More Mendoza fallout

​Wednesday, February 18, 2026
Order Granting Petition for Review
 
No. 26-0039/NA. U.S. v. Anthony D. Grafton. CCA 202400055. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:
 
I.  WHETHER THE LOWER COURT ERRED WHEN IT FOUND THE MILITARY JUDGE'S INSTRUCTIONS DID NOT RUN AFOUL OF THIS COURT'S DECISION IN UNITED STATES V. MENDOZA.
 
II. WHETHER IT WAS ERROR FOR THE LOWER COURT TO "REASSESS" A SENTENCE THAT WAS NEVER IMPOSED.

​NMCCA's unpublished opinion. Twofa majority, with a partial concur and dissent.

VI. In light of United States v. Mendoza, were the instructions erroneous?

We find prejudicial error with respect to AOE VI as a result of the Court of Appeals for the Armed Forces (CAAF) opinion in United States v. Mendoza. We set aside the finding of guilty as to Specification 1 and dismiss it, and we reinstate and affirm the finding of guilty as to Specification 2. We reassess and affirm the same sentence.
. . . .
Applying the Winckelmann factors is a pedestrian task in this case; thus we easily reassess and affirm the sentence adjudged by the members: to be discharged with a dishonorable discharge, to be reduced to the paygrade of E-1, to forfeit all pay, and to be confined for 8 years.111 We find that affirming the finding of guilty for Specification 2 and setting aside Specification 1 does not change the penalty landscape, as the maximum punishment for both is identical, and includes up to 30 years of confinement. Although Appellant was sentenced by members for Specification 1, we are confident that the sentence would have been the same if they had instead sentenced him for Specification 2. The evidence admitted at trial to prove, and the gravamen of, the two specifications is the same – indeed it was the same act.

[From the dissent]

I join my colleagues in concluding, bound as we are by precedent from the U.S. Court of Appeals for Armed Forces (CAAF), that Appellant’s conviction for sexual assault without consent cannot stand due to prejudicial instructional error. Mendoza compels this result, though I am equally compelled to write separately to entreat our superior court to clarify its holding therein.

The dissent also suggests that the CCA's sentence-reassessment authority (or its scope) should be reconsidered.