Appeals Court Nixes Former Police Sergeant’s 7-Year Jan. 6 Prison Sentence

Former police sergeant Thomas Robertson of Ferrum, Va., appears in a Metropolitan Police Department officer's bodycam on the West Plaza of the U.S. Capitol, on Jan. 6, 2021. Metropolitan Police Department/Screenshot via The Epoch Times

A federal appeals court has tossed out the more than seven-year prison sentence of a former Virginia police officer on six Jan. 6 criminal counts, instructing the U.S. District Court to issue a new sentence that aligns with a recent decision in another Jan. 6 case.

The U.S. Court of Appeals for the District of Columbia Circuit affirmed the conviction of Thomas Robertson, 51, of Ferrum, Va., but vacated his 87-month prison sentence.

Mr. Robertson was found guilty of five felonies and one misdemeanor charge by a jury in April 2022.

The Court of Appeals sent Mr. Robertson’s case back to the court of U.S. District Judge Christopher Cooper for resentencing, saying the August 2022 sentence ran afoul of the March 2024 Court of Appeals decision in the case United States v. Brock.

The Court of Appeals wrote that in resentencing Mr. Robertson, Judge Cooper can consider the possible further effect on his revised sentence of the forthcoming decision in Fischer v. United States, a case that challenged the U.S. Department of Justice’s (DOJ) unprecedented use of corporate-fraud law against Jan. 6 political protesters.

As a result of the Brock and Fischer decisions, Mr. Robertson’s remaining time behind bars could be cut drastically. He is an inmate at the Federal Correctional Institution in Allenwood, Pa., scheduled for release on Feb. 23, 2027.

In the Brock case, the Court of Appeals ruled that federal sentencing guideline enhancers for obstructing the “administration of justice” cannot be applied in reference to the counting of Electoral College votes by a joint session of Congress on Jan. 6, 2021.

In an amended opinion released on May 28, a three-judge panel that included judges Florence Pan, Cornelia Pillard, and Karen Henderson ruled that Judge Cooper’s application of a sentence enhancer was “plainly erroneous” under the Brock standard.

The panel ruled, however, that there was “sufficient evidence” to prove Mr. Robertson acted “corruptly” by obstructing an “official proceeding” on Jan. 6 under 18 U.S. Code Section 1512(c)(2). The judges upheld his conviction on that 20-year felony charge.

The use of Section 1512(c)(2) against Jan. 6 protesters remains hotly contested and is the central focus of the challenge before the Supreme Court in Fischer v. United States. Many defense attorneys have said they expect the High Court to strike down the DOJ’s use of this corporate accounting statute to prosecute political protesters at the U.S. Capitol.

Mr. Robertson, a former sergeant with the Rocky Mount Police Department in the town of Rocky Mount, Va., attended protests at the Capitol on Jan. 6 with Jacob Fracker, another former Rocky Mount police officer.

Mr. Fracker took a plea deal offered by the DOJ and was sentenced on Aug. 16, 2022, to 12 months of probation for one count of conspiracy to obstruct an official proceeding. He testified for the government in Mr. Robertson’s trial.

Prosecutors said Mr. Robertson wore a gas mask on the West Plaza of the U.S. Capitol and blocked the path of a Metropolitan Police Department (MPD) civil disturbance unit officer while holding up a “large wooden stick” in a posture known as “port arms.”

While the MPD officer battled numerous rioters on his walk to Capitol grounds, Mr. Robertson did not appear to make contact with him or other members of MPD’s civil disturbance unit, bodycam footage showed.

Mr. Robertson later climbed the Northwest Steps to the upper terrace and entered the U.S. Capitol at 2:16 p.m.

He and Mr. Fracker followed the crowd into the crypt area of the Capitol, prosecutors said, where he “showed his support” for the crowd “by banging his stick in time on the ground, while Fracker clapped along.”

‘Skin in the Game’

In the days following Jan. 6, Mr. Robertson “bragged about his conduct” on social media and posted a selfie of himself and Mr. Fracker, prosecutors said.

“Here’s the picture in question and I am [expletive] PROUD of it,” he wrote on Facebook. “It shows 2 men willing to actually put skin in the game and stand up for their rights. If you are too much of a coward to risk arrest, being fired, and actual gunfire to secure your rights, you have no words to speak I value.”

Before surrendering to the FBI in January 2021, prosecutors alleged Mr. Robertson took his and Mr. Fracker’s cellphones and destroyed them.

Mr. Robertson admitted that “everything problematic has been destroyed, including my old phone,” prosecutors said, noting the phone “took a lake swim” and “had a tragic boating accident.”

Prosecutors said that in a June 2021 search of Mr. Robertson’s home, law enforcement officials found “a loaded M4 rifle and a partially assembled pipe bomb” and discovered that Mr. Robertson had purchased “an arsenal of 34 firearms online” and transported them “in interstate commerce while under felony indictment.”

In a pre-sentence letter to Judge Cooper, Mr. Robertson disputed prosecutors’ contention that he went to the Capitol with the intention of disrupting the counting of Electoral College votes from the 2020 presidential election.

“I would have never gone inside the Capitol but to retrieve Fracker,” Mr. Robertson wrote. “I did not intentionally or with any knowledge obstruct MPDC officers in the performance of their duties.”

He also disputed the charge that he destroyed the cellphones, claiming Mr. Fracker committed that act and then lied about it to the FBI and subsequently “perjured himself in court.”