WASHINGTON — A sentencing hearing for a Capitol rioter who used bear spray and a metal whip to attack police on Jan. 6 came to an abrupt halt Wednesday as the judge and defense sparred over whether an enhancement could be applied despite not being included in the plea agreement.
Andrew Quentin Taake, 35, of Houston, Texas, pleaded guilty in December to one felony count of assaulting police with a deadly or dangerous weapon. He was arrested in July 2021 on 11 counts, including seven felonies, for repeatedly assaulting officers on the west side of the U.S. Capitol with bear spray and a Stinger Whip – an industrial steel cable attached to a window-breaking tool sold as a personal safety device.
Taake was identified after bragging about his role in the riot on the Bumble dating app. He was taken into custody at his home in Houston, where police found three loaded firearms despite his status as a convicted felon. At the time of his arrest, Taake was out on a $20,000 bond in a child solicitation case in Texas that remains pending. He has been held without bond on both that case and his Jan. 6 charges since his arrest in July 2021.
On Wednesday, Taake appeared for sentencing before U.S. District Judge Carl Nichols. His plea agreement estimated a guideline range of 46-57 months in prison if he were to receive credit for acceptance of responsibility – however, in their sentencing memo, prosecutors argued Taake had repeatedly done the opposite, including calling in to the nightly vigil supporting Jan. 6 defendants outside the D.C. Jail just five days after pleading guilty to say he had to “admit to stuff that didn’t happen.” They also highlighted his assaults on multiple different officers, including at least four occasions in which he used bear spray on police.
“Taake came to the Capitol on January 6, 2021 armed with a whip designed to inflict maximal damage and a chemical irritant designed to stop a charging grizzly bear in its tracks,” prosecutors wrote. “In other words: Taake came prepared for violence.”
Prosecutors sought 78 months, or six-and-a-half years, in prison for Taake, which both they and probation calculated as the top-end of his guideline range without credit for acceptance of responsibility. Taake’s attorney, Michael Lawlor, appeared ready to argue on that issue before Nichols threw a wrench in to the mix – saying he believed a three-level enhancement for inflicting bodily injury on an officer should be applied. The enhancement, which could raise Taake’s guideline range to 87-108 months – roughly seven-to-nine years – was not included in the plea agreement.
Federal judges are not bound by plea agreements between defendants and the Justice Department and are required to make their own determinations about the appropriate guidelines range. However, Lawlor immediately protested. He argued Nichols had not provided him with required notice before the hearing that he was considering an additional enhancement, although he was unable to cite any case law to back up that assertion.
In an increasingly testy back-and-forth, Lawlor said he had never in 27 years of practicing law shown up to a sentencing hearing where the judge was considering a different guidelines range without being informed beforehand.
“I can count on one hand – not even one hand – the number of times a judge has come in and said, ‘I’m going to apply a different guidelines calculation and this is the first time you’re hearing about it,’” Lawlor said. “This is the only time it has happened.”
Nichols, who was nominated to the federal bench in 2019 by former President Donald Trump, pointed out that he and other judges routinely calculate sentencing guidelines that differ from those proposed by the probation office, prosecutors or defense. He also said he believed any other judge who looked at the facts in the case would believe the bodily injury enhancement applied even though the government was not asking for it. Nichols cited a statement from DC Police Officer N.T., who was struck directly in the face by a stream of bear spray the government claims came from Taake. The officer reported suffering excruciating pain, temporary blindness and a fear that he was going to die as the mob surrounded him.
“Based on the government’s brief and the victim impact statement it’s as clear as day to me that the sentencing enhancement applies here,” he said.
Assistant U.S. Attorney Madison Mumma said the government didn't ask for the enhancement in the plea deal because, at the time Taake entered it, the DOJ didn't yet have the victim impact statement from the officer about the effects of the bear spray.
Lawlor said he believed the facts in the record didn’t prove Taake had been the one to spray the officer in the face, but ultimately asked Nichols to continue with the sentencing hearing anyway – even with the disputed enhancement – because Taake wanted to proceed. Nichols, however, declined, saying he wanted briefing on Lawlor’s claims that he was required to provide the defense notice that he was considering a different guidelines range.
“I am not comfortable winging this,” Nichols said.
Lawlor, visibly agitated, said he believed delaying the hearing would only “further prejudice” Taake.
Nichols ordered both sides to brief him on the issue of the enhancement by May 10 and rescheduled the sentencing hearing for May 23 at 10 a.m. Taake will receive credit for approximately 33 months already spent in detention toward any eventual sentence he receives.