A federal judge disregarded factors that called for a longer prison sentence for the man who “spear-tackled” U.S. Sen. Rand Paul and as a result the assailant’s time behind bars was unreasonably short, the government has argued.
A government prosecutor filed a motion last week asking the U.S. 6th Circuit Court of Appeals to order a new sentencing hearing for Rene. A. Boucher, who assaulted Paul in November 2017.
The maximum sentence on the charge would have been 10 years, while sentencing guidelines outlined a range of 21 to 27 months for Boucher, who pleaded guilty.
However, federal judges are not bound by those guideline calculations, which take into account factors such as a defendant’s background and criminal record.
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Federal Judge Marianne O. Battani sentenced Boucher to 30 days in prison and a $10,000 fine, prompting an appeal from prosecutors.
“The record does not justify a sentence of one month in jail for an inexplicable and violent assault on a U.S. Senator resulting in long-term serious injuries,” prosecutor Bob Wood said in the government’s latest motion.
Boucher’s attorney, Matthew J. Baker, said the 30-day sentence was appropriate and that he will oppose the request to re-sentence Boucher.
Boucher, 60, is a retired physician who lived next door to Paul in a gated community in Bowling Green. He said he attacked Paul out of anger over Paul repeatedly putting yard waste on their property line.
Court records make clear it was a violent attack.
Paul was mowing his yard when he came across a limb in his path and got off the mower to move it, according to the government’s motion.
Without warning, Boucher ran 60 yards and “spear-tackled” Paul from behind, Wood said.
Paul was wearing headphones and so didn’t hear Boucher approach.
Paul began having trouble breathing immediately. Boucher “seemed intent on continuing the attack,” but Paul resisted, then fled into his house and called police, according to the motion.
The attack broke several of Paul’s ribs, some in half, causing the free ends to grind together painfully. For months, Paul had trouble sleeping and difficulty sitting up, according to the motion.
Paul’s wife, Kelley, said in a letter to the court that hiccups could bring Paul to his knees.
The assault damaged Paul’s lung, resulting in persistent breathing problems and causing him to develop pneumonia several times. Paul has experienced chronic pain, Wood said in the motion.
There was a good deal of debate in the weeks after the attack on whether it was politically motivated.
In a letter he submitted to the court, Paul, a Republican, said he didn’t buy the claim that the attack was motivated by a longstanding dispute over their property line.
Paul said there hadn’t been a dispute as far as he could tell because he and Boucher had not spoken for at least 10 years.
As a result, Paul said he assumed that Boucher’s “deep-seated anger towards me comingles with his hatred of my political policies.”
The fact that the assault was “utterly disproportionate to the triviality of a ‘lawn offense’ strongly suggests that something more exists here,” Paul wrote, according to the government’s appeal.
However, Battani said in sentencing Boucher that she saw no reason to believe the attack was politically motivated, describing it instead as “strictly a dispute between neighbors.”
The government has argued in its appeal of Boucher’s 30-day sentence that Battani did not give enough weight to the seriousness of the attack while giving too much consideration to mitigating factors such as Boucher’s work as a doctor, his military service and his church involvement.
Boucher’s record is not so extraordinary that it justified a sentence so far below the advisory range, Wood argued.
The motion also argued Boucher’s sentence was too lenient to deter others from attacking elected officials.
Much of the government’s appeal focused on the argument that there was an improper disparity in the sentence for Boucher and others who have attacked government officials or committed assaults on federal land, citing sentences of several years for assaults of prison guards, a federal prosecutor and a customs official, for instance.
The cases are not exactly the same as Boucher’s but offer valid comparisons, the government argued.
But the motion also cited two cases in which people who committed much less serious attacks on members of Congress but got about the same sentence as Boucher.
In one, two protestors who threw eggs at U.S. Rep. John Anderson, an Illinois Republican, while he was running for president in 1980 as an independent received 30-day prison sentences, Wood said in the motion.
In another case, a person who spat on U.S. Sen. Henry Jackson, a Democrat, while he was shaking supporters’ hands received a 15-day sentence, Wood said in the motion.
The government argued that if Boucher had been prosecuted in state court, the initial misdemeanor assault charge could have been upped to a felony charge punishable by five to 10 years in prison because of the severity of Paul’s injuries.
“Whether one looks at federal assaults on elected officials, other comparable federal assaults, or even state-level assaults, an inescapable conclusion emerges: Boucher received a light sentence starkly out of line with sentences similar defendants have received,” Wood said in the appeal motion. “Because the district court did not give any warrant for that lenience, the sentence is unreasonable.”
Boucher already served his 30 days and paid the $10,000 fine, and is close to completing his required community service, Baker said.
Baker said in an earlier motion that in appealing Boucher’s sentence, the government was reneging on a pledge to accept Battani’s ruling.
“It is completely disingenuous, on the one hand, for the government to agree not to oppose a defendant’s request that a particular sentence or sentencing range is appropriate, and then — on the other hand —to appeal the sentence because it is not draconian enough to suit the government,” Baker said in his motion to dismiss.
Baker asked in that motion for the appeals court to dismiss the appeal that could result in a higher sentence for Boucher.
However, the appeals court dismissed that request, ruling that the government was not barred from appealing Boucher’s sentence.