United States v. Russell Alford

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 18, 2023 Decided January 5, 2024

No. 23-3023

UNITED STATES OF AMERICA,

APPELLEE

v.

RUSSELL DEAN ALFORD,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cr-00263-1)

Deanna Lee Oswald, Assistant Federal Public Defender,

argued the cause for appellant. With her on the briefs were

Kevin L. Butler, Federal Public Defender, Northern District of

Alabama, and Tobie J. Smith, Appellate Attorney.

Eric Hansford, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Chrisellen R. Kolb,

Elizabeth H. Danello, and Michael Romano, Assistant U.S.

Attorneys.

Before: HENDERSON and PAN, Circuit Judges, and

ROGERS, Senior Circuit Judge.

2

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: A jury

convicted Russell Alford of four misdemeanors stemming from

his role in the U.S. Capitol protest on January 6th, 2021, for

which he received a sentence of twelve months’ incarceration.

He appeals to challenge the reasonableness of his sentence and

the sufficiency of the evidence to support two of his

convictions, both of which charged him with engaging in

“disorderly or disruptive conduct.” The trial evidence indicated

that, during Alford’s brief time within the Capitol, he was

neither violent nor destructive. Nevertheless, we affirm his

convictions because a jury could rationally find that his

unauthorized presence in the Capitol as part of an unruly mob

contributed to the disruption of the Congress’s electoral

certification and jeopardized public safety. We likewise affirm

Alford’s sentence. The district court acted within its discretion

in imposing a within-Guidelines sentence after weighing the

competing circumstances.

I.

A.

On January 6, 2021, the Congress and Vice President Mike

Pence met to certify the winner of the 2020 presidential

election pursuant to the Electoral Count Act, 3 U.S.C. §§ 1–

22. 1 The Capitol was closed to the public and the U.S. Capitol

Police formed a security perimeter around the building

consisting of interlocking bicycle racks and mesh fencing.

Signs posted around the perimeter read “Area Closed.”

That afternoon, however, a mob broke through the

perimeter, tore down the barricades and clashed with police.

1

We draw the following description of the facts from the trial

record.

3

Members of the mob entered the Capitol through broken

windows and then threw open the doors to their compatriots.

Ultimately, the mob delayed the electoral certification by

several hours. Both the Senate and the House recessed shortly

after 2:00 p.m. and did not resume until 8:00 p.m. that night

after law enforcement secured the building.

Alford was among those who entered the Capitol. He and

a friend traveled from Hokes Bluff, Alabama, to attend the rally

that President Donald Trump held on the morning of the 6th.

Alford remained at the rally through President Trump’s speech

and then followed the crowd moving toward the Capitol. As he

neared the building, he walked past “Area Closed” signs and

overturned barricades into the restricted area.

Shortly after 2:00 p.m., Alford reached the Capitol near the

Upper House Door, which is reserved for the use of Congress

members only. He stood nearby as more than twenty police

officers worked to secure the steps leading up to the door. He

then moved further around the building and watched events

unfold outside a different door for approximately half an hour

before returning to the Upper House Door.

When Alford returned to the Upper House Door, there

were no longer police present. He climbed the steps as other

rioters knocked on the doors to attract the attention of rioters

already inside the building, who then threw open one of the

double doors that make up the Upper House Door. This

triggered a shrill, continuous security alarm that sounded

throughout Alford’s time in the building. Alford paused outside

to upload a photo of the rioters to social media that he captioned

“Patriots,” and then walked into the Capitol. Dozens of others

streamed in before and after him.

Alford remained inside the Capitol for approximately

thirteen minutes. As he entered, he turned and unsuccessfully

4

attempted to open the other double door. He then walked

further into the Capitol through a metal detector, setting off its

alarm. While inside, he mostly stood to the side and observed.

He filmed protestors chanting “stop the steal” and pounding on

a door that led to the floor of the House, behind which sheltered

dozens of Congress members.

Police arrived within about ten minutes of Alford’s entry

and began physically and verbally directing the crowd back out

through the Upper House Door. Alford initially moved further

down the hallway before turning and making for the exit. Only

one of the double doors was open and Alford stepped to the

side by the closed door as others filed out past him. Alford

remained there for about two minutes filming the departing

crowd with his phone, watching as roughly fifty people exited

through the open door next to him. He left once someone

managed to open the second double door.

B.

Alford was charged with four misdemeanors: 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); disorderly or disruptive conduct in the 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). He exercised his right to a jury trial and was ultimately

convicted on all counts.

As relevant here, Alford moved for a judgment of acquittal

on Counts Two and Three, contending that there was

insufficient evidence to prove that he had engaged in

“disorderly or disruptive conduct.” The district court denied the

motion, reasoning that “Mr. Alford’s mere presence inside the

5

Capitol disturbed the public peace or undermined public

safety” and that “his presence was an aspect of the disorder and

disruption of the Capitol.” Trial Transcript at 747:16–17,

748:8–9, United States v. Alford, No. 21-cr-0263. It sentenced

Alford to serve the statutory maximum for each count

concurrently, resulting in a sentence of twelve months’

imprisonment followed by twelve months’ supervised release.

II.

Alford raises two issues in this appeal: the sufficiency of

the evidence to support his convictions on Counts Two and

Three and the substantive reasonableness of his sentence. We

review the district court’s denial of a motion for judgment of

acquittal de novo. United States v. Sitzmann, 893 F.3d 811, 821

(D.C. Cir. 2018). In so doing, we ask “whether, after viewing

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Id. (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). We must respect “the right

of the jury to determine credibility, weigh the evidence and

draw justifiable inferences of fact.” United States v. Clark, 184

F.3d 858, 863 (D.C. Cir. 1999) (quotation omitted).

We review the substantive reasonableness of Alford’s

sentence for abuse of discretion. Gall v. United States, 552 U.S.

38, 51 (2007). Our review is “quite deferential,” meaning that

it is an “‘unusual case’” in which the district court abuses its

discretion. United States v. Knight, 824 F.3d 1105, 1111 (D.C.

Cir. 2016) (quotation omitted). Moreover, where, as here, the

sentence falls within the range of the Sentencing Guidelines,

we “appl[y] a presumption of reasonableness.” United States v.

Parks, 995 F.3d 241, 248 (D.C. Cir. 2021).

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III.

Alford contests whether there was sufficient evidence for

the jury to convict him of violating 18 U.S.C. § 1752(a)(2) and

40 U.S.C. § 5104(e)(2)(D). The former prescribes up to one

year of incarceration for whoever

knowingly, and with intent to impede or disrupt

the orderly conduct of Government business or

official functions, engages in disorderly or

disruptive conduct in, or within such proximity

to, 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.

18 U.S.C. §§ 1752(a)(2), (b)(2). The Capitol qualified as a

“restricted building” on January 6th because Vice President

Pence was present to oversee the electoral certification. See id.

§ 1752(c)(1)(B) (defining “restricted building or grounds” as

“any posted, cordoned off, or otherwise restricted area . . . of a

building or grounds where the President or other person

protected by the Secret Service is or will be temporarily

visiting”).

The second statute is specific to the Capitol. It provides

that

[a]n individual or a group of individuals may

not willfully and knowingly . . . utter loud,

threatening, or abusive language, or engage in

disorderly or disruptive conduct, at any place in

the Grounds or in any of the Capitol Buildings

with the intent to impede, disrupt, or disturb the

orderly conduct of a session of Congress or

either House of Congress.

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40 U.S.C. § 5104(e)(2)(D). A violation is punishable by up to

six months’ incarceration. Id. § 5109(b).

For both convictions, the issue is whether a jury could

conclude that Alford’s conduct, which was neither violent nor

destructive, was “disorderly or disruptive.” Alford contends

that these statutes reach only conduct that is inherently

disruptive or disorderly, unlike his assertedly quiet and brief

foray into the Capitol. We disagree. We first discuss the proper

scope of “disorderly or disruptive conduct” before explaining

why Alford’s narrow interpretation is mistaken. Finally, we

address why a rational jury could conclude that Alford’s

conduct was disorderly, disruptive or both.

A.

“In addressing a question of statutory interpretation, we

begin with the text.” Eagle Pharms., Inc. v. Azar, 952 F.3d 323,

330 (D.C. Cir. 2020) (quotation omitted). We give words their

plain, everyday meaning unless the Congress “employs a term

of art,” in which case “‘it presumably knows and adopts the

cluster of ideas that were attached to each borrowed word in

the body of learning from which it was taken.’” F.A.A. v.

Cooper, 566 U.S. 284, 292 (2012) (quoting Molzof v. United

States, 502 U.S. 301, 307 (1992)).

“Disorderly conduct” is one such term of art. It is the

modern successor to the common-law offense of breach of the

peace and so it carries that history with it. See 3 J. Ohlin,

Wharton’s Criminal Law § 37.2, at 139 (16th ed. 2021) (“Most

states have replaced the common-law offense of breach of the

peace with the offense called disorderly conduct.”); 2 Model

Penal Code and Commentaries § 250.2 cmt. 1, at 325 (1980)

(recognizing breach of the peace as the “analogous offense” at

common law of disorderly conduct). Black’s Law Dictionary

gives its definition as “[b]ehavior that tends to disturb the

8

public peace, offend public morals, or undermine safety” and

provides a cross-reference to “Breach of the Peace.” Disorderly

Conduct, Black’s Law Dictionary 292 (7th ed. 1999) (listed

under “Conduct”). 2 “Breach of the Peace,” in turn, is defined

as “[t]he criminal offense of creating a public disturbance or

engaging in disorderly conduct, particularly by an unnecessary

or distracting noise.” Id. at 182; see also United States v.

Elmore, 108 F.3d 23, 25 (3d Cir. 1997) (recognizing the

definition of disorderly conduct from Black’s as “adequate . . .

for purposes of federal law”). 3 The offense of disorderly

conduct traditionally extends not only to acts that would

constitute a breach of the peace at common law “but also [to]

conduct tending to corrupt morals, to endanger health or safety,

or simply to annoy other members of the community.” 2 Model

Penal Code § 250.2 cmt. 1, at 325; see also 27 C.J.S.

Disorderly Conduct § 2 (Aug. 2023 Update) (recognizing that

“[t]he term ‘disorderly conduct’ is a broader term than ‘breach

of the peace’”).

These definitions are nebulous but time has given them

concrete contours in two ways important here. First, it is well-

established that whether conduct qualifies as disorderly

depends on the surrounding circumstances. Courts consistently

observe that “whether a given act provokes a breach of the

peace depends upon the accompanying circumstances,”

making it “essential that the setting be considered.” United

States v. Woodard, 376 F.2d 136, 141 (7th Cir. 1967); see also

2

Another treatise defines “disorderly conduct” as “any words

or acts which tend to disturb the peace or endanger the morals, safety,

or health of the community, or of a class of persons.” 27 C.J.S.

Disorderly Conduct § 2 (Aug. 2023 Update).

3

Other authorities have similarly interpreted “breach of the

peace” as “a crime defined to include any behavior that disturbed or

tended to disturb the tranquility of the citizenry.” 2 Model Penal

Code § 250.2 cmt. 1, at 325.

9

Biddle v. Martin, 992 F.2d 673, 677 (7th Cir. 1993) (“Whether

particular conduct is disorderly therefore depends not only on

the conduct itself but also on the conduct’s unreasonableness

in relation to the surrounding circumstances.”). Legal treatises

agree. 27 C.J.S. Disorderly Conduct § 2. And the Supreme

Court has taken the same approach, focusing its interpretation

of a state’s breach-of-the-peace provision on the defendants’

conduct “in the circumstances of these cases.” See Garner v.

Louisiana, 368 U.S. 157, 174 (1961).

This circumstances-sensitive approach tracks common

sense. A lone hiker on a mountaintop can sing at the top of his

lungs without disturbing a soul; a patron in a library cannot. It

is entirely appropriate to clap and cheer when a keynote

speaker steps to the podium but to do so once the room has

fallen quiet and he has begun to speak would ordinarily be

disruptive. Thus, in determining whether an act is disorderly,

the act cannot be divorced from the circumstances in which it

takes place.

Second, it is equally clear from caselaw that even passive,

quiet and nonviolent conduct can be disorderly. The Supreme

Court has recognized that a breach of the peace can occur “by

passive conduct likely to cause a public disturbance,” Garner,

368 U.S. at 173–74, and we have likewise observed that

“[p]eople blocking traffic at a critical intersection may breach

the peace as fully as those who hurl stones,” Wash.

Mobilization Comm. v. Cullinane, 566 F.2d 107, 116 (D.C. Cir.

1977). In fact, disorderly conduct statutes typically encompass

“obstructing a lawful assembly or meeting” and “congregating

with others in a public place and refusing an official order to

disperse,” both of which can be done peacefully and passively.

3 Wharton’s Criminal Law § 37.2, at 143–44 (footnotes

omitted). A sit-in protest, for instance, may impede the

10

operations of the targeted organization as effectively as a

vandal.

In sum, we think the Congress intended to incorporate

these principles when it criminalized “disorderly conduct.”

Accordingly, we need not delineate the outer boundaries of its

definition to conclude that it extends at least this far: conduct

is disorderly if, viewed in the circumstances in which it takes

place, it is likely to endanger public safety or create a public

disturbance.

Unlike disorderly conduct, “disruptive conduct” is not a

term of art and has only its plain meaning. When the two

provisions here were enacted in 1967 and 1971, 4 the adjective

“disruptive” carried the same familiar meaning that it does

today: “causing or tending to cause disruption.” 1 Webster’s

Third New Int’l Dictionary 656 (1966). And “disrupt” meant

“to throw into disorder or turmoil” or “to interrupt to the extent

of stopping, preventing normal continuance of, or destroying.”

Id.; see also Webster’s Ninth New Collegiate Dictionary 366

(1984) (defining “disrupt” as “to throw into disorder” or “to

interrupt the normal course or unity of”).

Whether particular conduct is disruptive is also a context-

sensitive inquiry. The Supreme Court has observed that

whether conduct “disrupts or is about to disrupt normal school

activities” should be made “on an individualized basis, given

the particular fact situation.” See Grayned v. City of Rockford,

408 U.S. 104, 119 (1972). Similarly, in interpretating a statute

that prohibited making “a harangue or oration” in the Supreme

Court, we concluded that the statute’s focus was on actions

“that tend to disrupt the Court’s operations.” United States v.

Bronstein, 849 F.3d 1101, 1109 (D.C. Cir. 2017). Our analysis

4

See Act of Oct. 20, 1967, Pub. L. No. 90-108, 81 Stat. 275,

276 (1967); Pub. L. No. 91-644, § 18, 84 Stat. 1880, 1891–92 (1971).

11

reasoned that disruptive actions are those that are inappropriate

or plainly out of place for the time or setting. See id. For

instance, we explained that neither a lawyer making an oral

argument nor a tour guide’s presentation to tourists would

qualify as disruptive because each is an accepted part of the

High Court’s operation. Id. But we held that it was disruptive

for members of the audience during oral argument to interrupt

the proceedings with speeches and singing. Id. at 1104–05,

1111. Our Bronstein holding demonstrates that the everyday

meaning of “disruptive” centers on an action’s tendency, taken

in context, to interfere with or inhibit usual proceedings.

B.

Alford argues that “disorderly or disruptive conduct” must

be given a far more restrictive scope. He contends that the

statutes reach only “inherently disorderly or disruptive

conduct” and thus his mere presence in the Capitol on January

6th cannot qualify. Appellant’s Opening Br. 29. He suggests

that this interpretation is required to avoid reading the two

adjectives out of the statute. He observes that § 1752(a)(2)

already requires the disruptive or disorderly conduct to “in fact,

impede[] or disrupt[] the orderly conduct of Government

business” and so it would be redundant to interpret the actus

reus of “disorderly or disruptive conduct” as focusing on the

effect of the conduct rather than the nature of the conduct

independent of its effect.

This argument is misplaced for several reasons. To begin

with, almost no conduct is always and innately disruptive or

disorderly. Even the most quintessentially disruptive acts, ones

involving violence and loud noises, are appropriate in some

circumstances. Screaming is not disruptive at a football game.

Punching is not disruptive in a boxing ring. Even discharging a

firearm in a courthouse is not disruptive if done by a security

12

officer to protect the court. See Bronstein, 849 F.3d at 1109.

Alford provides no touchstone for determining when conduct

is inherently disruptive or disorderly.

Nor is it apparent that focusing on the likely effect of an

action yields surplusage in § 1752(a)(2), as Alford contends.

An action can have a disruptive effect and yet not succeed in

hindering a governmental proceeding. For instance, someone

clicking a pen repeatedly during a Senate hearing may be acting

disruptively, but if the hearing nonetheless proceeds smoothly,

the clicking will not have “in fact, impede[ed] or disrupt[ed]

the orderly conduct of Government business.” In that scenario,

§ 1752(a)(2)’s actus reus and its harm element both carry

independent meaning even without restricting the actus reus to

inherently disruptive conduct.

Finally, to the extent that the statutory elements do overlap

to some degree, we note that the canon against surplusage is

only a presumption, one that can be overcome by other

interpretive considerations. See Bronstein, 849 F.3d at 1110.

As discussed, “disorderly conduct” is best understood as a term

of art and courts consistently look to circumstances to

determine what is disorderly. The Congress uses such terms

intending to adopt their traditional meaning. See Morissette v.

United States, 342 U.S. 246, 263 (1952) (“[W]here Congress

borrows terms of art in which are accumulated the legal

tradition and meaning of centuries of practice, it presumably

knows and adopts the cluster of ideas that were attached to each

borrowed word.”). To allow a presumption against superfluity

to displace the most natural reading of the text would be

inappropriate here.

Alford puts forward one other textual argument for

narrowing the scope of “disorderly or disruptive conduct” but

it is also unconvincing. Turning to the text of § 5104(e)(2)(D),

13

he argues that because the statute prohibits “utter[ing] loud,

threatening, or abusive language, or engag[ing] in disorderly or

disruptive conduct,” the canons of ejusdem generis and

noscitur a sociis require limiting “disorderly or disruptive

conduct” to actions similar to the specified prohibitions.

Neither canon has application here, however. Ejusdem generis

is the principle that “when a general term follows a specific

one, the general term should be understood as a reference to

subjects akin to the one with specific enumeration.” Ali v. Fed.

Bureau of Prisons, 552 U.S. 214, 223 (2008) (quotation

omitted). It typically involves the use of a catchall phrase after

a list of specific terms, see id. at 223–24, but here there is

nothing of the kind. The conjunction “or” separating the

statute’s two prohibitions shows that they are not connected.

Each stands alone with its own verb and its own objects.

Nor does noscitur a sociis—a word is known by the

company it keeps—apply here. This canon “avoid[s] ascribing

to one word a meaning so broad that it is inconsistent with its

accompanying words, thus giving unintended breadth to the

Acts of Congress.” Yates v. United States, 574 U.S. 528, 543

(2015) (quotation omitted). But for the canon to apply, the

group of words must share “a relevant common attribute,” Ali,

552 U.S. at 225, or “a common feature to extrapolate,” S.D.

Warren Co. v. Me. Bd. of Env’t Prot., 547 U.S. 370, 380 (2006).

No such common attribute or feature exists here. The statute

simply puts two different prohibitions side by side without

providing the context clues needed to link one to the other

substantively. See id. at 379 (rejecting the argument that,

without more, “pairing a broad statutory term with a narrow

one shrinks the broad one”).

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C.

We must decide whether any rational jury could have

found that Alford’s conduct on January 6th was “disorderly or

disruptive.” Under a proper understanding of those terms, as

discussed above, the answer is yes to both.

A rational jury could conclude that Alford’s actions were

disruptive because his presence in the Capitol contributed to

the Congress’s multi-hour delay in completing the electoral

certification. There was ample evidence for the jury to

conclude that Alford knowingly entered the Capitol without

authorization: he walked past numerous “Area Closed” signs,

stood by as rioters in the building threw open the non-public

Upper House Door, walked into the Capitol despite a shrill

security alarm and then passed through a metal detector

without undergoing any security screening. A police officer

testified at trial that each unauthorized individual posed a

security hazard and that the Congress could not resume its

business until the entire building was cleared and checked for

threats like lurkers or explosives. Alford’s entry into the

Capitol—alongside dozens of others—directly contributed to

the Congress’s need to recess to ensure the safety of its

members. Indeed, entering the Capitol as part of a crowd rather

than as a lone individual magnified the disruptiveness of his

presence. Each additional person, no matter how modestly

behaved, increased the chaos within the building, the police’s

difficulty in restoring order and the likelihood of interference

with the Congress’s work.

For similar reasons, a rational jury could conclude that

Alford’s actions were disorderly because, viewed in the context

of the day’s events, they “tend[ed] to disturb the public peace,

offend public morals, or undermine safety.” See Black’s Law

Dictionary at 292. As discussed, Alford’s unauthorized

15

presence in the Capitol as part of large and unruly group

jeopardized the safety of the Congress as well as the police on

the scene. It is also clear that the rioters created a widespread

public disturbance. Alford played a part in that by adding to the

crowd and by attempting to open the closed half of the door

through which he entered the Capitol to allow more people

inside.

Alford paints himself as a passive observer, and, granted,

his conduct does not rise to the level of culpability of many of

his compatriots. But he made a deliberate choice to join the

crowd and enter the Capitol when he was plainly not permitted

to do so. The jury was not required to view Alford’s actions in

isolation as though he were the only one at the Capitol that day.

It was entitled to interpret Alford’s actions in light of the

circumstances. Those circumstances manifest that there was

sufficient evidence to support the jury’s verdict.

IV.

Alford also argues that the district court abused its

discretion in sentencing him to twelve months’ imprisonment.

He contends that his sentence is disproportionate to the

sentences of other January 6th misdemeanants, who typically

accepted plea deals and received sentences that ranged from

probation to a few weeks’ imprisonment. See 18 U.S.C.

§ 3553(a)(6) (instructing district courts “to avoid unwarranted

sentence disparities among defendants with similar records

who have been found guilty of similar conduct”). His sentence,

he argues, is more in line with those of defendants convicted of

felonies and he attributes the disparity to the fact that he

exercised his right to trial and to the poor fit between the

“letter” of the Sentencing Guidelines and his actual conduct.

Alford fails to meet the high bar to show an abuse of

discretion. To begin with, he concedes that his sentence falls

16

within the Guidelines’ recommended range of ten to sixteen

months. His within-Guidelines sentence is accordingly entitled

to a “presumption of reasonableness,” meaning that it “will

almost never be reversed on appeal as substantively

unreasonable.” United States v. Gardellini, 545 F.3d 1089,

1092 (D.C. Cir. 2008). This is particularly true if the defendant

“alleges an unwarranted [sentencing] disparity” because the

Guidelines are designed precisely to prevent disparity. United

States v. Otunyo, 63 F.4th 948, 960 (D.C. Cir. 2023). Thus,

“[t]he best way to curtail ‘unwarranted’ disparities is to follow

the Guidelines, which are designed to treat similar offenses and

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

F.3d 901, 908 (7th Cir. 2009)).

Moreover, there are material differences between Alford’s

situation and the January 6th misdemeanants who received

lesser sentences. Alford’s decision to exercise his right to trial

meant that he did not receive a sentencing reduction for

acceptance of responsibility, as he likely would have had he

pleaded guilty. See U.S.S.G. § 3E1.1(a) (providing a two-level

sentencing reduction if the defendant “clearly demonstrates

acceptance of responsibility for his offense”); United States v.

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

Guidelines explicitly tell judges that they normally should deny

the two-point reduction to a defendant who does not plead

guilty.”). Alford 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. See

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

Cir. 2013) (“That some defendants pled guilty while others did

not provides a perfectly valid basis for a sentencing

disparity.”); see also United States v. Mejia, 597 F.3d 1329,

1344 (D.C. Cir. 2010) (affirming a sentence as reasonable

where the disparity in sentences between two co-defendants

was “entirely explained” by one defendant receiving an

17

“acceptance-of-responsibility reduction for his having pleaded

guilty”).

Alford also received a sentencing enhancement because he

provided misleading testimony at trial. The district court found

that his testimony, although falling short of “deliberate

falsehoods,” was nonetheless “disingenuous” and “not . . .

entirely candid” or “truthful.” Sentencing Transcript at 38:24–

39:4, Alford, No. 21-cr-0263. Alford “mischaracterized some

of [his] actions and motivations” in order to downplay his

culpability. 5 Id. at 38:1–2. Accordingly, he received a two-

level sentencing enhancement because he “willfully obstructed

or impeded, or attempted to obstruct or impede, the

administration of justice with respect to the investigation,

prosecution, or sentencing of the instant offense of conviction.”

U.S.S.G. § 3C1.1. Alford conceded below that the

enhancement was proper and he does not contest its application

on appeal. It was not unreasonable for the district court to

conclude that Alford warranted a sentence greater than other

January 6th misdemeanants because he was ineligible for the

acceptance-of-responsibility reduction and brought upon

himself the penalty of a two-level enhancement through his

testimony. 6

5

For instance, Alford testified that he traveled to Washington

D.C. to “enjoy [himself], take some pictures, enjoy some like-

minded people.” Trial Transcript at 806:3–4, Alford, No. 21-cr-0263.

He also claimed not to notice the signs and barricades restricting

access to the Capitol and claimed not to know that he was not allowed

inside. Id. at 807:9–808:14, 849:13–15. And he stated that, once in

the Capitol, he was just “being a sightseer in D.C.” Id. at 821:22.

6

For this reason, we see no indication (contrary to Alford’s

suggestion) that the district court punished Alford for exercising his

right to a jury trial. The district court expressly stated that it was “not

18

And even if there were some degree of sentencing

disparity, that is only one factor among many that district

courts must balance when sentencing. Section 3553 instructs

district courts to consider, for example, the circumstances of

the offense, the characteristics of the defendant, the seriousness

of the offense, the need for deterrence and the protection of the

public. See 18 U.S.C. § 3553(a). These factors are “vague,

open-ended, and conflicting,” which is why their balancing is

left firmly to the discretion of the district court. Gardellini, 545

F.3d at 1093. Here, the district court conscientiously addressed

the § 3553 factors and weighed several in Alford’s favor. The

court credited Alford’s lack of a criminal history and the fact

that he was neither violent nor destructive. But it also noted

indicators of Alford’s lack of remorse and the need for further

deterrence. This balancing of competing considerations is

consistent with our “narrow and deferential” review in this

area. See id. at 1090.

In short, we cannot say that the district court’s sentence,

which was not only within the Guidelines but on the lower end

of the range, constituted an abuse of discretion. To warrant

reversal, the district court must clearly overstep its bounds. It

did not do so here. See Gall, 552 U.S. at 51 (“The fact that the

appellate court might reasonably have concluded that a

different sentence was appropriate is insufficient to justify

reversal of the district court.”).

For the foregoing reasons, the judgment of the district

court is affirmed.

So ordered.

going to penalize” Alford for going to trial. Sentencing Transcript at

42:1, Alford, No. 21-cr-0263.