DC Circuit wary of Capitol rioter's double jeopardy claim in second appeal

WASHINGTON (CN) — A D.C. Circuit panel appeared skeptical on Tuesday of a Capitol rioter’s appeal of a federal judge’s resentencing, which added another 60 days of prison time to his original punishment for parading in the U.S. Capitol on Jan. 6, 2021.

James Little, a 54-year-old truck driver from North Carolina, is asking the appellate court to find that the resentencing order violated the Constitution’s double jeopardy clause — the Fifth Amendment right not to be punished twice for the same offense.

Little had served a 60-day prison term and 18 of his total 36 months of probation when a different D.C. circuit panel sided with him in August 2023. That panel found that a defendant cannot be sentenced to both incarceration and probation for a petty offense, and remanded the case to U.S. District Judge Royce Lamberth of the District of Columbia.

Little pleaded guilty to one count of parading inside a Capitol building, but Lamberth said at the January resentencing he felt Little had shown no remorse and shamelessly tried to “misinterpret or misrepresent what happened” on Jan. 6.

Lamberth, a Ronald Reagan appointee, then resentenced Little to**** a total of 150 days in prison with 60 days credited for time served from the first sentence and 30 days credited for probation served. Following Lamberth’s order, the D.C. Circuit granted Little’s request that his second sentence be stayed pending his current appeal.

Tuesday’s panel was made up of U.S. Circuit Judge Justin Walker, a Donald Trump appointee who also appeared on the original appeals panel; U.S. Circuit Judge Florence Pan, a Joe Biden appointee; and U.S. Circuit Judge Harry Edwards, a Jimmy Carter appointee.

Josh Carpenter, a North Carolina federal defender, said that Lamberth’s second sentence arbitrarily doubled the original term.

Little argues he was punished a second time for a petty offense that would normally carry a maximum sentence of six months in prison.

The panel did not seem entirely receptive to that argument.

Walker began questioning Carpenter immediately, asking how Little’s liberty had been restrained by the terms of his probation.

Carpenter pointed to drug testing and the requirement that Little ask permission to leave his home district, which had kept him from working as a truck driver.

He alluded to Little’s Second Amendment rights being restricted, but Carpenter was not sure if Little had a weapon, and if so whether it was seized or ordered to be held elsewhere.

Walker noted, “It seems like he could basically do everything he wanted as if he was not on probation, he just had to be monitored.”

The Trump appointee then laid out questions that may influence his decision: Is there a similar case where a court found a double jeopardy violation, where the old and new sentences combined did not exceed the statutory maximum for the offense?

Carpenter could not cite a similar case but maintained that Little’s met the latter qualification. He argued that the two sentences, even with credit for probation served, exceeded the maximum of six months.

Pan pushed back on Carpenter’s contention that Lamberth was wrong to credit time served in probation to a term of incarceration, noting that there were few to no cases supporting that argument.

Walker and Edwards both followed Pan’s line of reasoning, asking Carpenter whether the Founding Fathers-era meaning of the double jeopardy clause supported his argument.

“What the double jeopardy clause prohibits is being punished twice for the same offense. As applied to this case, the legislature said you can be punished once, either A or B; he, undoubtably, was punished with both A and B,” Carpenter said, referring to both imprisonment and probation.

Edwards pointed out that a resentencing procedure fit well within the clause’s original meaning in order to fix such an issue.

Carpenter agreed, but maintained that Little could not “relive” the 18 months he had spent in probation.

Assistant U.S. Attorney Reuven Dashevsky argued that it should be “uncontroversial” that probation and incarceration can be credited against each other. He pushed against Walker’s inquiry into the Founders’ meaning, as probation was only created in the 1984 Sentencing Reform Act.

Dashevsky said that Supreme Court precedent holds that a sentence only needs to avoid exceeding a maximum possible sentence.

Pan sided with Dashevsky, pointing out that the purpose of resentencing is to correct a single sentence and would not count as a second sentence.

Dashevsky agreed. He said that Lamberth had considered the “cumulative effect” of the sentence and protected Little from double jeopardy by crediting him with the probation time he served. He urged the panel to reaffirm Lamberth’s decision.

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