Air Force Court of Criminal Appeals

Velasquez pled guilty to two assaults consummated by a battery upon two women by touching their buttocks with his hand, and one assault consummated by a battery upon his spouse, on divers occasions, by touching her legs, back, and buttocks with his hand. He was sentenced to six months, TF, RiR, a BCD, and a reprimand.

On appeal he complains the sentence is too severe and accuses his defense counsel of failing to “request disapproval of the adjudged forfeitures, any deferments, or a waiver of automatic forfeitures from the convening authority.”

The court finds no error. As to the IAC, there was no evidence presented to AFCCA that Appellant personally requested any clemency or that he asked his counsel to do that and they didn't.

Johnson was convicted by an officer panel of sexual assault, penile penetration (while the victim was incapacitated by alcohol and sexual assault (digital penetration) on another victim by force. The panel sentenced him to ten years, TF, and a dismissal. He was credited with 138 days PTC.

On initial review, the AFCCA found he failed to establish the "inhumane and dangerous condictions" of his post-trial confinement violated the Eighth. They also dismissed his argument under UCMJ art. 66(c) for sentence appropriateness relief.

He petitioned CAAF. The court granted the petition on the Eighth claim, summarily affirmed the findings, but set aside the sentence. The CAAF had granted,

During clemency, Appellant detailed the deplorable conditions of his post-trial confinement. On appeal, he provided supplementary information on these conditions to support his claims of cruel and unusual punishment and to seek sentence relief. Did the lower court err when it decided it could not consider this supplementary evidence for its sentence appropriateness review?

The CAAF decided that the AFCCA erred "n failing to consider additional information about Appellant’s post-trial confinement conditions even though Appellant had raised the matter in his clemency response to the convening authority.”"

AFCCA then reconsidered the issue and considered the supplemental information. Regardless, the court affirmed the sentence. Yes, it is a Jessie/Willman issue. The court notes that CAAF found the court should have considered the matters raised in the clemency request. The CAAF had cited to "United States v. Willman, 81 M.J. 355, 359–60 (C.A.A.F. 2021) (finding that outside-the-record declarations about post-trial confinement conditions may be considered in an Article 66(c), UCMJ, sentence appropriateness review when an appellant raised the issue to the convening authority during clemency).

Judge Meginley dissents in part and in the result.

​Since my delivering the opinion of the court in United States v. Johnson, No. ACM 39676, 2020 CCA LEXIS 364 (A.F. Ct. Crim. App. 16 Oct. 2020) (unpub. op.), rev’d and remanded in part, 81 M.J. 451 (C.A.A.F. 2021) (mem.), three opinions have been released by this court that have led to me to question whether Appellant suffered cruel and unusual punishment, and subsequently, whether he is entitled to any sentence relief.

He calls for a Dubay hearing to examine Appellant's complaints. The cases cited by the judge seem to focus on the Lowndes County Jail. He suggests rejecting a requirement that the inmate file a UCMJ art. 138 complaint as a predicate for getting appellate relief. The judge discusses United States v. Pullings and United States v. Citsay and notes that CAAF has granted in Pullings on the following issues.

I. In addition to prison officials, can the decisions of military personnel satisfy the “Deliberate Indifference” aspect of cruel and unusual punishment test when they repeatedly send military inmates to a local civilian confinement center with a history of inhumane living conditions for inmates?

​II. Additionally or alternatively, did Appellant suffer cruel and unusual punishment for 247 days and nights at Lowndes County Jail?

Footnote 2 to Johnson discusses the various cases challenging the confinement conditions "arising from Moody Air Force Base" and the Cook County Jail. It seems to me that CAAF may have to address the quetion of systemic "deliberate indifference" by the AF where the AF continues to contract with civilian facilities allegedly with cruel and unsual confinement conditions.

---

Behunin pled guitly to fraudulent enlistment, false official statement, and use of cocaine and of LSD. He was sentenced to 110 days, $1100 x 4 forfeitures, RiR, and a BCD. He has three complaints,

• The sentence is inappropriate in light of a sentence received by another junior enlisted Airman, CM, for essentially the same misconduct.
• TC committed plain error by arguing facts not in evidence (which merits no discussion or relief).
• The convening authority erred by failing to act on the sentence.

During providency the Appellant said the recruiter told him to lie about his prior drug use. The recruiter later testified and denied knowing about the prior drug use.

The court finds the sentence appropriate and no relief was warranted for any perceied disparity in sentences.

---

In Varone, the appellant pled guilty to attempted possession of MDMA, disobeying an order not to use his Adderall prescription in "a manner contrary to the intended medical purpose," distribution of Adderall, wrongful use of Adderall, LSD, and psilocybin. He was sentenced to 120 days,  RiR, and a BCD. On appeal he claimed his sentence was inappropriate compared to "his co-actors." There are two components to the claim: general sentence appropriateness and appropriateness compared to others.

Before examining Appellant’s contention, we consider whether Appellant’s sentence is inappropriate without regard to a sentence adjudged in another case. In that regard, we are mindful that sentence comparison is but one aspect of evaluating whether a sentence is inappropriate.

The court finds the sentence appropriate.

Next, we examine Appellant’s contention that his sentence is inappropriate compared to sentences adjudged in four cases of Airmen who, like Appellant, were involved with illegal drugs.5 According to Appellant, “They were all friends, in the same unit, were generally using drugs together, were investigated jointly, and all went through a special court-martial at approximately the same time.”

The court, citing to United States v. Durant, 55 M.J. 256 (C.A.A.F. 2001) agrees that a sentence can be reviewed for  "appropriateness and uniformity."" (Emphasis in the original.)

United States v. Lacy, the CAAF described a CCA’s “sentence review function” as “highly discretionary.” 50 M.J. 286, 288 (C.A.A.F. 1999). Our responsibility in that regard includes “considerations of uniformity and evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (citing Lacy, 50 M.J. at 287–88). In conducting such reviews, we “are required to engage in sentence comparison only ‘in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases.’” Id. (quoting United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)). 

The case presents a useful comparison of sentence review generally, for "companion cases," and similar cases. Here, the court rejects the appellant's claim because "​Appellant has failed to establish that his sentence, as compared to those of the other Airmen, is highly disparate."

---

Matthew is back after correction of post-trial problems. He pled guilty to possession of CP and attempted distribution of CP. He was sentenced to 17 months, RiR, and a DD in 2019.

Appellant’s case is before us for the second time. Appellant raised two assignments of error, one of which asserts the record of trial is incomplete. During our initial review of this case, we determined that the transcript for Appellant’s arraignment was missing from the record of trial. As a result, pursuant to Rule for Courts-Martial (R.C.M.) 1104(d)(1), we returned the record of trial to the convening authority with direction to return it to the military judge who presided at Appellant’s court-martial and was present at the end of the proceedings, for action consistent with R.C.M. 1104(d). 
. . . 
That judge was to determine whether the judge who presided over Appellant’s arraignment could authenticate the arraignment transcript or whether a substitute authentication may be completed under R.C.M. 1104(a)(2)(B). Id. at *3–4. On 4 March 2021, the Government returned the record of trial without correction, stating, “An authenticated transcript of Appellant’s arraignment cannot be obtained because the audio recording of the hearing has been lost and no alternatives can be located.” The case was then redocketed with this court.
. . . 
 ​We find the record of trial is not verbatim. Consequently, we set aside the findings and sentence and return the case to The Judge Advocate General for return to an appropriate convening authority for action consistent with R.C.M. 1103(f). 

The court sets aside the findings and sentence. In dissent, Judge Richardson says that she would find the transcript substantially verbatim. She suggests the lost portion of the audio and lack of reconstruction related to a "session of low importance."