But prosecutors believe Kelly's release was a mistake because he only served 11 months of his 30-month sentence. In a court filing Monday, they asked U.S. District Judge Royce Lamberth for a hearing to address Kelly's release.
The Bureau of Prisons told The Associated Press that Kelly was “inadvertently released” last week after a “misinterpretation of a court order.” The bureau’s statement doesn’t elaborate on the reason for the error, but it says that Kelly, 39, reported to a probation officer “as instructed” and remains free while awaiting a resentencing hearing.
Prosecutors also are asking the judge to schedule a hearing for resentencing now that Kelly's only felony conviction has been tossed by the federal appeals court for the District of Columbia circuit.
In May 2023, a jury convicted Kelly of all seven counts in his indictment. One of his convictions was for a charge that he obstructed an official proceeding, the Jan. 6 joint session of Congress for certifying President Joe Biden 's electoral victory over Donald Trump.
In June, however, the U.S. Supreme Court limited the government's use of that obstruction charge. The justices ruled 6-3 that the charge of obstructing an official proceeding must include proof that defendants tried to tamper with or destroy documents.
After the ruling, prosecutors and defense attorney Nicholas Smith joined in asking the appeals court to vacate Kelly's obstruction conviction. His remaining convictions were for misdemeanor offenses.
Smith declined to comment Tuesday on prosecutors' filing.
Lamberth sentenced Kelly in August 2023 and refused to release him pending the outcome of his appeal. The judge indicated last month that he was unlikely to reduce Kelly's sentence.
A Bureau of Prisons database doesn't specify where Kelly was serving his sentence when he was released last week.
A day before the Jan. 6 riot, Kelly drove to Washington, D.C., to attend then-President Trump's “Stop the Steal” rally near the White House. He marched to the Capitol, joined other rioters in entering the building and made his way to the Senate floor.
Kelly approached the dais where then-Vice President Mike Pence had just presided over the Senate. He took videos of documents on desks — including a ballot sheet, handwritten notes and a script — before police cleared the rioters out of the chamber.
Approximately 1,500 people have been charged with Capitol riot-related federal crimes. More than 600 of them have been convicted and sentenced to a term of imprisonment ranging from a few days to 22 years.