United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 29, 2023 Decided April 9, 2024

No. 23-3069

UNITED STATES OF AMERICA,

APPELLEE

v.

JOHN MARON NASSIF,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cr-00421-1)

Melissa Fussell, Assistant Federal Defender, argued the 

cause for appellant. With her on the briefs were A. Fitzgerald 

Hall, Federal Defender, and James T. Skuthan, First Assistant 

Federal Defender.

Timothy R. Cahill, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief were Chrisellen R. 

Kolb and John P. Mannarino, Assistant U.S. Attorneys.

Before: PILLARD, WILKINS and GARCIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD. 
2

PILLARD, Circuit Judge: John Maron Nassif was 

convicted of four misdemeanor offenses for his role in the 

January 6, 2021, riot at the United States Capitol. The district 

court sentenced him to seven months in prison. On appeal, he 

challenges one of his convictions and, separately, his sentence. 

The challenged conviction is for demonstrating in a United 

States Capitol building. Nassif does not argue that his 

conviction under 40 U.S.C. § 5104(e)(2)(G) was insufficiently 

supported by the evidence introduced at trial. But he asserts 

that the statute’s prohibition against parading, demonstrating, 

or picketing in Capitol buildings is facially overbroad and void 

for vagueness in violation of the First Amendment and the Due 

Process Clause. Because Nassif has not shown that the Capitol

buildings are a public forum, the challenged provision need 

only be reasonable in light of the government’s interest in 

undisturbed use of the Capitol buildings for their legislative 

purposes. We conclude that the prohibition is reasonable and 

that it clearly applies to Nassif’s conduct, so we reject his facial 

challenges and affirm the conviction.

Nassif challenges his sentence on two distinct grounds. He

argues that the district court applied an incorrect Sentencing 

Guideline to calculate the base offense level. And he contends 

that, in imposing the sentence, the court unconstitutionally 

penalized him for exercising his Sixth Amendment right to 

trial. We reject both challenges and affirm Nassif’s sentence.

BACKGROUND

On January 6, 2021, the United States Congress convened 

to certify the Electoral College vote and declare the winner of 

the 2020 presidential election. See U.S. Const. amend. XII; 3 

U.S.C. § 15 (2018), amended by Consolidated Appropriations 

Act, Pub. L. No. 117-328, div. P, tit. I, 136 Stat. 4459, 5238 

(2022). As the Senate and House members met, thousands of 
3

supporters of the losing candidate, Donald J. Trump, swarmed

the United States Capitol, disrupting the proceedings and 

overwhelming the law enforcement officers who attempted to 

prevent the interference. The ensuing mob “scaled walls, 

smashed through barricades, and shattered windows to gain 

access to the interior of the Capitol,” leading security officers 

to evacuate members of the House and Senate. United States 

v. Nassif, 628 F. Supp. 3d 169, 176 (D.D.C. 2022) (quoting 

Trump v. Thompson, 20 F.4th 10, 18 (D.C. Cir. 2021)). The 

mob that day caused “millions of dollars of damage to the 

Capitol,” injured “approximately 140 law enforcement 

officers,” id. (internal quotation marks omitted), and left 

multiple people dead, see Thompson, 20 F.4th at 15. The chaos

forced members of Congress to halt the certification 

proceedings for more than six hours. 

The following summary of the events most relevant to 

Nassif’s appeal is based on the record in this case, including 

the evidence introduced at trial. 

Nassif was among the many people who entered the 

Capitol on January 6, 2021. He had traveled the previous day 

from Seminole County, Florida with two friends to “be there to 

support the [P]resident” in Washington, D.C. Appellant’s 

Appendix (App.) 203-05. On January 6, Nassif and three 

companions joined President Trump’s rally near the 

Washington Monument, where they heard the President speak. 

Nassif then brought his friends back to their hotel before going 

to the Capitol without them. At the Capitol, Nassif joined 

hundreds of people congregating outside the east front doors of 

the historic Capitol Building. Glass panes in the doors had 

been smashed, alarms were ringing, and members of the crowd 

were cursing the police and shouting to be let in. Nassif joined 

the crowd and led a call-and-response chant, yelling, “Whose 

house?” “Our house!” App. 116-17, 294. When, minutes later, 
4

rioters exiting the Capitol pushed open the east front doors

from within, Nassif encouraged the people coming out to “keep 

fighting” and forced his way into the Capitol Rotunda. Once 

inside, Nassif gestured to rioters outside to join him inside. 

Approximately ten minutes after entering the Capitol, Nassif 

left the building. 

The government charged Nassif with four misdemeanor 

offenses in connection with his conduct on January 6, 2021: 

entering or remaining in a restricted building in violation of 18 

U.S.C. § 1752(a)(1) (Count One); disorderly or disruptive 

conduct in a restricted building in violation of 18 U.S.C. 

§ 1752(a)(2) (Count Two); violent entry or disorderly conduct 

in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(D)

(Count Three); and parading, demonstrating, or picketing in a 

Capitol building in violation of 40 U.S.C. § 5104(e)(2)(G)

(Count Four). 

Before trial, Nassif unsuccessfully moved to dismiss 

Count Four, challenging the statute’s prohibition on 

demonstrating as unconstitutionally overbroad in violation of 

the First Amendment and unconstitutionally vague in violation 

of the Fifth Amendment. Nassif, 628 F. Supp. 3d at 176. In 

rejecting Nassif’s overbreadth claim, the district court held that 

the interior of the Capitol building is a nonpublic forum “where 

the government may limit First Amendment activities so long 

as the restrictions ‘are reasonable in light of the purpose [served 

by] the forum and are viewpoint neutral.’” Id. at 180 (quoting 

Cornelius v. NAACP Leg. Def. & Educ. Fund, Inc., 473 U.S.

788, 806 (1985)). The court reasoned that, in enacting section 

5104(e)(2)(G), Congress permissibly determined that its 

institutional interest in peaceful space in which to do its

lawmaking work supports the challenged limitation on 

demonstrating inside the Capitol buildings. Id. at 181. In 

rejecting Nassif’s vagueness challenge, the court explained
5

that, when “demonstrate” is “read in light of its neighbors”—

“parade” and “picket”—it is clear that the term prohibits 

“taking part in an organized demonstration or parade that 

advocates a particular viewpoint.” Id. at 183 (internal 

quotation marks omitted). Because that plain text “provides 

sufficient guidance as to what is prohibited,” the court held that 

the statute was not unconstitutionally vague. Id. 

The case proceeded to a bench trial. The district court 

found Nassif guilty on all four counts and sentenced him to a 

total of seven months’ imprisonment followed by 12 months of 

supervised release. That sentence was below the guidelines 

range of 10 to 16 months, which the court calculated based on 

Nassif’s total offense level of 12 and his Category I criminal 

history. The district court, over Nassif’s objection, computed

the offense level by reference to the Guideline for “obstructing 

or impeding officers.” U.S.S.G. § 2A2.4. Based on a finding 

that Nassif gave false testimony at trial, the court then applied 

a two-point sentencing enhancement for “obstructing or 

impeding the administration of justice.” U.S.S.G. § 3C1.1. 

“Given Mr. Nassif’s active participation” in the riot, “including 

leading chants, encouraging other rioters to keep fighting[,] and 

waving people in” to the Capitol building when it was closed 

to the public, the court determined that “a sentence of 

incarceration [was] warranted.” App. 393. That determination

was “consistent with the sentencing guidelines,” as well as with 

Nassif’s “lack of remorse and with the less-than-full 

acceptance of responsibility and the fact that he did not testify 

truthfully.” App. 393. But the district court varied downward 

from the bottom of the guidelines range because there was “no 

showing of aggressiveness or violence” while Nassif was in the 
6

Capitol and in recognition of Nassif’s military service and the 

expressions of community support for him. App. 393.

DISCUSSION

Nassif raises three issues on appeal. First, he seeks vacatur 

of his conviction for demonstrating inside the Capitol, arguing

that section 5104(e)(2)(G) is unconstitutional on its face. 

Second, Nassif asserts that the district court applied the 

incorrect Sentencing Guideline to his section 1752(a)(2) 

conviction for disorderly and disruptive conduct in a restricted 

building. Lastly, Nassif contends that, in determining his 

sentence, the district court unconstitutionally penalized him for 

going to trial. We consider each argument in turn. 

We review de novo Nassif’s challenges to the facial 

constitutionality of 40 U.S.C. § 5104(e)(2)(G) and to the 

district court’s interpretation of the Sentencing Guidelines. See 

United States v. Bronstein, 849 F.3d 1101, 1106 (D.C. Cir. 

2017); see also United States v. Turner, 21 F.4th 862, 865

(D.C. Cir. 2022). We review the reasonableness of Nassif’s 

sentence for abuse of discretion. United States v. Otunyo, 63 

F.4th 948, 960 (D.C. Cir. 2023). 

I.

First enacted in 1967 to address “a substantial increase in 

the number of incidents of excessive disruption or disorderly 

conduct” in the Capitol buildings, H. Rep. 90-745, at 1 (Oct. 9, 

1967), section 5104(e)(2)(G) prohibits “individual[s] or 

group[s] of individuals” from “willfully and knowingly . . .

parad[ing], demonstrat[ing], or picket[ing] in any of the Capitol 

Buildings,” 40 U.S.C. § 5104(e)(2)(G). The statute is 

inapplicable to “any act performed in the lawful discharge of 
7

official duties” by a congressmember or congressional 

employee. Id. § 5104(e)(3).

Nassif challenges section 5104(e)(2)(G)’s prohibition on 

picketing, parading, and demonstrating inside the Capitol 

buildings as unconstitutionally overbroad and vague. He does 

not argue that his own conduct in the Capitol on January 6, 

2021, was protected by the First Amendment, nor does he 

assert that section 5104(e)(2)(G) gave him insufficient notice 

that his conduct would be prohibited. He contends, rather, that 

the statute punishes so much protected speech and is so unclear 

that it is entirely invalid and cannot be applied to anyone, 

including him. In asking us to declare section 5104(e)(2)(G) 

unconstitutional in all its applications, Nassif’s claim 

“implicates ‘the gravest and most delicate duty that [courts are]

called on to perform’: invalidation of an Act of Congress.” 

Hodge v. Talkin, 799 F.3d 1145, 1157 (D.C. Cir. 2015) 

(alteration in original) (quoting Blodgett v. Holden, 275 U.S. 

142, 147-48 (1927) (Holmes, J., concurring)). For the reasons 

below, we do not take that step here.

A. 

We begin with Nassif’s overbreadth challenge. The 

overbreadth doctrine instructs a court to hold a statute facially 

unconstitutional if it prohibits a substantial amount of protected 

speech, even if the statute “has lawful applications, and even at 

the behest of someone to whom the statute can be lawfully 

applied.” United States v. Hansen, 599 U.S. 762, 769 (2023). 

But “[b]ecause it destroys some good along with the bad, 

‘invalidation for overbreadth is strong medicine that is not to 

be casually employed.’” Id. at 770 (alterations and quotation 

marks omitted) (quoting United States v. Williams, 553 U.S. 

285, 293 (2008)). Only where the statute’s overbreadth is 

“substantial, not only in an absolute sense, but also relative to 
8

the statute’s plainly legitimate sweep,” should a court 

invalidate the law on its face. Williams, 553 U.S. at 292. 

Section 5104(e)(2)(G) regulates expressive conduct in the 

Capitol buildings, which the statute defines to include “the 

United States Capitol, the Senate and House Office Buildings 

and garages, the Capitol Power Plant, . . . all subways and 

enclosed passages connecting two or more of those structures, 

and the real property underlying and enclosed by any of those 

structures.” 40 U.S.C. § 5101. Because the Capitol buildings 

are government property, Congress’s power to restrict 

expression there—and the stringency of our review of any such 

restriction—turns in part on whether the Capitol buildings are

a public forum. 

Courts use “forum analysis as a means of determining 

when the Government’s interest in limiting the use of its 

property to its intended purpose outweighs the interest of those 

wishing to use the property for other purposes.” Cornelius, 473 

U.S. at 800. Speech restrictions in a public forum must be

“content-neutral” and “narrowly tailored to serve a significant 

governmental interest,” and “leave open ample alternative 

channels of communication.” Cmty. for Creative NonViolence v. Kerrigan, 865 F.2d 382, 387 (D.C. Cir. 1989). In 

a nonpublic forum, our review is “much more limited.” Int’l 

Soc. for Krishna Consciousness v. Lee, 505 U.S. 672, 679 

(1992). There, a restriction on speech “need only be 

reasonable, as long as the regulation is not an effort to suppress 

the speaker’s activity due to disagreement with the speaker’s 

view.” Id. 

We therefore assess whether the Capitol buildings are a 

public forum before considering whether section 

5104(e)(2)(G) is justified by the government’s interest in 
9

preserving the Capitol buildings as a place conducive to the 

work of the legislative branch.

1.

Nassif argues that some portion of the Capitol buildings, 

including the Rotunda at the center of the historic Capitol, is a 

public forum because it has been “traditionally publicly 

accessible.” Nassif Br. 15. 

The quintessential “traditional” public fora are streets, 

sidewalks, and parks, which, “time out of mind, have been used 

for purposes of assembly, communicating thoughts between 

citizens, and discussing public questions.” Perry Educ. Ass’n

v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)

(quoting Hague v. Comm. for Indust. Org., 307 U.S. 496, 515 

(1939)). The character of these sites, “without more,” supports 

treating them as public, United States v. Grace, 461 U.S. 171, 

177 (1983), unless the government can establish that certain

streets, sidewalks, or parks have a “specialized use” that 

“outweigh[s] the attributes that would otherwise mark them as 

public forums.” Henderson v. Lujan, 964 F.2d 1179, 1182 

(D.C. Cir. 1992); see also Lederman v. United States, 291 F.3d 

36, 46 (D.C. Cir. 2002) (“[S]ome areas within a large public 

forum may be nonpublic if their ‘use’ is ‘specialized.’”

(quoting Henderson, 964 F.2d at 1182)). 

We have long recognized the Capitol grounds—a series of 

lawns, only partially walled, surrounding the Capitol 

buildings—as a traditional public forum. Lederman, 291 F.3d 

at 39, 41-42. Indeed, “[t]here is no doubt that the Capitol 

Grounds are a public forum.” Cmty. for Creative NonViolence, 865 F.2d at 387. The same is true of the sidewalks 

wrapping around the Capitol, which are “continually open, 

often uncongested, and . . . a place where people may enjoy the 

open air or the company of friends and neighbors.” Lederman, 
10

291 F.3d at 44 (quoting Heffron v. Int’l Soc’y for Krishna 

Consciousness, Inc., 452 U.S. 640, 651 (1981)). 

The Capitol buildings themselves, as defined in 40 U.S.C. 

§ 5101, are not a street, sidewalk, or park to which we apply 

the “working presumption” of public-forum status. Oberwetter

v. Hilliard, 639 F.3d 545, 552 (D.C. Cir. 2011) (quoting 

Henderson, 964 F.2d at 1182). A visitor entering a Capitol 

building crosses a doorway’s physical threshold separating 

exterior from interior—itself a familiar signal that the 

building’s interior “differs from the remainder of the public 

Grounds in ways that make it uniquely ‘nonpublic.’” 

Lederman, 291 F.3d at 42. 

Even government property that does not resemble a street, 

sidewalk, or park may be rendered a public forum by “specific 

designation (rather than tradition) when ‘government property 

that has not traditionally been regarded as a public forum is 

intentionally opened up’” as a place for expressive activity. 

Hodge, 799 F.3d at 1157 (quoting Pleasant Grove v. Summum, 

555 U.S. 460, 469 (2009)). The government need not 

indefinitely keep a designated public forum open to the public, 

but “as long as it does so it is bound by the same standards as 

apply in a traditional public forum.” Perry Educ. Ass’n, 460 

U.S. at 46.

The “touchstone for determining whether government 

property is a designated public forum is the government’s 

intent in establishing and maintaining the property.” Stewart 

v. D.C. Armory Bd., 863 F.2d 1013, 1016 (D.C. Cir. 1998). It 

is not enough that “members of the public are permitted freely 

to visit” a government building. Lee, 505 U.S. at 680 (quoting 

Greer v. Spock, 424 U.S. 828, 836 (1976)). Nor does the 

government “create a public forum by inaction or by permitting 

limited discourse” therein. Cornelius, 473 U.S. at 802. We 
11

accordingly must “look[] to the policy and practice of the 

government to ascertain whether it intend[s]” to open the 

property for assembly and debate by the general public. Id.; 

see Perry Educ. Ass’n, 460 U.S. at 47. The Supreme Court has

also “examined the nature of the property and its compatibility 

with expressive activity to discern the government’s intent.” 

Cornelius, 473 U.S. at 802. It was relevant to the public-forum 

analysis in Widmar v. Vincent, 454 U.S. 263 (1981), for 

example, that the state university campus had for its students

many of the characteristics of a traditional public forum, id. at

267 n.5.

In discerning whether a public school district intended to 

designate its internal mail system as a public forum, the 

Supreme Court in Perry Education Association v. Perry Local 

Educators’ Association, 460 U.S. 37 (1983), looked for 

indications in the record that “permission ha[d] been granted as 

a matter of course to all who s[ought] to distribute material” via 

that internal mail system. Id. at 47. Finding none, the Court 

held that the school mailboxes and interschool delivery system 

were not any kind of public forum. Id. In Stewart v. District 

of Columbia Armory Board, 863 F.2d 1013 (D.C. Cir. 1988), 

by contrast, we held that the plaintiffs adequately alleged that 

RFK Stadium was a designated public forum potentially open 

to banners of all kinds, not only those related to the games it 

hosted. In so holding, we recognized that “the question of 

whether RFK Stadium is a public forum is inherently a factual 

one,” and that the ultimate result might differ depending on 

whether plaintiffs could adduce evidence to establish that “the 

government did indeed through its practices and/or policies 

‘intend’ to create a public forum.” Id. at 1019. We noted that 

evidence relevant to that inquiry could include “the 

compatibility of the commercial purposes of the Stadium with 

expressive activity, a consistent pattern of such activity at the 
12

Stadium, and/or its ultimate reflection in the Armory Board’s 

policies and practices.” Id.

The record before us contains no evidence that Congress 

intended to open any portion of the Capitol buildings as a 

public forum for assembly and discourse. To be sure, 

expressive activity by people other than members and staff 

happens every day in the Capitol buildings—in constituent 

meetings, lobbying sessions, committee hearings, and the like. 

But the communications that take place in the Capitol are 

typically “scheduled and controlled by Senators or 

Representatives, and they may or may not be open to 

observation or (less frequently) participation by the public.” 

Bynum v. U.S. Capitol Police Bd., 93 F. Supp. 2d 50, 56 

(D.D.C. 2000); cf. City of Madison, Joint Sch. Dist. No. 8 v. 

Wis. Emp. Rels. Comm’n, 429 U.S. 167, 175 (1976) (explaining 

that, where a state board of education “opened a forum for 

direct citizen involvement,” it could not justify excluding 

specific teachers based on the concerns they sought to express).

Entry to the Capitol buildings is, moreover, strictly regulated: 

A visitor wishing to tour the historic Capitol Building that 

encompasses the Capitol Rotunda, for example, must book a 

tour, enter through the Capitol visitor center between 8:30 a.m. 

and 4:30 p.m., proceed through security, and subject all carried 

items to inspection. See Frequently Asked Questions, 

visitthecapitol.gov.1 Against that backdrop, Nassif has not

established that the Capitol buildings are, by policy or practice,

generally open for use by members of the public to voice 

whatever concerns they may have—much less to use for 

protests, pickets, or demonstrations. 

Nassif cites two examples of “historic demonstrations of 

monumental importance” inside Capitol buildings that he says 

1 https://perma.cc/H6DF-JH4R (last visited Mar. 26, 2024).
13

evidence their status as a public forum: the 1934 civil rights sitins at whites-only restaurants within the Capitol and the 1990

protests inside the Capitol Rotunda in connection with the 

“Capitol Crawl” in support of the Americans with Disabilities 

Act. Reply Br. 14-15. Neither protest involved an intentional 

choice by the government to open the Capitol as a public 

forum. And two examples over a 90-year period do not 

establish “a consistent pattern” of authorizing expressive 

activity that evinces congressional intent to create a public 

forum. Stewart, 863 F.2d at 1019.

Moreover, the congressional work the Capitol buildings 

are designed to house is not so naturally compatible with the 

presence of parades, demonstrations, and pickets therein to 

show, on that basis alone, that Congress intended to designate

the Capitol as public forum. Cornelius, 473 U.S. at 802-03. 

We have held that “‘the primary purpose for which the Capitol 

was designed—legislating’—is entirely consistent ‘with the 

existence of all parades, assemblages, or processions which 

may take place on the grounds’” of the Capitol complex. 

Lederman, 291 F.3d at 42 (emphasis added) (quoting Jeannette 

Rankin Brigade v. Chief of Capitol Police, 342 F. Supp. 575, 

584 (D.D.C.), aff’d mem., 409 U.S. 972 (1972)). But that 

designation does not extend to the interior of the buildings, 

which serve as a workplace for Senators, Representatives, and 

their staffs. The park-like Capitol grounds are uniquely 

situated to host “the marketplace of ideas.” Widmar, 454 U.S. 

at 269 n.5. But inviting myriad parades, demonstrations, and 

pickets inside the Capitol buildings would disrupt the very 

legislative process that the buildings are designed to 

accommodate.

In a last effort to establish that some portion of the Capitol 

buildings is a public forum, Nassif cites a decision of the D.C. 

Court of Appeals for the proposition that “the United States 
14

Capitol Rotunda, which is at the very heart of the United States 

Capitol Building, is a ‘unique situs for demonstration activity’

and ‘a place traditionally open to the public.’” Berg v. United 

States, 631 A.2d 394, 397-98 (D.C. 1993) (quoting Wheelock 

v. United States, 552 A.2d 503, 506 (D.C. 1988)). The Court 

of Appeals in Berg conducted a time, place, and manner 

analysis before rejecting a First Amendment challenge to 

misdemeanor laws as applied to individuals arrested for 

engaging in a “die-in” demonstration inside the Capitol 

Rotunda. Id. at 398. The court mustered no historical evidence 

of the Rotunda being “traditionally open” for public discourse,

but drew its public-forum characterization from Wheelock v. 

United States, 552 A.2d 503 (D.C. 1988). 

The D.C. Court of Appeals in Wheelock invalidated 

misdemeanor convictions of two demonstrators arrested in the 

Capitol Rotunda, making general reference to the “United 

States Capitol” as “a place traditionally open to the public.” Id.

at 506. Like Berg, however, Wheelock did not cite any 

historical evidence of the Rotunda’s openness to public 

discourse. Instead, Wheelock relied on Kroll v. United States, 

590 F. Supp. 1282 (D.D.C. 1983), rev’d on other grounds, 847 

F.2d 899 (D.C. Cir. 1988), for the notion that “access” to the 

Capitol “cannot be denied broadly or absolutely.” See 552 A.2d 

at 506. Kroll, for its part, considered only the public-forum 

status of the historic Capitol’s exterior steps, without opining 

on the status of any interior portion of the Capitol, id. at 1289-

90. The statement Nassif quotes from Berg, then, seems to 

derive more from an imprecise daisy chain of reasoning than 

from a considered assessment of the Capitol Rotunda’s history.

We do not foreclose the possibility that a future case might 

find that there is a designated public forum somewhere inside

the Capitol buildings. The record before us, however, does not

support such a characterization. Indeed, in the proceedings
15

before the district court, Nassif never claimed that any portion 

of the Capitol buildings was a public forum. The district court 

properly held, then, that—at least on the present record—the 

Capitol buildings are a nonpublic forum. 

2.

Treating the Capitol buildings as a nonpublic forum, we 

next assess whether the prohibition on parading, 

demonstrating, and picketing within those buildings survives

the “limited review” governing speech restrictions in a 

nonpublic forum. Hodge, 799 F.3d at 1162 (internal quotation 

marks omitted). So long as the restrictions on speech are not 

viewpoint-based, that review requires only that we determine 

whether the regulation is “reasonable” in light of the purpose 

of the forum. Lee, 505 U.S. at 679; see also Cornelius, 473 

U.S. at 806. 

There is no serious assertion that section 5104(e)(2)(G) 

discriminates on the basis of viewpoint. Nassif briefly 

intimates that the statute’s prohibition is viewpoint-based 

because the government’s brief says the statute prohibits

“picketing or demonstrating ‘as a protest against a policy of 

government.’” Reply Br. 18 (emphasis added) (quoting Gov’t 

Br. 13). But the statute’s plain text is to the contrary. Section 

5104(e)(2)(G) makes it unlawful to “parade, demonstrate, or 

picket in any of the Capitol Buildings,” regardless of any 

viewpoint the parade, demonstration, or picket may espouse. 

40 U.S.C. § 5104(e)(2)(G); see also McCullen v. Coakley, 573 

U.S. 464, 485 n.4 (2014) (“[W]hen someone challenges a law 

as viewpoint discriminatory but it is not clear from the face of 

the law which speakers will be allowed to speak, he must show 

that he was prevented from speaking while someone espousing 

another view was permitted to do so.” (internal quotation marks 

omitted)). An indoor demonstration urging Congress to act on 
16

politically controversial legislation and an indoor cherry 

blossom parade would be equally banned. 

The question, then, is whether the restriction is reasonable 

in light of the government’s interest in preserving the Capitol 

buildings for “the use to which [they are] lawfully dedicated.”

Perry Educ. Ass’n, 460 U.S. at 46. As the government itself 

describes the relevant interest, section 5104(e)(2)(G) prevents

“interference with or disturbance of the activities of Congress.” 

Gov’t Br. 23 (quoting Markowitz v. United States, 598 A.2d 

398, 408 n.15 (D.C. 1991)). Congress reasonably decided that 

parades, pickets, or demonstrations inside the Capitol buildings

would interfere with those buildings’ intended use. After all, 

congressmembers and their staffs require secure and quiet 

places to work on legislative proposals and meet with 

colleagues and constituents. They need to traverse the Capitol 

halls to attend committee hearings and legislative sessions. 

And Capitol Police officers must prioritize safeguarding the 

building and protecting the individuals who work therein—not 

policing pickets and demonstrations. To be sure, “[t]he 

fundamental function of a legislature in a democratic society 

assumes accessibility to [public] opinion.” Lederman, 291 

F.3d at 42 (alteration in original) (quoting Jeannette Rankin 

Brigade, 342 F. Supp. at 584). But the interest in a workplace 

where legislators and staff may do their jobs undisturbed by 

parades, pickets, or demonstrations comports with accessibility 

and is plainly legitimate. 

Against that backdrop, Congress reasonably sought to 

prevent the hundreds of demonstration groups that descend on 

the nation’s capital each year from treating the Capitol 

buildings as a sheltered extension of the ample public fora

provided on the adjacent parklands. See Lederman, 291 F.3d 

at 39 (noting that the grounds immediately surrounding the 

Capitol alone span approximately sixty acres). Like any 
17

occupant of a government office building, Congress must be 

free to restrict at least some expressive activity to preserve its

buildings as a functional workplace. Cf. Initiative & 

Referendum Inst. v. U.S. Postal Serv., 685 F.3d 1066, 1073 

(D.C. Cir. 2012) (upholding a ban on collecting signatures on 

postal sidewalks because Postal Service customers and 

employees “have complained [that doing so] blocks the flow of 

traffic into and out of the post office building”). 

3.

The core of Nassif’s objection is that, even if Congress 

may constitutionally restrict some parades, pickets, and 

demonstrations in the Capitol buildings, section 

5104(e)(2)(G)’s blanket prohibition is unconstitutional because 

it criminalizes a substantial amount of protected speech that 

would not as a practical matter disrupt Congress’s activities. 

Nassif’s premise that the statute reaches a substantial 

amount of speech protected by the First Amendment rests on a

strained, maximalist reading of the statutory text. He 

highlights broad definitions of “demonstration” as “an outward 

expression or display” or “a public display of group feelings 

toward a person or cause.” Nassif Br. 7 (citing an unidentified 

edition of “Merriam-Webster”). Based on those definitions, he 

asserts that the statute imposes an “outright ban on expressive 

activity” that he insists covers expression entirely unlike 

parades or pickets. Reply Br. 16 (quoting Lederman, 89 F. 

Supp. 2d at 41). He contends, for example, that the statute 

prohibits lawmakers from wearing red ribbons for AIDS 

Awareness Week and precludes Capitol visitors from bowing 

their heads in unison to recognize victims of a tragedy. Nassif

Br. 7; Reply Br. 16; see also Reply Br. 11-12. Even if that 

broad prohibition would “incidentally prevent some 

disruptions,” Nassif argues, it sweeps in too much protected 
18

speech and is therefore unconstitutionally overbroad. Nassif 

Br. 18.

A categorical prohibition on all expressive activity within 

Capitol buildings would likely not pass constitutional muster

even under the relaxed standard applicable to a nonpublic 

forum. For example, treating open space inside the Los 

Angeles airport as a public forum, the Supreme Court 

invalidated a sweeping prohibition on all “First Amendment 

activities,” including talking, reading, or wearing campaign 

buttons or symbolic clothing. Bd. of Airport Comm’rs of L.A.

v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987). Such a ban

could not be justified “even if [the airport] were a nonpublic 

forum because no conceivable governmental interest would 

justify such an absolute prohibition of speech.” Id. at 575.

Contrary to Nassif’s characterization, section

5104(e)(2)(G) does not categorically prohibit all speech or 

expression in the Capitol buildings. The longstanding principle

of statutory interpretation that “a word is known by the 

company it keeps,” Bronstein, 849 F.3d at 1108 (quoting 

Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)),

dictates that “demonstrate” be understood in the context of its 

neighbors: “picket” and “parade.” The latter two terms connote 

“actions that are purposefully expressive and designed to 

attract notice.” Hodge, 799 F.3d at 1168; see, e.g., Parade (v.), 

Oxford English Dictionary (2d ed. 1989) (“To march in 

procession or with great display or ostentation.”); Picket (v.),

Oxford English Dictionary (2d ed. 1989) (defining the term to 

include “watch[ing] people going to work during a strike or in 

non-union workshops, and to endeavor to dissuade or deter 

them,” “conducting a demonstration at particular premises,” 

and “collective sing[ing]”). Read in context, the prohibition on 

“demonstrat[ing]” reaches people gathering or individually 

drawing attention to themselves inside the Capitol buildings to
19

express support for or disapproval of an identified action or 

viewpoint. It does not apply to the “social, random, or other 

everyday communications” that incidentally occur within the 

Capitol buildings. Hill v. Colorado, 530 U.S. 703, 721-22 & 

n.22 (2000) (observing limited character of a prohibition on 

“picketing” or “demonstrating”). The district court was right, 

then, to read section 5104(e)(2)(G) to encompass only

“organized conduct advocating a viewpoint,” not “off-handed 

expressive conduct or remarks.” Nassif, 628 F. Supp. 3d at 183 

n.9.

In a nonpublic forum, Congress has the latitude to prohibit

demonstrations beyond those that are most likely to disrupt the 

business of Congress; it may legislate to prevent disruptive 

activity without requiring case-specific proof of actual or 

imminent disruption. Indeed, “Congress may prophylactically 

frame prohibitions at a level of generality as long as the lines it 

draws are reasonable, even if particular applications within 

those lines would implicate the government’s interests to a 

greater extent than others.” Hodge, 799 F.3d at 1167; see also 

Cornelius, 473 U.S. at 809. “[R]estrictions of expressive 

activity in a nonpublic forum need not satisfy any leastrestrictive-means threshold, and a ‘finding of strict 

incompatibility between the nature of the speech . . . and the 

functioning of the nonpublic forum is not mandated.’” Hodge, 

799 F.3d at 1166 (quoting Cornelius, 473 U.S. at 808-09). In 

this context, Congress was entitled to decide that opening the 

Capitol doors to parading, demonstrating, or picketing would 

detract from the efficacy of the Capitol buildings as the 

workplaces of the legislative branch.

In rejecting Nassif’s facial challenge, we do not foreclose 

future as-applied challenges to section 5104(e)(2)(G). Nor do 

we purport to hold that every conceivable application of the 

statute would pass constitutional muster. We hold here only
20

that the potential unconstitutional applications of 

section 5104(e)(2)(G) are not so disproportionate “to the 

statute’s plainly legitimate sweep” as to merit facial 

invalidation. Williams, 553 U.S. at 292. On the record Nassif 

presents, there is no basis to conclude that the prohibition on 

demonstrating in the Capitol buildings is facially invalid. 

B.

Nassif also challenges section 5104(e)(2)(G) as 

unconstitutionally vague. “Vagueness doctrine is an outgrowth 

not of the First Amendment, but of the Due Process Clause of 

the Fifth Amendment.” Williams, 553 U.S. at 304. A law may 

be vague in violation of due process for failure to give notice 

to the public or guidance to law enforcement or both: “First, it 

may fail to provide the kind of notice that will enable ordinary 

people to understand what conduct it prohibits; second, it may 

authorize and even encourage arbitrary and discriminatory 

enforcement.” City of Chicago v. Morales, 527 U.S. 41, 56 

(1999). Nassif asserts that section 5104(e)(2)(G) fails in both 

ways. 

Significantly, Nassif does not claim the statute is vague as 

applied to his own conduct at the Capitol on January 6, 2021. 

Nor could he. Under any plausible definition of the term, 

Nassif was “demonstrating” when he joined a group of 

hundreds of people, many carrying signs, banners, or flags, 

who shouted or chanted as they descended on and entered into 

the Capitol seeking to halt the certification of the 2020 election. 

Nassif himself led a series of call-and-response chants and 

pushed his way into the Capitol Rotunda with a mob that forced 

open the doors and overwhelmed the police.

Nassif’s own conduct forecloses his vagueness challenge,

because an individual “who engages in some conduct that is 

clearly proscribed cannot complain of the vagueness of the law 
21

as applied to the conduct of others.” Holder v. Humanitarian 

Law Project, 561 U.S. 1, 20 (2010) (quoting Vill. of Hoffman 

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 

(1982)); see also Parker v. Levy, 417 U.S. 733, 756 (1974) 

(“One to whose conduct a statute clearly applies may not 

successfully challenge it for vagueness.”). That rule “makes 

no exception for conduct in the form of speech.” Humanitarian 

Law Project, 561 U.S. at 20; see Expressions Hair Design v. 

Schneiderman, 581 U.S. 37, 48-49 (2017) (rejecting a 

vagueness claim because it was clear that the statute proscribed 

the plaintiff’s intended speech). “Thus, even to the extent a 

heightened vagueness standard applies [in the First 

Amendment context], a plaintiff whose speech is clearly 

proscribed cannot raise a successful vagueness claim under the 

Due Process Clause of the Fifth Amendment for lack of 

notice.” Humanitarian Law Project, 561 U.S. at 20; see also 

Expressions Hair Design, 581 U.S. at 48-49 (applying the same 

principle to a vagueness claim challenging the statute for 

authorizing unguided enforcement discretion). “And he 

certainly cannot do so based on the speech of others,” for whom

redress might properly be sought via a First Amendment 

overbreadth claim. Humanitarian Law Project, 561 U.S. at 20. 

In sum, Nassif’s vagueness claim fails because section 

5104(e)(2)(G) clearly proscribed his own conduct. Nassif 

makes no assertion that he plans any future conduct subjecting 

him to a “pervasive threat” that the government will 

“sporadic[ally] abuse its power” against him. Act Now to Stop 

War & End Racism Coal. & Muslim Am. Soc’y Freedom 

Found. v. District of Columbia, 846 F.3d 391, 410 (D.C. Cir. 

2017) (quoting Thornhill v. Alabama, 310 U.S. 88, 97 (1940)). 

And Humanitarian Law Project and Expressions Hair Design

bar him from pressing any claim based on threat of future 

exercises of unguided enforcement discretion against others. 

561 U.S. at 20; 581 U.S. at 48-49.
22

II.

We turn next to Nassif’s sentencing challenges. 

A.

Nassif first claims that the district court applied the wrong 

sentencing guideline to his conviction on Count Two.

Count Two charged Nassif with disorderly and disruptive 

conduct in a restricted building in violation of 18 U.S.C. 

§ 1752(a)(2). That law prohibits “knowingly, and with intent 

to impede or disrupt the orderly conduct of Government 

business or official functions, engag[ing] in disorderly or 

disruptive conduct in . . . any restricted building or grounds 

when, or so that, such conduct, in fact, impedes or disrupts the 

orderly conduct of Government business or official functions.” 

Id. Nassif does not dispute that the Capitol Rotunda was a 

restricted building or grounds per section 1752(c)(1) on 

January 6, 2021, or otherwise challenge his section 1752(a)(2) 

conviction. 

“To arrive at a Guidelines sentence, a district court must 

first determine,” by reference to the Guidelines’ statutory 

index, “the offense guideline section from Chapter Two [of the 

Sentencing Guidelines] applicable to the offense of 

conviction.” United States v. Flores, 912 F.3d 613, 621 (D.C. 

Cir. 2019). As relevant here, the Guidelines’ statutory index 

references two offense guideline sections applicable to 18 

U.S.C. § 1752. Section 2A2.4, titled “Obstructing or Impeding 

Officers,” carries with it a base offense level of 10; section 

2B2.3, titled “Trespass,” carries a base offense level of 4. See 

U.S.S.G. §§ 2A2.4, 2B2.3.

Where, as here, the statutory index references more than 

one applicable guideline for a particular statute, the Sentencing 
23

Guidelines dictate that the court shall “use the guideline most 

appropriate for the offense conduct charged in the count of 

which the defendant was convicted.” U.S.S.G. App. A. Over 

Nassif’s objection, the district court held that section 2A2.4, 

with base offense level 10, applied to Nassif’s conviction on 

Count Two. The court reasoned that section 1752(a)(2) does 

not prohibit unauthorized entry, but rather “conduct that 

impedes or disturbs the orderly conduct of government 

business or official functions.” App. 374-75 (Sentencing Tr.). 

Nassif challenges that decision on appeal, arguing that

section 2A2.4 applies only to offenses “against a person with a 

specific status, such as federal officers.” Nassif Br. 25. As

support, Nassif highlights the other statutory provisions to 

which section 2A2.4 applies, which prohibit, among other 

things, resisting or assaulting specific law enforcement 

officers, process servers, or extradition agents. U.S.S.G. 

§ 2A2.4 (referencing, inter alia, 18 U.S.C. §§ 111, 1501, 1502, 

2237(a), and 3056(d)). Because Count Two charges Nassif 

with disorderly and disruptive conduct in the United States 

Capitol—and not with an offense against an identified

person—he argues that section 2B2.3, the “Trespass” 

Guideline, identifies the appropriate base offense level. Nassif 

Br. 25-26.

But section 2B2.3 is a mismatch for the section 1752(a)(2) 

violation charged in Count Two. Nassif’s offense conduct, as 

charged, was disorderly and disruptive conduct in the Capitol 

building; for purposes of section 1752(a)(2), it does not matter 

whether he had permission to enter or remain in that restricted 

area. Unlike the remaining statutes to which Guidelines section 

2B2.3 applies—which prohibit, among other things, accessing 

a private government computer without authorization, 18 

U.S.C. § 1030(a)(3), trespassing on Strategic Petroleum

Reserve facilities, 42 U.S.C. § 7270b, or traveling aboard a 
24

vessel or aircraft without consent, 18 U.S.C. § 2199—section

1752(a)(2) requires no unauthorized entry into government 

property or systems. 

Section 2A2.4 is a more natural fit. Although Count Two 

does not specifically charge Nassif with “Obstructing or 

Impeding Officers,” U.S.S.G. § 2A2.4, such obstruction is 

implicit in the charge that Nassif “did in fact impede and 

disrupt the orderly conduct of Government business” in a 

“restricted building.” App. 14. Indeed, it is hard to see how 

someone could impede the orderly conduct of government 

business in a building temporarily restricted for a visit by a 

Secret Service protectee, see 18 U.S.C. § 1752(c)(1)(B),

without at least obstructing or impeding the work of the officers 

who restrict the space and guard the protectee.

It is not determinative, then, that some of the statutory 

provisions cross-referenced by section 2A2.4 explicitly 

prohibit assaulting or resisting law enforcement officers, while 

others more implicitly or indirectly protect official functions. 

Indeed, section 2A2.4 also supplies the relevant base offense 

level for all convictions under 18 U.S.C. § 2237(a)(2)(A), 

which makes it unlawful “for any person on board a vessel of 

the United States . . . to . . . forcibly resist, oppose, prevent, 

impede, intimidate, or interfere with a boarding” of the vessel 

or with “other law enforcement action authorized by any 

Federal law.” See U.S.S.G. § 2A2.4. The text of 

section 1752(a)(2), like section 2237(a)(2)(A), is not framed as 

a prohibition on assault, resistance, or obstruction of federal 

law enforcement agents. Rather, both provisions penalize 

hindering of the work of government officials. Just as 

impeding government business in a Secret-Service restricted 

area will necessarily impede the work of Secret Service agents, 

forcible “interfer[ence] with a boarding” necessarily impedes

the personnel supervising that boarding.
25

We accordingly hold that U.S.S.G. § 2A2.4 is the 

guideline most appropriate to the offense conduct charged in 

Count Two.

B.

Nassif also contends that, in imposing his sentence, the 

district court unconstitutionally penalized him for going to trial

rather than accepting a guilty plea. He bases this claim on a 

short exchange between the district court and defense counsel

at his sentencing hearing. In his sentencing memorandum and 

at the ensuing hearing, Nassif highlighted that many other 

January 6 misdemeanants had received sentences of probation

or one-to-four-month sentences of incarceration, even where 

the government had requested much higher sentences. In 

imposing Nassif’s sentence, the court noted that it had 

“reviewed a lot of other cases, including the chart” of January 

6 misdemeanor sentences that Nassif provided. The court

distinguished Nassif’s proposed comparator misdemeanants on 

the ground that “[m]ost of those cases are guilty pleas, and, 

therefore, do not involve a situation like [Nassif’s] where 

there’s no acceptance of responsibility, no remorse, and 

[where] the defendant . . . testified . . . inaccurately or falsely” 

at his trial. App. 394. At the time, Nassif objected that the 

court “cannot penalize somebody for going to trial.” App. 383. 

The court responded: “Well, they are penalized for going to 

trial in terms of the acceptance of responsibility.” App. 383. 

Nassif renews his objection on appeal, arguing that his sevenmonth sentence is an unconstitutional trial penalty. 

The record does not support that claim. The district court 

correctly observed that, unlike the misdemeanants Nassif 

identified whose sentences were lower, Nassif did not accept 

responsibility, so was not afforded the corresponding two-point 

downward adjustment to his sentencing range. App. 383; see
26

U.S.S.G. § 3E1.1(a) (providing for a two-point reduction 

where the defendant “clearly demonstrates acceptance of 

responsibility for his offense”). What Nassif casts as a trial 

penalty is the effect of applying guidelines that “explicitly tell 

Judges that they normally should deny the two-point reduction 

to a defendant who does not plead guilty.” United States v. 

Jones, 997 F.2d 1475, 1478 (D.C. Cir. 1993) (en banc). The

fact that “some defendants pled guilty while others did not 

provides a perfectly valid basis for a sentencing disparity.”

United States v. Lopesierra-Gutierrez, 708 F.3d 193, 208 (D.C. 

Cir. 2013). The district court’s imposition of a sentence 

reflecting that distinction does not impermissibly burden 

Nassif’s trial right. Nassif “was entitled to put the government 

to its burden of proof, but electing to do so meant foregoing 

benefits that other defendants obtained by striking plea 

bargains.” United States v. Alford, 89 F.4th 943, 954 (D.C. Cir. 

2024). 

Nassif counters that the district court in fact “considered 

that Mr. Nassif had gone to trial in addition to the lack of 

acceptance of responsibility,” Nassif Br. 29 (emphasis added), 

because, in preparing to impose his sentence, the court 

characterized Nassif as a defendant who “went to trial, who 

testified falsely, . . . and who has shown not only no acceptance 

of responsibility but no remorse,” App. 387. Read in context, 

the district court’s reference to Nassif going “to trial” is the 

backdrop for his false testimony and his refusal to accept 

responsibility. And, just as the district court reasonably denied

Nassif the two-point downward adjustment for acceptance of 

responsibility, it permissibly imposed a two-point sentencing 

enhancement because Nassif “willfully obstructed or 

impeded . . . the administration of justice” when he testified 

falsely at trial. U.S.S.G. § 3C1.1. 
27

In short, it is clear from the record, including the 

sentencing transcript, that the district court did not increase 

Nassif’s sentence as a penalty for his exercise of his trial right. 

The court permissibly gave Nassif “less of a benefit than [it]

would have allowed an otherwise identical defendant who 

showed greater acceptance of responsibility” and who did not 

testify falsely on the stand. Jones, 997 F.2d at 1477. That

decision accords with the Sentencing Guidelines and respects

Nassif’s Sixth Amendment right. See Otunyo, 63 F.4th at 960 

(“The best way to curtail unwarranted disparities is to follow 

the Guidelines, which are designed to treat similar offenses and 

offenders similarly.” (quoting United States v. Bartlett, 567 

F.3d 901, 908 (7th Cir. 2009))); Alford, 89 F.4th at 954.

* * *

For the foregoing reasons, the judgment of the district 

court is affirmed.

So ordered.