An active-duty service member who was convicted for his participation in the Jan. 6, 2021, attack on the U.S. Capitol is now pleading for home confinement, rather than probation, so that he’s allowed to remain in the Navy.

Leading Petty Officer David Elizalde urged the judge to sentence him to two weeks of home detention, as well as community service and restitution. The rules of home detention would allow Elizalde to continue working during the week.

In a sentencing memorandum filed Wednesday, Elizalde’s attorney, Stephen Brennwald, said he was told by a Navy officer that sailors on probation couldn’t remain in the military. The officer also told Brennwald that a maximum amount of time a service member could be on home detention was 30 to 60 days, he said.

“Imposing a period of probation in this unusual case could, and likely would, be fatal to Mr. Elizalde’s continued service in the Navy,” Brennwald wrote in the memo.

Elizalde has served in the Navy for 17 years. On Jan. 6, 2021, he was assigned to the aircraft carrier USS Harry S. Truman as an aviation structural mechanic. He traveled from southeastern Virginia into Washington, D.C., that day and joined the crowd outside the Capitol, purchasing a “Veterans for Trump” flag on the way, according to court documents.

Elizalde watched and recorded as rioters assaulted Capitol police officers, and he went inside the Capitol building, where he remained for 28 minutes, the documents say. During a December 2021 interview with the FBI, Elizalde said he made a bad decision on Jan. 6, but he viewed it as a historic event that he’d be proud to tell people about in the future.

“I know when all this is past and gone, ten years from now, twenty years from now, I know people are going to be talking about it,” Elizalde told authorities at the time. “And they’re going to be like, ‘Hey, were you there?’ And I was going to be like, ‘Yes and here’s my story,’ you know? It was just historical.”

In this image from U.S. Capitol Police video, released and annotated by the Justice Department in the Statement of Facts supporting an arrest warrant, David Elizalde, circled in red, appears on security video inside the U.S. Capitol on Jan. 6, 2021, in Washington.

Elizalde was convicted at trial last year of one count of parading, demonstrating or picketing in a Capitol building, a misdemeanor that carries a sentence of up to six months in prison and a fine of up to $5,000. He’s expected to receive his sentence Friday.

The Justice Department recommended Elizalde receive three years of probation and 60 hours of community service. The department also asked the judge to sentence Elizalde to 30 days of intermittent confinement, meaning he would be incarcerated during nights, weekends or at other intervals.

In a memo filed last month by the Justice Department, U.S. Attorney Michael Graves claimed that Elizalde had not expressed any remorse, and he pointed to Elizalde’s military service as an especially troubling factor in the case.

“As an active-duty naval serviceman ... Elizalde was well aware that unauthorized persons do not have the right to enter restricted government grounds or buildings, especially not as part of an angry mob,” Graves wrote. “His voluntary decision to storm a guarded government building is disturbing in light of his current oath to protect and defend the country and our constitution from enemies, foreign and domestic, and bear true allegiance to the same.”

Brennwald argued that Elizalde’s military service and the sacrifices he’s made to serve in the Navy should be reasons that he receive a more lenient sentence — not a harsher one. The defense attorney claimed Elizalde’s military service meant he sacrificed personal relationships and the potential for a higher salary in the private sector. He also risked his life during multiple deployments, Brennwald wrote.

“One can clearly make the argument that someone in his shoes should be held to a higher standard,” Brennwald’s memo reads. “On the other hand, one must also recognize that he has sacrificed a great deal of his life in service to his country — and that must certainly counter-balance the first argument.”

This story was produced in partnership with Military Veterans in Journalism. Please send tips to MVJ-Tips@militarytimes.com.

Nikki Wentling covers disinformation and extremism for Military Times. She's reported on veterans and military communities for eight years and has also covered technology, politics, health care and crime. Her work has earned multiple honors from the National Coalition for Homeless Veterans, the Arkansas Associated Press Managing Editors and others.

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