than that of January 6

misdemeanants. Id. at 9; Gov’t’s Bender Opp’n at 10. While possible, imposing consecutive

sentences on the five misdemeanors would be a departure from both default practice under federal

law, 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.”), and the position advanced by the government and adopted by this Court at

defendant’s sentencing in the instant case, where the government did not seek consecutive terms

of imprisonment, see generally Gov’t’s Sentencing Mem., ECF No. 114, resulting in an order to

concurrent terms of imprisonment on all Counts, see Sentencing Tr. at 121:21–122:07.

The Supreme Court is anticipated to decide Fischer by the time its current term ends in

June 2024, at which point Bender will have served approximately twelve months and Mitchell will

have served approximately eight months in custody. The decision by the Supreme Court will not

have immediate effect, and by the time the Supreme Court’s mandate issues and the case has been

remanded to the district court, if a resentencing is necessary, both defendants may have served a

longer period of time imprisoned than could be sustained by their convictions on the remaining

counts. Mitchell notes that this is particularly true where he did not waive his other appellate

issues, and he notes that his “appeal is likely to drag on for many months even after the Supreme

Court decides Fischer.” Mitchell’s Mot. at 10. The Court will thus order both defendants released

when they have served twelve months in prison, on July 7, 2024, for Bender, and November 2,

2024, for Mitchell. See Shepphard,

, at *5 (setting prospective release date for

January 6 defendant asking for release from custody pending Supreme Court decision in Fischer).

12 III. CONCLUSION

Accordingly, both defendants Bender and Mitchell’s Motions for Release Pending Appeal

are GRANTED, with prospective release dates set, for Bender, of July 7, 2024, and, for Mitchell,

of November 2, 2024. An order consistent with this Memorandum Opinion will be filed

contemporaneously.

SO ORDERED.

Date: March 6, 2024 __________________ BERYL A. HOWELL United States District Judge

13