United States v. Fairlamb
| Decision Date | 01 February 2023 |
| Docket Number | 1:21-cr-120-RCL |
| Parties | UNITED STATES OF AMERICA v. SCOTT KEVIN FAIRLAMB, Defendant. |
| Court | U.S. District Court — District of Columbia |
Defendant Scott Kevin Fairlamb claims the title of “first” in this Court in several respects: the first person to plead guilty to the charge of assaulting a police officer in connection with the attack against the United States Capitol on January 6, 2021, the first person to be sentenced for such conduct, and now, to the Court's knowledge, the first Capitol rioter to move to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.[1] The government opposes Mr Fairlamb's motion and urges the Court to summarily deny his claims as without merit.
Upon consideration of Mr. Fairlamb's motion, the government's opposition, the record therein, and the applicable law, the Court will DENY Mr Fairlamb's Section 2255 motion.
I. BACKGROUND
On January 6, 2021, the Senate and House of Representatives assembled in a joint session to count electoral votes cast in the 2020 presidential election. United States v Fairlamb, 535 F.Supp.3d 30, 32 (D.D.C. 2021). That same day, Mr. Fairlamb traveled to Washington, D.C. to attend a rally organized to protest the election results. Statement of Offense, ECF No. 39, ¶ 10.
At the conclusion of the rally, Mr. Fairlamb and other rioters traveled to the Capitol to prevent Congress from certifying the results. Id. ¶¶ 10, 15. Upon arriving at the Capitol, Mr. Fairlamb scaled scaffolding on the building's west side. Id. ¶ 11. While perched atop the scaffolding, he recorded-and posted to his social media account-a video of himself shouting “We ain't fucking leavin'!” Id. After that, Mr. Fairlamb crossed police barricades that had been overturned by other rioters just eighteen seconds earlier. Id. ¶ 12; Fairlamb, 535 F.Supp.3d at 33. Mr. Fairlamb then picked up a police baton that had fallen in the fray. Statement of Offense ¶ 12. While holding the baton, Mr. Fairlamb again recorded-and posted to another of his social media accounts-a video of himself loudly boasting, Id. Around 2:15 pm, after the Senate Wing Door had been forced open by rioters, Mr. Fairlamb entered the Capitol, still carrying the police baton. Id. ¶ 13. Some time later, Mr. Fairlamb left the building. Id. ¶ 14.
Once outside the Capitol, he chased a group of D.C. Metropolitan Police Department (“MPD”) officers who, along with the overwhelmed Capitol Police, were responding to the riot. Id. Mr. Fairlamb screamed at the officers Id. When Mr. Fairlamb caught up with the line of MPD officers, he isolated Officer Z.B. Id. When Officer Z.B. attempted to rejoin the other officers, Mr. Fairlamb shoved and punched Officer Z.B. in his face shield. Id. Other rioters attempted to calm Mr. Fairlamb'down. Fairlamb, 535 F.Supp.3d at 36. Mr. Fairlamb admitted that he “unlawfully entered the Capitol building, armed with a police baton” “and assaulted Officer Z.B. with the purpose of influencing, affecting, and retaliating against the conduct of government by stopping or delaying the Congressional proceeding by intimidation or coercion.” Statement of Offense ¶ 15.
On January 21, 2021--just two weeks after the riot-the government filed a criminal complaint against Mr. Fairlamb, alleging that his actions on January 6 violated various federal laws. See ECF No. 1. In April 2021, a grand jury returned a superseding indictment against Mr. Fairlamb charging him with twelve counts including, as relevant here, obstruction of an official proceeding, in violation of 18 U.S.C. § 1512(c)(2) (Count Two) and assaulting, resisting, or impeding certain officers, in violation of 18 U.S.C. § 111(a)(1) (Count Three). See Superseding Indictment, ECF No. 23. In August 2021, Mr. Fairlamb pleaded guilty to Counts Two and Three in exchange for the government's dismissal of the other charges. See Minute Entry (08/06/2021).
Mr. Fairlamb and the government executed and signed a written plea agreement. Plea Agreement, ECF No. 38. Mr. Fairlamb was represented by Mr. Harley Breite (“plea counsel”). See id. at 11. In the plea agreement, Mr. Fairlamb agreed that he was pleading guilty to Counts Two and Three because he was “in fact guilty.” Id. at 11. In so doing, Mr. Fairlamb averred that the Statement of the Offense “fairly and accurately describe[d] [his] actions and involvement” in the offenses. Id. ¶ 3. Mr. Fairlamb also agreed that he had “read every page of [the] Agreement,” “discussed it with [his] attorney,” and “fully underst[ood the] Agreement and agree[d] to it without reservation.” Id. at 11.
The plea agreement contained-and Mr. Fairlamb assented to-several provisions regarding sentencing. As relevant here, Mr. Fairlamb agreed that his sentence would be “determined by the Court, pursuant to the factors sector forth in 18 U.S.C. § 3553(a), including a consideration of the Sentencing Guidelines,” id. ¶ 5(A) and that he understood “that the sentence to be imposed is a matter solely within the discretion of the Court.” Id. ¶ 8. He further agreed to the government's estimated offense level calculations under the Guidelines. Id. ¶ 5(A). Specifically, he agreed that the estimated offense level for Count Two was 25, representing the base offense level (14) plus enhancements for property damage (8) and substantial interference (3). See id. The estimated offense level for Count Three was 20, representing the base offense level (14) plus an enhancement because the victim, MPD Officer Z.B., was a government officer (6). See id. Mr. Fairlamb further agreed that, pursuant to the Guidelines, Counts Two and Three should group and that the Count Two offense level would control after grouping. See id. (citing U.S. Sent'g Guidelines Manual, ch. 3, Part D, §3D1.2 (U.S. Sent'g Comm'n 2021)). The estimated Count Two offense level of 25, minus reductions for acceptance of responsibility (2) and assistance to authorities (1), rendered an estimated total offense level of 22. See Id. Accordingly, Mr. Fairlamb agreed that, considering an estimated total offense level of 22 and criminal history category of I, see id. ¶ 5(B), the estimated Sentencing Guidelines range was 41 and 51 months' incarceration.[2] See id. ¶ 5(C).
In the plea agreement, Mr. Fairlamb further agreed that “[n]o agreements, promises, understandings, or representations have been made by the parties or their counsel other than those contained in writing herein, nor will any such agreements, promises, understandings, or representations be made unless committed to writing and signed by [Mr. Fairlamb], defense counsel, and an Assistant United States Attorney for the District of Columbia.” Id. ¶ 13 (emphasis added). On the signature page, Mr. Fairlamb “reaffirm[ed] that absolutely no promises, agreements, understandings, or conditions have been made or entered into in connection with my decision to plead guilty except those set forth in this Agreement.” Id. at 11. Lastly, he attested that he was “satisfied with the legal services provided by [his] attorney in connection with [the] Agreement and the matters related to it.” Id. Mr. Fairlamb reiterated his satisfaction with plea counsel to this Court during the plea hearing. See Plea Hr'g Tr., ECF No. 71, at 3:15-17.
The Probation Office submitted a draft presentence report (“PSR”) in preparation for sentencing. See ECF No. 46. In that report, the Probation Office calculated Mr. Fairlamb's total offense level to be 28 after applying a six-point enhancement for an official victim. See Draft PSR ¶ 44. The government objected to this enhancement, noting that it only applied to Count Three and, because the applicable offense level after grouping was Count Two, the enhancement should not be applied. See Gov't Receipt and Acknowledgment, ECF No. 56; Gov't Opp'n, ECF No. 70, at 5. The final PSR included a three-point enhancement for an official victim. See Final PSR, ECF No. 48, at ¶ 44. Plea counsel did not object to the draft or final PSR.[3] See Def.'s Mot., ECF No. 65, at 6; Gov't Opp'n at 5. However, the sentencing memoranda submitted by both Mr. Fairlamb and the government reflect the parties' consistent understanding that the victim enhancement should not apply. See Def.'s Sent'g Mem., ECF No. 54, at 2-3; Gov't Sent'g Mem., ECF No. 50, at 27-28.
On November 10, 2021, this Court sentenced Mr. Fairlamb. See Minute Entry (11/10/2021). In calculating the applicable sentence, the Court agreed with the Guidelines calculations as outlined by the parties in the plea agreement and calculated a total offense level of 22. Statement of Reasons, ECF No. 58, at 1. In so doing, the Court expressly agreed with both the government and plea counsel that the official victim enhancement applied by the Probation Office did not apply after grouping Counts Two and Three. Id. at 4. The Court then sentenced Mr. Fairlamb to “41 months' incarceration to be served concurrently” as to Counts Two and Three, the bottom of the Guidelines range, “with credit for time served.”[4] See J., ECF No. 57, at 2.
On November 24, 2021, Mr. Fairlamb appealed his conviction. Notice of Appeal, ECF No. 61. In early January 2022, Mr. Fairlamb moved to withdraw his appeal. Mot. to Withdraw, ECF No. 63. In late March 2022, the Circuit issued the mandate dismissing his appeal. Mandate, ECF No. 64.
In September 2022, Mr. Fairlamb, through counsel, moved to vacate, set aside, or correct his sentence under 28 U.S.C § 2255, claiming ineffective assistance of his plea counsel. Def.'s Mot. at 1. The government opposed, insisting that...
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