SACRAMENTO, Calif. — A Sacramento man is asking a federal judge to remove his conviction and let him out of prison, citing a new decision handed down by the U.S. Supreme Court in June.
On Jan. 6, 2021, Sacramentan Jorge Riley entered the Capitol as part of a mob that pushed past law enforcement officers. He posted many photos to Facebook that day, including selfies, some of which were included in court documents. One post said, “Hey We’re storming the Capitol…. what are you doing?” He is also seen in a video on Reddit answering questions outside the U.S. Capitol building, which he had stormed just moments prior.
Riley admitted to all this in 2023 as part of a plea agreement: prosecutors would drop all charges against him except for “Obstruction of an Official Proceeding and Aiding and Abetting.” In exchange, he would plead guilty.
He was sentenced to 18 months in federal prison, followed by two years’ probation. As of early July, Riley has served 14 of those months, including time spent behind bars during pretrial detention.
Now, the 46-year-old is asking a federal judge to let him out and ‘vacate’ his sentence, arguing the sole charge to which he pleaded guilty no longer applies in his case.
On June 28, the U.S. Supreme Court released its decision in Fischer v. United States. With a 6-3 vote, a majority of the justices decided the law many participants of the Jan. 6, 2021 Capitol attacks are charged with, or at this point convicted of, which bars obstruction of an official proceeding, “is limited to acts related to tampering with investigations and evidence, such as destruction of records or documents, in official proceedings,” as SCOTUSblog.com puts it.
In other words, storming the Capitol in and of itself does not rise to the level of violating that law.
The June 28 ruling “could affect charges against more than 300 other Jan. 6 defendants,” SCOTUSblog’s Amy Howe writes.
As Riley’s attorney, Tim Zindel, wrote in a court filing this week, “Mr. Riley is innocent of violating the sole charge for which he is imprisoned. Even a broad reading of the detailed criminal complaint, written to put him in the worst possible light, shows that he did not ‘impair[] the availability or integrity for use in an official proceeding of records, documents, objects, or . . . other things used in the proceeding, or attempt[] to do so.’…No such activity is charged in the indictment. Every account of his conduct and his own statements relate the same version of events: he entered the Senate Wing Doors 10 minutes after others had breached them, walked around for under an hour with hundreds of other protestors, took selfies, and committed no acts of violence or destruction…His main offense was that he repeatedly bragged on social media that he had helped ‘stop the steal,’ using language that made him one of the first to be arrested and charged.”
Riley is currently incarcerated at Federal Correctional Institution, Lompoc (FCI Lompoc), a federal prison in Santa Barbara County. This week, he asked U.S. District Judge Amit Mehta to vacate his sentence, essentially removing his conviction. Riley also asked the judge to allow him to bail out of prison, until his request to vacate his sentence is decided.
“Mr. Riley is one of at least two dozen, and perhaps several hundred, persons whose convictions of violating 18 U.S.C. § 1512(c)(2) have been effectively nullified, at least in principle, by the Supreme Court’s decision in Fischer v. United States,” Zindel wrote this week in his memorandum in support of the motion to vacate Riley’s sentence. “The Court should set side Mr. Riley’s sentence and discharge him.”
ABC10 reached out to Riley’s attorney for more information on Tuesday and didn’t immediately hear back.
On the day SCOTUS published its decision, U.S. Attorney General Merrick Garland wrote he was "disappointed by today’s decision, which limits an important federal statute that the Department has sought to use to ensure that those most responsible for that attack face appropriate consequences," though he added, "the vast majority of the more than 1,400 defendants charged for their illegal actions on January 6 will not be affected by this decision. There are no cases in which the Department charged a January 6 defendant only with the offense at issue in Fischer. For the cases affected by today’s decision, the Department will take appropriate steps to comply with the Court’s ruling. We will continue to use all available tools to hold accountable those criminally responsible for the January 6 attack on our democracy.”
There are cases like Riley's, where defendants were charged with multiple crimes but then took a plea agreement and only admitted to Obstruction of an Official Proceeding.
Riley isn’t the only Northern Californian convicted in the Jan. 6, 2021 Capitol attacks, though he is the only one for whom that, ultimately, was his sole charge.
Kyle Travis Colton, of Citrus Heights, is the latest to be charged. He was arrested and released back in December. U.S. court documents allege he was caught on camera taking pictures inside the Capitol Rotunda and helping rioters push back against police orders to exit the building. Investigators said Colton took a flagpole that a rioter was using to attack a police officer and gave it back to the rioter.
Colton faces fives charges, including felony obstruction of law enforcement during civil disorder, disorderly and disruptive conduct in a Capitol building and parading, demonstrating or picketing in a Capitol Building.
In a separate incident, Colton was arrested in February for receiving child sexual abuse images. He is facing that charge through the United States District Court for the Eastern District of California. If convicted, he could face up to 20 years in prison and a $250,000 fine.
Tommy Allan, of Rocklin, pleaded guilty in Aug. 2022. He admitted to entering the Senate Chamber carrying a U.S. flag and flagpole taken from elsewhere in the Capitol and stealing documents from a desk. He was sentenced to 21 months in prison followed by three years of supervised release.
Ricky Willden, of Oakhurst, pleaded guilty in April 2022. He admitted to spraying a Capitol Police officer with a chemical irritant and entering the Capitol. He was sentenced to two years in prison followed by three years of supervised release.
Valerie Ehrke, of Colusa County, pleaded guilty in the summer of 2021. She admitted to briefly entering the Capitol building. She was sentenced to three years of probation and $500 restitution.
Sean McHugh, of Auburn, pleaded guilty in September to two charges: Assaulting, resisting, or impeding certain officers using a dangerous weapon; and obstruction of an official proceeding and aiding and abetting. He faced multiple other charges but those were dropped as part of a plea agreement. He admitted to pushing a sign into officers and assaulting them with chemical spray. A judge sentenced him to 6 ½ years in federal prison, with credit for time already served, followed by three years’ probation. The court also ordered McHugh to pay a $200 assessment, $2,000 in restitution for damage to the Capitol and an additional $5,000 fine. On Sept. 17, McHugh filed an appeal of that judgment. That will now go to the U.S. Court of Appeals while McHugh remains imprisoned.
In the more-than-three years since Jan. 6, more than 1,400 people have been charged for crimes related to the breach of the U.S. Capitol. Investigations are ongoing.
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