SENTENCING MEMORANDUM; OBJECTIONS TO PRESENTENCE INVESTIGATION REPORT

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LAW OFFICE OF JAY A. NELSON

JAY A. NELSON, OSB No. 161470

1271 NE Highway 99W, No. 508

McMinnville, OR 97128

Telephone: 503.857.0873

Email: jay@jayanelson.com

Attorney for Defendant

DARRYL WILLIAM THORN

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,

v.

DARRYL WILLIAM THORN,

Defendant.

Case No. 3:16-CR-51-BR

SENTENCING MEMORANDUM;

OBJECTIONS TO PRESENTENCE

INVESTIGATION REPORT

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I. Preliminary Statement

Defendant Darryl William Thorn, by and through his counsel, respectfully submits the

following Sentencing Memorandum and Objections to the Presentence Investigation Report

(“PSR”). At trial, Mr. Thorn sustained convictions on counts one and two of the superseding

indictment, and on counts one and five of the misdemeanor information. See ECF Nos. 2011,

2046. For the reasons set forth below, Mr. Thorn respectfully recommends a sentence of timeserved plus two years of supervised release on the felony counts—to run concurrently with any

sentences imposed on the misdemeanor counts—as well as $5,000 in restitution and $220 in

special assessments (“the recommended sentence”).

II. Legal Framework

“It has been uniform and constant in the federal judicial tradition for the sentencing judge

to consider every convicted person as an individual and every case as a unique study in the

human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to

ensue.” Koon v. United States, 518 U.S. 81, 113 (1996). “Underlying this tradition is the

principle that the punishment should fit the offender and not merely the crime.” Pepper v.

United States, 562 U.S. 476, 487-88 (2011) (quotations marks omitted). 

Applying the factors set forth in 18 U.S.C. § 3553(a), this Court is empowered and

required to “make an individualized assessment” of a fair and just sentence for Darryl Thorn. 

Gall v. United States, 552 U.S. 38, 50 (2007). The Court is thus charged to “impose a sentence

sufficient, but not greater than necessary, to accomplish the goals of sentencing, including to

reflect the seriousness of the offense, to promote respect for the law, to provide just punishment

for the offense, to afford adequate deterrence to criminal conduct, and to protect the public from

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Mr. Thorn files Dr. Guyton’s report, in full, under seal concurrently herewith. 

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further crimes of the defendant.” Kimbrough v. United States, 552 U.S. 85, 101 (2007)

(quotation marks omitted, emphases added).

Mr. Thorn addresses the section 3553(a) factors below in turn.

III. The Section 3553(a) Factors

A. Section 3553(a)(1).

Section 3553(a)(1) directs the Court to evaluate “the nature and circumstances of the

offense and the history and characteristics of the defendant[.]” 

1. The history and characteristics of Darryl Thorn.

The “unique study in the human failings” in this case reflects the tragic consequences that

so often result at the intersection of poverty, drug dependence, and child abuse. Koon, 518 U.S.

at 113.

Mr. Thorn was born to an indigent and drug-addicted mother. PSR ¶ 74. Shortly after

his birth, his mother deprived him of all contact with his father, whose public service included

work as an animal control officer and a deputy sheriff. PSR ¶¶ 72-74.

After Mr. Thorn’s mother left his father, she embarked on an itinerant life with multiple

male partners before she remarried; Mr. Thorn refers to his stepfather herein as “P.B.” PSR ¶¶

74; Evaluation of Michelle R. Guyton, Ph.D., ABPP (“Guyton Eval.”) pp. 3-4.1

 In this public

filing, Mr. Thorn will not recite every disturbing detail of the abuse he suffered as a child, but he

incorporates by reference all such facts from the PSR and Dr. Guyton’s report. See generally

PSR ¶¶ 72-77, 84, 87-88; Guyton Eval. pp. 3-10. Suffice it to say, Mr. Thorn’s experiences with

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adults during his formative years were characterized predominantly by (i) chronic substance

abuse, and (ii) appalling patterns of domestic violence and abuse. Id.

It is difficult to fathom the depravity of P.B.’s conduct toward Mr. Thorn. He would beat

Mr. Thorn, for example, until he wet his pants. PSR ¶ 74; Guyton Eval. p. 4. He shackled Mr.

Thorn to the back porch for hours on end, securing his ankle with a heavy chain and padlock. 

PSR ¶ 74; Guyton Eval. p. 4. If Mr. Thorn ever slipped out of the house to escape the horrors of

P.B. beating his mother, he returned only to face the wrath of P.B. himself. See PSR ¶ 74;

Guyton Eval. p. 4. Sometimes Mr. Thorn reported suffering abuse at the hands of other people

as well—conduct that gave him nightmares, anxiety, and depression—but P.B. callously

shrugged it off, claiming Mr. Thorn was simply “‘making it up’” for attention. PSR ¶ 75;

Guyton Eval. pp. 4, 8. Finally, at the age of 12, authorities removed Mr. Thorn from his

mother’s home after P.B. pushed him into a doorknob, resulting in a black eye serious enough

that it caught the attention of a school employee. PSR ¶ 76; Guyton Eval. p. 4. 

Regrettably, Thorn’s lot did not improve in foster care: he continued to live the life of a

prototypical troubled youth. From approximately ages 12 through 17, he (i) bounced around

between foster placements, (ii) ran away frequently to check on his mother’s well being, and (iii)

went though periods of homelessness. PSR ¶ 76; Guyton Eval. pp. 4-6. Like so many other

young people in Mr. Thorn’s situation, he found himself caught up in the juvenile justice system,

and he crystallized his own cycles of substance abuse. PSR ¶¶ 54, 87; Guyton Eval. pp. 6-9. For

some time, Mr. Thorn mistakenly believed he had found a promising foster placement, but that

experience too ended up in a nightmare: his foster father—whom Mr. Thorn admired as a

positive male role model—unexpectedly took his own life. Guyton Eval. pp. 4-5. Adding insult

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to injury, the decedent—for reasons unknown, whether cowardice, panic, or otherwise—falsely

implicated Mr. Thorn in his suicidal act, which required Mr. Thorn to clear his name with the

authorities. Id.

Facing all of these challenges, Mr. Thorn never made it past the eighth grade in school,

and he received a special education placement as early as elementary school. PSR ¶ 88; Guyton

Eval. p. 6. One of Mr. Thorn’s lowest points came at age 15, when he tried—with some

success—to hang himself from a tree, only to be cut down by P.B. and reprimanded (yet again)

for seeking attention. Guyton Eval. p. 9. 

By the age of 17—on the verge of adulthood—Mr. Thorn had still never known the most

basic comforts of a stable, supportive household free from abuse. Fortunately, when he was

approximately 17 years old, his older sister fulfilled a promise she made many years before,

when she was preparing to run away herself to escape their mother and stepfather: that she would

come back one day to rescue him. PSR ¶ 76. After his sister made good on her promise—and

thus came to retrieve Mr. Thorn in Washington—Mr. Thorn lived with his sister and brother-inlaw in Hickman, Kentucky. PSR ¶ 76. During that brief period of respite, Mr. Thorn not only

got his first real taste of safe and stable living, but he also found a positive male role model in his

brother-in-law, who taught him, among other thing, the value of a strong work ethic. PSR ¶ 76. 

In adulthood, his sister’s rescue has had some lasting positive effects for Mr. Thorn. He

has, for example, embraced the rewards of hard work, and forged a career in construction. PSR

¶¶ 89-91; Guyton Eval. p. 6. He is also a proud father of four—with three biological children

and one de facto—though his difficult relationship with one daughter’s mother has complicated

his relationship with that child. PSR ¶¶ 78-80; Guyton Eval. pp. 5-6. Perhaps the longest stretch

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Dr. Guyton further reports that Mr. Thorn “presents with some features of major

depressive disorder with anxious distress as well as borderline personality disorder[,]” but “his

presentation is not severe enough to warrant either of these diagnoses.” Guyton Eval. p. 2; see

also id. pp. 14-16.

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of relative stability Mr. Thorn has ever achieved in adulthood was an approximately eight-year

relationship with the mother of his two boys, although that relationship too crumbled under the

pressures of work, child-rearing, jealousy, and physical confrontations. Guyton Eval. pp. 5-6.

In truth, Mr. Thorn has never escaped the long shadow of his traumatic childhood,

which—arithmetically speaking—still comprises more than half of his 33 years. See PSR ¶ 72. 

Mirroring his childhood experience with striking (though unsurprising) symmetry, Mr. Thorn’s

adult criminal history consists overwhelmingly of controlled substance and domestic violence

misdemeanors for which he has served little or no time. PSR ¶¶ 55-65. And, indeed, Mr. Thorn

has abused substances to “‘self-medicate’”—at least on and off—for virtually his entire life, so

much so that Dr. Guyton has diagnosed him with alcohol and methamphetamine use disorders. 

PSR ¶ 87; Guyton Eval. pp. 2, 7-8, 11, 17.2

In addition, Dr. Guyton conducted cognitive testing with Mr. Thorn; her assessment

revealed that Mr. Thorn’s “Full Scale IQ”—representing his “overall intellectual

functioning”—scores at the eighth percentile, “meaning that [Mr. Thorn] performed at or better

than 8% of individuals in the same age range[,]” or alternatively, that “92% of individuals in the

same age range scored higher[.]” Guyton Eval. pp. 12-14 & n.1. This rating places Mr. Thorn in

the so-called “borderline” range, scarcely above a score that would suggest “mental retardation.” 

Id.

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With this background, Mr. Thorn traveled from Washington to join the Malheur National

Wildlife Refuge (“MNWR”) protest. See PSR ¶ 90.

2. The nature and circumstances of the offense.

In evaluating the nature and circumstances of his offense conduct, Mr. Thorn asks the

Court to remain mindful of Pepper’s admonition that “the punishment should fit the offender and

not merely the crime.” Pepper, 562 U.S. at 487-88 (quotations marks omitted, emphasis added). 

In a sprawling case such as this, it may be tempting to fall back on shorthand analyses styled, for

example, in terms of what “the occupation” or “the occupiers” did in a broad, amorphous, and

generalized sense. See generally, e.g., PSR ¶¶ 18-39b. The Court should resist any such

temptation. Whether under the Sentencing Guidelines, 18 U.S.C. § 3553(a), or as a matter of

due process and fundamental fairness, the Court should conduct a rigorous analysis that only

attributes conduct to Mr. Thorn if it finds—based on competent, record evidence—that (1) Mr.

Thorn personally undertook the action, or (2) it was jointly undertaken conduct that (a) fell

within the scope of Mr. Thorn’s agreement of conviction, (b) was in furtherance that agreement,

and (c) was reasonably foreseeable to him. See, e.g., U.S.S.G. § 1B1.3; United States v.

Banuelos, 322 F.3d 700, 704 (9th Cir. 2003) (in drug cases, sentencing courts “may not

automatically count as relevant conduct the entire quantity of drugs distributed by the

conspiracy” for purposes of the Guidelines or for “sentencing under the statute of offense”); U.S.

Const., amend V. 

Without prejudice to Mr. Thorn’s pursuit of post-conviction remedies, the evidence and

verdicts, fairly characterized, reflect that Mr. Thorn:

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• Answered Ammon Bundy’s call to the MNWR on either January 3 or January 6,

2016, and left on January 26 or 27, 2016, spending at least some portion of his

time there with his then-girlfriend, Christina Wright. See Consecutively

Paginated Reporter’s Transcript of Trial II Proceedings (“Trial RT”) 2970-71;

Trial Exhibit (“TX”) 1607; PSR ¶ 35;

• Slept in a bunkhouse at the MNWR, worshiped at religious services there, and

attended educational seminars led by prominent protest figures such as Ammon

Bundy. ECF No. 2046; RT 2415; TX 1029; TX 70; 

• Possessed firearms at the refuge and primarily engaged in watch duty. ECF No.

2011; TX 47;

• Agreed with at least one other person to impede MNWR employees by force,

intimidation, or threat (in the disjunctive). ECF Nos. 2011, 2015;

• Drove at least one government-owned motor vehicle at the refuge, and wore

military-inspired clothing. ECF No. 2046, TX 67;

• Was identified on a seized document as a “leader” of “Team D[,]” though the

record does not illuminate what those designations purport to mean. RT 1663-65;

• Openly posted on social media about his experiences at the refuge, including an

ineffectual statement of interest in returning to the refuge to support any

protestors who remained in February 2016. TX 47;

• Has agreed with the government that he is responsible for $5,000 in loss,

compensable under 18 U.S.C. § 3663. ECF Nos. 2254, 2259; and

• By his presence, along with the other protestors, had an adverse impact on certain

refuge operations and on some refuge employees. See PSR ¶¶ 37-39. 

 

The record also reflects an absence of evidence that Mr. Thorn undertook any of the

following conduct:

• Participating in the 2014 Bunkerville, Nevada incident. Trial RT 797-98;

• Organizing and/or agitating in Harney County (or elsewhere) regarding the

Hammond case, beginning in the fall of 2015. See, e.g., Trial RT 1741-47;

• Participating in the so-called “blue house” meeting held December 29, 2015. See,

e.g., Trial RT 1761-62;

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• Planning or organizing any aspects of the MNWR protest. See, e.g., Trial RT

1765;

• Participating in the commencement of the MNWR protest on January 2, 2016. 

See, e.g., Trial RT 2443;

• Personally bringing firearms or dangerous weapons to the MNWR. PSR ¶ 31;

• Stealing or damaging property at the MNWR. Cf. PSR ¶ 27;

• Meriting recognition as a person of prominence on Ammon Bundy’s internal

organizational list, or indeed distinguishing himself to Ammon Bundy at all other

than that Bundy noticed him at dinner and “saw him a couple of times and shook

his hand and had, like, a brief . . . ‘how are you doing’ type of conversation.” TX

25; Trial RT 1808-10; or

• Using force against MNWR employees, communicating threats to employees, or

conspiring with anyone to do either. Cf. PSR ¶ 24.

Notably, Dr. Guyton’s assessment casts further mitigating light on Mr. Thorn’s

motivations for attending the MNWR protest. To begin, it is inconsistent with Mr. Thorn’s

cognitive testing results—no matter how deeply and genuinely held his personal views may

be—that he possesses a deep understanding of the political, historical, and constitutional theories

that animate the Bundy family’s protest behavior. See Guyton Eval. pp. 12-14. Nor has Mr.

Thorn ever been a rancher or landowner, nor did he have meaningful personal ties to rural

America prior to the events of this case. See PSR ¶¶ 72-91. 

Instead, as Dr. Guyton notes, Mr. Thorn suffered from a lack of “stability” after the

failure of his last long-term romantic relationship “in terms of work, housing, or relationships,

and this instability [] negatively affected his ability to manage himself appropriately.” Guyton

Eval. p. 16. In Dr. Guyton’s view, “[i]t is at these times that [Mr. Thorn] has used illicit

substances and alcohol more frequently and been in situations that can be more volatile or

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otherwise problematic.” Id. At bottom, Mr. Thorn was isolated, lonely, and disconnected prior

to the events of this case, so he sought out—and found—“comfort in his identification with other

members of the refuge takeover and their national support network. This has likely provided a

source of pride and companionship when he may have struggled with these in recent years.” Id.

Equally (if nor more) important is the indelible connection between Mr. Thorn’s

involvement in the protest and the affection he has expressed for LaVoy Finicum. As Dr.

Guyton put it, Mr. Thorn “looked up to Mr. Finicum for many reasons[,]” and viewed him as “a

kind, if distant, father figure to him.” Guyton Eval. p. 11. For a man who (i) never had a

meaningful relationship with his biological father, (ii) suffered unconscionable abuse and neglect

at the hands of his stepfather, and (iii) was deserted and betrayed by his foster father, finding a

“kind, if distant father figure” at the refuge presented a landmark event in Mr. Thorn’s life. See

Guyton Eval. p. 16 (“Mr. Thorn’s identification with this group has been strengthened . . .

through the death of Lavoy Finicum. Mr. Thorn feels significantly affected by the loss of Mr.

Finicum. This loss may also trigger reminders of previous losses, such as that of his biological

and foster fathers.”). In other words, even if Finicum had no relationship to Mr. Thorn’s initial

decision to join the protest, his presence at the refuge exerted a powerful influence over Mr.

Thorn’s decision-making after he arrived, if for no other reason that Mr. Thorn was still

searching for a father figure.

In short, Mr. Thorn joined the MNWR protest as a scarred man looking for community,

not for a fight. Both section 3553(a)(1) factors support the recommended sentence.

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B. Sections 3553(a)(3), 3553(a)(4), 3553(a)(5).

Sections 3553(a)(3) through (a)(5) direct the Court to assess the kinds of sentences

available by statute and pursuant to the United States Sentencing Guidelines, as well as the

policy statements and amendments issued by the United States Sentencing Commission. 

Mr. Thorn begins with uncontested matters. First, the statutory custodial sentencing

ranges applicable to his counts of conviction are zero to six years (18 U.S.C. § 372), zero to five

years (18 U.S.C. § 930(b)), and zero to six months (16 U.S.C. § 460k-3). Accord PSR ¶¶ 93-94. 

In addition, under the Guidelines, Mr. Thorn does not contest Probation’s application of Base

Offense Level 10 and Criminal History Category III. PSR ¶¶ 43, 67. 

Mr. Thorn does, by contrast, object to Probation’s application of (1) a three-level

enhancement for threatened use of a firearm under U.S.S.G. § 2A2.4(b)(1), and (2) a five-level

upward departure under U.S.S.G. § 3A1.4, cmt. n.4. PSR ¶¶ 43, 116-17 & Sentencing

Recommendation.

1. The clear and convincing standard of proof applies to Probation’s proposed

enhancements.

As a threshold matter, the Court should apply the clear and convincing standard of proof

to the disputed enhancements. “[F]acts found in support of Guidelines enhancements that turn

out to have a disproportionate impact on the ultimate sentence imposed [must] be established by

clear and convincing evidence[.]” United States v. Staten, 466 F.3d 708, 720 (9th Cir. 2006). 

Indeed, “where a severe sentencing enhancement is imposed on the basis of uncharged or

acquitted conduct, due process may require clear and convincing evidence of that conduct.” 

United States v. Treadwell, 593 F.3d 990, 1000 (9th Cir. 2010).

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Such is the case here. Without the contested eight-level increase, Mr. Thorn’s advisory

Guidelines range is 10-16 months in custody. With the increase, the low end of the range more

than triples to 33-41 months. Accord PSR ¶ 117. Such a dramatic increase is disproportionate

by any standard. The Court should require clear and convincing evidence before imposing

Probation’s proposed enhancements.

2. The three-level enhancement for threatened use of a firearm does not apply.

Section 2A2.4(b)(1)(B) provides for a three-level specific offense enhancement “[i]f . . .

a dangerous weapon (including a firearm) was possessed and its use was threatened[.]” In

Probation’s view, this enhancement applies because “[f]irearms were possessed in this offense,

as seen in multiple videos and news conferences.” PSR ¶ 43.

But Probation’s analysis accounts for only one of the two elements set forth in section

2A2.4(b)(1)(B): possession. Absent any evidence (or even an allegation) that Mr. Thorn

possessed a firearm “and its use was threatened” within the meaning of sections 2A2.4 and

1B1.3, Mr. Thorn objected to the proposed enhancement. See PSR, Addendum (attachment). 

In response, Probation has studiously refused to even allege in the PSR that a qualifying

threat occurred. PSR ¶ 43. Instead, Probation has added the following assessment to its

Addendum:

The very presence of the various types of firearms on the MNWR

was threatening to the employees, visitors, and law enforcement. 

In addition, the defendant was seen with at least two guns, and

there were pictures taken of the defendant with an AR-15 and other

firearms. No changes have been made.

PSR, Addendum p. 2. 

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The Court should reject this facile analysis. The relevant Guidelines do not define the

term “threatened.” See U.S.S.G. §§ 2A2.4, 1B1.1, cmt. n. 1. They do, however, define the term

“brandished,” as follows:

‘Brandished’ with reference to a dangerous weapon (including a

firearm) means that all or part of the weapon was displayed, or the

presence of the weapon was otherwise made known to another

person, in order to intimidate that person, regardless of whether the

weapon was directly visible to that person. Accordingly, although

the dangerous weapon does not have to be directly visible, the

weapon must be present.

U.S.S.G. § 1B1.1, cmt. n.1(C). 

The Guidelines also define what it means to “otherwise use” a firearm:

‘Otherwise used’ with reference to a dangerous weapon (including

a firearm) means that the conduct did not amount to the discharge

of a firearm but was more than brandishing, displaying, or

possessing a firearm or other dangerous weapon.

U.S.S.G. § 1B1.1, cmt. n.1(I).

The Ninth Circuit has adopted the following distinction between “brandish” and

“otherwise use”—“a weapon is ‘otherwise used’ once there is ‘specific leveling’ of the weapon

at another person[,]” whereas “‘[b]randishing’ is a ‘general display of weaponry.’” United

States v. Albritton, 622 F.3d 1104, 1107 (9th Cir. 2010). “Threat,” by contrast, appears to fall

somewhere in between the two: it is “an expression of intention to inflict evil, injury, or

damage[.]” See https://www.merriam-webster.com/dictionary/threat. The sliding scale of these

three terms, therefore, proceeds as follows: “brandishing” occurs when one displays a gun for

purposes of intimidation, “threatening” occurs when one affirmatively expresses an intention to 

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use the gun to inflict harm, and “otherwise using” occurs when one escalates to the point of

actually directing the gun at another person. 

This understanding finds support in the Fifth Circuit’s decision in United States v.

Hooker, 997 F.2d 67, 75 (5th Cir. 1993), which held that “§ 2A2.4 is meant to apply to

possession of weapons and verbal threats” (emphasis added). Furthermore, the communicated

threat must be directed at the obstructed or impeded federal officers—in this case, employees of

the MNWR—not uncharged “visitors” or “law enforcement.” Compare PSR, Addendum at 2

with United States v. Beckner, 983 F.2d 1380, 1388 (6th Cir. 1993) (Graham, J., dissenting)

(“This characteristic focuses on and is limited to the conduct of defendant which constitutes the

resisting offense, that is, conduct directed toward the officers who are being impeded or resisted,

and does not take into account defendant’s acts against persons who are not officers.”). 

Probation’s analysis comes closest to “brandish,” which of course appears nowhere in

section 2A2.4(b)(1)(B). But even as to “brandish,” Probation’s analysis—which turns on the

subjective response of the alleged threat recipient(s) (including uncharged threat

recipients)—falls short, inter alia, because “brandish” turns more appropriately on objective

measures of the firearm possessor’s intent to intimidate. See U.S.S.G. § 1B1.1, cmt. n.1(C). 

In sum, Probation has not alleged—let alone proven by clear and convincing evidence or

otherwise—that Mr. Thorn should be held responsible for any “threats” within the meaning of

U.S.S.G. §§ 2A2.4 and 1B1.3. The Court should reject the proposed three-level enhancement.

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Mr. Thorn files a copy of the Draft PSR under seal concurrently herewith. 

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3. The Court should decline to apply an upward departure under U.S.S.G. §

3A1.4, cmt. n.4. 

The Court should similarly decline to apply an upward departure under the Commentary

to section 3A1.4, for the following reasons.

First is procedural impropriety. In the Draft PSR disclosed September 11, 2017,

Probation adopted the government’s recommendation for a three-level departure under

Application Note Four to section 3A1.4—up to an advisory Guidelines range of 27-33

months—counterbalanced (mildly) by a downward variance based on Mr. Thorn’s personal

history and characteristics to an overall recommended sentence of 21 months. See Draft PSR ¶¶

116-17, Sentencing Recommendation.3 Mr. Thorn timely objected to the upward departure in an

objection letter submitted to Probation(and served on the government) under Fed. R. Crim. P.

32(f). See PSR, Addendum (attachment). The government submitted no such letter itself, and

thus lodged no objections under Rule 32(f). Id. 

In the Final PSR, by contrast, Probation recommends a five level upward departure—to a

Guidelines range of 33-41 months—counterbalanced (again mildly) by the equivalent of a twolevel departure based on Mr. Thorn’s personal history and characteristics, to an overall

recommended sentence of 27 months. PSR ¶¶ 116-17, Sentencing Recommendation. 

The question arises: what happened between the Draft PSR and the Final PSR? One

answer is that Mr. Thorn submitted a lengthy and detailed objection letter contesting 40+ errors

in the Draft PSR, both large and small. See PSR, Addendum (attachment). Another answer

candidly appears in the PSR Addendum: “[t]he government provided additional information in

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support of an upward departure pursuant to USSG §3A1.4. After further consideration of the

defendant’s conduct during the occupation, and the departures applied to similarly situated

codefendants in this case, the probation office agreed that a significant upward departure should

apply.” PSR, Addendum p 1 (emphases added). 

In other words, rather than openly participate in the equitable framework established by

Rule 32, the government elected to back-channel unspecified information to Probation on an ex

parte basis, perhaps (if not likely) in response to Mr. Thorn’s timely-lodged Rule 32(f) objection

letter. Worse, United States Probation—charged with performing solemn and neutral duties as

an arm of this Court—has openly confessed its eagerness to play by the government’s secret

rules, and has even referred to the government’s cloak-and-dagger communication as a “resolved

objection[.]” PSR, Addendum at 1. 

If the government wished to object Probation’s acceptance of its own recommendation

for a three-level departure, it should have said so under Rule 32. Instead, the evidence suggests

that the United States waited to see what, if anything, Mr. Thorn would say on the matter before

it sought and obtained a private audience with Probation to contest it, forcing Mr. Thorn, at this

point, to respond in the dark and on a truncated timeline. The record presents an odor of

collusion and vindictiveness—in violation of Rule 32 and due process—and the Court should

respond with a strong voice. Mr. Thorn objects.

Second, Application Note Four is invalid as a matter of law. The Sentencing

Commission added Application Note Four to the Guidelines in 2002, in connection with “a sixpart amendment that responds to” the USA PATRIOT Act of 2001, Pub. L. 107-56. See

U.S.S.G., Vol. 2, App. C, Amendment 637 (“Amendment 637”). Notably, Amendment 637 cites

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no particular statutory authorization applicable to Application Note Four, and Mr. Thorn is

aware of none. See id. As far as Mr. Thorn can discern, the only explicit directive to the

Sentencing Commission in the USA PATRIOT Act relates to computer fraud and abuse under 18

U.S.C. § 1030. See Pub. L. 107-56 § 814. With the exception of Application Note Four,

Amendment 637 responds, in general, to the concrete ways in which Congress expanded and

strengthened the federal criminal code in the wake of the 9/11 attacks. See generally

Amendment 637. By contrast, the Commission explained that it added the departure in

Application Note Four “rather than a specified guideline adjustment, because of the expected

infrequency of [such] terrorism offenses and to provide the court with a viable tool to account for

the harm involved during the commission of these offenses on a case-by-case basis.” See

Amendment 637. 

The problem with this claim is that it cannot be entirely true. As the Commission

explained more candidly in the text of Application Note Four itself, the Commission has no

statutory authority to expand the reach of section 3A1.4 beyond the list of federal crimes of

terrorism set forth in 18 U.S.C. § 2332b(g)(5): “By the terms of the directive to the Commission

in section 730 of the Antiterrorism and Effective Death Penalty Act of 1996 [“AEDPA”], the

adjustment provided by this guideline applies only to federal crimes of terrorism.” U.S.S.G. §

3A1.4, cmt. n.4. That assertion is correct. AEDPA section 730 provides:

The United States Sentencing Commission shall forthwith, in

accordance with the procedures set forth in section 21(a) of the

Sentencing Act of 1987, as though the authority under that section

had not expired, amend the sentencing guidelines so that the

chapter 3 adjustment relating to international terrorism only

applies to Federal crimes of terrorism, as defined in section

2332b(g) of title 18, United States Code.

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Pub. L. 104-132 § 730 (emphases added). Congress did not enumerate any of Mr. Thorn’s

offenses of conviction in section 2332b(g). See 18 U.S.C. § 2332b(g)(5)(B). 

“[C]ommentary in the Guidelines Manual that interprets or explains a guideline is

authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a

plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). 

Application Note Four runs afoul of Stinson because—as the Commission openly

confessed—the Note cannot be squared with AEDPA’s requirement that section 3A1.4 may only

apply to federal crimes of terrorism within the meaning of 18 U.S.C. § 2332b(g). Pub. L. 104-

132 § 730. Put another way, Application Note Four “violates . . . a federal statute[.]” Stinson,

508 U.S. at 38. Relatedly, because section 3A1.4 cannot apply to non-terrorism crimes such as

Mr. Thorn’s—nor does it—the Application Note is inconsistent with and a plainly erroneous

reading of the Guideline itself. See, e.g., United States v. Shell, 789 F.3d 335, 345 (4th Cir.

2015) (Commentary lacks “freestanding definitional power” and instead must be linked to the

text of the Guideline) (quotation marks omitted). Because Application Note Four impermissibly

exceeds the Sentencing Commission’s statutory authority and the text of section 3A1.4, it is a

dead letter.

Third, even if the Court has discretion to apply the contested departure, it should decline

to do so because the conduct addressed by Application Note Four overlaps in pertinent part with

the base offense level applicable to Mr. Thorn’s conspiracy conviction. The jury convicted Mr.

Thorn of conspiring to prevent federal officers from discharging their duties by force,

intimidation, or threat. ECF Nos. 2011, 2015. The Guidelines provide a base offense level of

ten for that conduct. See U.S.S.G. § 2A2.4(a). If applied to Mr. Thorn, the contested departure

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provision would provide a further increase based on the very same thing: conduct “calculated to

influence or affect the conduct of government by intimidation or coercion, or to retaliate against

government conduct[.]” U.S.S.G. § 3A1.4, cmt. n.4. Even if the government or Probation

manages to identify one or more minor distinguishing features—though none is apparent from

Probation’s opaque recitation so far, PSR ¶¶ 116-17 & Addendum p. 1—it would still not merit a

staggering five-level enhancement (PSR ¶ 117), nor even a three-level increase (Draft PSR ¶

117), nor, in any case, would it outweigh the overwhelmingly mitigating features of Mr. Thorn’s

personal history and characteristics. Put another way, the government’s and Probation’s request

to apply Application Note Four is unreasonable, and the Court should reject it. See United States

v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006).

* * * * *

Based on the foregoing, Mr. Thorn’s properly-calculated Guidelines range is 10-16

months.

C. Section 3553(a)(2).

Section 3553(a)(2) directs the Court to evaluate a sentence sufficient to “(A) reflect the

seriousness of the offense, to promote respect for the law, and to provide just punishment for the

offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from 

further crimes of the defendant; and (D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional treatment in the most effective manner.” 

As Kimbrough made plain, the Court should fashion a “a sentence sufficient, but not greater than

necessary” to meet these goals. 552 U.S. at 101. 

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By the time of his sentencing hearing, Mr. Thorn will have been in custody on this matter

twice, as follows: (1) from February 11, 2016 to May 2, 2016 (2 months, 21 days), and (2) from

August 16, 2017 to November 21, 2017 (3 months, 5 days), for a total of approximately six

months. Trial RT 1120; ECF Nos. 500, 2205. That time frame represents four times as long as

he has ever served in custody before (see PSR ¶ 65), and is an appropriate amount of punishment

for his conduct of conviction, particularly when coupled with a term of supervised

release—which Mr. Thorn addresses in greater detail below—and when the Court considers the

myriad negative consequences this case has already brought upon his life. 

Mr. Thorn’s offense conduct is serious, and so are the consequences he has already

suffered. In addition to spending six months in jail, Mr. Thorn is now a felon who lost his rights

to (1) vote and (2) bear arms. Even more broadly, the case has upended his life for the better

part of the last two years. Mr. Thorn has lost his pre-protest job in construction, and while on

pretrial release, has struggled to regain a steady footing in the labor market. PSR ¶¶ 89-90. Mr.

Thorn is also indigent—though he remains committed to meeting his restitution and child

support obligations—and he suffered an acute mental health crisis in August 2017 due, in part, to

the stress of this case and his impending sentencing proceeding. See PSR ¶¶ 12, 92; ECF No.

2259; Guyton Eval. p. 9-10. Mr. Thorn has been beaten up in custody, lost weight, and

developed a skin condition. See PSR ¶¶ 13a, 82; Guyton Eval. p. 10. He also sustained serious

injuries during his February 2016 arrest. TX 1617. In short, Mr. Thorn has already suffered

ample punishment for his participation in the occupation—including sufficient punishment to

accomplish the goals of specific and general deterrence—and he respectfully asks for leave to

begin a new chapter in his life. See PSR ¶ 85 (Mr. Thorn wants “to have a happy life, to find

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4

The concurrently-filed letter from Mr. Thorn’s girlfriend speaks to the warmth that

awaits him upon his release from custody, notwithstanding the couple’s challenges in the past.

SENTENCING MEMORANDUM; OBJECTIONS TO PRESENTENCE INVESTIGATION REPORT

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employment, and to have a relationship with his family”). The recommended sentence is

tailored to these considerations.4

The government may contend Mr. Thorn is a dangerous person, and that he thus merits a

lengthy custodial sentence to protect the public. The Court should reject any such argument. In

fact, Dr. Guyton has provided detailed treatment recommendations, in order of priority, to

address Mr. Thorn’s unique needs and to “restabilize him in the community, address his mental

health and substance use needs, and allow him to live prosocially.” Guyton Eval. pp. 17-18. 

Notably, Dr. Guyton has further opined that many of the necessary treatment options “may be

more limited within a correctional environment”—viz., Mr. Thorn could indeed present less of a

threat (if any) outside of custody, because he would have better access to the treatment options

he needs. Dr. Guyton’s most pertinent recommendations, in summary, are as follows:

• Coping skills treatment such as Dialectical Behavior Therapy;

• Individual counseling; 

• Substance use treatment;

• Psychiatric medication if appropriate; and

• A gradual decreasing intensity of supervision, beginning with “high levels of

structure” that reduce over time as Mr. Thorn “shows increased signs of stability

in the community, stable housing, and remaining substance free.”

Guyton Eval. pp. 17-18. Helpful conditions of supervised release such the treatment regimen

recommended by Dr. Guyton would address Mr. Thorn’s underlying risk factors much more

directly than the proscriptive and blunt instruments endorsed by Probation—including, namely,

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proposed special conditions 11-13—which add nothing to mandatory condition one: that Mr.

Thorn “must not commit another federal, state or local crime.” PSR, Sentencing

Recommendation p. 3.

For these reasons, the recommended sentence—including conditions of supervised

release consistent with Dr. Guyton’s recommendation—is sufficient, but not greater than

necessary to satisfy the section 3553(a)(2) factors. See also 18 U.S.C. § 3583(d) (special

conditions of supervised release must be reasonably related to the section 3553(a) factors and

involve “no greater deprivation of liberty than is reasonably necessary”).

D. Section 3553(a)(6).

Section 3553(a)(6) directs the Court to consider “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of similar

conduct[.]”

As of this writing, MNWR protest participants may be roughly broken down into a

handful of subgroups, as follows:

(1) Higher-level participants acquitted at trial (e.g., Ammon Bundy, Ryan Bundy,

Shawna Cox, David Fry, Jeff Banta, Kenneth Medenbach, Neil Wampler);

(2) Higher-level participants who pled guilty to conspiracy (e.g., Jon Ritzheimer, Joseph

O’Shaughnessy, Ryan Payne, Brian Cavalier, Blaine Cooper, Corey Lequieu);

(3) Lower-level participants who pled guilty to conspiracy (e.g., Wesley Kjar, Jason

Blomgren, Geoffrey Stanek, Travis Cox, Eric Flores);

(4) Lower-level participants who pled guilty to trespassing (e.g., Dylan Anderson, Sean

Anderson, Sandra Anderson); 

(5) Lower-level participants who were convicted at trial of depredation (e.g., Duane

Ehmer, Jake Ryan);

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(6) A higher-level participant who was convicted at trial of conspiracy (e.g., Jason

Patrick); and 

(7) Individuals facing no legal repercussions due to the exercise of prosecutorial

discretion (e.g., Peter Santilli, Christina Wright, Nathaniel Peters, Nicholas Fisher, Allyn

Belangie, Preston Knodell, Carl Brammann, and more). 

By standing on his right to a jury trial, Mr. Thorn forfeited his opportunity to join Group

No. 4, and in his current procedural posture, none of the remaining groups presents a perfect

match for him. Nonetheless, the closest fit by far is Group No. 3: lower-level participants

convicted of conspiracy. Uniformly, the Court has imposed two years of probation on these

defendants. See ECF Nos. 2152 (Stanek), 2180 (Flores), 2202 (Cox), 2255 (Blomgren).

By all appearances, there are two primary features of Mr. Thorn’s case that set him apart

from his peers in Group No. 3: (1) his criminal history category under the Guidelines, and (2)

that he joined three of this co-defendants at trial rather than plead guilty. For the reasons set

forth above and in Dr. Guyton’s report, however, Mr. Thorn’s criminal history is substantially

mitigated by his personal history and characteristics, and in no way justifies Probation’s

recommendation of 2.25 years in prison above and beyond his Group 3 peers. Second, the socalled “trial penalty”—although legal—is particularly distasteful in this case, as nine of the

eleven defendants who proceeded to trial were acquitted on the conspiracy count, including the

principal architects of the occupation themselves.

Taking a holistic look at the MNWR protest and the legal proceedings that ensued, it is

most consonant with section 3553(a)(6) that Mr. Thorn to receive a custodial sentence of time

served followed by two years of supervised release. That sentence would align him, generally 

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speaking, with his peers in “Group 3,” while also accounting for any additional factors that

support a modest custodial sentence.

E. Section 3553(a)(7).

The last section 3553 factor requires the Court to consider “the need to provide

restitution to any victims of the offense.” The recommended sentence includes a $5,000

restitution judgment already approved by the Court. ECF No. 2259.

IV. Objections to Presentence Report

In addition to the foregoing, Mr. Thorn respectfully objects to the Presentence Report on

the following grounds:

First, in the interest of brevity, Mr. Thorn reiterates and incorporates by reference all

unresolved objections from his objection letter dated October 30, 2017, including Items 1, 10,

11, 12, 13, 14, 15, 19, 20, 22, 32, 33, 35, 36, 37, 38, and 40. See PSR, Addendum (attachment). 

Second, Mr. Thorn objects to any suggestion in Paragraph 13a that the alleged “political

s**t” related to the events of this case or to a broader civic discourse. Instead, Mr. Thorn

contends the dispute arose out of jail politics, in which Mr. Thorn resisted menacing and

racially-motivated conduct thrust upon him.

Third, Mr. Thorn objects to the assertion in Paragraph 25 that “MNWR staff was unable

to conduct any official operations” during the protest. Refuge employees testified at trial that

they were able to conduct some official duties during the protest. See Trial RT 718-19, 1373.

Fourth, Mr. Thorn objects to Paragraphs 35a-35g, 39a, and 39b. This material

purportedly relates to counts one, four, and five of the misdemeanor information, but in fact only 

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addresses the depredation conduct charged against Mr. Thorn’s co-defendants. It does not

belong in Mr. Thorn’s PSR, and the Court should strike it in full.

Fifth, Mr. Thorn has received the impact statements referred to in Paragraphs 37-39. 

With respect to the statements and paragraphs 37-39, Mr. Thorn respectfully reiterates his

request, supra Section 3(A)(2), that the Court faithfully and rigorously apply settled principles of

relevant conduct regarding such matters as, inter alia, threats, children, property damage, theft,

and the term “militia[.]”

V. Conclusion

For these reasons, Mr. Thorn respectfully asks the Court to impose the recommended

sentence. 

Respectfully submitted,

DATED: November 14, 2017 LAW OFFICE OF JAY A. NELSON

/s/ Jay A. Nelson

JAY A. NELSON

1271 NE Highway 99W, No. 508

McMinnville, OR 97128

Attorney for Defendant

DARRYL WILLIAM THORN

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