IN THE CASE OF
UNITED STATES, Appellee
Michael D. BAIER, Private First Class (E-2)
Crim. App. No. 200200476
GIERKE, C.J., delivered the opinion of the Court, in which CRAWFORD, EFFRON, BAKER and ERDMANN, JJ., joined.
For Appellant: Lieutenant Commander Eric J. McDonald, JAGC, USN (argued); Lieutenant Jason S. Grover, JAGC, USN (on brief).
For Appellee: Captain Wilbur Lee, USMC (argued); Lieutenant Colonel William K. Lietzau, USMC (on brief); Lieutenant Frank Gatto, JAGC, USNR, Commander Robert P. Taishoff, JAGC, USN.
Military Judge: R.K. Fricke
This opinion is subject to editorial correction before final publication.
Chief Judge GIERKE delivered the opinion of the Court.
This case concerns the legal standard that the Courts of Criminal Appeals use when carrying out their responsibility under Article 66(c) of the Uniform Code of Military Justice1 (UCMJ) to ensure that a sentence is appropriate. The lower court’s opinion quotes an incorrect standard for determining sentence appropriateness. In using that language, however, the lower court cited a 19-year-old summary disposition of this Court that was marred by a mistaken and misleading citation. That mistake is a weed in the garden of our jurisprudence. We will now pull it up by the roots. More importantly, we will also discuss the appropriate standard of review that the Courts of Criminal Appeals must apply in fulfilling their statutory obligation to ensure sentence appropriateness.
In a trial before a military judge alone, Appellant pleaded guilty to and was found guilty of conspiracy to wrongfully distribute LSD, ecstasy, and cocaine; wrongful use of LSD; wrongful distribution of LSD, ecstasy, and cocaine; and breaking restriction in violation of Articles 81, 112a, and 134 of the Uniform Code of Military Justice.2 The military judge sentenced Appellant to confinement for 30 months, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, in accordance with the pretrial agreement, suspended confinement in excess of 24 months for 12 months from the date of trial.
When his case was before the Navy-Marine Corps Court of Criminal Appeals, Appellant raised an assignment of error asserting that a dishonorable discharge was inappropriately severe for his offenses. Appellant urged the lower court to affirm a bad-conduct discharge in its place. In an unpublished per curiam opinion, the lower court rejected Appellant’s request and affirmed the sentence as adjudged. We granted Appellant’s petition to determine whether the lower court used the correct legal standard when determining the appropriateness of Appellant’s sentence.3
its opinion affirming Appellant’s sentence, the lower court quoted
66(c) and noted that its task was to determine “whether the accused
the punishment he deserved.” Citing our
opinion in United States v. Healy,4 the
properly distinguished its sentence appropriateness role from the
authority’s power to grant clemency. The
lower court then cited our decision in
The issue in this case arises from the next passage in the lower court’s opinion:
An appropriate sentence results from an “individualized consideration of the particular accused on the basis of the nature and seriousness of the offense and the character of the offender.” United States v. Rojas, 15 M.J. 902, 919 (N.M.C.M.R. 1983) (citing United States v. Snelling, 14 M.J. 267 (C.M.A. 1982)), aff’d, 20 M.J. 330 (C.M.A. 1985). When reviewing a sentence it is important to consider the sense of justice of the community where the crime was committed which should not be disturbed unless “the harshness of the sentence is so disproportionate to the crime as to cry out for equalization.” Rojas, 15 M.J. at 919.
After discussing the facts of Appellant’s case, the lower court concluded its sentence appropriateness analysis with another citation to Rojas: “The appellant received the individual consideration required based on the seriousness of his offenses and his own character, which is all the law requires. Rojas, 15 M.J. at 919. As such, we decline to grant relief.”
Based on that language, it is impossible for us to determine whether the lower court conducted an independent assessment of the appropriateness of Appellant’s sentence or merely deferred to the “individual consideration” Appellant had previously received from the military judge and the convening authority. Nor can we determine whether the lower court independently assessed the sentence’s appropriateness for this particular offender or merely determined that the sentence was not “so disproportionate to the crime as to cry out for equalization.”
lower court’s reliance on its 1983 Rojas decision leads to this
confusion. In 1981, Lance Corporal
Armando Rojas was sentenced to death for the premeditated murder of
August 1984, consistent with our decision in Rojas, a new
panel of the
error in our published Rojas order may have contributed to the
court’s confusion in this case. The
Navy-Marine Corps Court’s opinion followed the quotation from its
1983 Rojas opinion with a citation to that decision accompanied
erroneous subsequent history, “aff’d,
330 (C.M.A. 1985).” Let there be no
further confusion: we did not affirm the
importantly, the language that the lower court quoted in this case from
superseded Rojas opinion15 is
legally incorrect. A Court of Criminal
Appeals must determine
whether it finds the sentence to be appropriate. It
may not affirm a sentence that the court
finds inappropriate, but not “so disproportionate as to cry out” for
reduction. As the
It is possible that in this case, the lower court “independently determined” the sentence’s appropriateness. But the lower court’s recitation of an incorrect standard from its superseded Rojas opinion suggests that it may have relied on an improperly circumscribed standard. To ensure that Appellant was not prejudiced by the lower court’s erroneous view of the law, we set aside the lower court’s opinion as to the sentence and remand the case for a new Article 66(c) sentence appropriateness determination using the correct standard. Of course, we express no opinion as to how that new sentence appropriateness review should be resolved. That is a matter committed to the sound discretion of the lower court, using proper legal standards.
decision of the Navy-Marine Corps Court of Criminal Appeals is affirmed
findings and set aside as to sentence. The record is returned to
Judge Advocate General of the Navy for remand to the
1 10 U.S.C. § 866(c) (2000).