Sentencing Memorandum For Aaron Mostofsky

Case 1:21-cr-00138-JEB Document 101 Filed 05/01/22 Page 1 of 34
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA, )
)
)
v. ) Case No. 21-cr-138-JEB
)
)
AARON MOSTOFSKY, )
)
Defendant. )
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SENTENCING MEMORANDUM OF AARON MOSTOFSKY
Nicholas D. Smith
David B. Smith
David B Smith PLLC
7 East 20th Street
New York, NY 10003
Phone: (917) 902-3869
[email protected]
Counsel to Aaron Mostofsky

TABLE OF CONTENTS
Introduction 1
Factual background 2
A. Mostofsky’s background, family, and character 2
B. The charges, plea agreement, and presentence investigation report 9
C. Factual inaccuracies in the government’s sentencing submission 11
Argument 14
I. Sentencing procedure 14
II. The § 3553(a) factors favor a significant downward variance 14
A. The nature and circumstances of the offense and the history

and characteristics of the defendant (§ 3553(a)(1)) 14
1. USSG §3D1 policy 15
2. Unlike in this case, the civil disorder charge is virtually

always used to criminalize acts of violence 16
3. The matters submitted under seal with the Court 18
4. First-time offender status and atypical conduct 18
5. Mostofsky’s good deeds 19
6. Mostofsky’s community and family support 20
7. Mostofsky’s remorse 20
B. Avoiding unwarranted sentence disparities (§ 3553(a)(6)) 21
C. The seriousness of the offense and deterrence (§ 3553(a)(2)) 28
Conclusion 29
i
TABLE OF AUTHORITIES
CASES Page
Gall v. United States, 552 U.S. 38 (2007) 14, 19
Kimbrough v. United States, 552 U.S. 85 (2007) 14, 15, 19
Spears v. United States, 555 U.S. 261 (2009) 14
United States v. Autery, 555 F.3d 864 (9th Cir. 2009) 20
United States v. Booker, 543 U.S. 220 (2005) 14, 19
United States v. Galante, 111 F.3d 1029 (2d Cir. 1997) 16-17
United States v. Howe, 543 F.3d 128 (3d Cir. 2008) 20
United States v. Huckins, 529 F.3d 1312 (10th Cir. 2008) 18
United States v. Husein, 478 F.3d 318 (6th Cir. 2007) 17
United States v. Johnson, 964 F.2d 124 (2d Cir. 1992) 16-17
United States v. Martin, 2020 U.S. Dist. LEXIS 179542 (E.D.N.Y. Dec. 17, 2012) 20
United States v. Maynard, 405 U.S. 156 (1972) 29
United States v. Munoz-Nava, 524 F.3d 1142 (10th Cir. 2008) 18
United States v. Polizzi, 549 F. Supp. 2d 308 (E.D.N.Y. 2008) 29
United States v. Ransom, 756 F.3d 770 (D.C. Cir. 2014) 19
United States v. Sayad, 589 F.3d 1110 (10th Cir. 2009) 20
United States v. Thurston, 544 F.3d 22 (1st Cir. 2008) 19
United States v. Tomko, 562 F.3d 558 (3d Cir. 2009) 19
United States v. Wadena, 470 F.3d 735 (8th Cir. 2006) 17
STATUTES
18 U.S.C. § 3553 passim
ii
18 U.S.C. § 231 9, 17
18 U.S.C. § 641 9
18 U.S.C. § 1752 9, 10, 22
OTHER PROVISIONS
U.S.S.G. §3D1 15-16
iii
Introduction
Mostofsky traveled on January 6 from his Brooklyn apartment to Washington, D.C., to
attend the former president’s “Stop the Steal” rally on the Ellipse. He wore his 2020 Purim
costume, a fur pelt. Mostofsky frequently dons costumes at events, as the letters submitted on
his behalf attest. To put the matter with understatement, the New Yorker is quirky even by the
standards of his home city. Unable to hear much at the noisy rally, he drifted with the crowd
towards the Capitol, cutting a path with a hermit’s gnarled walking stick to the front of an unruly
cluster of protesters near police barriers standing in the West Plaza. Even the ones not dressed in
raccoon seemed inspired by the delusion that Congress could somehow reverse the outcome of a
presidential election held over two months before that point.
As some police officers thrust the barriers forward to push back the crowd, Mostofsky
lent his weight on the protester line pushing in the wrong direction. Shortly thereafter, he
entered the Capitol Building, where he remained for about 20 minutes, posing for a
photographer. In a visual-historical irony that no mind is capable of dreaming up and the
defendant would not even recognize much less endorse, Mostofsky from Brooklyn was digitally
captured, imperishably, cane in hand, under the oil portrait gaze of Charles Sumner. He then
exited the building wrapped in a police vest he had picked up off the ground. Flustered,
Mostofsky boarded a Brooklyn bound bus still wearing it, his sole post-neolithic article of
clothing. (Mostofsky’s counsel later returned the vest undamaged to agents of the Federal
Bureau of Investigation. The fur pelt was seized.)
Mostofsky broke the law by interfering with police during a riot, entering the Capitol
Building, and taking the police vest. For his foolish conduct, he is sincerely remorseful. Having
been raised to be grateful for what the country has made possible for his family, Mostofsky is
1
ashamed by the disgraceful scene at the Capitol that day. On January 6, he was a Zelig in over
his head. That is why, although he has little money, he agreed to make a $2,000 restitution
payment to defray the repair costs for damage of which he was not the proximate cause.
But the other side of the ledger is not without significant considerations. A penalty
falling within the Guidelines sentencing range in Mostofsky’s plea agreement would be “greater
than necessary,” 18 U.S.C. § 3553(a), along a number of dimensions. A Guidelines sentence
would also create unwarranted sentence disparities between other January 6 defendants,
including those sentenced by this Court, and Mostofsky. That the top end of the initial
Guidelines range sought by the government was four times higher than the still excessive
sentence it now requests should give the Court some pause. Aside from Mostofsky’s interaction
with an officer at the barrier, which lasted no more than a few seconds and resulted in no injury
or property damage, and the returned police vest, nothing distinguishes his conduct from that of
dozens of January 6 misdemeanants who received probationary sentences. Indeed, his conduct
was a good deal less serious than that of some misdemeanants. The charges here themselves—
and the intense media focus on them and attendant toxic publicity—have brought profound and
lasting shame on Mostofsky and his family. A felony conviction will hobble his career prospects
throughout the 35-year-old’s life. In that context, a sentence of significant home confinement,
probation, and a plan of extensive community service, would strike the right balance between
deterrence and rehabilitation.
Factual background
A. Mostofsky’s background, family, employment history, and character
Thirty-five years old, Mostofsky was born in 1986 in Brooklyn, New York to an
Orthodox Jewish family. When he was 14 months old, his mother died of an aneurysm. Family
2
members attribute some of his eccentricity to this tragedy. Letters in Support of Mostofsky, Exh.
1, p. 16.
In 2003 Mostofsky graduated from a Yeshiva high school in Brooklyn. He went on to
matriculate at Brooklyn College from which he transferred to the Bernard & Anne Spitzer
School of Architecture where, in 2012, he completed a Bachelor of Science in Architecture. For
about seven years thereafter he held an assistant architect and draftsman position in New York.
Beginning in April 2020, however, the pandemic meant declining work for Mostofsky, who
began performing odd jobs in the architecture field, such as producing drawings of building
facades and stairs.
3
Shea Rubenstein runs the Jewish Community Council of Marine Park (JCCMP), an
organization that serves the communal needs of the local area and beyond. Exh. 1, p. 27. In her
words, Mostofsky “has been very active in assisting the activities of [the JCCMP]; particularly
over the past four years with regard [to] the distribution of food and provisions to those people
who require such assistance within the locality.” Id.
Another friend, Sarah Friedson, recalls the time her 100-year-old grandfather passed
away. Friedson had recently started keeping kosher, which “made the already stressful task of
assembling meals for [her] family even more challenging.” Exh. 1, p. 26. Mostofsky had catered
food delivered to Friedson’s house, so her family “could breathe a sigh of relief for a couple of
days.” Id. She was “moved to tears by his thoughtfulness.” Id.
Similarly, Shlomo Shasha, another friend of Mostofsky’s, recalls the time Shasha’s father
was sitting shiva for his mother. Completely distraught, the father had little energy left.
Mostofsky went grocery shopping for the family and assisted in every way needed. Exh. 1, p.
28.
Betsalel Touitou arrived in the US as a student and did not know anyone. Exh. 1, p. 8.
Mostofsky “was one of the first [people] that gave [him] a feeling of being at home.” Touitou’s
grandmother passed away and a minyan of ten Jewish men was needed to recite the mourner’s
kaddish. Mostofsky “insisted on being part of that quorum morning, afternoon and night. [He]
showed up every day and also helped to set up the services.” Id.
A chorus of rabbis is in accord. Rabbi Nachum Meltzer notes that Mostofsky has been a
member of his weekly Bible group for the past 10 years. Exh. 1, p. 23. Mostofsky has “always
been a positive influence on the entire group.” He “takes it upon himself to cheer people up when
they are going through hard times by making their problems his problems.” Many times,
5
Mostofsky has “offered his professional services as an architect pro bono to the members of [the]
group, in one case saving one of [the Rabbi’s] students thousands of dollars.” Id.
Rabbi Moshe Faskowitz “has been the rabbi of the Mostofsky family for almost 40
years.” Here is how he describes Mostofsky’s character: “Aaron has devoted much of his time to
soothing the hearts of those that are lonely and inspiring those that are down and need
encouragement. He rarely turns down any request for assistance by me or any of the synagogue
administrators. He has participated in Meals on Wheels activity for senior citizens. He has led
the youth group division in our children’s program. He was entrusted by our parent body to care
for our precious young ones and demonstrated an uncanny ability to bring out the best in them
all.” Exh. 1, p. 22.
Rabbi Dovid Cynamon, a rabbi in the Flatbush community, is a “close mentor” of
Mostofsky’s. Exh. 1, p. 20. He explains that “when the holidays draw near, Aaron cleans cars
for others, babysits children, and donates money to those in need. I receive calls constantly from
Aaron inquiring about my welfare and the welfare of others. When he is not found in the
synagogue praying and studying, Aaron can [] be found assisting another.” Id.
Yoni Berger relates an episode not involving the highest spiritual stakes, perhaps, but
which still reflects Mostofsky’s generous spirit in its details. Yoni lost his brother’s beloved cat.
Exh. 1, p. 32. He couldn’t find the creature anywhere after a long, futile search. So, he asked for
Mostofsky’s help. Though he was in the middle of pressing work, Mostofsky came straight to
Yoni. For the next eight hours Mostofsky launched an investigation into the fugitive feline. He
“interview[ed] everyone entering or leaving that block.” He printed out lost cat signs and placed
them on “every post in the area.” The next day, Yoni got a phone call tip. A person of interest
whom Mostofsky had interrogated the day before alerted Yoni that the fugitive was spotted
6
hiding in another person’s backyard. Shortly thereafter, the pet was recovered. On another
occasion, Mostofsky “assisted [Yoni] for over 15 hours of real labor” in building a sukkah from
scratch. Id.
Another through-line in the letters submitted to the Court is Mostofsky’s kindness to
children and their adoration of him. Though he is not married and has no children of his own,
Mostofsky is a kind of surrogate father to many. Mostofsky is “a family favorite, [who]
willingly babysit[s] and play[s] with and read[s] to his younger nieces and nephews. . .” Exh. 1,
p. 4. Mostofsky is the “best friend” of D.M., his three-year-old nephew. Id. at 6. Any time
D.M.’s father and mother have an emergency and need help, Mostofsky “has dropped
everything, run over to our house, and helped.” The night before D.M.’s second birthday,
Mostofsky “stayed up all night helping [D.M.’s father] build a kitchen so we could surprise him.
My boys adore [Mostofsky]. He spends hours with them on weekends. . .When they know uncle
Aaron is coming, their faces light up with joy. He will spend an entire afternoon building train
tracks or reading to [the children.]” Exh. 1, p. 7. D.M.’s father cannot “imagine having to
explain to [his children] why they can’t see uncle Aaron.” Id.
Mostofsky’s older sister, Illana, has two children. When the children were infants,
Mostofsky “would lovingly feed them bottles and change their diapers. As they became
toddlers, Aaron played games with them or read them books for hours.” Exh. 1, p. 10. Later on,
the children wanted to start playing basketball. Mostofsky constructed a basketball hoop for
them. And whenever “there is a heavy snowstorm, Aaron immediately reaches out to [Illana] to
inquire if [she] could use his assistance in shoveling snow in front of [her] home. The bitter cold
temperatures never stop Aaron from being incredibly generous. In fact, I can’t think of anything
that stands in the way of Aaron’s generosity.” Id.
7
Another family member echoes Illana’s sentiments: “To watch Aaron with his nephews .
. . is to marvel at his kindness and generally peaceful and loving spirit. Children are often the
best indicators of who a person really is and see through the facades . . .” Exh. 1, p. 13. He notes
that while Mostofsky is not married himself, “his absence would have a profound effect on those
who rely on his love and care right now. Those people include his elderly grandmother. . . who
is currently suffering the beginning stages of dementia. Hearing of his incarceration . . .would
have a devastating effect on her. [Mostofsky’s] nephews would miss his daily interactions, care,
and love. His aunts and uncles, brothers and sister, parents and grandparents would be greatly
diminished without him.” Id.
Neil Fink, another family member, explains that Mostofsky has “formed a close bond
with [Fink’s] children. He [takes] them to the park, ball games and to other nice trips. . . My
children adore him, and haven’t been able to sleep well these last few months and keep asking
‘what will happen to Aaron?’” Exh. 1, p. 15. “When members of our extended family or close
friends were sick in the hospital, it was Aaron who rushed to be at their side. When a family in
the neighborhood suffered from a devastating financial loss, it was Aaron who took up
collections for them.” Id.
Nachman, Mostofsky’s older brother, adds, “My children love their uncle tremendously.
Especially with my younger ones, the question before every Jewish holiday is, when is Uncle
Aaron coming for meals. It is the highlight of the holiday when he comes.” Exh. 1, p. 17. And
“it’s not only the family and friends that [Mostofsky’s] always there to help. It’s random
strangers in the community as well. He joins me every year in packing hundreds upon hundreds
of boxes of food to be delivered to families in need for the Passover holiday, a holiday that [can
be] extremely expensive, especially with a larger family.” Id.
8
The Aleph Institute is a charitable organization founded in 1981 by the Lubavitcher
Rebbe to provide assistance and rehabilitation to prisoners. Aleph will be submitting a letter on
behalf of Mostofsky. 1 The organization has met with Mostofsky at counsel’s request to get a
better understanding of his character and his remorse and to offer insight into possible alternative
sentences for him. Aleph’s sentencing philosophy may be summarized as, “prison [is] for those
we are afraid of, not those whom we are mad at based on their behavior.” In the organization’s
experience, lengthy periods of incarceration inhibit people from fulfilling their potential and
devastate the family and community left behind, breeding bitterness, anger, insensitivity, and
eventual recidivism.
After reviewing Mostofsky’s social history, family life, lack of criminal history, and his
medical history, Aleph concludes that he is a strong candidate for alternative sentencing. It notes
that he began volunteering at the JCCMP in 2018. Since March 2022, Mostofsky has
volunteered approximately 10 hours per week preparing for upcoming JCCMP events and filing
office paperwork. He will also be volunteering in JCCMP’s food pantry, stocking shelves,
taking inventory and organizing distribution.
B. The charges, plea agreement, and presentence investigation report
Pursuant to a plea agreement, Mostofsky pled guilty on February 2, 2022 to Count One of
the Second Superseding Indictment (18 U.S.C. § 231(a)(3)); Count Four (18 U.S.C. § 641); and
Count Five (18 U.S.C. § 1752(a)(1)). Count One is a felony and Counts Four and Five are
misdemeanor offenses.
1
Counsel believes that he will have Aleph’s letter ready for submission on Monday, May 2.
9
Count One, the civil-disorder offense, rests on Mostofsky’s brief interaction with a police
officer at a barrier in the West Plaza of the Capitol Grounds. Statement of the Offense, ECF No.
94, p. 4. Specifically, he jointed a “group of rioters push[ing] against a police line that was
attempting to adjust a barrier to provide additional space between the crowd of rioters and the
Capitol Building, and limit the crowd’s access to the Capitol.” Id.
Count Four, theft of government property, rests on Mostofsky’s theft of a U.S. Capitol
Police vest and shield, collectively valued at less than $1,000. Statement of the Offense, ECF
No. 94, p.7.
Count Five, unlawful entry into a restricted area, rests on Mostofsky’s entry into the
“restricted area” around the Capitol Grounds on January 6, so designated under § 1752.
Statement of the Offense, ECF No. 94, p. 7.
The plea agreement provides a final Estimated Offense Level of 13, based on the
calculations set forth therein. Plea Agreement, ECF No. 93, p. 3. Because Mostofsky has no
criminal history and thus stands in Criminal History Category I, the agreement provides an
estimated Guidelines range of 12-18 months’ incarceration. Id. at 4.
On April 29, the Probation Office filed its final presentence investigation report (PSR).
The Office disagreed with the plea agreement’s grouping analysis. The agreement stated that
Counts One, Four and Five constituted three distinct grouping units under U.S.S.G. §§3D1.2,
3D1.4. However, the Office determined that the victim of the theft in Count Four—the U.S.
Capitol Police—was the same as the trespass victim in Count Five—Congress—as both are part
10
of the legislative branch. PSR, p. 24. Therefore, the Office calculated the final Estimated
Offense Level at 12. That would yield a Guidelines range of 10-16 months’ incarceration. 2
Under the plea agreement, Mostofsky agreed to make a restitution payment to the
Architect of the Capitol in the amount of $2,000. Plea Agreement, ECF No. 93, p. 8. Had
Mostofsky gone to trial, the government would not have been able to secure this payment
through mandatory or even discretionary restitution even if the defendant had been convicted of
every count. This payment is possible solely because the Court “may . . . order restitution in any
criminal case to the extent agreed to by the parties in a plea agreement.” 18 U.S.C. § 3663(a)(3).
C. Factual inaccuracies in the government’s sentencing submission
On April 29, the government submitted a 45-page sentencing memorandum. ECF No.
100. Many of its pages, perhaps most of them, are quite similar to those submitted by the
government in other January 6 sentencings. E.g., United States v. William Merry, 21-cr-748-JEB,
ECF No. 41 (D.D.C. 2021). A good deal of the government’s more incendiary language
concerning Mostofsky can be found replicated in other sentencing memoranda it has filed,
simply substituting in another defendant’s name. E.g., Merry, 21-cr-748-JEB, ECF No. 41, p. 2
(Merry “stormed past multiple police lines”) (emphasis added); id. (he “penetrated the U.S.
Capitol”) (emphasis added); id. at 1 (Merry “participated” in an “attack”) (emphasis added).
The government does draw from the parties’ Statement of the Offense. ECF No. 100, pp.
11-28. Mostofsky stands by that document—as it is actually written. ECF No. 94. However,
some of the government’s factual characterizations are not linked to stipulations in the Statement
of the Offense.
2
Mostofsky will not brief this Guidelines dispute on the merits but he addresses similar themes
below in connection with § 3553(a) and variances based on policy considerations.
11
Start at the beginning of the government’s submission. Mostofsky, represents the
government, “participated” in an “attack” on January 6. ECF No. 100, p. 1. Its memorandum
uses the word “attack” 27 times. However, it is false to say Mostofsky “participated” in an
“attack.” One must always be on guard against distortion of meaning under the pressure of
politics. But that is particularly true in court (as opposed to in a newspaper column) and in
respect of an incendiary word like “attack.” When the government asks the Court to enhance
Mostofsky’s punishment because he joined an attack on someone, one can only assume the
government uses the term in its nonfigurative sense. After all, it would be grossly inappropriate
to argue for an enhanced punishment based on a figurative, nonphysical “attack”—such as a
verbal outburst—without at least conveying to the Court that the secondary sense is what the
government means by “the defendant attacked” someone. In the literal sense, of course, to
“attack” a person is to “try to hurt or defeat [him or her] using violence.” 3
Mostofsky’s Statement of the Offense does not stipulate that he tried to hurt or defeat
anyone using violence. Nor does it stipulate that he aided and abetted such an attack. It does not
stipulate that he solicited an attack. ECF No. 94. He did not do those things. The government’s
representation that Mostofsky “participated” in an “attack” is unsupported by any conventional
legal basis. It is an attempt to secure collective punishment, i.e., a call for Mostofsky to be
punished on account of other defendants who did indeed attack people on January 6. Of course,
that runs contrary to the foundational principle that responsibility is individual.
Next, the government contends that Mostofsky entered the Capitol Building with the
intent to “disrupt the peaceful transfer of power. . .” ECF No. 100, p. 2 (emphasis added). Going
3
Attack, Cambridge Online Dictionary, def. 1,
http://dictionary.cambridge.org/us/dictionary/english/attack.
12
further, the government insinuates by implication that Aaron Mostofsky himself is a “danger to
our democracy,” and “incredibly dangerous,” and launched a “disturbing attack on a free
electoral system,” one with worldwide “diplomatic” ramifications for the fate of a form of
government stretching back over two millennia. ECF No. 100, p. 10 (emphasis added).
There is indeed in the government’s language something dangerous and disturbing. But
it has little to do with Mostofsky. While it may be fitting for a politician, columnist or historian
to bring those sweeping concepts to bear in contemplating the event in its totality, it seems
irresponsible to do so in seeking a criminal punishment for a particular person who is swallowed
up by them, who is not some leading figure in the story. It is what a periwigged Public Accuser
would shout to a frothing assembly in Year One of the Republic. Mostofsky accepts
responsibility for the specific crimes to which he pled guilty—not for being Guy Fawkes. He is
a harmless Brooklynite who wears silly costumes. The government’s rhetoric itself is dangerous.
The government represents that Mostofsky “mock[ed] officers” during the “violent
attack”; “assault[ed] police officers” as he “scurried” 4 into the Capitol; and “cheered” in
response to others assaulting officers. ECF No. 100, pp. 3, 36. Those representations are false.
In fact, as a part of the plea agreement, the government agreed to dismiss an assault charge.
These allegations have no basis in the Statement of the Offense. ECF No. 94. That document
does not state that Mostofsky assaulted officers or “cheered” as they were assaulted. Id. The
government’s memorandum displays an image of Mostofsky with his arm raised. ECF No. 100,
p. 14, Image 8. It also displays a grainy image of Mostofsky which it characterizes as
“Mostofsky fist bump[ing] another rioter.” Id. at 15, Image 9. These appear to be its sole pieces
of evidence in support of the representations that Mostofsky “mock[ed] officers” and “cheered”
4
Using verbs that liken Mostofsky to vermin is another piece of dubious rhetoric.
13
as they were assaulted. There is no basis for inferring from those images that Mostofsky was
“cheering” on assaults or “mocking officers.” He was not. Given the serious nature of those
allegations, the Court should ask the government to provide the factual basis for them or to
explain why it made the serious representations without one.
Argument
I. Sentencing procedure
As it knows, the Court has broad discretion to consider nearly every aspect of a particular
case, and a particular defendant, in fashioning an appropriate sentence. United States v. Booker,
543 U.S. 220 (2005); Gall v. United States, 552 U.S. 38 (2007); Kimbrough v. United States, 552
U.S. 85 (2007). Although the Court must first calculate the appropriate sentencing range under
the Guidelines, it is not bound by the Guidelines or Guidelines Policy Statements. It may make
its own policy judgments, even if different from those in the Guidelines. Kimbrough, 552 U.S. at
101.
The Court must merely impose a sentence consistent with the terms of 18 U.S.C. §
3553(a) and § 3661. As the Court knows, the most basic requirement of § 3553(a) is that the
“court shall impose a sentence sufficient, but not greater than necessary to comply with the
purposes of [§ 3553(a)]. . .” § 3553(a).
II. The § 3553(a) factors favor a significant downward variance
A. The nature and circumstances of the offense and the history and
characteristics of the defendant (§ 3553(a)(1))
Seven considerations under § 3553(a)(1) warrant a significant downward variance in
Mostofsky’s case: (1) policy considerations concerning the grouping of his convictions; (2) that,
unlike in this case, the civil disorder charge is virtually always used in connection with a
defendant’s acts of violence; (3) the matters submitted under seal with the Court; (4) first-time
14
offender status and atypical conduct; (5) Mostofsky’s good deeds; (6) his family and community
support; and (7) his sincere remorse.
1. U.S.S.G. §3D1 policy
As noted above, the Probation Office grouped Count Four (theft of U.S. Capitol Police
property) and Count Five (entering the Capitol Building, a restricted area) under U.S.S.G.
§3D1.1, but the plea agreement provided that none of the counts of conviction may be grouped
together for sentencing. If the Probation Office is correct, Mostofsky’s Guidelines range is 10-
16 months’ incarceration; if the plea agreement is correct, the range is 12-18 months’
incarceration.
Should the Court follow the Probation Office’s calculation, it can skip this section of
Mostofsky’s submission. But if it concludes that the Probation Office erred, the Court should
still vary downward to the 10-16 month range for policy reasons. Kimbrough, 552 U.S. at 101.
The government contends that where victims are abstract government entities and not
people, counts involving them may not be grouped for sentencing purposes to the extent the
victim entities belong to different branches of the federal government. PSR, p. 24. It further
contends that Count Four’s victim was the U.S. Capitol Police (which owned the police vest) and
Count Five’s victim was Congress (whose members were protected by the restricted area
Mostofsky entered). Id. It seems to argue that because the Capitol Police are not members of
Congress, counts involving them should not be grouped together under U.S.S.G. §3D1.2(a)
(“When counts involve the same victim and the same act or transaction.”) or §3D1.2(b) (“When
counts involve the same victim and two or more acts or transactions connected by a common
criminal objective or constituting part of a common scheme or plan.”). PSR, p. 24. The
government cites to United States v. Safavian, 461 F. Supp. 2d 76, 84–85 (D.D.C. 2006).
15
To the extent the Court concurs with the government’s general grouping principle, it
should decline to apply it here on the following policy ground: The Capitol Police and Congress
do not belong to different branches of the federal government. The Capitol Police is not an
Executive branch law enforcement agency. Just like Congress, it is part of the legislative branch
of government and controlled by the Capitol Police Board, a congressional entity. See Capitol
Police Board, https://www.uscp.gov/the-department/oversight/capitol-police-board. See also 5
U.S.C. §§ 101, 105 (USCP not an Executive department or agency).
In Safavian, the defendant made false representations to the GSA and, separately, to a
congressional committee, at different times. 461 F. Supp. 2d at 84–85. The Court treated the
GSA and Congress as distinct victims for grouping purposes. Id. But unlike the U.S. Capitol
Police and Congress here, the GSA and Congress are not both a part of the legislative
branch. GSA is an independent agency.
The government argues that such a policy distinction “treats Counts Four and Five at too
high a level of generality and ignores the fact that Congress and the U.S. Capitol Police
Department are wholly different official entities.” ECF No. 100, p. 31. But, according to the
government itself, the grouping criterion for entity victims is not “different official entities” but
instead whether the victims belong to the same or “different branches of the federal
government.” PSR, p. 24 (emphasis added). Because the U.S. Capitol Police and Congress are
part of the same branch of government, the Court should vary downward to the 10-16 month
Guidelines range, assuming it disagrees with the Probation Office’s calculation.
2. Unlike in this case, the civil disorder charge is virtually always used to
criminalize acts of violence
In his motion to dismiss Count One, Mostofsky showed that the seldom-used civil
disorder offense has traditionally been applied not just to violent conduct, but to acts of
16
aggravated violence. See, e.g., United States v. Wood, 2021 U.S. Dist. LEXIS 134774, at *2 (D.
Del. July 20, 2021) (defendant threw bricks at police); United States v. Patton, 2021 U.S. Dist.
LEXIS 108479, at *2 (D. Utah June 8, 2021) (defendant set a police car on fire); United States v.
Featherston, 461 F.2d 1119, 1122 (5th Cir. 1972) (defendants made explosives for the “coming
revolution”); United States v. Casper, 541 F.2d 1275, 1277 (8th Cir. 1976) (defendants shot at
law enforcement); United States v. McArthur, 419 F. Supp. 186, 192 (D.N.D. 1975) (same);
United States v. Jaramillo, 380 F. Supp. 1375, 1377 (D. Neb. 1974) (same). In response to his
motion, the government did not cite a single case where § 231(a)(3) had been applied to
nonviolent acts. ECF No. 57.
Mostofsky also submitted a chart showing that—except for in his case—nearly every
January 6 defendant charged under § 231(a)(3) had been accused of unquestionably violent
conduct. ECF No. 47-1. Most of the January 6 civil-disorder defendants allegedly shoved, hit,
tased, punched, or struck law enforcement officers. Id. Mostofsky did none of those things. He
“len[t] his weight and strength” to a group of people “push[ing] against a police line.” Statement
of the Offense, ECF No. 94, p. 4.
The Court rejected this argument in connection with Mostofsky’s dismissal motion.
Mem. Op. at 20. However, it added that “[i]t may well be—and indeed appears to be thus far in
the January 6 cases—that many of the prosecutions under the [civil disorder] statute will involve
violent conduct.” Id.
The Sentencing Commission set base offense levels with the “typical case[] in mind.”
United States v. Butler, 954 F.2d 114, 118 (2d Cir. 1992). Because the very brief moment where
Mostofsky pushed on the barricade did not involve the sort of violence that § 231(a)(3) is
ordinarily used to prosecute, a significant downward variance is warranted.
17
3. The matters submitted under seal with the Court
4. First-time offender status and atypical conduct
The fact that Mostofsky is a first-time offender, and that the offense conduct is atypical
for him, is an appropriate basis for a downward variance. United States v. Huckins, 529 F.3d
1312, 1317 (10th Cir. 2008) (affirming that district court’s downward variance from 60-to-79-
month range to below the calculated Guidelines range was reasonable and permissibly took into
account the defendant’s lack of a criminal record); United States v. Munoz-Nava, 524 F.3d 1142,
1143 (10th Cir. 2008) (downward variance to one year imprisonment and one year home
confinement from recommended Guidelines range of 65-78 months imprisonment supported by
district court’s finding of several factors including that defendant had no felony criminal record
18
and his offense was “highly out of character”); United States v. Tomko, 562 F.3d 558, 560 (3d
Cir. 2009) (affirming probationary sentence based partly on defendant’s “negligible criminal
history”).
That the Guidelines already take into account Mostofsky’s lack of criminal history does
not mean that it is inappropriate for the Court to vary downward on the same basis. See United
States v. Ransom, 756 F.3d 770, 775 (D.C. Cir. 2014) (“[I]t is not error for a district court to
enter sentencing variances based on factors already taken into account by the Advisory
Guidelines . . . when a district court applies broader § 3553(a) considerations in granting [a
sentencing] variance.”).
5. Mostofsky’s good deeds
After Booker-Gall-Kimbrough, the case law is clear that good works, both exceptional
and otherwise, whether performed pre-indictment or post-indictment, are a valid basis for a
downward variance. See Tomko, 562 F.3d at 560 (3d Cir. 2009); United States v. Thurston, 544
F.3d 22, 25-26 (1st Cir. 2008).
As outlined above, the letters submitted on Mostofsky’s behalf show, in the words of
Rabbi Moshe Faskowitz, that “Aaron has devoted much of his time to soothing the hearts of
those that are lonely and inspiring those that are down and need encouragement.” Exh. 1, p. 22.
Both pre-indictment and post-indictment, Mostofsky “has been very active in [community
service]; particularly over the past four years with regard [to] the distribution of food and
provisions to those people who require such assistance within the locality.” Id. at 27. This
history of good deeds warrants a downward variance.
19
6. Mostofsky’s community and family support
The financial and emotional support on the outside that a defendant can be expected to
receive from family and community members is another valid basis for a downward variance.
E.g., United States v. Sayad, 589 F.3d 1110, 1114-15 (10th Cir. 2009) (defendant’s “supporting
and loving family” a reason for downward variance); United States v. Autery, 555 F.3d 864, 874
(9th Cir. 2009) (family support one of several valid grounds for downward variance from 41-51
months to probation); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008) (family support
one of three valid reasons for 91-month downward variance).
As shown above, the letters submitted on Mostofsky’s behalf demonstrate that he has the
unequivocal emotional and financial support of a tightknit family. One family member explains
that Mostofsky’s “absence would have a profound effect on those who rely on his love and care
right now. Those people include his elderly grandmother. . . who is currently suffering the
beginning stages of dementia. Hearing of his incarceration . . .would have a devastating effect
on her. [Mostofsky’s] nephews would miss his daily interactions, care, and love. His aunts and
uncles, brothers and sister, parents and grandparents would be greatly diminished without him.”
Exh. 1, p. 13. These are weighty reasons for a downward variance.
7. Mostofsky’s remorse
A defendant’s true remorse, whether exceptional or not, is a valid basis for a downward
variance. E.g., United States v. Howe, 543 Fed. 3d 128, 138 (3d Cir. 2008).
Mostofsky is truly remorseful for his criminal misbehavior on January 6. PSR, p. 11. He
“vows that the conduct will never be repeated.” Id. The government’s sentencing submission
belittles Mostofsky’s expressions of remorse. ECF No. 100, p. 39. His “two-sentence
statement,” the government argues, is not enough sentences. Id. Mostofsky does not “apologize
20
to the several officers he obstructed.” Id. The government omits that Mostofsky and his counsel
unsuccessfully attempted to meet with those officers. Had the invitation been accepted,
Mostofsky would have apologized directly. In any case, Mostofsky will be offering more than a
two-sentence statement of remorse at the sentencing hearing. In addition, the Court should
consider Mostofsky’s agreement to make a $2,000 restitution payment to the Architect of the
Capitol a very real demonstration of remorse. As discussed, Mostofsky did not destroy anything
at the Capitol; he was not required to make that payment under the restitution statute but he
elected to do so, despite having very little money, in order to make amends for his participation
in the shameful episode. Exploiting its awesome powers to invade his private communications,
the government cherry-picks and takes out of context text messages it claims Mostofsky sent
“immediately following January 6.” ECF No. 100, p. 40. That the defendant did not
instantaneously express remorse in certain texts curated by the government does not mean he is
unremorseful today. 5 To the extent there is any doubt on this score, Mostofsky’s remorse will be
apparent enough at sentencing.
B. Avoiding unwarranted sentence disparities (§ 3553(a)(6))
Section 3553(a) requires courts to fashion a sentence in a way that avoids “unwarranted
sentence disparities among defendants with similar records who have been found guilty of
similar conduct.” § 3553(a)(6).
5
The government cites to a Signal chat that it represents Mostofsky sent in January 2021, where
the defendant allegedly said his “‘father’s a Judge, so, unlike other situations...[t]hey have
nothing on me.’” ECF No. 100, p. 28. The Court will notice that, unlike the government’s other
citations to Mostofsky’s texts, this chat is not attached as an exhibit. Mostofsky’s counsel asked
the government to produce it immediately, as Mostofsky does not recall sending it. The Court
will also notice the ellipsis entered by the government after the clause about his father and before
“[t]hey have nothing on me.” The government’s use of this supposed chat to imprison Mostofsky
is low.
21
Andrew Bennett, Parading in Capitol 3 mos. home Entered the Capitol

21cr227 confinement, 24 mos. Building,
probation livestreaming the
event on his
Facebook page for
over an hour.
Lori, Thomas Vinson, Parading in Capitol 5 years probation, Entered the Capitol
21cr355 120 hours of Building, later telling
community service news outlet that her
actions were
“justified” and that
she would “do this all
over again.”
Jordan Stotts, Parading in Capitol 24 mos. probation Entered the Capitol
21cr272 Building, remained
inside for an hour,
celebrating with
others and taking
videos with his cell
phone.
Jenny Cudd, 21cr68 Parading in Capitol, 2 mos. probation Entered the Capitol
Entering Restricted Building.
Area
Glen Croy, 21cr162 Parading in the 36 mos. probation Entered the Capitol
Capitol Building. Chief Judge
suggested at plea
hearing that parading
offense is not
conceptually different
from government’s
obstruction of justice
charge under §
1512(c)(2)
Douglas Sweet, Parading in the 36 mos. probation Entered the Capitol
Cindy Fitchett, Capitol Building, Fitchett
21cr41 filming herself
saying, “We are
storming the Capitol.
We have broken in.”
Eric Torrens, 21cr204 Parading in the 36 mos. probation Entered the Capitol
Capitol Building, taking
celebratory pictures
in the Crypt.
Rasha Abdual- Parading in the 36 mos. probation Entered the Capitol
Ragheb, 21cr42 Capitol Building, desiring to
23
demonstrate against
Congress.
Jonathan Sanders, Parading in the 36 mos. probation, 60 Entered the Capitol
21cr384 Capitol hours community Building, intending to
service protest presidential
election
Michael Orangias, Parading in the 36 mos. probation Entered the Capitol
21cr265 Capitol Building, taking
pictures inside.
John Wilkerson, Parading in the 36 mos. probation, 60 Entered the Capitol
21cr302 Capitol hours of community Building, posting on
service social media, “today
was a good day, we
got inside the
Capitol.”
Brandon Nelson, Parading in the 24 mos. probation Entered the Capitol
21cr344 Capitol Building, co-
defendant texting,
“We stormed the
Capitol and shut it
down. Currently still
inside” and “Patriots
won’t go down
without a fight.”
Andrew Wrigley, Parading in the 18 mos. probation Entered the Capitol
pictures of himself
inside
Jacob Hiles, 21cr155 Parading in the 24 mos. probation Entered the Capitol
Capitol Building, taking
pictures showing him
smoking “an
unknown substance”
inside.
Bruce Harrison, Parading in the 24 mos. probation Entered the Capitol
pictures of himself
inside.
Terry Brown, 21cr41 Parading in the 36 mos. probation Entered the Capitol
Capitol Building, disobeyed
police order to leave.
Felipe Marquez, Disorderly conduct in 18 mos. probation Entered the
21cr136 the Capitol “hideaway” office of
Senator Merkley,
saying, “We only
24
broke a couple
windows.”
Michael Rusyn, Parading in the 24 mos. probation Among the first to
21cr303 Capitol enter the Capitol
through a certain
door, part of a group
of people who
shouted, “Tell Pelosi
we’re coming for that
b****,” called police
traitors, and shouted
“Stop the steal.”
Andrew Hatley, Parading in the 36 mos. probation Entered the Capitol
pictures with various
historical statues.
Nicholas Reimler, Parading in the 36 mos. probation Entered the Capitol
pictures of himself
and friends.
Caleb Jones, 21cr321 Parading in the 2 mos. home Entered the Capitol
Capitol confinement, 24 mos. Building, “walking
probation down numerous
hallways and into the
Capitol Rotunda.”
Andrew Ericson, Parading in the 24 mos. probation Entered the Capitol
21cr506 Capitol Building, penetrating
all the way to the
Speaker’s conference
room, stealing a
possession of the
Speaker’s.
Anthony R. Mariotto, Parading in the 36 mos. probation Entered the Capitol
21cr94 Capitol Building, posting on
Facebook, “This is
our house” under
selfie photograph.
Michael Stepakoff, Parading in the 12 mos. probation Entered the Capitol
21cr96 Capitol Building, posting on
social media after,
“The Capitol is OUR
house, not theirs.”
Tanner Sells, 21cr549 Parading in the 24 mos. probation Entered the Capitol
Capitol Building.
25
Indeed, although it is not an apples-to-apples comparison to juxtapose January 6 assault
sentences with Mostofsky’s nonviolent civil disorder offense, were the Court to do so the
government’s 15-month request would still yield unwarranted disparities. Consider the sentence
imposed in United States v. Mark Leffingwell, 21-cr-5-ABJ (D.D.C. 2021). Leffingwell punched
two U.S. Capitol Police officers in the head. Leffingwell, 21-cr-5-ABJ, ECF No. 31, p. 2. That
was after he posted himself at a Capitol entrance and encouraged others to join him in his
“efforts to assault the Capitol.” Id. Leffingwell pled guilty to assaulting law enforcement
officers under § 111(a). Judge Jackson imposed a sentence of six months’ incarceration—less
than half the sentence the government requests for Mostofsky, who assaulted no one.
Or consider the government’s sentencing arguments in United States v. William Merry,
Jr., 21-cr-748-JEB (D.D.C. 2021), where this Court imposed a sentence of 45 days’ incarceration
and nine months of supervised release. Merry, the government contended,
(1) was well aware that police officers were trying to disperse the crowd assembled outside
of the Capitol, and yet he surged towards the Capitol Building anyway; (2) he stormed past
multiple police lines after witnessing rioters forcibly remove barricades, leading his 21-
year-old niece into the mob along with him; (3) he penetrated the U.S. Capitol all the way
to the Speaker’s suite and exited through a broken window; (4) he encouraged his niece to
pick up a shard of Speaker Pelosi’s office sign, which had just been smashed by another
rioter, and then proudly displayed the stolen shard on Capitol grounds; (5) he roamed the
Capitol tauntingly chanting “Nancy, Nancy” (i.e., Speaker Pelosi), calling her a “c**t”
on multiple occasions; and (6) his conduct after breaching the Capitol—when the import
of his actions should have been clear—suggests a lack of remorse.
Merry, Jr., 21-cr-748-JEB, ECF No. 41, p. 2 (emphasis added).
Merry prowled the Capitol Building for nearly 40 minutes—approximately twice as long
as Mostofsky remained in the building. Id. at 9.
Because Merry was also guilty of theft and entered the building, it appears that virtually
the only difference between his fact pattern and Mostofsky’s that does not turn in Mostofsky’s
favor is the latter’s brief pushing on the barricade outside the building. And yet the sentence this
27
Court imposed on Merry is about 10% of the sentence the government requests for Mostofsky.
For all these reasons, imposing a sentence on the order of that requested by the government
would create many unwarranted sentence disparities. § 3553(a)(6).
C. The seriousness of the offense and deterrence (§ 3553(a)(2))
The Court must consider “the need for the sentence imposed . . . to reflect the seriousness
of the offense” and to “afford adequate deterrence to criminal conduct” and to “protect the public
from further crimes of the defendant.” § 3553(a)(2).
The government argues that specific deterrence will not be achieved unless Mostofsky
serves over a year in prison. ECF No. 100, pp. 39-40. Tellingly, it does not even indicate what
future crime Mostofsky is to be deterred from. Id. In the 35 years of his life, Mostofsky has no
criminal history. The crimes in this case are perhaps the most context- and time-specific ones
the Court will have encountered on the bench. Consider all the contingencies having nothing to
do with the defendant that were necessary for the crime to occur in the first place. Mostofsky
was attending a political rally when a large crowd began drifting towards the Capitol. He did not
direct them there. He had no preconceived plan to head to the Capitol himself. The crowd then
turned into a mob which then led to a riot in the shadow of the Capitol Building. This had never
happened before in its long history. Mostofsky did not whip up the mob. Nor did he foresee one
forming. Like hundreds of others in the area, Mostofsky entered the building in an
unprecedented scene of chaos. Mostofsky has no history of seeking out and inflaming riots.
This case has already turned Mostofsky’s life upside down. He was originally indicted
on eight counts—four of them felonies. His house was raided by a SWAT team. In mainstream
and social media, the case has made him the target of continuous savage attacks. He has
received death threats. He and his family have incurred profound and lasting shanda from this
28
scandal. With a felony conviction, Mostofsky, 35, may struggle to find gainful employment for
the rest of his life. The government’s suggestion that these heavy blows are insufficient to deter
the one-time, situational crimes Mostofsky committed is baseless.
Particularly in the kind of community in which Mostofsky lives, shame is a potent force
of deterrence. The Court can and should consider the deterrence power of shame. See, e.g.,
United States v. Polizzi, 549 F. Supp. 2d 308, 449 (E.D.N.Y. 2008) (specific deterrence satisfied
by “intense shame created by the felony convictions); United States v. Maynard, 2020 U.S. Dist.
LEXIS 179542, at *5 (E.D.N.Y. Dec. 17, 2012) (Weinstein, J.) (same).
Conclusion
In the huge ongoing effort to hold the right people accountable for the Capitol riot, it is
surely important to heed the risk that a similar event could occur again in the future. But there
are risks on the other side of the equation too, ones involving the criminal justice system, and
these could be just as likely to materialize as another Capitol riot, if not more likely. Keeping a
mob out of the Capitol is essential. So are basic principles like individual responsibility and
avoidance of collective punishment. Mostofsky deeply regrets his participation in the awful
episode. He has already paid and will continue to pay a severe price. Many similarly situated
January 6 protesters have received probationary sentences. Taking all these factors together, a
sentence of significant home confinement, together with probation and community service would
be sufficient but not greater than necessary in this case.
Dated: May 1, 2022 Respectfully submitted,
/s/ David B. Smith

David B. Smith (D.C. Bar No. 403068)
108 N. Alfred St.
Alexandria, VA 22314
29
Phone:(703)548-8911
Fax:(703)548-8935
[email protected]
Nicholas D. Smith (D.C. Bar No. 1029802)

7 East 20th Street
New York, NY 10003
Phone: (917) 902-3869
[email protected]
Attorneys for Aaron Mostofsky
Certificate of Service
I hereby certify that on the 1st day of May, 2022, I filed the foregoing submission with the
Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to
the following CM/ECF user(s):
Graciela Lindberg
Assistant United States Attorney
555 4th Street, N.W., Room 4408
Washington, D.C. 20530
And I hereby certify that I have mailed the document by United States mail, first class
postage prepaid, to the following non-CM/ECF participant(s), addressed as follows: [none].
/s/ David B. Smith

David B. Smith, VA Bar No. 25930
David B. Smith, PLLC
108 North Alfred Street, 1st FL
Alexandria, Virginia 22314
(703) 548-8911 / Fax (703) 548-8935
[email protected]
Attorneys for Aaron Mostofsky
30

Sentencing Memorandum For Aaron Mostofsky

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Sentencing Memorandum For Aaron Mostofsky

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Case 1:21-cr-00138-JEB Document 101 Filed 05/01/22 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT

SENTENCING MEMORANDUM OF AARON MOSTOFSKY

Counsel to Aaron Mostofsky

A. Mostofsky’s background, family, and character 2

B. The charges, plea agreement, and presentence investigation report 9

C. Factual inaccuracies in the government’s sentencing submission 11

II. The § 3553(a) factors favor a significant downward variance 14

A. The nature and circumstances of the offense and the history

1. USSG §3D1 policy 15

2. Unlike in this case, the civil disorder charge is virtually

3. The matters submitted under seal with the Court 18

4. First-time offender status and atypical conduct 18

5. Mostofsky’s good deeds 19

6. Mostofsky’s community and family support 20

B. Avoiding unwarranted sentence disparities (§ 3553(a)(6)) 21

C. The seriousness of the offense and deterrence (§ 3553(a)(2)) 28

Kimbrough v. United States, 552 U.S. 85 (2007) 14, 15, 19

Spears v. United States, 555 U.S. 261 (2009) 14

United States v. Autery, 555 F.3d 864 (9th Cir. 2009) 20

United States v. Booker, 543 U.S. 220 (2005) 14, 19

United States v. Howe, 543 F.3d 128 (3d Cir. 2008) 20

United States v. Huckins, 529 F.3d 1312 (10th Cir. 2008) 18

United States v. Husein, 478 F.3d 318 (6th Cir. 2007) 17

United States v. Maynard, 405 U.S. 156 (1972) 29

United States v. Munoz-Nava, 524 F.3d 1142 (10th Cir. 2008) 18

United States v. Polizzi, 549 F. Supp. 2d 308 (E.D.N.Y. 2008) 29

United States v. Ransom, 756 F.3d 770 (D.C. Cir. 2014) 19

United States v. Sayad, 589 F.3d 1110 (10th Cir. 2009) 20

United States v. Thurston, 544 F.3d 22 (1st Cir. 2008) 19

United States v. Tomko, 562 F.3d 558 (3d Cir. 2009) 19

United States v. Wadena, 470 F.3d 735 (8th Cir. 2006) 17

18 U.S.C. § 3553 passim

18 U.S.C. § 1752 9, 10, 22

Mostofsky traveled on January 6 from his Brooklyn apartment to Washington, D.C., to

presidential election held over two months before that point.

photographer. In a visual-historical irony that no mind is capable of dreaming up and the

Bureau of Investigation. The fur pelt was seized.)

than necessary,” 18 U.S.C. § 3553(a), along a number of dimensions. A Guidelines sentence

deterrence and rehabilitation.

A. Mostofsky’s background, family, employment history, and character

In 2003 Mostofsky graduated from a Yeshiva high school in Brooklyn. He went on to

School of Architecture where, in 2012, he completed a Bachelor of Science in Architecture. For

facades and stairs.

who require such assistance within the locality.” Id.

days.” Id. She was “moved to tears by his thoughtfulness.” Id.

all.” Exh. 1, p. 22.

Rabbi Dovid Cynamon, a rabbi in the Flatbush community, is a “close mentor” of

Another through-line in the letters submitted to the Court is Mostofsky’s kindness to

Mostofsky is a kind of surrogate father to many. Mostofsky is “a family favorite, [who]

that stands in the way of Aaron’s generosity.” Id.

diminished without him.” Id.

collections for them.” Id.

be] extremely expensive, especially with a larger family.” Id.

The Aleph Institute is a charitable organization founded in 1981 by the Lubavitcher

taking inventory and organizing distribution.

B. The charges, plea agreement, and presentence investigation report

No. 94, p.7.

Statement of the Offense, ECF No. 94, p. 7.

estimated Guidelines range of 12-18 months’ incarceration. Id. at 4.

C. Factual inaccuracies in the government’s sentencing submission

Capitol”) (emphasis added); id. at 1 (Merry “participated” in an “attack”) (emphasis added).

Start at the beginning of the government’s submission. Mostofsky, represents the