United States of America v. Russell Dean Alford

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 18, 2023 Decided January 5, 2024
No. 23-3023
UNITED S TATES OF A MERICA,
APPELLEE
v.
R USSELL 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 P AN , Circuit Judges, and
R OGERS , Senior Circuit Judge.

-- 1 of 18 --

2
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LEC RAFT 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.

-- 2 of 18 --

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

-- 3 of 18 --

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

-- 4 of 18 --

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).

-- 5 of 18 --

6
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.

-- 6 of 18 --

7
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

-- 7 of 18 --

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.

-- 8 of 18 --

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

-- 9 of 18 --

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).

-- 10 of 18 --

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

-- 11 of 18 --

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),

-- 12 of 18 --

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”).

-- 13 of 18 --

14
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

-- 14 of 18 --

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

-- 15 of 18 --

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

-- 16 of 18 --

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

-- 17 of 18 --

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.

-- 18 of 18 --