TRIAL STAGES: Sentence and Punishment:  Lawfulness of Sentence

2013 (September Term)

United States v. Finch, 73 M.J. 144 (the specifications in this case alleging that appellant distributed child pornography and received and possessed child pornography, both in violation of Article 134, UCMJ (conduct prejudicial to good order and discipline and service-discrediting conduct), were directly analogous to the federal offenses of distribution of child pornography (18 USC § 2252A(a)(2)) and possession of child pornography (18 USC § 2252A(a)(5)) in calculating the maximum punishment for those offenses; because the offenses were directly analogous to 18 USC § 2252A(a)(2) and (5), they were punishable by sentences of twenty years and ten years respectively; all the elements of the federal offenses, except the jurisdictional element, were included in the specifications; the offenses alleged images of minors, not images of virtual minors, and thus were not charged as simple disorders punishable by four months of confinement; the term child pornography is defined in § 2256(8)(B) to include any visual depiction of a minor engaging in sexually explicit conduct; the definition does not distinguish between minors and actual minors; as such, the CCA did not err in holding that the maximum possible sentence was based on the analogous portions of 18 USC § 2252A, which address essentially the same offenses as charged herein).  

(where an offense is listed in Part IV of the MCM, the maximum punishment is set forth therein; for offenses not listed in Part IV, the maximum punishment depends on whether the offense is included in or closely related to a listed offense in the MCM; where the offenses at issue were neither listed in Part IV nor included in or closely related to any offense listed in the MCM, RCM 1003(c)(1)(B)(ii) provides that such an offense not listed in Part IV and not included in or closely related to any offense is punishable as authorized by the United States Code, or as authorized by the custom of service). 

2012 (September Term)

United States v. Altier, 71 M.J. 427 (Article 63, UCMJ, provides that upon a rehearing, no sentence in excess of or more severe than the original sentence may be approved, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory; however, the application of the Article 63 limitation in any case cannot be reduced to a specific formula). 

(a sentence imposed on rehearing, which included confinement for 30 days, restriction for 45 days, hard labor without confinement for 45 days, reduction to pay grade E-5, and forfeiture of $1,500.00 pay per month for 3 months, was not in violation of Article 63, UCMJ, by being in excess of or more severe than the original sentence of a bad-conduct discharge; appellant did not receive a punitive discharge at the rehearing, a punishment that adds to the stigma of a federal conviction and severely limits the opportunity of a former servicemember to receive important federal benefits, such as those administered by the Department of Veterans Affairs; instead, he received a sentence containing terms similar in effect, although not identical to, the types of punishment that could be imposed in a non-judicial setting under Article 15, UCMJ; under these circumstances, the CCA did not err under Article 63 in affirming the sentence adjudged by the court-martial and approved by the convening authority).  

2011 (September Term)

United States v. St. Blanc, 70 M.J. 424 (appellant was charged with possession of “what appears to be” child pornography, yet his maximum sentence was determined by reference to the Child Pornography Prevention Act; Beaty (70 MJ 39) held that the maximum sentence for a specification of possessing “what appears to be” child pornography cannot be determined by reference to the CPPA; as a result, and in the absence of the President setting a sentence maximum for such an offense, the maximum sentence for that offense is that of a general or simple disorder under Article 134, UCMJ - four months of confinement and forfeiture of two-thirds pay per month for four months). 

2010 (September Term)

United States v. Beaty, 70 M.J. 39 (the maximum sentence for the offense with which appellant was charged, possession of “what appears to be” child pornography charged under clause 1 or clause 2 of Article 134, UCMJ, cannot be determined with reference to 18 USC § 2252A or 18 USC § 2252(a)(4)(B); the US Code does not criminalize possession of “what appears to be” child pornography; an offense comprised of acts that cannot be criminally charged under the US Code at all is neither directly analogous nor essentially the same as one that can be; as such, it was error to reference either federal statute to determine the maximum punishment in this case, because under neither statute is the offense with which appellant was charged punishable at all). 

(while the government can charge an offense of possession of “what appears to be” child pornography under Article 134, UCMJ, the maximum punishment under the US Code for possession of “what appears to be” child pornography is no punishment at all). 

(under RCM 1003(c)(1)(B)(ii), where an Article 134, UCMJ, offense is (1) not listed in the MCM, (2) not included in or closely related to any other offense listed in Part IV of the MCM, and (3) not provided for in the US Code, the maximum punishment is that authorized by the custom of the service).

(when confronted with Article 134, UCMJ, offenses not specifically listed, that are not closely related to or included in a listed offense, that do not describe acts that are criminal under the US Code, and where there is no maximum punishment authorized by the custom of the service, they are punishable as general or simple disorders, with a maximum sentence of four months of confinement and forfeiture of two-thirds pay per month for four months). 

(the maximum sentence for appellant’s offense of possession of “what appears to be” child pornography charged as an Article 134, clause 1 or 2 offense, was four months of confinement and forfeiture of two-thirds pay per month for four months, where the offense was not listed in the MCM, not included in or closely related to any other offense listed in Part IV of the MCM, and not provided for in the US Code, where there was no custom of the service specific to the offense, and where use of confinement for life without eligibility for parole as the jurisdictional maximum for a GCM would violate the rule of lenity). 

2007


United States v. Leonard, 64 M.J. 381 (the maximum punishment for an offense charged under Article 134, UCMJ, clauses 1 and 2, barring conduct prejudicial to good order and discipline or conduct of a nature to bring discredit upon the armed forces, and not otherwise listed in the MCM, may be determined by reference to the maximum punishment for a violation of a federal statute that proscribes and criminalizes the same criminal conduct and mental state included in the specification). 


(Article 134, UCMJ, which applies only to conduct not specifically mentioned under the UCMJ, specifically provides that an accused shall be punished at the discretion of the court; however, a court’s discretion is bounded both where specific direction is given under RCM 1003(c) and by the limitations established by the President pursuant to Article 56, UCMJ). 


(in sentencing an accused for receiving visual depictions of children engaged in sexually explicit activity under the Article 134, UCMJ, provisions barring conduct prejudicial to good order and discipline or conduct of a nature to bring discredit upon the armed forces, the military judge did not err by referencing a directly analogous federal statute, 18 USC 2252(a)(2), to identify the maximum punishment in the case, when every element of the federal crime, except the “interstate or foreign commerce” jurisdictional element, was included in the specification). 


(in determining the maximum sentence for offenses charged under clauses 1 or 2 of Article 134, UCMJ, that include the conduct and mens rea proscribed by a directly analogous federal criminal statutes, and that do not have a listed maximum punishment in the MCM and are not closely related to an offense listed therein, an appellate court focuses on whether the offense as charged is “essentially the same” as that proscribed by the federal statute; if so, the maximum sentence is the federal statutory maximum; a military judge does not err by referencing a directly analogous federal statute to identify the maximum punishment, when every element of the federal crime, except the jurisdictional element, is included in the specification; the government, however, may not avoid charging and proving elements setting forth the gravamen of the offense under federal law, yet still avail itself of the federal statutory maximum; the criminal conduct and mens rea set forth in the specification must satisfy the requirements of clauses 1 and 2 of Article 134, UCMJ, and describe the gravamen of the offense proscribed by the federal criminal statute). 


United States v. Green, 64 M.J. 289 (a military judge may not interject his or her personal beliefs into the sentencing process).


United States v. Pena
, 64 M.J. 259 (parole is a form of conditional release from confinement under the guidance and supervision of a United States probation officer; in addition, parole is a voluntary program, in which the inmate applies to participate during the balance of his or her period of approved confinement; the decision as to whether parole should be granted is vested in the Clemency and Parole Boards of the military departments; the decision is highly discretionary; prior to release on parole, the inmate must have an approved parole supervision plan, and agree in writing to abide by the plan and conditions of supervision; violation of the terms and conditions may result in revocation of parole; in general, the supervision of persons on parole is designed to enhance the person’s reintegration into civilian society). 


(the mandatory supervised release program is a DoD early release mechanism; mandatory supervised release covers specified classes of prisoners who have served sufficient time in confinement to be considered for parole, but who are not granted parole; as with parole, mandatory supervised release applies from the time of release from prison until the end of the prisoner’s approved sentence, and it may be revoked for violation of the terms and conditions of the program; in contrast to parole, which is a voluntary program, a prisoner may be placed involuntarily on mandatory supervised release; in addition to the conditions that may be imposed during parole, the Clemency and Parole Board may use the mandatory supervised release program to impose any additional reasonable supervision conditions that would further an orderly and successful transition to civilian life for released prisoners, and which would better protect the communities into which prisoners are released; a prisoner who refuses to accept mandatory supervised release or the conditions imposed by the Clemency and Parole Board is subject to discipline, including trial by court-martial).


(mandatory supervised release differs in significant respects from the authority of the federal civilian courts to include in a sentence a term of supervised release after imprisonment; unlike the federal civilian program, which is based on express statutory authority and involves terms that are adjudged as part of the sentence, the military’s mandatory supervised release program is based on executive authority, and involves terms that are imposed by executive branch officials well after completion of trial).


(the military sentencing process provides notice of the punishments at issue, an adversarial proceeding, and formal announcement of the sentence). 


(a servicemember cannot be subjected to a sentence greater than that adjudged by the court-martial). 


(as a general matter, the collateral administrative consequences of a sentence, such as early release programs, do not constitute punishment for purposes of the criminal law). 


(in the context of an issue that requires a showing of increased punishment, it is not sufficient to show that the conditions of mandatory release imposed some burdens on a released prisoner; all conditions of release impose burdens to some degree; those burdens, however, must be assessed in the context of release from a sentence to confinement; the question in each case is whether the burdens are such that they result in an increase in the punishment of confinement adjudged by the court-martial; such an assessment requires a case-specific analysis).


(appellant failed to demonstrate that his participation in the mandatory supervised release program produced an impermissible increase in the punishment adjudged by the court-martial; appellant’s declaration, which covered only a portion of the time he was in the mandatory supervised release program, did not provide a clear record upon which an appellate court could evaluate whether the conditions of his mandatory supervised release produced an increase in his sentence).  


(appellant failed to establish that it was improper to place him on involuntary appellate leave and deny him pay and allowances following his release from confinement under the mandatory supervised release program where he did not demonstrate that the conditions of his supervised release were so restrictive in nature or duration that they had the claimed effect of retaining him on active duty without pay).


(appellant’s contention that he was improperly placed on involuntary appellate leave following his release from confinement under the mandatory supervised release program, because under an Air Force Regulation he had not technically completed his period of confinement where he was under a continuing threat of return to prison if he violated the terms of his release, did not fall within the CAAF’s scope of review under Article 67, UCMJ; the relationship between completion of confinement and commencement of leave is a matter governed by administrative regulations and service practices and appellant failed to demonstrate that the applicable regulations, either on their face or as applied, violated Article 76a, UCMJ, or any other provision of the UCMJ). 


2006

 

United States v. Miller, 63 M.J. 452 (a collateral consequence is a penalty for committing a crime, in addition to the penalties included in the criminal sentence; the requirement that appellant register as a sexual offender is a consequence of his conviction that is separate and distinct from the court-martial process).


United States v. Christian, 63 M.J. 205 (life without eligibility for parole (LWOP) was an authorized court-martial punishment for the crime of forcible sodomy of a child under twelve years of age during the period between enactment of the LWOP statute (November 18, 1997) and its eventual implementation in the MCM (April 11, 2002); the statute creating LWOP authorized this punishment after the date of its enactment for any offense for which a sentence of confinement for life may be adjudged; as appellant committed the offense of forcible sodomy of a child under twelve years of age in May 1998, and the MCM provided for a maximum punishment of confinement for life for this offense, LWOP was an authorized punishment).

United States v. Lovett, 63 M.J. 211 (life without eligibility for parole (LWOP) was an authorized punishment for rape of a child under twelve years of age committed after November 18, 1997, the date upon which the President signed the LWOP legislation into law, even though the President did not make conforming amendments to the MCM until April 11, 2002). 


(even if the military judge erred in instructing the members that life without eligibility for parole (LWOP) was an authorized punishment for rape of a child under twelve years of age, any error was harmless where the accused nonetheless faced a maximum punishment that included confinement for life, where trial counsel argued for a term of confinement of thirty-five years, and where, despite the Government’s argument for thirty-five years of confinement and the instructions that LWOP was an authorized punishment, the members returned a sentence that included only fifteen years of confinement).


United States v. Gaston, 62 M.J. 404 (a sentence of partial forfeitures must be stated as a whole dollar amount).


(if a sentence includes a reduction, then the forfeiture should be based on the grade to which the accused is reduced).


United States v. Stewart, 62 M.J. 291 (it is settled law that an accused cannot be subjected to a sentence greater than that adjudged by the members; moreover, where a sentence is ambiguous or uncertain, as a matter of fundamental fairness an accused cannot be subject to a sentence greater than that which is clearly indicated).


(sentences in criminal cases should reveal with fair certainty the intent of the court and exclude any serious misapprehensions by those who must execute them; a sentence that is so ambiguous that a reasonable person cannot determine what the sentence is may be found illegal; however, not all ambiguous sentences are illegal; a sentence need not be so clear as to eliminate every doubt, but sentences should be clear enough to allow an accused to ascertain the intent of the court or of the members).


2005

 

United States v. Stebbins, 61 M.J. 366 (life without eligibility for parole (LWOP) was an authorized punishment for rape which occurred after November 18, 1997, the date when Article 56a, UCMJ, was enacted; Article 56a provides that a court-martial may adjudge a sentence of LWOP for “any offense for which a sentence of confinement for life may be adjudged”). 


(RCM 1003(b)(3) provides that any court-martial may adjudge a fine in lieu of or in addition to forfeitures; the discussion accompanying RCM 1003(b)(3) states that a fine normally should not be adjudged against a member of the armed forces unless the accused was unjustly enriched as a result of the offense of which convicted; despite this language in the discussion, the use of “normally” in the rule’s nonbinding discussion indicates that “unjust enrichment” is not always a prerequisite to imposing a fine as part of an accused’s sentence).  


(the plain language of RCM 1003(b)(3) indicates that fines are available to be imposed on any accused who is convicted and there is no requirement of “unjust enrichment” for a fine to be imposed; in addition, the historical absence of explicit limitations on the imposition of fines for those offenses that do not involve direct loss to the United States is consistent with the President’s authorization in RCM 1003(b)(3) to impose fines in cases that may not involve “unjust enrichment”; based on the plain language of the rule as well as the history of a fine as punishment, it is not unlawful to impose a fine where there is no unjust enrichment).


(the Eighth Amendment provides that excessive fines shall not be imposed; there is a two-pronged analysis for determining whether the Excessive Fines Clause is violated; first, a court must determine if the fine falls within the Excessive Fines Clause and, if so, whether the fine is excessive).


(the touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: the amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish; therefore, if a fine is grossly disproportionate to the gravity of an accused’s offense, it violates the Excessive Fines Clause; this proportionality analysis under the Excessive Fines Clause is conducted on a case-by-case basis and is distinguishable from the determination of sentence appropriateness required by Article 66). 


(factors to be analyzed in determining whether a fine is grossly disproportionate include (1) the nature of the offense and whether it is related to any other illegal activities by the accused; (2) whether the accused fits into the class of persons for whom the statute was principally designed; (3) whether the maximum sentence under the Federal Sentencing Guidelines is relatively low, thus confirming a minimal level of culpability; and (4) the level of harm caused by the accused’s offense, to include those who were affected by the offense and the magnitude of harm to those affected). 


(at the time that the Constitution was adopted, the word “fine” was understood to mean a payment to a sovereign as punishment for some offense). 


(the fine that was imposed on the accused as part of his sentence and that was to be paid to the government as punishment for committing the offense was a “fine” within the meaning of the Excessive Fines Clause). 


(the $75,000 fine imposed on the accused for his conviction of the repeated rape and forcible sodomy of his six-year-old daughter was in no way grossly disproportionate to the gravity of his offenses, where (1) the nature of his offenses were severe, (2) he fell into the class of persons for whom the offenses of rape and forcible sodomy were principally designed, (3) the congressionally-prescribed maximum punishment authorized for rape was the most severe sentence known to the law, death, thus indicating that Congress and the President intended to punish these offenses severely; (4) the harm caused to the victim was extremely severe; and (5) under the United States Sentencing Guidelines, had the accused been tried in the civilian system, his offense of criminal sexual abuse with a minor under the age of twelve at the time of the offense would have authorized a fine anywhere between $17,500 and $175,000; thus, based on the facts of this case, the accused’s sentence did not violate the Excessive Fines Clause).


United States v. McNutt, 62 M.J. 16 (the possibility of good-time credit should not be considered by the members or the military judge when deciding what sentence is appropriate; in this case, the military judge erred in considering the Army’s good-time credit policy when he assessed appellant’s sentence). 

 

2004

 

United States v. Ronghi, 60 MJ 83 (Congress passed a bill authorizing the court-martial punishment of confinement for life without eligibility for parole (LWOP) on November 6, 1997; the President signed that bill into law on November 18, 1997; however, the President did not amend the MCM to incorporate LWOP until April 11, 2002, thus creating an issue whether LWOP was an authorized court-martial punishment for the crime of premeditated murder during the period between enactment of the LWOP statute and the MCM’s revision; we conclude that the statute creating LWOP authorized that punishment for premeditated murder offenses committed after November 18, 1997).

 

(it is well established that, absent a clear direction by Congress to the contrary, a law takes effect on the date of its enactment; an examination of the applicable statutes reveals that Congress authorized LWOP as a sentence for any premeditated murder committed from the day after its enactment forward).

 

(Article 56a(a), UCMJ, provides that for any offense for which a sentence of confinement for life may be adjudged, a court-martial may adjudge a sentence of confinement for LWOP; the statute that added this language to the UCMJ also provided that Article 56a shall be applicable only with respect to an offense committed after the date of the enactment of this Act; that date of enactment was November 18, 1997, when the President signed it into law).

 

(when Congress adopted Article 118, it provided only two authorized sentences for the offenses of premeditated murder and felony murder:  death or imprisonment for life; when it adopted Article 56a, Congress plainly intended to authorize LWOP as a third available sentence for a premeditated murder that occurred after November 18, 1997; thus, absent some other statutory provision limiting LWOP’s availability, it was an authorized sentence when appellant committed his offenses on January 13, 2000).

 

(for most of the UCMJ’s punitive articles, the President plays a role in determining the maximum authorized punishment; Article 56 provides that the punishment which a court-martial may direct for an offense may not exceed such limits as the President may prescribe for that offense; Article 18 similarly authorizes the President to prescribe limitations on the punishments adjudged by general courts-martial; the Supreme Court has upheld the constitutionality of this general delegation of Congress’s authority to define criminal punishments for military offenses; the President has executed this delegated authority by establishing maximum punishments in Part IV of the MCM).

 

(the 2000 edition of the MCM, which governed appellant’s case, provided that the maximum punishment for premeditated murder was death; the MCM provision noted that the mandatory minimum punishment for premeditated murder was imprisonment for life; because LWOP is a lesser punishment than the maximum (death), the MCM’s maximum sentence provision did not conflict with the congressionally-authorized sentence of LWOP in a premeditated murder case).

 

(the 2002 executive order that amended the MCM to incorporate LWOP indicated that the punishment shall only apply to offenses committed after November 18, 1997; thus, the executive order itself recognized LWOP’s availability as an authorized sentence at the time of appellant’s offenses).

 

(another presidential limitation on court-martial sentencing authority is RCM 1003, which provides an exclusive list of the kinds of punishments that a court-martial may impose; the 2000 MCM’s version of RCM 1003 did not specifically mention LWOP; rather, the 2000 MCM’s version of RCM 1003, like its predecessors, authorized confinement as a form of punishment without addressing the term of confinement at all; but RCM 1003 nevertheless allowed LWOP, because it is not a new form of punishment, but simply a longer term of confinement than military law had previously allowed a court-martial to adjudge; we conclude that confinement for LWOP falls within the meaning of RCM 1003(b)(7)’s term confinement).

 

2003

United States v. Mitchell, 58 MJ 446 (a sentence imposed on rehearing, which included a dishonorable discharge rather than a bad-conduct discharge, but otherwise included less confinement and fewer forfeitures than the first sentence, was "in excess of or more severe" than the sentence originally approved in violation of Article 63, UCMJ; discharges are qualitatively different from other punishments, and a bad-conduct discharge is "less severe" than a dishonorable discharge).

(Article 63 requires a comparison between discharges imposed in original and rehearing sentences regardless of the overall sentence awarded at each sentence hearing).

(views as to the relative effects of a bad-conduct discharge and a dishonorable discharge may have tempered over time, but the fact remains, that in history, practice and law, a dishonorable discharge is more severe than a bad-conduct discharge).

(this Court holds that for the purposes of Article 63, a dishonorable discharge is more severe than a bad-conduct discharge).

2002

United States v. Spaustat, 57 MJ 256 (the adjudged sentence imposed confinement for ten months where the record clearly reflects that the military judge adjudged a sentence including confinement for ten months even though he orally stated a sentence to confinement that reflected a deduction for unlawful pretrial punishment credit; there is no ambiguity regarding the adjudged sentence).

(the military judge did not illegally reconsider his sentence where he merely corrected his calculation of confinement credits and clarified their impact on the confinement remaining to be served).

2001

United States v. Promin, 54 MJ 467 (nether the Double Jeopardy Clause nor Article 44, UCMJ, prohibits the forfeiture of pay and allowances imposed by operation of Article 58b, UCMJ; cumulative sentences imposed in a single trial do not violate the Double Jeopardy Clause where the punishment prescribed is no greater than the legislature intended).

(automatic forfeiture of pay and allowances under Article 58b, UCMJ, is not an instance of an individual being twice put in jeopardy; rather, there is but one proceeding, as a result of which an accused receives multiple punishments as authorized and intended by Congress).

United States v. Durant, 55 MJ 258 (in reviewing claims of disparate sentences, Court of Appeals for the Armed Forces will examine three questions of law:  (1) whether the cases are closely related; (2) whether the cases resulted in highly disparate sentences; and (3) whether there is a rational basis for the difference between the cases).

(sentence comparison does not require sentence equation).

(the question of whether sentences are highly disparate is not limited to a narrow comparison of the relevant numerical values of the sentences as issue, but also may include considerations of the disparity in relation to the potential maximum punishment).

(just as disparity in sentencing among codefendants is not, by itself, a sufficient ground for attacking an otherwise proper sentence under federal sentencing guidelines, the military system must be prepared to accept some disparity in the sentencing of codefendants, provided each military accused is sentenced as an individual).

(where the lower court fails to articulate its rationale for affirming a sentence in the face of closely related cases with highly disparate sentences, Court of Appeals for the Armed Forces will affirm only where the respective records of trial clearly manifest differences in these two soldier’ cases that explain the respective sentences).

(differences in mitigation evidence presented at appellant’s trial and at that of his co-actor demonstrated that there was a rational basis for the differences in sentences between the two cases).

2000

 

United States v. Tualla, 52 MJ 228 (RCM 1003(b)(3) does not prevent the combination of fines and forfeitures at special and summary courts-martial, so long as the combined total does not exceed the amount of the maximum forfeitures that could be adjudged at such a court).

1999

United States v. Fee
, 50 MJ 290 (in closely related cases, decision of Court of Criminal Appeals, finding a proper basis for differentiating appellant’s sentence, was not abuse of discretion or miscarriage of justice because different sentences were justified by appellant’s longer period of LSD offenses and appellant’s additional conviction for distribution of marijuana).

United States v. Lacy, 50 MJ 286 (even though cases were closely related, sentences were not highly disparate where all adjudged sentences were relatively short in comparison to the authorized maximum period of confinement; disparity analysis is not limited to a narrow comparison of the relative numerical values of the sentences at issue).

United States v. Gray, 51 MJ 1 (appellant’s contention that members determined a sentence while on recess was not supported by the record where members were properly instructed on procedural aspects of deliberations and had merely requested and were given a recess prior to announcing the sentence).


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