BUFFALO, N.Y. — Prosecutors are asking for the highest sentence for a Western New York man who was convicted of assaulting a police officer during the January 6 riots at the U.S. Capitol.
2 On Your Side spoke with Lipsitz Green Scime Cambria attorney Barry Covert for his analysis of the situation.
"Even as a defense lawyer it surprised me from the beginning that the suggested guideline ranges for these offenses are comparatively low," Covert said.
Thomas Sibick pleaded guilty to assault and theft charges for his role in the attack on Metropolitan Police Officer Michael Fanone during the Jan. 6, 2021, riot at the Capitol in an effort to disrupt the certification of the November 3, 2020, presidential election.
Prosecutors are recommending that Sibick receive 71 months in prison for his role in the riot, which is the highest sentencing guideline range for Sibick's sentence. In addition, they're also recommending three years of supervised release and at least $7,500.79 restitution, plus a mandatory $100 special assessment.
Covert explained that there is a sentencing guideline chart that attorneys on both sides use when determining a sentencing recommendation. This is determined by the baseline offense, "aggravating" and "mitigating" factors, and criminal history, which the judge then takes into account to determine how to sentence an offender.
The group that Sibick falls into is the 57 to 71-month range according to prosecutors, with his criminal history playing a factor.
Sibick has six prior arrests — at least five of which resulted in a conviction, according to sentencing memorandum. The most troubling of these according to the prosecutor is his prior arrest for second-degree aggravated harassment in New York in 2010 and a conviction for failure to respond to a police command in Utah in 2015.
The prosecutor recognized that none of these convictions involved serious violent felonies, but they did showcase a lack of respect for law enforcement and a "reckless disregard" for the well-being of others.
A factor working for Sibick includes him voluntarily returning the badge he buried in his backyard and surrendering himself when he was made aware of the warrant for his arrest. However, he did repeatedly lie in regards to the whereabouts of the stolen property—including the police radio that could have brought responders to Fanone much quicker.
Sibick's defense will still get to make recommendations before the sentencing date next Saturday, but Covert says this should be done at least three days before to give the judge time to digest the information.
Of course, the judge can use discretion to exceed or fall below sentencing recommendations.
"I wouldn't be surprised if the judge does go above the guideline range," Covert said.
Covert cites multiple factors at play, with this being such a unique attack on democracy, Sibick's lack of remorse following the incident, and the attack on the federal officer that nearly cost him his life.
"Remorse is a huge factor to every judge at every sentencing. They want to see and hear and believe that the defendant is genuinely remorseful," Covert said.
Daniel Rodriguez, the attacker who tased officer Fanone, got 12 and a half years in prison.
"The question is how close how close should it be to the 12 and a half years," Covert said.
Sibick admitted to stealing a badge and radio from a police officer who was brutally beaten as rioters pulled him into the mob that attacked the U.S. Capitol over two years ago, court record show.
The officer's body camera showed Sibick removing his badge and radio from his vest during the attack. Investigators later found the badge and radio buried in his home's backyard in Buffalo.
"These sentences really seem to be low," said Covert, who speculated that if similar situations occurred in the New York State Capitol in Albany, New York, he would expect the state to prosecute much harsher than the federal government has.
Covert did recognize that the Jan. 6, 2021, riot was a first for prosecutors and the government. He thinks that the issue may be addressed in the future.
In their recommendation, prosecutors say, "Sibick enthusiastically participated in the violent effort to breach the Capitol while Congress was certifying the results of the 2020 Presidential Election. By 3:00 p.m., Sibick made his way illegally onto the Capitol grounds and into the mob gathering on the West Plaza of the Capitol. He trumpeted his participation in the riot on social media by posting a “selfie” video on Instagram depicting himself in the mob near the inauguration ceremony stage of the lower west terrace. The video pans the crowd with the caption, “Wildest experience of my life!!” Sibick then filmed himself screaming, “Just got tear-gassed, but we’re going, baby, we’re going! We’re pushing forward now!”
Sibick's sentencing date is scheduled for July 28 at 10 a.m. in federal court.
"The sentencing guideline don't seem to reflect the seriousness of these offenses and the harm that they've done to our institutions," Covert said.
Sibick's attorneys submitted a 'Memorandum in Aid of Sentencing' asking for a sentence of home confinement, citing his eight months already served in jail, post-release supervision and to pay restitution.
They cited medical issues that may have attributed to Sibick's behavior that day. You can read that letter below.
(The Associated Press contributed to this story)