For Appellant: Colonel Jay L. Cohen (argued); Lieutenant
Colonel Kim L. Sheffield.

For Appellee: Captain Libby A. Brown (argued); Colonel
Theodore J. Fink, Colonel Jeffery T. Infelise, Colonel
Thomas E. Schlegel, Lieutenant Colonel Michael J. Breslin,
and Captain Timothy G. Buxton (on brief).

Military Judge: Edward M. Starr
 
 

CRAWFORD, Judge:

Appellant was tried by a judge alone sitting at Royal Air Force Chicksands, United Kingdom. Pursuant to his pleas, he was convicted of wrongful use of lysergic acid diethylamide (LSD) "on divers occasions between on or about 20 February 1992 and on or about 7 December 1993," wrongful use of marihuana "on divers occasions between on or about 20 February 1992 and on or about 7 December 1993," wrongful distribution of marihuana "on divers occasions between on or about 16 October 1993 and on or about 7 December 1993," and wrongful distribution of "some amount of amphetamine" on or about October 28, 1993, in violation of Article 112a, Uniform Code of Military Justice,
10 USC § 912a. The convening authority approved the adjudged sentence of a bad-conduct discharge, confinement for 2 years and 6 months, and total forfeitures. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion. We granted review of the following issues:

I

WHETHER THE LOWER COURT ERRED BY HOLDING THAT VACATION OF APPELLANT'S SUSPENDED PUNISHMENT UNDER ARTICLE 15 FOR SOME OF THE SAME OFFENSES FOR WHICH HE WAS COURT-MARTIALED WAS NOT PUNISHMENT UNDER ARTICLE 15 THAT ENTITLED APPELLANT TO RELIEF.

II

WHETHER THE LOWER COURT'S DETERMINATION THAT APPELLANT'S SENTENCE WAS NOT INAPPROPRIATELY SEVERE IS ERRONEOUS IN LIGHT OF:

A. THAT COURT'S FAILURE TO FOLLOW THE PRECEDENT OF THIS COURT AND ITS OWN PRECEDENT BY REFUSING TO ADMIT EVIDENCE OF THE SENTENCE OF A CO-ACTOR FOR PURPOSES OF SENTENCE COMPARISON;

and

B. THAT COURT'S REJECTION OF APPELLANT'S SENTENCE COMPARISON ARGUMENT ON THE BASIS THAT APPELLANT HAD NOT INTRODUCED EVIDENCE OF THE CO-ACTOR'S SENTENCE, EVEN THOUGH THAT COURT REFUSED TO ADMIT SUCH EVIDENCE.

Appellant made an unsworn statement that his life went into "a tailspin" after Thomas introduced him to drugs. He claimed that Thomas made the use of drugs sound exciting and interesting and that drug use helped appellant gain acceptance by other people.

As a part of the guilty plea procedures, appellant entered into a Stipulation of Fact which is attached hereto as the Appendix. Appellant's involvement with Thomas is set forth in that document.

While appellant's case was pending before the Court of Criminal Appeals, he moved for that Court to take judicial notice of a map of Bedford County in England and the promulgating order of the court-martial of Thomas, "a co-actor in a number of appellant's offenses and the mentor of appellant's involvement in illegal drugs in the Air Force." Thomas was convicted of various offenses at Royal Air Force Chicksands, United Kingdom, committed between on or about October 15, 1992, and on or about December 7, 1993. The defense also sought to introduce Thomas' service record. The court below denied the defense motion to admit the documents.

Appellant argues that Thomas' sentence should be considered when determining an appropriate sentence for appellant. Thomas was convicted of possessing and distributing LSD, and possessing, using, and distributing marihuana. Thomas was sentenced to a bad-conduct discharge, 13 months confinement, and forfeiture of $500 pay per month for 13 months. Appellant argues that it is "crystal clear" that a "closely related" case must be considered when determining sentence appropriateness, citing United States v. Ballard, 20 MJ 282 (CMA 1985), and United States v. Olinger, 12 MJ 458 (CMA 1982).

The court below stated, "We have no evidence before us on which to make a comparison of sentences between appellant and Airman Thomas....We do not know whether the two cases are closely related, or whether the sentences are highly disparate." Unpub. op. at 4.

Depending on the sentence, there are three levels of appellate review: the Court of Criminal Appeals, pursuant to Article 66(c), Uniform Code of Military Justice, 10 USC § 866(c), this Court, pursuant to Article 67, 10 USC § 867, and the Supreme Court, pursuant to Article 67a, 10 USC § 867a. An additional level of review is by the convening authority. See United States v. Mamaluy, 10 USCMA 102, 27 CMR 176 (1959). The latter review is important because the convening authority has the discretion to set aside the findings or sentence. Art. 60(c)(2) and (3), UCMJ, 10 USC § 860(c)(2) and (3).

This Court does not have the authority to pass on factual questions concerning the appropriateness of a sentence. See United States v. Olinger, 12 MJ at 461. However, we may examine the Court of Criminal Appeal's decision on sentence appropriateness for an abuse of discretion. United States v. Jones, 39 MJ 315, 316-317 (CMA 1994). Review by the Court of Criminal Appeals is important because that court is one of the few appellate courts in the United States with fact-finding powers. It has "carte blanche to do justice." United States v. Claxton, 32 MJ 159, 162 (CMA 1991). This authority includes making findings as to whether the cases are closely related and modifying the sentences of co-conspirators or aiders and abettors. See United States v. Smith, 44 MJ 720, 723-25 (Army Ct. Crim. App. 1996); United States v. Kelly, 40 MJ 558, 570-71 (NMCMR 1994).

In United States v. Ballard, 20 MJ 282, 283 (CMA 1985) this Court quoted the lower court in that case as follows:

It is well settled that, except in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases, such as those of accomplices, sentence appropriateness should be determined without reference to or comparison with the sentences received by other offenders.

The decision of the Air Force Court of Criminal Appeals is reversed. The sentence is set aside, and the record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for further review.

Chief Judge COX and Judges GIERKE and EFFRON concur.

SULLIVAN, Judge (concurring in the result):

Our case law makes clear that a Court of Criminal Appeals need not look at sentences in other court-martial cases unless those cases are closely related. United States v. Henry, 42 MJ 231, 234 (1995); United States v. Ballard, 20 MJ 282, 286 (CMA 1985); United States v. Olinger, 12 MJ 458 (CMA 1982). Here, the record of trial established at least a prima facie basis for concluding that Airman First Class Thomas' case was closely related to appellant's. ("James Thomas introduced me to drugs, and my life has been in a tailspin ever since. He had a kind of magnetic attraction that gave him real persuasive power . . . . Still, I know that if it hadn't been for Airman Thomas, I would not be here today.")

In United States v. Henry, supra at 234, we noted that the staff judge advocate was allowed to submit abstracts of related court-martial cases to rebut a convicted servicemember's sentence disparity argument. In view of the broad language of Article 38(c), UCMJ, 10 USC 838(c), and our prior case law, I do not understand the lower court's decision denying the defense the right to submit such related case information to raise this type of claim. See also Art. 46, UCMJ, 10 USC 846 (equal opportunity to obtain evidence). No reason for such preclusive action is provided by the court below. Accordingly, I join the majority in remanding this case to the Court of Criminal Appeals to consider the defense proffered materials and decide the issue of sentence disparity or order a new review and action on sentence.

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