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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 21-CF-615 & 21-CM-616

HENRY TARRIO, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeals from the Superior Court

of the District of Columbia

(CF2-105-21 & CMD-106-21)

(Hon. Harold L. Cushenberry, Jr., Trial Judge)

(Submitted June 15, 2022 Decided September 8, 2022) 

Lucas I. Dansie was on the brief for appellant. 

Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb, John P.

Mannarino, Paul V. Courtney, and Daniel J. Lenerz, Assistant United States 

Attorneys, were on the brief for appellee. 

Before GLICKMAN, EASTERLY, and DEAHL, Associate Judges.

GLICKMAN, Associate Judge: Appellant Henry Tarrio contends the trial judge 

who presided over his guilty pleas and sentencing should have recused himself sua 

sponte due to facts giving rise to an impermissible appearance of bias. Appellant 

asserts the appearance of bias arose from the judge’s past relationship with the 
2

church whose property appellant was convicted of destroying, and was manifested 

by certain adverse rulings by the judge at sentencing. We reject appellant’s

contention, both because he waived it by expressly declining the judge’s offers to 

recuse himself, and because the judge’s relationship with the church and rulings do 

not show any appearance of bias. We thus affirm appellant’s convictions.

I.

Appellant is a resident of Florida and the National Chairman of the Proud 

Boys, which has been described as an organization “whose members routinely attend 

rallies, protests, and other First Amendment-protected events, where they sometimes 

engage in violence against individuals whom they perceive as threats to their 

values.”1

 On December 12, 2020, appellant and other individuals ostensibly

associated with the Proud Boys congregated outside the Asbury United Methodist 

Church at 11th and K Streets in Northwest Washington D.C. Unidentified members 

of the group stole a “#Black Lives Matter” (BLM) banner from the church and

carried it to the intersection of 11th and E Streets NW. At that location, appellant 

 1 United States v. Chrestman, 525 F. Supp. 3d 14, 19 (D.D.C. 2021) (quoting 

the affidavit in support of the arrest warrant for an alleged co-conspirator and 

participant in the violent storming of the U.S. Capitol on January 6, 2021).
3

and others in the group used lighters to set fire to the banner. The burning was 

recorded and preserved on video. Appellant afterwards claimed responsibility for 

destroying the banner on social media, including in a photograph on his Parler 

account, in comments to multiple media outlets, and in a podcast.2 The United States 

Attorney’s Office applied for and obtained a warrant for appellant’s arrest.

Pursuant to that warrant, appellant was arrested when he returned to the 

District of Columbia on January 4, 2021. During a search incident to that arrest, the 

police discovered two unloaded high-capacity firearm magazines in appellant’s 

backpack. Each magazine bore insignia of the Proud Boys. Appellant told the police 

he brought the magazines into the District to sell them to a customer here. He 

professed not to know the magazines were illegal in the District. 

 2 For instance, in a December 18, 2020, post to his Parler account, appellant 

shared a photograph of himself in which he is holding an unlit lighter inches from 

two other individuals holding ignited lighters, with the BLM banner engulfed in 

flames. In a caption shared with the photograph, appellant wrote, “I am the person 

responsible for the burning of this BLM sign, and I did it.” And in an episode of 

Warboys, a podcast affiliated with the Proud Boys, appellant declared that “[i]n the 

burning of the BLM sign, I was the one that lit it on fire. I was the person that went 

ahead and put the lighter to it and engulfed it in flames, and I[’m] damn proud that I 

did.” 
4

Appellant was charged with misdemeanor destruction of property3 (the BLM 

banner) in Case No. 2021-CMD-106, and with two felony counts of possession of a 

large-capacity ammunition feeding device4 in Case No. 2021-CF2-105.

To resolve these charges, on July 19, 2021, in a remote, on-line proceeding 

before the Honorable Harold L. Cushenberry, Jr., appellant tendered pleas of guilty 

to misdemeanor destruction of property and to one count of attempted possession of 

a large-capacity ammunition feeding device (also a misdemeanor). While listening 

to the government’s proffer regarding the facts supporting the plea of guilty to 

destruction of property, Judge Cushenberry paused the proceeding. Informing the 

parties that he had not known before hearing the factual proffer that the BLM banner 

had been taken from the property of the Asbury United Methodist Church, the judge 

deemed it appropriate to disclose that he had a past connection with that church. 

Specifically, the judge explained, his oldest daughter (who was “almost 40 now”)

was baptized at the church, and he and his family “attended [the church] with some 

regularity when she was young,” though he had not “really had any affiliation with 

the church” since then. The judge stated that he was “perfectly willing” to recuse 

 3

 D.C. Code § 22-303.

4

 D.C. Code § 7-2506.01(b).
5

himself if this past relationship concerned appellant, that it was “perfectly 

understandable that [appellant] might want another judge” under the circumstances, 

and that “many” other judges were available to handle the disposition of appellant’s 

case. Leaving the decision to appellant, the judge offered appellant the opportunity 

to confer with his attorney, “off-line” and thus outside the judge’s presence, about

whether he wanted another judge to take his guilty plea and impose sentence. 

Appellant declined to accept Judge Cushenberry’s offer to recuse himself. 

“[T]hat’s not necessary,” appellant stated. He went on to say that “if I would have 

known that . . . [the] banner came from a church, it wouldn’t have been burned. . . . 

I had nothing to do with the stealing of the banner or the taking down of the banner. 

I would never even consider doing anything to a church myself.” Appellant 

thereafter reiterated that Judge Cushenberry did not need to recuse himself. Without 

commenting on appellant’s assertions of his non-participation in, and unawareness 

of, the removal of the banner from the church, the judge then resumed the guilty plea 

proceeding and accepted appellant’s guilty pleas to the two misdemeanor offenses.

Appellant’s sentencing was set for a later date, allowing for the preparation of 

a presentence investigation report and for the parties to file sentencing memoranda.

Judge Cushenberry then told appellant that if he or his counsel were “at all concerned 
6

about me retaining jurisdiction to handle the matter” and “want another judge to 

actually review the materials and have that judge make the [sentencing] decision,” 

they should “just let [him] know” and he would “take care of it.” Appellant’s 

counsel replied that “for efficiency reasons, we would prefer that Your Honor keep 

it, as you heard the plea[.]” Appellant did not subsequently request that Judge 

Cushenberry recuse himself from his sentencing.

On August 20, 2021, the government filed its sentencing memorandum. The 

government recounted, inter alia, how appellant had publicly and unapologetically 

admitted to burning the BLM banner, and it took issue with appellant’s claim not to 

have known the banner was removed from church property. The government 

included evidence that appellant was fully aware the banner was stolen from the 

Asbury United Methodist Church, including a photo from a publicly available video 

of the crime at the church in which appellant was visibly present and an interview 

appellant later gave to the Washington Post.

5 The government argued that 

 5 Peter Hermann, Proud Boys leader says he burned Black Lives Matter 

banner stolen from church during demonstrations in D.C., WASH. POST (Dec. 18, 

2020, 7:20 p.m.), https://www.washingtonpost.com/local/public-safety/enriquetarrio-proud-boys-black-lives-matter-sign/2020/12/18/c056c05e-415a-11eb-8db8-

395dedaaa036_story.html; https://perma.cc/U4SD-8EAL. In the interview, 

appellant reportedly explained that “[w]e didn’t Google the church and go, ‘Oh, it’s 

a Black church, let's target it,’” and that “[t]he sign was taken down because of what 

it represents.” The government took this to imply that appellant did not dispute his 
7

“[appellant’s] self-serving claim that he did not know the banner came from a church 

is implausible, and it suggests that – while he has admitted guilt – he has not yet 

fully accepted responsibility.” 

In response, appellant argued in his sentencing memorandum that he had 

accepted responsibility for his crimes, and he insisted he had not known the BLM 

banner belonged to a church. Appellant argued that the video on which the 

government relied “[did] not show [appellant] removing the flag from the church,” 

did not “clearly show that [appellant] saw or would have been able to see that a 

person removed the flag from the church.” With his sentencing memorandum, 

appellant submitted letters from nine individuals attesting to his good character. 

Appellant’s sentencing took place before Judge Cushenberry on August 23, 

2021. Adhering to its position, the government argued among other things that 

appellant’s sentence should take account of his failure to accept full responsibility 

for his criminal conduct. Specifically, the government argued, appellant dishonestly

minimized his culpability by denying he knew the BLM banner was stolen from a 

church, “even though there’s a video that shows him standing up on the church’s 

 

awareness that the banner came from a church, and merely denied being aware that 

it was a predominantly black church. 
8

lawn right next to the church at the time when other [Proud Boys] members were 

stealing and marching with the banner.” The government asked the court to impose 

a total sentence of 360 days’ incarceration, with the execution of that sentence 

suspended as to all but 90 days, followed by 18 months of probation. In addition, 

the government asked that appellant be ordered to pay the Asbury United Methodist 

Church a total of $5,387 in restitution — $347 for the banner and $5,040 for security 

services on January 6 and 20, 2021, which the church “felt compelled” to obtain as 

a result the violence it experienced from appellant and his fellow demonstrators on 

December 12, 2020. After the government concluded its allocution, the court heard 

a victim impact statement from Asbury’s Senior Pastor, Reverend Mills, in which 

she emphasized the psychological and emotional effects of the BLM banner burning 

upon the church and its members. Reverend Mills characterized the burning as a 

deliberate and planned act of intimidation and racism, noting that such an act created 

the “presumably desired effect” of “fear, anxiety, frustration, anger and terror” in 

the church’s congregants. 

Judge Cushenberry then heard from appellant’s counsel and appellant himself. 

Neither of them directly disputed that appellant knew the BLM banner came from 

the church. Appellant was apologetic and acknowledged that “[w]hat [he] did was 

wrong . . . . regardless of it being the Asbury church or not, . . . . regardless of whether 
9

it’s a church or not.” Appellant’s counsel asked the court to place appellant on 

probation with the condition that he perform community service at a church or other 

suitable location. Counsel also offered to present a character witness to testify on 

behalf of appellant “[i]f the Court were inclined” to hear from her. The judge 

declined to do so, however, stating he did not think it appropriate to call a character 

witness to testify at a sentencing hearing. 

In proceeding to impose sentence, Judge Cushenberry emphasized at the 

outset that appellant’s opinions played no part in his sentencing decision, and that

he fully respected appellant’s First Amendment right “to peacefully assemble, 

protest and make his . . . views known on important social issues.” The judge found, 

however, that appellant “clearly intentionally and proudly crossed the line from 

peaceful protest and assembly to dangerous and potentially violent criminal 

conduct.” And focusing on whether appellant accepted responsibility for his 

criminal conduct (“certainly” a relevant factor, the judge said, “in arriving at a fair 

and just sentence”), Judge Cushenberry “agree[d] with the government that 

[appellant] ha[d] not credibly expressed genuine remorse.” To the contrary, the 

judge did not credit appellant’s “self-serving assertion that he was unaware that the 

Black Lives banner that he helped to . . . was taken from church property,” finding 

it “belied by the video evidence and his boastful social media posts.” Among that 
10

evidence, the judge highlighted a “clear” photograph of appellant and his associates 

standing on the front lawn of the Asbury United Methodist Church, commenting that 

“[a]nyone standing on the church lawn would not have only seen that it was a church, 

but also the stained glass windows were clearly visible from this well-lit area where 

[appellant] and his compatriots stood.” 

Judge Cushenberry further found that appellant posed a continuing danger to 

the community, especially in light of how appellant boasted of his criminal conduct 

on social media and how he planned to sell two high-capacity magazines to a 

customer in the District. Noting also appellant’s previous criminal record, and in 

particular his prior conviction for fraud, the judge found appellant’s professed 

ignorance that possession of the magazines was against the law in the District

“wholly not credible.” 

Ultimately, Judge Cushenberry concluded, “[t]he balance tips strongly in 

favor of a longer period of incarceration than that requested by the United States.” 

As the judge observed, appellant repeatedly re-offended after being placed on 

probation in the past. The judge sentenced appellant to a total of 240 days’ 

incarceration, execution of sentence suspended as to all but 155 days, and three years 
11

of probation.6 In addition, the judge ordered appellant to pay a $500.00 fine with 

respect to each offense, make a $50.00 payment to the Victim of Crimes Fund for 

each count, and pay $347.00 in restitution for the BLM banner.7 Judge Cushenberry 

allowed appellant two weeks, until September 6, 2021, to surrender himself to the 

custody of the Department of Corrections.

On September 4, 2021, two days before his self-surrender, appellant filed an 

emergency motion requesting that Judge Cushenberry “immediately recuse himself” 

and that “another Superior Court judge reconsider and substantially reduce the 

sentence imposed on August 23, 2021.” The motion asserted that because Judge 

Cushenberry had taken “no issue with [appellant’s] statement [at the plea hearing] 

 6 At first Judge Cushenberry was going to impose a somewhat longer 

sentence, under the mistaken recollection that appellant had pleaded guilty to two 

felonies (for possession of two high-capacity magazines) in addition to the

misdemeanor destruction of property. When the government clarified that appellant 

pleaded guilty only to a single, misdemeanor count of attempted possession (along 

with the misdemeanor destruction of property count), the judge corrected his 

sentence. He imposed consecutive terms of 90 days’ incarceration, execution 

suspended as to all but 30 days, for destruction of property, and 150 days’ 

incarceration, execution suspended as to all but 125 days, for attempted possession 

of a high-capacity magazine, to be followed by three years of probation. 

7 Judge Cushenberry declined to require appellant to pay restitution for the 

security costs incurred by the Asbury United Methodist Church, on the ground that 

the government had not provided adequate evidentiary support for the amount 

requested. 
12

that he did not know that the banner came from a church when he participated in 

burning it,” but then “at the sentencing hearing . . . completely changed positions, 

proclaiming that [appellant] had lied about his knowledge that the flag came from a 

church,” there was “the appearance of impropriety” and Judge Cushenberry should 

have recused himself prior to sentencing appellant. The motion further asserted that 

the judge “lacked a firm factual foundation” for his determination that appellant 

knew where the banner came from, and complained about the judge’s exclusion of

testimony from his proffered character witness and the harshness of his sentence.

Before the motion was heard, appellant timely surrendered himself on 

September 6, 2021, and he filed notices of appeal from his convictions the next day. 

Appellant later filed motions for release pending appeal and compassionate release. 

On October 26, 2021, appellant’s cases with the pending motions were reassigned 

to Associate Judge Jonathan H. Pittman. Judge Pittman denied the motion to recuse 

Judge Cushenberry as moot and appellant’s other motions as well.

II.

On appeal, appellant argues that Judge Cushenberry was required to recuse 

himself because his impartiality could reasonably have been questioned. The posited 

apparent lack of impartiality supposedly derives from the judge’s past relationship 
13

to the church whose property appellant helped destroy. In response, the government

contends that appellant has waived his challenge to Judge Cushenberry’s failure to 

recuse himself by declining the judge’s recusal offer at the plea hearing and failing 

to move for recusal before sentencing. In the alternative, the government argues that 

even if appellant did not waive his recusal challenge, his argument nevertheless lacks 

merit because no objective observer could have reasonably doubted Judge 

Cushenberry’s impartiality. 

As a threshold inquiry, it is necessary to determine whether the alleged basis 

for Judge Cushenberry’s disqualification was waivable.8

 In principle, and as 

recognized in the canons of judicial ethics, “all potential bases for disqualification 

other than ‘personal bias or prejudice’ are waivable.”9 Ordinarily, moreover, 

“[a]bsent a reason to believe a party was intimidated into silence, a party waives its 

 8

 “Whether a right is capable of being waived and whether it actually has been 

waived are separate inquiries.” Plummer v. United States, 43 A.3d 260, 268 (D.C. 

2012).

9

 Friends of McMillan Pk. v. D.C. Mayor’s Agent for Historic Preservation, 

207 A.3d 1155, 1165 n.37 (D.C. 2019); see also Plummer, 43 A.3d at 267 (“[W]aiver 

is allowed with respect to any basis for disqualification other than personal bias or 

prejudice concerning a party. For the purposes of that proviso, it is generally 

understood that ‘personal’ means that the source of the bias or prejudice is 

extrajudicial.” (internal quotation marks and footnotes omitted)); CODE OF JUDICIAL

CONDUCT FOR THE DISTRICT OF COLUMBIA COURTS Rule 2.11(C) (2018 ed.). 
14

disqualification claim where it knew of the grounds for a waivable disqualification 

motion but failed to bring that motion in a timely manner in the proceedings.”10 The 

government contends that appellant’s claims “involve a basis for disqualification 

that is capable of being waived,” because appellant “does not argue that Judge 

Cushenberry was actually biased against him; to the contrary, he asserts that 

question is ‘irrelevant to whether the judge was required to disqualify himself’ 

because Judge Cushenberry was required to ‘avoid[] even the appearance of 

impropriety.’” Further, the government argues that appellant “actually waived his 

disqualification claim, both through his statements at the plea hearing and by failing 

to file a written motion thereafter” (until after he was sentenced). Judge Cushenberry 

twice offered to recuse himself in light of his past attendance at the Asbury United 

Methodist Church, first before he took appellant’s plea, and then after taking it. Each

time, appellant (personally, or through his counsel) expressly declined the offer.11 

 10 Friends of McMillan Pk., 207 A.3d at 1165 (footnotes omitted); see also 

Plummer, 43 A.3d at 269–70; York v. United States, 785 A.2d 651, 654 (D.C. 2001)

(“[B]ecause the disqualification of a trial judge may disrupt and delay the judicial 

process, affidavits of bias are strictly scrutinized for form, timeliness and 

sufficiency.” (quoting In re Evans, 411 A.2d 984, 994 (D.C. 1980)).

11 As recounted above, in response to the judge’s first offer to recuse, 

appellant himself said recusal was “not necessary” and told Judge Cushenberry, 

“[Y]ou won’t need to recuse yourself, Your Honor.” Later, in response to the judge’s 

second offer to recuse, appellant’s counsel stated that “for efficiency reasons, we 

would prefer that Your Honor keep [the case], as you heard the plea[.]”
15

Not until nearly two weeks after Judge Cushenberry imposed sentence did appellant 

move for his disqualification. 

There is significant support in the record before us for the government’s 

position that appellant is alleging a waivable basis for disqualification and that he 

validly did waive it. Appellant himself reiterates several times in his brief that he 

was “confronted with the appearance of the judge’s lack of impartiality” rather than 

alleging any actual personal bias on the judge’s part. Further, Judge Cushenberry 

followed the appropriate procedure for obtaining a valid waiver of disqualification, 

assuming it was waivable: he disclosed his past contact with the church, he allowed 

appellant to confer with his lawyer privately, and he ascertained on the record that 

there was no objection to his continuing to preside over appellant’s case and sentence 

appellant.12 And especially given the open “amenability to recusal” expressed by 

the judge, “[t]here was no coercion or undue pressure on appellant” or other 

 12 See Plummer, 43 A.3d at 268; see also id. at 270 (“The judge himself 

identified the possible basis for his disqualification and expressed his amenability to 

recusal. Given the choice, and with the advice of counsel, appellant elected to 

decline the judge’s offer. As the grounds for disqualification were waivable, 

appellant’s choice to have the judge continue to preside must be classified as a 

deliberate trial strategy. We therefore hold that appellant waived his claim that the 

trial judge was disqualified.”); CODE OF JUDICIAL CONDUCT FOR THE DISTRICT OF 

COLUMBIA COURTS Rule 2.11(C) & cmt. [7].
16

circumstance causing him to refrain from seeking the judge’s disqualification as long 

as he did.

13 On its face, appellant’s motion for recusal was inexcusably untimely.14

Thus, to the extent that appellant’s disqualification claim is based solely on 

any appearance of partiality created by Judge Cushenberry’s past relationship with 

the Asbury United Methodist Church, we are satisfied that the claim was waivable 

and that appellant waived it.

However, at various points in his brief, appellant concentrates his argument 

on judicial actions that first occurred in the course of the sentencing hearing itself

— i.e., things appellant arguably did not know or foresee when he declined Judge 

Cushenberry’s offers to recuse himself in advance of the hearing — and focuses on 

 13 Plummer, 43 A.3d at 270. 

14 Cf. S.E.C. v. Loving Spirit Found. Inc., 392 F.3d 486, 492 (D.C. Cir. 2004) 

(“Crucial to the integrity of the judicial process, the timeliness requirement ensures 

that a party may not wait and decide whether to file [a motion for recusal] based on 

‘whether he likes subsequent treatment that he receives.’” (quoting In re United Shoe 

Mach. Corp., 276 F.2d 77, 79 (1st Cir.1960))); United States v. Barrett, 111 F.3d 

947, 951 (D.C. Cir.1997) (“More than one court has recognized the sensible 

principle that ‘[a] defendant cannot take his chances with a judge and then, if he 

thinks that the sentence is too severe, secure a disqualification and a hearing before 

another judge.’” (quoting United States v. Owens, 902 F.2d 1154, 1156 (4th Cir. 

1990))).
17

what appellant portrays as indicia of bias at his sentencing arising from, or 

explainable by, the judge’s past relationship with the Asbury United Methodist 

Church. Specifically, appellant contends that a lack of judicial impartiality was 

evidenced by (1) Judge Cushenberry’s statements at sentencing that he did not 

believe appellant was unaware the BLM banner he burned came from a church; (2) 

Judge Cushenberry’s refusal to allow him to call a character witness to testify at 

sentencing, even though he allowed Asbury’s Senior Pastor to testify; and (3) Judge 

Cushenberry’s imposition of what appellant characterizes as an “unreasonably 

harsh” sentence. Consequently, construing appellant’s claim generously as one of 

actual bias on the part of the judge, allegedly grounded in the judge’s past 

relationship with the church and manifested in his aforesaid actions at sentencing, 

we proceed to address the merits of the claim.15

 15 Appellant argues his failure to object at sentencing should be excused, as 

this court has recognized that it sometimes “would be expecting too much to hold a 

defendant accountable for failing, in effect, to accuse a judge of bias at the hearing 

just before the discretionary, virtually non-reviewable act of sentencing takes place.” 

Belton v. United States, 581 A.2d 1205, 1212 (D.C. 1990). Although this may not 

be one of those times (given especially Judge Cushenberry’s expressed openness to 

recusal and appellant’s failure to object at all at sentencing to the rulings of which 

he now complains), we elect in the exercise of our discretion to treat his claim as 

preserved.
18

The governing principle is that “[a] judge shall disqualify himself or herself 

in any proceeding in which the judge’s impartiality might reasonably be 

questioned.”16 “Recusal is required if an objective, disinterested observer fully 

informed of the facts underlying the grounds on which recusal was sought would 

entertain a significant doubt that justice would be done in the case,” i.e., if such an 

observer “could reasonably doubt” the judge’s impartiality.

17 We conclude that the 

rulings of which appellant complains do not justify such a reasonable doubt.

Preliminarily, we note that while it was commendable for Judge Cushenberry 

to offer to recuse himself if his past relationship with the Asbury United Methodist 

Church made appellant uncomfortable, we do not take the judge’s offer as any sort 

of admission or indication that he could not be impartial (nor, of course, did appellant 

view it as such). We note also that, in imposing sentence, the judge did not refer to 

his own or his family’s prior relationship with the church, and the judge did not rely 

 16 CODE OF JUDICIAL CONDUCT FOR THE DISTRICT OF COLUMBIA COURTS Rule 

2.11(A). The Terminology section of the Code defines “impartiality” as meaning 

“absence of bias or prejudice in favor of, or against, particular parties or classes of 

parties, as well as maintenance of an open mind in considering issues that may come 

before a judge.” Id.

17 In re M.C., 8 A.3d 1215, 1222 (D.C. 2010) (internal quotation marks and 

citations omitted).
19

on or even mention the victim impact statement of Asbury’s Senior Pastor as to the

impact of the banner’s theft and burning on the church and its congregation.

Appellant’s denial of knowledge that the banner came from a church was a 

factor at sentencing, however, and we turn first to consider the judge’s stated 

disbelief of that denial. While the origin of the BLM banner was not an element of 

any crime with which appellant was charged, and appellant’s knowledge of the 

banner’s origin was not part of the government’s proffer of the factual basis for his 

guilty plea, appellant made a point of proclaiming that he had no idea the banner 

came from a church and that he would not have taken and destroyed it had he known 

that fact. It thus was appellant who injected the question into the case and thereby 

invited scrutiny of the self-serving claim, by which he sought to minimize his 

complicity and culpability. The government contested the claim with admissible 

photographic and other evidence that it was untrue. The disputed issue was a 

legitimate one for the judge to consider at sentencing because, as the government 

argued and appellant did not deny, its truthfulness or falsity bore on whether 

appellant had accepted full responsibility for his actions and was truly contrite.18 

 18 See Leander v. United States, 65 A.3d 672, 676 (D.C. 2013) (referring to “a 

lack of genuine contrition” as a “relevant sentencing consideration[]”); Thorne v. 

United States, 46 A.3d 1085, 1089 (D.C. 2012) (noting that a judge “may decline to 

be lenient if the defendant has failed to admit his guilt and accept responsibility”); 
20

And the judge permissibly relied on the evidence proffered by the government in 

finding that appellant must have known the BLM banner was taken from the Asbury 

United Methodist Church and therefore was not fully and honestly owning up to his 

conduct. As there was no impropriety in this determination of a relevant fact in 

issue, it furnishes no basis for doubting Judge Cushenberry’s impartiality. Appellant 

argues that he relied on the judge’s acceptance of his claim of ignorance when he 

waived the judge’s disqualification and would not have declined the judge’s offer to 

recuse himself had he known the judge might disbelieve him. Perhaps that is so, but 

it provides no reason to question the judge’s impartiality or any other reason for the 

judge to have recused himself. Appellant did not purport to condition his waiver on 

the judge’s assent to his volunteered claim of ignorance, and he neither sought nor 

obtained any assurance that the judge would credit it. For his part, Judge 

Cushenberry was under no obligation to accept appellant’s claim as true, and he gave 

no hint as to whether he would do so. His ultimate disbelief of appellant in light of 

the evidence adduced by the government did not imply any lack of impartiality.

 

see also Pernell v. United States, 771 A.2d 992, 996 (D.C. 2001) (“[I]n imposing a 

sentence within statutory limits, the judge may properly take into account the fact 

that a defendant gave false testimony during [his] trial.” (citing Banks v. United 

States, 516 A.2d 524, 530 (D.C. 1986)).
21

We also are unpersuaded that Judge Cushenberry’s denial of appellant’s 

request to call a character witness to testify at his sentencing, while the judge allowed 

Reverend Mills to testify, raised a question as to the judge’s impartiality. Crime 

victims have a statutory “right to make a statement at the defendant’s

sentencing[.]”19 Reverend Mills, on behalf of the victimized church, properly 

exercised that right in speaking of the impact that appellant’s destruction of property 

had on the church and its community. The testimony of a character witness for 

appellant would not have rebutted or qualified Reverend Mills’ victim impact 

statement. Furthermore, appellant has identified no authority granting him any right

to present character testimony (or mitigation witnesses of any kind) at sentencing, 

and we are aware of none. In general, Criminal Rule 32(c)(2) leaves it up to the trial 

court’s discretion whether to permit the parties to present evidence at the sentencing 

hearing,

20 and “[i]t is well settled that trial judges have great latitude in the 

sentencing process.”21 The counterpart Federal Rule of Criminal Procedure likewise 

 19 D.C. Code § 23-1904(e).

20 See Super. Ct. Crim. R. 32(c)(2) (stating that at sentencing the court “may 

permit the parties to introduce evidence”).

21 Collins v. United States, 631 A.2d 48, 50 (D.C. 1993) (quoting Caldwell v. 

United States, 595 A.2d 961, 966 (D.C. 1991)); see also Wallace v. United States, 

936 A.2d 757, 780 (D.C. 2007).
22

furnishes defendants no right to present character witnesses in mitigation of 

sentence.22 Moreover, prior to the sentencing hearing, Judge Cushenberry already 

had received written statements from nine character witnesses for appellant, which 

were included with appellant’s sentencing memorandum. Appellant proffered no 

reason to think live testimony from a tenth such witness would be anything more 

than cumulative. We conclude that Judge Cushenberry’s discretionary decision not 

to receive that testimony did not raise a question as to the judge’s impartiality. 

Finally, no such question was raised by the sentence Judge Cushenberry 

imposed. The sentence was entirely lawful and was less than the maximum 

authorized for the charges in question.23 Considering, as the judge properly did, 

appellant’s inability or refusal to accept full responsibility for his actions, his 

previous criminal history, his public pronouncements glorying in his offenses, and 

the present danger he demonstrably posed to the community, the sentence certainly 

 22 See United States v. Cunningham, 883 F.3d 690, 700 (7th Cir. 2018) (citing 

cases).

23 Although Judge Cushenberry started to impose a higher sentence, the 

record shows that was attributable not to any bias, but to a misunderstanding of the 

charges to which appellant pleaded guilty.
23

was not “unusually harsh.”24 Appellant says that “[t]o an objective observer, the 

judge’s stated reasons for imposing a sentence that required [appellant] to travel 

from Florida to the District of Columbia to serve 155 days in jail during the COVID19 pandemic for non-violent misdemeanor offenses that he had pled guilty to and 

apologized for were questionable.” But Judge Cushenberry’s “stated reasons” were 

sound ones, and we are unmoved by appellant’s insinuation that being required to 

travel to the District to serve his sentence during a pandemic imposed a hardship 

when appellant traveled here from Florida on his own volition in order to commit 

the very conduct for which he was sentenced.

For the foregoing reasons, the judgment of the Superior Court is affirmed.

 24 In support of his claim that his sentence was unusually harsh, appellant 

asserts that Judge Cushenberry “had recently sentenced a defendant [in another case]

to a fully suspended sentence for sexually-assaulting a victim.” Whatever sentence 

the judge may have imposed in a totally unrelated case on a different defendant for 

a different crime is irrelevant and has no bearing on our analysis in the present case.