2022 (October Term)
United States v. Harrington, 83 M.J. 408 (at courts-martial, panel members must sentence the accused based solely on the facts in evidence and the military judge’s instructions).
United States v. McAlhaney, 83 M.J. 164 (a reprimand is among the punishments that a court-martial may adjudge as an authorized sentence; a court-martial shall not specify the terms or wording of a reprimand; if imposed, the reprimand shall be issued, in writing, by the convening authority; a reprimand adjudged by a court-martial is a punitive censure).
2021 (October Term)
United States v. Palacios Cueto, 82 M.J. 323 (a collateral consequence is a penalty for committing a crime, in addition to the penalties included in the criminal sentence; the general rule concerning collateral consequences is that courts-martial are to concern themselves with the appropriateness of a particular sentence for an accused and his offense, without regard to the collateral administrative effects of the penalty under consideration).
(a sex offender registration requirement is a collateral consequence of the conviction alone, not the sentence).
(while an accused may raise a collateral consequence in an unsworn statement, the military judge may instruct the members essentially to disregard the collateral consequence in arriving at an appropriate sentence for an accused).
(in sentencing, a court-martial may consider the possible loss of retirement benefits that follow from a punitive discharge).
2017 (October Term)
United States v. Dinger, 77 M.J. 447 (a court-martial is not prohibited by 10 USC § 6332 (2012) from adjudging a punitive discharge or any other available punishment established by the President in the case of a retiree, and, to the extent US v. Allen, 33 MJ 209 (CMA 1991) and US v. Sloan, 35 MJ 4 (CMA 1992), suggest otherwise, they are overruled; the plain language of the statute does not purport in any way to limit the authority of a court-martial to impose any authorized sentence; the UCMJ is a self-contained statute that both defines criminal offenses and promulgates the procedures by which those offenses are to be prosecuted and adjudicated; in it, Congress specifically provided for the court-martial of retired members of a regular component of the armed forces who are entitled to pay; Congress also established mandatory sentences for some offenses, minimum punishments for others, and authorized the President to set the maximum punishments for the remainder; in the MCM, the President has not limited the punishments that may be adjudged against retirees; had Congress intended to restrict the court-martial sentences adjudged in retiree cases, and particularly to abandon the principle of uniformity of treatment so essential to the UCMJ, one would expect it to have done so explicitly in the UCMJ, not in some other statutory provision with no reference to its applicability to courts-martial; Congress has not done so).
2015 (September Term)
Howell v. United States, 75 M.J. 386 (once a court-martial sentence is set aside and thus invalidated, the government can no longer execute it; a set-aside sentence is no longer enforceable pending a rehearing).
United States v. Busch, 75 M.J. 87 (where there is no punishment listed for an offense in Part IV of the MCM, RCM 1003(c)(1)(B) establishes the procedures for determining the appropriate maximum sentence).
2013 (September Term)
United States v. Wilson, 73 M.J. 404 (Article 12, UCMJ, prohibits confining American military prisoners in immediate association with foreign nationals; this prohibition applied to appellee who was serving a court-martial sentence to confinement in a civilian county jail in Georgia; Article 12, UCMJ, applies to military members without geographic limitation).
(Article 12, UCMJ, which prohibits confining American military prisoners in immediate association with foreign nationals, was not violated in appellee’s case because appellee, who was serving a court-martial sentence to confinement in a civilian county jail in Georgia, was kept in a single cell segregated from other prisoners to avoid an Article 12, UCMJ, violation).
United States v. McPherson, 73 M.J. 393 (Article 12, UCMJ, prohibits any member of the armed forces from being placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces; because the text of Article 12, UCMJ, is plain on its face and there is no geographic limitation by its terms, it applies to military members confined in civilian state or federal facilities in the United States as well as to those confined in facilities overseas).
(Article 58, UCMJ, requires all confinees to be treated the same, and Article 12, UCMJ, requires that no military member may be confined in immediate association with a foreign national; Article 58 is not more specific than Article 12, nor are the two statutes in conflict; military confinees can - and must - receive treatment equal to civilians confined in the same institution, while being confined separately from foreign nationals; Article 12, UCMJ, and Article 58, UCMJ, were passed at the same time, and read in pari materia, they both apply without conflict to military members confined in state or federal institutions in the United States).
(under Article 12, UCMJ, a confinee must exhaust his administrative remedies prior to judicial intervention, absent some unusual or egregious circumstance; this administrative exhaustion requirement furthers two related goals: (1) the resolution of grievances at the lowest possible level with prompt amelioration of the complaint while the prisoner suffers the condition, and (2) the development of an adequate record to aid appellate review).
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
(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. 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).