UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-077
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0268/AR.
No.
04-0269/MC.
No.
04-0270/MC.
INTERLOCUTORY ORDERS
No.
04-0169/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-076
ORDERS GRANTING PETITION FOR REVIEW
No. 03-0613/MC.
I.
WHETHER THE MILITARY
JUDGE ABUSED HIS DISCRETION IN DENYING APPELLANT'S MOTION TO SUPPRESS
PERSONAL
E-MAIL MESSAGES THAT WERE DOWNLOADED FROM A GOVERNMENT SERVER AND HAD
BEEN SENT
TO ONE INTENDED RECIPIENT.
II.
WHETHER
SPECIFICATION 1 OF CHARGE II FAILS TO STATE AN OFFENSE BECAUSE THE
AGREEMENT OF
TWO PERSONS IS NECESSARY FOR THE COMPLETION OF THE SUBSTANTIVE CRIME OF
DISTRIBUTION OF MARIJUANA AND THERE IS NO INGREDIENT IN THE CONSPIRACY
TO
DISTRIBUTE WHICH IS NOT PRESENT IN THE COMPLETED CRIME.
III.
WHETHER THE
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0041/AR.
No.
04-0059/MC.
No.
04-0099/MC.
No.
04-0118/AF.
No.
04-0138/AF.
No.
04-0154/AF.
No.
04-0155/AF.
No.
04-0159/NA.
No.
04-0166/AR.
No.
04-0167/AR.
No.
04-0171/CG.
No.
04-0172/AR.
No.
04-0181/AR.
No.
04-0186/AF.
No.
04-0197/MC.
INTERLOCUTORY ORDERS
No.
04-0218/MC.
No.
04-0230/AR.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-075
PETITIONS FOR GRANT OF
REVIEW FILED
No.
04-0267/AR.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-074
PETITIONS FOR GRANT OF REVIEW
FILED
No.
04-0266/AR.
No.
04-6001/AF.
INTERLOCUTORY ORDERS
No.
04-0143/AR.
No.
04-0148/AR.
No.
04-0212/AR.
UNITED STATES
COURT OF APPEALS FOR THE
ARMED FORCES
DAILY
JOURNAL
No. 04-073
ORDERS
GRANTING PETITION FOR REVIEW
No. 04-0066/MC.
WHETHER THE
MILITARY
JUDGE COMMITTED PLAIN ERROR BY ADMITTING RECORDS OF TWO PRIOR
NONJUDICIAL
PUNISHMENTS DURING PRESENTENCING WITHOUT EVIDENCE OF COMPLIANCE WITH UNITED
STATES v. BOOKER.
PETITIONS FOR GRANT OF REVIEW
DENIED
No. 04-0003/AR.
No. 04-0006/AF.
No. 04-0008/AF.
No. 04-0024/MC.
No. 04-0079/AF.
No. 04-0131/AR.
No. 04-0132/AR.
No. 04-0136/AR.
No. 04-0141/AR.
No. 04-0149/AR.
No. 04-0151/AR.
No. 04-0152/AF.
No. 04-0161/AR.
No. 04-0164/AR.
No. 04-0180/AR.
PETITIONS FOR GRANT OF REVIEW
FILED
No. 04-0257/AF.
No. 04-0258/AF.
No. 04-0259/AF.
No. 04-0260/AF.
No. 04-0261/AF.
No. 04-0262/AF.
No. 04-0263/AF.
No. 04-0264/AR.
No. 04-0265/AR.
No. 04-5002/AF.
MISCELLANEOUS DOCKET - SUMMARY
DISPOSITIONS
Misc. No.
04-8008/NA.
Misc. No.
04-8010/NA.
MISCELLANEOUS DOCKET - FILINGS
Misc. No.
04-8011/AR.
INTERLOCUTORY ORDERS
No. 04-0198/AR.
No. 04-0208/AR.
__________
*/ Cross-petition
filed in same case.
UNITED STATES
COURT OF APPEALS FOR THE
ARMED FORCES
DAILY
JOURNAL
No. 04-072
HEARINGS
No.
03-0151/MC.
ORDERS GRANTING PETITION FOR
REVIEW
No. 03-0515/NA.
WHETHER THE
MANDATES ISSUED
No. 02-0937/AR.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-071
APPEALS - SUMMARY DISPOSITIONS
No. 02-0100/AF.
WHETHER THE
STATUTORY
LANGUAGE OF 18 U.S.C. 2252A IS UNCONSTITUTIONALLY OVERBROAD ON ITS FACE
AND AS
APPLIED TO APPELLANT.
That the decision of the
United States Air Force Court of Criminal Appeals is reversed and the
findings
of guilty and the sentence are set aside.
The record of trial is returned to the Judge Advocate General of
the Air
Force for further action consistent with this Court's decision in United
States v. O'Connor, 58 M.J. 450 (C.A.A.F. 2003).
A rehearing may be ordered. [See
also ORDERS GRANTING PETITION FOR
RECONSIDERATION and INTERLOCUTORY ORDERS this date.]
CRAWFORD, Chief
Judge (dissenting): I dissent for the
reasons set forth in
Sections A and B of my separate opinion in United States v. O'Connor,
58
M.J. 450, 455-457 (C.A.A.F. 2003) (Crawford, C.J., dissenting).
No. 02-0257/AF.
WHETHER
APPELLANT'S GUILTY PLEA MUST BE SET ASIDE BECAUSE HIS PLEA WAS
EXPRESSLY
CONTINGENT ON THE ASSUMPTION THAT THE DEFINITION OF CHILD PORNOGRAPHY
CONTAINED
IN 18 U.S.C. 2256(8) WOULD BE UPHELD.
That the decision
of the
United States Air Force Court of Criminal Appeals is reversed and the
finding
of guilty and the sentence are set aside.
The record of trial is returned to the Judge Advocate General of
the Air
Force for further action consistent with this Court's decision in United
States v. O'Connor, 58 M.J. 450 (C.A.A.F. 2003).
A rehearing may be ordered. [See
also ORDERS GRANTING PETITION FOR
RECONSIDERATION this date.]
CRAWFORD, Chief
Judge (dissenting): I dissent for the
reasons set forth in
Section B of my separate opinion in United States v. O'Connor,
58 M.J.
450, 456 (C.A.A.F. 2003) (Crawford, C.J., dissenting).
No. 02-0304/AR.
WHETHER
APPELLANT'S PLEA OF
GUILTY TO POSSESSION OF CHILD PORNOGRAPHY UNDER THE CHILD PORNOGRAPHY
PREVENTION ACT MAY STAND WHEN THE MILITARY JUDGE'S DEFINITION OF CHILD
PORNOGRAPHY INCLUDED COMPUTER-GENERATED IMAGES, A DEFINITION THAT THE
SUPREME
COURT FOUND UNCONSTITUTIONAL. ASHCROFT v. FREE SPEECH COALITION, 535
That the
decision of the United States Army Court of Criminal Appeals is
reversed and
the finding of guilty and the sentence are set aside. The
record of trial is returned to the Judge
Advocate General of the Army for further action consistent with this
Court's
decision in United States v. O'Connor, 58 M.J. 450 (C.A.A.F.
2003). A rehearing may be ordered. [See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
CRAWFORD, Chief
Judge (dissenting): I dissent for the
reasons set forth in my
separate opinion in United States v. O'Connor, 58 M.J. 450, 455
(C.A.A.F. 2003) (Crawford, C.J., dissenting).
ORDERS GRANTING PETITION FOR REVIEW
No. 02-0304/AR.
No. 03-0620/AR.
I.
WHETHER THE ARMY COURT OF CRIMINAL APPEALS, HAVING FOUND THAT
THE
CONVENING AUTHORITY DID NOT OR COULD NOT WAIVE FORFEITURES AT THE E-6
RATE AS
PROVIDED IN THE PRETRIAL AGREEMENT, ERRED WHEN IT HELD THAT BECAUSE HIS
FAMILY
RECEIVED PAYMENTS UNDER THE TRANSITIONAL COMPENSATION PROGRAM, 10
U.S.C. 1059,
HIS PLEAS WERE NOT IMPROVIDENT.
And the following
issue specified by the Court:
II.
WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF
COUNSEL BY FAILING TO ADVISE APPELLANT OF THE LEGAL CONSTRAINTS ON THE
POWER OF
THE CONVENING AUTHORITY TO WAIVE FORFEITURES AT THE E-6 RATE AS
PROVIDED IN THE
PRETRIAL AGREEMENT.
ORDERS GRANTING PETITION FOR RECONSIDERATION
No. 02-0100/AF.
No. 02-0257/AF.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0089/NA.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0255/NA.
No. 04-0256/MC.
INTERLOCUTORY ORDERS
No. 02-0100/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-070
APPEALS - SUMMARY DISPOSITIONS
No. 02-0617/AR.
CRAWFORD,
Chief Judge (dissenting): I dissent for
the reasons set forth in Sections A and B of my separate opinion in United
States v. O'Connor, 58 M.J. 450, 455-457 (C.A.A.F. 2003) (Crawford,
C.J.,
dissenting).
No. 03-0071/AF.
CRAWFORD,
Chief Judge (dissenting): I dissent for
the reasons set forth in my separate opinion in United States v.
Thompson,
57 M.J. 319 (C.A.A.F. 2002) (Crawford, C.J., dissenting), and Section A
of my
separate opinion in United States v. O'Connor, 58 M.J. 450, 455
(C.A.A.F. 2003) (Crawford, C.J., dissenting).
ORDERS GRANTING PETITION FOR REVIEW
No. 03-0389/NA.
I.
WHETHER THE
II.
WHETHER
APPELLANT'S CONFESSION WAS INVOLUNTARY WHEN THE GOVERNMENT OBTAINED THE
CONFESSION AFTER INFORMING APPELLANT THAT HE WOULD NOT BE REUNITED WITH
HIS
CHILDREN UNLESS HE ADMITTED THAT HE HAD SEXUALLY MOLESTED HIS DAUGHTER,
AND
WHERE APPELLANT CONFESSED WITHIN DAYS OF A GOVERNMENT IMPOSED DEADLINE
FOR
ADMITTING HIS GUILT AFTER MAINTAINING HIS INNOCENCE FOR EIGHTEEN MONTHS.
III.
WHETHER THE LOWER
COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO CONDUCT A PLAIN ERROR
ANALYSIS
AND FOUND THAT ANY POTENTIAL ERROR WAS HARMLESS BEYOND A REASONABLE
DOUBT WHERE
THE GOVERNMENT VIOLATED APPELLANT'S SIXTH AMENDMENT RIGHT TO CONSULT
WITH COUNSEL
BY ELICITING TESTIMONY THAT APPELLANT RECANTED HIS ADMISSION ONLY AFTER
CONSULTING WITH AN ATTORNEY AND BY ARGUING TO THE MEMBERS THAT
APPELLANT'S
RECANTATION WAS FALSE BECAUSE IT WAS MOTIVATED BY APPELLANT'S
CONSULTATION WITH
AN ATTORNEY.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0254/CG.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 04-8003/NA.
INTERLOCUTORY ORDERS
No.
04-0206/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-069
ORDERS GRANTING PETITION FOR REVIEW
No. 03-0246/AR.
I.
WHETHER THE MILITARY
JUDGE ABUSED HIS DISCRETION IN NOT SUPPRESSING APPELLANT'S PRETRIAL
STATEMENTS
TO ARMY INVESTIGATORS.
II.
IF APPELLANT'S
PRETRIAL STATEMENTS SHOULD HAVE BEEN SUPPRESSED (ISSUE I), WHETHER THE
REMAINING EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT FINDINGS OF GUILTY
TO ALL
CHARGES AND SPECIFICATIONS.
III.
WHETHER PORTIONS
OF APPELLANT'S STATEMENTS TO ARMY INVESTIGATORS WERE UNCORROBORATED,
AND, IF
SO, WHETHER THE MILITARY JUDGE ERRONEOUSLY PERMITTED THE PANEL MEMBERS
TO
CONSIDER THE PERTINENT PORTIONS OF APPELLANT'S STATEMENTS REGARDING THE
CHARGE
OF LARCENY.
IV.
WHETHER THE
EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT A FINDING OF GUILTY TO THE
CHARGE
THAT APPELLANT STOLE PFC [C]'S WALLET.
V.
WHETHER THE
EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT A FINDING TO THE CHARGE THAT
APPELLANT KIDNAPPED PFC [C].
PETITIONS FOR GRANT OF REVIEW FILED
No.
01-0738/AF.
No.
04-0238/AF.
also PETITIONS
FOR NEW TRIAL - FILINGS this date.]
No.
04-0253/AR.
PETITIONS FOR NEW TRIAL - FILINGS
No.
04-0238/AF.
*/
Second petition
filed
in this case.
DAILY
JOURNAL
No.
068
Thursday,
January 15, 2004
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0252/AR.
MISCELLANEOUS DOCKET - FILINGS
Misc. No.
04-8010/NA.
INTERLOCUTORY ORDERS
No. 04-0185/AF.
No. 04-0191/AR.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-067
HEARINGS
No. 03-0369/AR.
No. 03-0522/MC.
No. 03-0557/MC.
No. 03-8007/AR.
Dwight J. LOVING v.
ORDERS GRANTING PETITION FOR REVIEW
No. 03-0651/MC.
I. WHETHER THE
II. WHETHER THE
LOWER COURT
ERRED IN HOLDING THAT THE APPELLANT'S PLEA OF GUILTY TO DEPOSITING
OBSCENE
MATTERS IN THE MAIL WOULD SUSTAIN A CONVICTION FOR SERVICE DISCREDITING
CONDUCT
UNDER ARTICLE 134(2), UCMJ.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 03-0206/AR.
No. 03-0660/MC.
No. 04-0128/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0250/AR.
No. 04-0251/AR.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-066
APPEALS - SUMMARY DISPOSITIONS
No. 04-0015/MC.
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0015/MC.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 03-0690/MC.
No. 04-0002/NA.
No. 04-0062/MC.
No. 04-0064/MC.
No. 04-0065/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0249/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No.
04-8007/AF.
Charles S. STEWART, Petitioner, v.
INTERLOCUTORY ORDERS
No. 02-0457/AR.
No. 02-0623/AR.
INTERLOCUTORY ORDERS
No. 03-0151/MC.
No. 04-0130/AR.
No. 04-0182/AR.
No. 04-0185/AF.
No. 04-0189/AR.
DAILY
JOURNAL
No.
04-065
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0244/AR.
No.
04-0245/AR.
No.
04-0246/AR.
No.
04-0247/AR.
No.
04-0248/AR.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 04-8009/NA.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-064
APPEALS - SUMMARY DISPOSITIONS
No. 01-0827/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 01-0827/AR.
No. 04-0090/MC.
WHETHER THE
PETITIONS FOR GRANT OF REVIEW DENIED
No. 03-0658/MC.
No. 04-0049/MC.
No. 04-0055/NA.
No. 04-0093/NA.
No. 04-0095/MC.
No. 04-0105/NA.
No. 04-0106/MC.
No. 04-0110/AF.
No. 04-0114/AF.
No. 04-0134/MC.
No. 04-0135/AR.
No. 04-0147/AR.
No. 04-0156/AF.
No. 04-0158/AF.
No. 04-0173/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0241/AF.
No. 04-0242/AF.
No. 04-0243/AF.
INTERLOCUTORY ORDERS
No. 04-0197/MC.
Appellant's
motion to attach granted.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-063
ORDERS GRANTING PETITION FOR REVIEW
No. 01-0664/AR.
I.
WHETHER THE SANITY BOARD ORDERED BY THIS
COURT HAS GENERATED NEW EVIDENCE NOT DISCOVERABLE BY DUE DILIGENCE AT
THE TIME
OF TRIAL, AND, IF SO, WHETHER THE NEW EVIDENCE, WHEN VIEWED IN THE
LIGHT OF ALL
OTHER PERTINENT EVIDENCE, WOULD HAVE PRODUCED A SUBSTANTIALLY MORE
FAVORABLE
RESULT FOR APPELLANT. See R.C.M.
1210(f).
II.
WHETHER, IN THE ALTERNATIVE TO ISSUE I, AND IN
LIGHT OF THE APPELLATE SANITY BOARD'S FINDING THAT APPELLANT WAS NOT
COMPETENT
TO STAND TRIAL, APPELLANT WAS SUBSTANTIALLY PREJUDICED WHEN THE
MILITARY JUDGE
FAILED TO ORDER SUA SPONTE A SECOND SANITY BOARD.
See
R.C.M. 909(d).
PETITIONS FOR GRANT OF REVIEW DENIED
No. 03-0639/AF.
No. 04-0013/AF.
No. 04-0023/MC.
No. 04-0071/NA.
No. 04-0073/AF.
No. 04-0091/NA.
No. 04-0094/NA.
No. 04-0103/AR.
No. 04-0104/AR.
No. 04-0115/AF.
No. 04-0117/AF.
No. 04-0127/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0239/MC.
No. 04-0240/AR.
INTERLOCUTORY ORDERS
No. 03-0614/NA.
No. 04-0177/NA.
No. 04-0179/NA.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-062
ORDERS GRANTING PETITION FOR REVIEW
No. 03-0692/AF.
I.
WHETHER THE STAFF JUDGE ADVOCATE (SJA) WAS
DISQUALIFIED FROM DRAFTING THE SJA RECOMMENDATION WHERE A MEMBER OF HIS
LEGAL
OFFICE PENNED AN ARTICLE IN THE BASE NEWSPAPER COMPLAINING THAT
"JUSTICE
WAS NOT SERVED" IN APPELLANT'S CASE.
II.
WHETHER THE CONVENING AUTHORITY WAS
DISQUALIFIED FROM TAKING ACTION UNDER ARTICLE 60, UCMJ.
No. 04-0067/MC.
WHETHER THE LOWER
COURT'S
VERBATIM REPLICATION OF SUBSTANTIAL PORTIONS OF THE GOVERNMENT'S ANSWER
BRIEF
[OF NOVEMBER 1, 1999] AS THAT COURT'S OPINION CONSTITUTES AN ABUSE OF
DISCRETION, NEGATES ANY APPEARANCE OF JUDICIAL IMPARTIALITY AND
SUBSTANTIALLY
UNDERMINES THE INTEGRITY OF THE OPINION.
No. 04-0069/MC.
I.
WHETHER THE COURT OF CRIMINAL APPEALS, IN
RELYING ON UNITED STATES v. ROJAS, 15 M.J. 902 (N.M.C.M.R.
1983) AND UNITED
STATES v. USRY, 9 M.J. 701 (N.M.C.M.R. 1980), APPLIED THE CORRECT
LEGAL
STANDARD IN REVIEWING APPELLANT'S SENTENCE APPROPRIATENESS ARGUMENT.
II.
WHETHER THE
No. 04-0140/AR.
WHETHER
APPELLANT'S
CONVICTION FOR VIOLATING ARTICLE 125 BY ENGAGING IN CONSENSUAL SODOMY
MUST BE
SET ASIDE IN LIGHT OF THE UNITED STATES SUPREME COURT'S HOLDING IN LAWRENCE
v. TEXAS, 123 S. CT. 2472 (2003).
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0235/MC.
No. 04-0236/AF.
No. 04-0237/AF.
No. 04-0238/AF.
No. 04-5003/MC.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-061
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0233/AR.
No. 04-0234/AR.
INTERLOCUTORY ORDERS
No. 03-0479/AR.
No. 04-5003/MC.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-060
APPEALS - SUMMARY DISPOSITIONS
No.
02-5001/CG.
Article 66(c) provides that a Court of
Criminal Appeals "may affirm only such findings of guilty and the
sentence or
such part or amount of the sentence, as it finds correct in law and
fact and
determines, on the basis of the entire record, should be approved." In our review, we observed that the lower
court's opinion raised the possibility that the court had viewed state
court
proceedings in a separate, but related case against Appellee as
inappropriate. We further noted that the
lower court's opinion raised the possibility that the court had "sought
to
lessen the punishment from those [state court] proceedings," as opposed
to
confining itself to its statutory responsibility of "considering
whether
the military sentence is inappropriate" in light of all the
circumstances
in the record, including the state court conviction.
We emphasized that the legal issue in the
case was not what sentence we would have approved, but whether the
lower court
abused its discretion in modifying the sentence. In
that context, we "remand[ed] the case
to the court below for a de novo review of [Appellee's]
military
sentence under Article 66(c)." 57
M.J. at 234.
On remand,
the judges of the court below in various opinions speculated as to
whether our
Court had ordered that court to "clarif[y]" its initial opinion, 58
M.J. 744, 745 (C.G. Ct. Crim. App. 2003)(en banc); whether it was
necessary, as
a predicate to conducting the de novo review of Appellee's
sentence that
we had ordered, that the court on remand determine it had committed
legal error
during its initial review of the sentence, 58 M.J. at 746; and whether
a remand
for a de novo review requires a determination by our Court that
there
was a legal error in the case. In the
end, however, the court below conducted the required de novo
review, and
reinstated the full sentence approved by the convening authority,
including a
bad-conduct discharge, confinement for 28 months, and reduction to the
lowest
enlisted grade. 58 M.J. at 746-47.
Appellee
now has requested that this Court review the following issues:
I.
whether THIS COURT HAS
THE AUTHORITY TO
ii. WHETHER THIS COURT HAS THE AUTHORITY TO
VACATE
III. WHETHER THIS COURT HAS THE AUTHORITY TO
These
issues misapprehend our earlier decision.
Although we used the word "clarification" at the outset of our
earlier
decision, 57 M.J. at 232, the opinion expressly states:
"The issue before our Court is not whether we
would have reached the same result [as the court below], but whether
the Court
of Criminal Appeals abused its discretion in doing so."
Our remand for a de novo review
reflected our conclusion that the Court of Criminal Appeals committed
an error
of law by abusing its discretion in its initial review of this case. The authority of our Court to review the
sentence
appropriateness decisions of the Courts of Criminal Appeals for abuse
of
discretion is well-established, as is our authority to order a de
novo
review when the lower court has erred as a matter of law.
See, e.g., United States v.
Tardif, 57 M.J. 219, 223-24 (C.A.A.F. 2002); United States v.
Brock,
46 M.J. 11, 13 (C.A.A.F. 1997); United States v. Dukes, 5 M.J.
71, 73-74
(C.M.A. 1978). Upon remand, the court
conducted an appropriate de novo review in accordance with our
remand,
which was based upon our determination that there had been an error of
law.
Accordingly,
it is ordered that the decision of the Court of Criminal Appeals on
remand is
affirmed.1/
[See also INTERLOCUTORY ORDERS this date.]
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0011/AR.
No. 04-0026/CG.
No. 04-0036/AF.
No. 04-0048/MC.
No. 04-0050/NA.
No. 04-0060/NA.
No. 04-0070/MC.
No. 04-0074/AF.
No. 04-0076/AF.
No. 04-0077/AF.
No. 04-0083/AR.
No. 04-0111/AF.
No. 04-0122/AR.
No. 04-0150/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0228/AF.
No. 04-0229/AR.
No. 04-0230/AR.
No. 04-0231/AR.
No. 04-0232/MC.
MISCELLANEOUS DOCKET - FILINGS
Misc. No.
04-8008/NA.
INTERLOCUTORY ORDERS
No. 02-5001/CG.
__________
1/
Appellee's pending motion to file a reply to
the Government's answer to Appellee's supplement to his petition is
granted.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-059
INTERLOCUTORY ORDERS
No. 03-0561/AR.
No. 03-0578/NA.
No. 04-0113/AF.
No. 04-0119/AF.
No. 04-0165/AR.
No. 04-0176/AR.
No. 04-0178/AR.
No. 04-5001/AR.