WASHINGTON, DC - JANUARY 06: Pro-Trump supporters storm the U.S. Capitol following a rally with President Donald Trump on January 6, 2021 in Washington, DC. Trump supporters gathered in the nation's capital today to protest the ratification of President-elect Joe Biden's Electoral College victory over President Trump in the 2020 election.
CNN  — 

A federal appeals court in Washington issued a ruling Friday that jeopardizes the sentences of some January 6 rioters who were convicted of misdemeanors for trespassing at the Capitol and were sentenced to both jail time and probation.

The ruling means sentences may need to be invalidated for some convicted January 6 rioters.

The 2-1 decision, delivered Friday by the DC Circuit federal appeals court, establishes how severe the punishments can be for January 6 rioters convicted of low-level charges.

The opinion by DC Circuit Judges Justin Walker and Judith Rogers determined that January 6 rioter James Little couldn’t receive a sentence of prison followed by probation – what is sometimes called a “split sentence” – for his petty offense.

“Probation and imprisonment are alternative sentences that cannot generally be combined,” the appeals court wrote.

Judges in DC’s federal trial-level courts had used these “split sentences” for low-level January 6 offenders to briefly jail them as punishment for their role in the historic attack on the Capitol and then to keep them on probation and under court supervision through the next election.

Little challenged the legality of his receiving such a sentence after he pleaded guilty to four low-level charges, including disorderly conduct on the Capitol grounds. Judge Royce Lamberth of the DC District Court had sentenced Little to 60 days in prison followed by three years of probation.

In the new DC Circuit ruling, the majority wrote that the “text and structure” of relevant federal criminal code show “that probation and imprisonment may not be imposed as a single sentence.”

“They are separate options on the menu,” Walker wrote for the majority.

Circuit Judge Robert Wilkins, the dissenter on the panel, wrote that under an amendment passed by Congress in 1994 to the Sentencing Reform Act, Little’s sentence fit under an exception lawmakers made permitting split sentences.

The majority and dissent sparred over how the 1994 amendment to the sentencing code should be analyzed grammatically.

Strategy embraced by some judges for January 6 Capitol trespassers

Lamberth is one of a handful DC trial judges who have embraced the strategy of giving rioters convicted of one trespassing misdemeanor both a short prison sentence and a probation term that would keep them in the criminal justice system through the next election.

“It cannot be understated that participation of rioters like Little – while not necessarily violent or destructive – was essential in empowering rioters to interrupt the Electoral College certification. His conduct calls for a period of imprisonment,” Lamberth wrote in an opinion supporting his sentence for Little.

The trial judge added, “The Court must not only punish Little for his conduct but also ensure that he will not engage in similar conduct again during the next election. Some term of imprisonment may serve sentencing’s retributive goals. But only a longer-term period of probation is adequate to ensure that Little will not become an active participant in another riot.”

In his dissent Friday, Wilkins wrote that the majority’s ruling robs judges of a tool Congress gave them.

“If petty offenders need a short prison sentence to punish them, to reflect the seriousness of the offense and to deter them from future criminal conduct, they need it regardless of whether they committed one petty offense or two,” Wilkins wrote. “If petty offenders need rehabilitation following imprisonment, they need it regardless of whether they committed one petty offense or two.”