1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 22
- 40 ( JEB)
SANDRA WEYER,
Defendant.

MEMORANDUM OPINION On June 6, 2023, following a two

- day bench trial, Defendant Sandra Weyer was
convicted of the felony of Obstruction of an Official Proceeding , in violation of 18 U.S. C. § 1512(c)(2) (Count I) , as well as four misdemeanor s: Entering and Remaining in a Restr icted Building or Grounds, in violation of 18 U.S.C . § 1752(a)(1) (Count II ); Disorderly and Disruptive Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C . § 1752(a)(2) (Count III ); Disorderly Conduct in a Capitol Building, in violation of 40 U.S.C . § 5104(e)(2)(D) (Count IV ); and Parading, Demonstrating, or Pi cketing in a Capitol Building, in violation of 40
U.S. C. § 5104(e)(2)(G) (Count V )

. A ll ar ose from her conduct at the United States Capit o l on January 6, 2021

. This Court sentenced Weyer last September to 14 months of incarceration on the felony , 12 mont h s on Counts II and III, and 6 months on Cou n ts IV and IV , all to run concurrently

. Weyer filed a notice of appeal on September 28 , and she started serving her
sentence on November 15

. On December 31 , two weeks after the Supreme Court gran ted certiorari in Fischer v.
United States , Defendant filed the instant Motion for Release Pending Appeal

. She argues that the grant of certiorari raise s a “substantial question” about the validity of her § 1512(c)(2)2

conviction and ask s the Court to release her from prison because resolution of the issue in her favor would likely result in a reduced sentence that is less than the amount of time she has already served

. Finding that Weyer has satisfied all the criteria for release pendin g appeal , the Court will grant the Motion.
I. Legal Standard
Under 18 U.S.C . § 3143(b)(1), a court shall “order the release” of an individual pending appeal if it finds “(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released ”; and “ (B) that the appeal is not for the purpose of delay and raises a substantial question of law or f act likely to
result in

— (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected dura tion of the appeal process. ” Defendant bears the
burden of satisfying both § 3143(b)(1)(A) and § 3143(b)(1)(B)

. See United States v. Perholtz , 836 F.2d 554 , 555

– 56 (D.C. Cir. 1987) (recognizing a “ required showing on the part of the
defendant ”) ; United States v. Libby , 498 F. Supp. 2d 1, 3 (D.D.C. 2007) ; United States v. Bledsoe , 2024 WL 341159, at *3 (D.D.C. Jan

. 30, 2024).
II. Analysis
A. Flight Risk or Danger The Court finds by clear and convincing evidence that Defendant is not likely to flee and
would not pose a danger if released. Weyer complied with all pretrial release conditions for a period of over two years. She has strong community ties and no prior adult criminal history

. See
ECF No. 55 ( Def. Sentenc ing Memo) at 2

– 3 ; ECF No. 56 (Presentence Investigation Report) at
12

. There is no indication of recent violence or other incident s that would disturb these findings.3

While it sought no pre
- trial detention and raised no objection to Weyer’s release pending sentencing , the Government now cautions the Court that she may be more likely to flee given her experience with confinement. See ECF No. 69 (Gov’t Opp

. ) at 5. It further warns the Court
that , with another potentially controversial presidential election around the corner , Defendant
would be released into “the same political maelstrom that led her to commit her crimes in the first place.” Id. The Court is unpersuaded that she would engage in such behavior again

. In

a ddition, a s Judge John Bates of our district recently explained, Defendant “is not facing a lengthy sentence from which [she] might be highly motivated to flee , ” and the fact that she has
now served over three months in prison may actually make her “more likely to comply with
conditions on release.” United States v. Sheppard , 2024 WL 127016 , at * 2 (D.D.C. Jan

. 11,
2024 ) ; s ee also Bledsoe , 2024 WL 341159 , at *3 ( rejecting similar argument by Government partly because Defendant “ complied with the conditions of release pending trial and sentencing ” ) ; United States v. Adams , 2024 WL 1 1 1802 , at * 1 ( D.D.C. Jan

. 10, 2024) ( similar )

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

. B. Substantial Question of Law
Section 3143(b)(1)(B) raises more nuanced issues

. It is widely recognized that the provision requires a two

- part inquiry: “ (1) Does the appeal raise a substantial question? (2) If so, would the resolution of that question in the defendant ’ s favor be likely to le ad to reversal? ”
Perholtz , 836 F.2d at 555

. A substantial question for purpose of § 3143(b) is “a close question or one that very well could be decided the other way , ” as opposed to one that is “fairly debatable” or “fairly doub tful.” Id. at 555

– 56 ( ci tations omitted )

. It is clear that in light of the Supreme Court’s grant of certiorari in Fischer , Defendant’s appeal of her conviction raises a substantial question and is not for the purpose of delay

. T he4

question presented in Fischer is whether § 1512(c)(2) , which prohibits obstruction of official proceedings , “include [ s ] acts unrelated to investigations and evidence

. ” Pet. for Writ of
Cert iorari at i , Fischer v. United States , No. 23

- 5572 ( U.S. Sept. 11, 2023). Like the defendant in
Fischer and those in many other January 6 cases, Weyer was convicted under § 1512(c)(2)
“base d on evidence that [she] obstructed Congress’s electoral vote certification by rioting in the
United S tates Capitol

. ” Sheppard , 2024 WL 127016 , at * 3

. T he question that the Supreme
Court will resolve in Fischer thus “ cuts to the core of [ Weyer’s ] convictio n

— whether [her] conduct in the Capitol is prohibited by § 1512(c)(2) , ” i d. , a nd its decision to grant cert iorari

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

. ” Adams , 2024 WL 11 1 802, at * 2 (quotation marks omitted) ; s ee also Bledsose , 2024 WL 341159, at *4 ( noting that Fischer ’s fractured appellate decisionmaking “ strongly suggests a ‘ close question ’ that is far from
frivolous ” )

. The Court therefore joins others in this district and finds that Defendant’s appeal raises a substantial question. See Adams , 2024 WL 11 1 802 , at *2 ; Sheppard , 2024 WL 127016 , at *3 ; Bledsose , 2024 WL 341159 , at * 4

. C. Likely Reduced Sentence
Even if the Supreme Court ’s decision were to result in the revers al of Weyer’s § 1512 conviction, asserts the Government, she does not show that this would likely lead to a reduced

sentence that would expire before her appeal con cludes

. S ee Gov’t Opp. at 6

. It submits that the remedy for Weyer is not immediate rel ease since “the statute directs the Court to order the
defendant release [d] only once she has served the amount of time she is likely to serve upon resentencing , not immediately

. ” Id. ( citing 18 U.S. C. § 3143(b)(1)(B)). Since Weyer was also
convicted of four misdemeanor offenses , the Government argues , this Court should resentence
her , following any reversal and remand , to 12 months in prison , as her conduct on January 65

justifies such a sentence

. Id. at 7. In such an event, Weyer ’s sentence would not expire by the
time the Supreme Court decides Fischer

— i.e. , by the aspirational end of its term in June 2024

— and she is thus not eligible for release pending appeal under § 3143(b)(1)(B). See i d. at 9. Once again, the Government’s position does not convince the Court

. Assuming the resolution of the question in Fischer is in Weyer’s favor , the Court would likely not se ntence her

to much more than the time she has already served

. Her 14

- month sentence was driven by her § 1512(c) felony conviction, which carries a base offense level of 14 under the U.S. Sentencing
Guideline s
. See ECF No. 68 ( Pl. Mot. for Release Pending Appeal) at 2; U.S.S .G. § 2J1.2 (Obstruction of Justice). The 12

- month and 6

- month sentences imposed on the remaining
misdemeanor counts were in turn influenced by the Sentencing Guideline s’ rule that the Court impose the total punishment on each count of conviction to the extent allowable by statutory
maxima. See Pl. Mot. For Release Pending Ap peal at 8; U.S.S.G. § 5G1.2(b).
Without the § 1512(c) conviction, t he Court would group Defendan t’s § 1752(a) counts and apply Sentencing Guideline § 2A2.4 (Obstructing or Impeding Officers) with a base offense
level of 10 . It would give Weyer credit for satisfying the criteria for a two

- level Zero Point Offender downward adjustment

. See U.S. S.G. § 4C1.1

. Taken together , an offense level of 8
with a criminal

- history category of I would result in a guideline range of 0

– 6 months in Zone A

. See U.S. S.G. § 5A

. The sentence that the Court would impose on the petty offenses in Count s IV and V would then likely run concurrently with the § 1752(a) counts

. See 18 U.S. C. § 3584(a) (“Multiple terms of imprisonment imposed at the same time run concurrently unless the court
orders or the statute mandates that the terms are to run consecutively .”)

. Only an unlikely upward variance would yield a sentence greater than six months.
Given that Defendant has already served over three months in prison , she would be6

unlikely to receive more if her § 1512(c) convictio n were reversed. Defendant’s release pending appeal is thus warranted under § 3143(b)(1).
III. Conclusion For the foregoing reasons, D efendant's Motion for Release Pending Appeal will be granted. A separate Order consistent with this Opinion will be issued this day

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

Date: February 27, 2024