Adams v. United States is pending a decision on a petition for a writ of certiorari at the U.S. Supreme Court.

NIMJ has submitted an amicus brief, suggesting that before deciding on the petition, the Court should invite the views of the Solicitor General on an important issue affecting Adams and some cases still in the appeal pipeline.​

This colloquium will examine crucial developments in sentencing law across two distinct domains: federal civilian sentencing jurisprudence and military justice reform. This event will bring together leading scholars and practitioners to explore these parallel yet distinct evolutionary paths in American sentencing law. It is a particularly opportune moment to explore these issues as it has been 20 years since the US Supreme Court’s landmark decision in United States v. Booker and just over one year since the military justice “sentencing parameters” became effective pursuant to the National Defense Authorization Act for Fiscal Year 2022.
In addition to our other distinguished panelists, we are honored to welcome Judge Stephanos Bibas of the United States Court of Appeals for the Third Circuit.
This event has been approved for 4 hours of substantive CLE credits by the Pennsylvania Continuing Legal Education Board. This event will accommodate both in-person and virtual attendees. Registration is required. Space is limited.
Co-sponsored by the Federal Sentencing Reporter and the National Institute of Military Justice.

9:45-10:00 a.m.: Introduction and Welcome

10:00-11:00 a.m.: United States v. Booker: Twenty Years Later (Part 1)

• Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law & Executive Director of the Drug Enforcement and Policy Center, Moritz College of Law
• Steven L. Chanenson, Professor of Law and Faculty Director of the Center for Ethics, Integrity and Compliance, Villanova Law
• Nancy Gertner, Former Federal Judge, US District Court of Massachusetts & Senior Lecturer on Law, Harvard Law School

11:00-11:15 a.m.: Break

11:15 a.m.-12:15 p.m.: United States v. Booker: Twenty Years Later (Part 2)

• Michelle Madden Dempsey, Professor of Law & Harold Reuschlein Scholar Chair, Villanova Law
• Sam Merchant, Visiting Assistant Professor, University of Oklahoma College of Law
• Patti Saris, Senior United States District Judge, US District Court of Massachusetts & Lecturer on Law, Harvard Law School
• Jonathan J. Wroblewski, Director of the Harvard Law School Semester in Washington Program & Lecturer on Law, Harvard Law School

12:45-1:15 p.m.: Stephanos Bibas, Judge, United States Court of Appeals for the Third Circuit

1:15-1:30 p.m.: National Institute of Military Justice Awards

• Frank Rosenblatt, Associate Professor of Law, Mississippi College School of Law | President, NIMJ

1:30-3:00 p.m.: Current Developments in Military Sentencing 

• Brenner Fissell, Professor of Law, Villanova Law
• Lt. Max Goldberg, United States Marine Corps
• Col. Beth Hernandez, Chief Judge, United States Air Force
• Capt. Stephen Reyes, Chief Judge, United States Navy
• Scott Stucky, Senior Judge, United States Court of Appeals for the Armed Forces
• Rachel Van Landingham, Co-Associate Dean of Research & Irwin R. Buchalter Professor of Law, Southwestern Law School
• Frank Rosenblatt, Associate Professor of Law, Mississippi College School of Law

3:00 p.m.: Closing Remarks

Can anyone confirm if TJAG has certified Rocha to CAAF? Rocha is an important decision about substantive due process in the military justice system. It involved the possession of a child-like sex doll in a military dorm.

In Tozer, the Appellant contended that trial counsel engaged in prosecutorial misconduct by:

1. Relying on Appellant’s prior nonjudicial punishment (NJP) for a similar offense to justify an enhanced sentence; and
2. Introducing “unit impact” evidence—arguing that Appellant’s misconduct, given his duty position, had broader operational consequences—which allegedly suggested that he merited additional punishment beyond what his conduct warranted.

Government’s Presentation:

• Nonjudicial Punishment: During the sentencing phase, the prosecution presented a Record of Nonjudicial Punishment dated December 23, 2019, for an NJP received by the Appellant for driving under the influence (DUI). The trial counsel repeatedly referenced this NJP to argue that Appellant’s previous punishment (involving a $1,000 forfeiture and a reprimand) failed to deter repeat misconduct. The counsel emphasized that the prior NJP should be seen as evidence of Appellant’s indifference toward the seriousness of his offense, thereby justifying a maximum sentence intended to serve as a specific deterrent.
• Unit Impact: Trial counsel also discussed the adverse operational effects stemming from Appellant’s misconduct. By calling Lt Col DN as a witness, the prosecution illustrated how Appellant’s actions disrupted unit operations—including gaps in critical roles, additional training burdens on replacement personnel, and a ripple effect that strained subordinate officers. This evidence was used to bolster the argument that the sentence should reflect not only the need for individual deterrence but also the broader implications for command and operational efficiency.

Appellant’s Position at Trial:

Notably, the Appellant did not object to these arguments during trial, and the military judge did not reference the sentencing argument during the final sentencing decision.

Review Standard:

The appellate review for alleged prosecutorial misconduct is conducted de novo. However, when the misconduct was not objected to during trial, the review proceeds under the plain error standard. Under this standard, the Appellant was required to show that:

• An error occurred,
• The error was plain or obvious, and
• The error materially prejudiced his substantial rights.

Case law such as United States v. Bungert and United States v. Norwood illustrate that failure to establish any one of these prongs is fatal to a plain error claim.

Evaluation of the NJP Argument:

• Proper Use of Prior Conduct: The court found that referencing the NJP was appropriate within the sentencing framework. The trial counsel’s argument that the prior punishment did not reform the Appellant’s behavior was a legitimate exercise of the specific deterrence rationale.
• Sentencing Authority and Discretion: The Rules for Courts-Martial (R.C.M. 1001(h) and R.C.M. 1002(f)(3)(D)) explicitly authorize consideration of deterrence in sentencing. The prosecution’s use of the NJP to underscore the need for a severe sentence aligns with these principles, reinforcing the view that the punishment must be sufficient to deter future misconduct.

Evaluation of the “Unit Impact” Argument:

• Contextual Relevance: While the “unit impact” evidence was also introduced, the court noted that this component was intertwined with the broader deterrence argument. The analysis assumed, without deciding whether an error occurred in introducing unit impact, that any potential error was not so prejudicial as to undermine the integrity of the sentencing decision.
• Judicial Deference: The military judge, acting as the sentencing authority, was presumed to be capable of distinguishing between admissible arguments and impermissible commentary. The absence of any objection by the defense or adverse comment by the judge on the record supported the conclusion that the trial counsel’s statements did not distort the factual or legal basis of the sentence.

Cumulative Analysis:

The court emphasized that the entirety of trial counsel’s arguments—taken in context—remained within the bounds of acceptable sentencing advocacy. Citing precedents such as United States v. Halpin and United States v. Fletcher, the court underscored that the trial counsel was entitled to present evidence and reasonable inferences from the record, even if the arguments were forceful. Since the Appellant failed to demonstrate that these arguments led to a sentencing decision based on anything other than the weight of the evidence, the plain error claim was not met.

In summary, the appellate review upheld the trial counsel’s sentencing argument on both fronts. The court determined that:
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• The inclusion of Appellant’s prior nonjudicial punishment as evidence was a proper reflection of the specific deterrence philosophy mandated by the Rules for Courts-Martial.
• The reference to “unit impact” evidence, while potentially contentious, was part of a broader argument on deterrence that did not prejudice the sentencing decision.
• The absence of any objection during the trial and the military judge’s discretion in evaluating the entire record further supported the view that no plain error occurred.

Therefore, the Appellant’s claim of prosecutorial misconduct was rejected, and no relief was granted.