              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                              No. ACM S32523
                          ________________________

                             UNITED STATES
                                 Appellee
                                      v.
                       Cawahn D. BURRELL
              Airman Basic (E-1), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                        Decided 12 September 2019
                          ________________________

Military Judge: Shelly W. Schools.
Approved sentence: Bad-conduct discharge and confinement for 45 days.
Sentence adjudged 6 March 2018 by SPCM convened at Holloman Air
Force Base, New Mexico.
For Appellant: Major Meghan R. Glines-Barney, USAF; Captain M.
Dedra Campbell, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major
Thomas Franzinger, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, KEY, and RAMÍREZ, Appellate Military Judges.
Judge RAMÍREZ delivered the opinion of the court, in which Senior
Judge J. JOHNSON and Judge KEY joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                          ________________________

RAMÍREZ, Judge:
   A special court-martial composed of a military judge convicted Appellant,
in accordance with his pleas and pursuant to a pretrial agreement, of one
charge and one specification of accessory after the fact in violation of Article
                     United States v. Burrell, No. ACM S32523


78, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 878; 1 one charge and
three specifications of false official statement in violation of Article 107, UCMJ,
10 U.S.C. § 907; and one charge and one specification of wrongful use of a con-
trolled substance in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. The
court-martial sentenced Appellant to a bad-conduct discharge and confinement
for 45 days. The convening authority approved the sentence as adjudged. 2
    Appellant raises two issues on appeal, but does so in the alternative: (1)
whether the conditions of his post-trial confinement were cruel and unusual
under the Eighth Amendment to the United States Constitution, 3 Article 55,
UCMJ, 10 U.S.C. § 855, and Article 58, UCMJ, 10 U.S.C. § 858; or, alterna-
tively, (2) that his post-trial conditions rendered his sentence inappropriately
severe pursuant to United States v. Gay, 75 M.J. 264 (C.A.A.F. 2016). We find
no error and affirm the findings and sentence.

                                  I. BACKGROUND
    In November 2017, Appellant’s friend, A1C DG, who was also a fellow ac-
tive duty Air Force member at Holloman Air Force Base, New Mexico, went
absent without leave while under criminal investigation by military authori-
ties. Appellant had been with A1C DG the day before she absented herself, and
Appellant knew she was absent without leave. In an effort to assist A1C DG in
avoiding apprehension Appellant lied to his first sergeant and to an investiga-
tor from security forces about his having had contact with A1C DG. Appellant
then drove A1C DG from New Mexico to Colorado, then back to New Mexico,
then to Texas, all while knowing she was absent without leave. Appellant con-
tinued being untruthful to law enforcement when he lied to the investigation
team from the Air Force Office of Special Investigations about having had con-
tact with A1C DG.
    During the charged time frame, between on or about 15 October 2017 and
on or about 31 January 2018, Appellant smoked marijuana on a regular basis
throughout the week and weekends. Appellant smoked marijuana alone, with
civilians, and with military members.



1All references in this opinion to the Uniform Code of Military Justice are to the Man-
ual for Courts-Martial, United States (2016 ed.).
2 The court notes the following two issues in this case, even though neither requires
corrective action. First, as it relates to the Court-Martial Order (CMO), Charges I and
II were dismissed prior to arraignment so they should not have been included on the
Report of Result of Trial or the CMO. Second, the court reporter authenticated the
record, which should not have occurred as the military judge authenticated the record.
3   U.S. CONST. amend. VIII.


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                   United States v. Burrell, No. ACM S32523


    Appellant pleaded guilty before a special court-martial, was found guilty,
and then was sentenced. Upon receiving the confinement sentence of 45 days,
he was taken to a nearby civilian confinement facility in Otero County, New
Mexico (Otero County) to serve the confinement. Although sentenced to 45
days of confinement, Appellant served only 37 of those days. While at Otero
County, Appellant was housed in the facility’s “restricted housing unit” and
wore a confinement uniform consistent with those issued to military members
at Otero County. Otero County dresses each confinee in a particular type and
color uniform according to their status: state confinees, federal confines, immi-
gration detainees, and military confinees. Sex offenders are another category
of confinees who also get their own type and color of clothing.
    Those in Appellant’s “restricted housing unit” were confined to their cells
23 hours per day, Monday through Friday, and 24 hours a day on Saturday
and Sunday. When Appellant was not in his cell he was allowed to watch tele-
vision in a different room or go outside. The cell had a window to the hallway,
and a location where food trays were passed and where inmates would be hand-
cuffed before leaving. Appellant’s cell contained his bed, a table, a toilet, and a
sink. The lights would be on from 0600 to 2200, then would be dimmed over-
night. Although Appellant had his own toilet and sink, showers were available
on Mondays, Wednesdays, and Fridays.
    Otero County houses state, federal, and military pretrial confinees and
post-trial prisoners, both male and female. Additionally, Otero County houses
alleged undocumented immigrants detained during the pendency of the dispo-
sition of their immigration cases.
    Otero County required prisoners to request commissary privileges on Tues-
days. Because of the timing of when Appellant arrived, he missed the commis-
sary request which caused him to go without deodorant for approximately one
week. Appellant does not allege that he went without any other necessary toi-
letries. Finally, Appellant complains of lack of medical attention, specifically
that he had a sore throat and was given Tylenol.
    Approximately a week after Appellant was released from Otero County, his
trial defense counsel submitted clemency matters to the convening authority
outlining the issues above. Specifically, trial defense counsel enumerated the
alleged hardships Appellant faced in confinement while at Otero County and
claimed that these conditions violated Air Force regulations and case law. Trial
defense counsel, on behalf of Appellant, requested the convening authority
grant clemency relief.
   The convening authority approved Appellant’s sentence as adjudged with-
out granting any relief.




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                                II. DISCUSSION
A. Post-Trial Confinement Conditions
    The first assignment of error can be broken up into two parts: (1) that the
Eighth Amendment and Article 55, UCMJ, were violated based on the allega-
tion that the 37 days he spent in the restricted housing unit amounts to cruel
and unusual punishment; and (2) the same 37 days in the restricted housing
unit violated his rights under Article 58, UCMJ.
   1. Eighth Amendment and Article 55, UCMJ—Cruel and Unusual
   Punishment
    This court reviews de novo whether an appellant has been subjected to il-
legal post-trial confinement conditions in violation of the Eighth Amendment
or Article 55, UCMJ. United States v. Wise, 64 M.J. 468, 473 (C.A.A.F.
2007) (citing United States v. White, 54 M.J. 469, 471 (C.A.A.F. 2001)).
    When a claim is raised pursuant to Article 55, this court applies the Su-
preme Court’s interpretation of the Eighth Amendment except where it is ap-
parent that legislative intent provides greater protections under Article
55. United States v. Avila, 53 M.J. 99, 101 (C.A.A.F. 2000). The Constitution
does not mandate comfortable prisons, but neither does it permit inhumane
ones. Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotations and
citations omitted).
    The “Eighth Amendment prohibits two types of punishments: (1) those in-
compatible with the evolving standards of decency that mark the progress of a
maturing society or (2) those which involve the unnecessary and wanton inflic-
tion of pain.” United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (internal
quotations and citations omitted).
   A violation of the Eighth Amendment is shown by demonstrating:
       (1) an objectively, sufficiently serious act or omission resulting
       in the denial of necessities; (2) a culpable state of mind on the
       part of prison officials amounting to deliberate indifference to
       [an appellant]’s health and safety; and (3) that [an appellant]
       “has exhausted the prisoner-grievance system . . . and that he
       has petitioned for relief under Article 138, UCMJ, 10 U.S.C. §
       938 . . . .”
Id. (footnotes omitted) (quoting United States v. Miller, 46 M.J. 248, 250
(C.A.A.F. 1997)).
    Appellant complains of solitary confinement. However, what Appellant re-
fers to as “solitary confinement” is not a per se Eighth Amendment violation.
Avila, 53 M.J. at 101 (citing Sostre v. McGinnis, 442 F.2d 178, 192 (2d Cir.


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1971)). Rather, the totality of the circumstances of the confinement conditions
are considered in determining whether a sufficiently serious deprivation under
the Eighth Amendment has been shown. Id. at 102. Noncompliance with ser-
vice regulations may support a finding of such deprivation, “but is not deter-
minative of the issue of punishment.” Id. (citation omitted).
    We begin our analysis with the issue that is dispositive of this matter. A
“prisoner must seek administrative relief prior to invoking judicial interven-
tion” with respect to concerns about post-trial confinement conditions. Wise, 64
M.J. at 471 (quoting White, 54 M.J. at 472). “This requirement promotes reso-
lution of grievances at the lowest possible level and ensures that an adequate
record has been developed to aid appellate review.’” Id. (alterations and quota-
tions in original removed) (quoting Miller, 46 M.J. at 250). Absent an unusual
or egregious circumstance, an appellant must both exhaust the grievance sys-
tem at the confinement facility as well as petition for relief under Article 138,
UCMJ. Wise, 64 M.J. at 469.
    In this case, Appellant concedes that he did not attempt to seek adminis-
trative relief regarding his confinement conditions. Appellant’s claim that do-
ing so would have been futile is both conclusory and speculative. Without seek-
ing administrative relief, we have no way to determine what remedial action,
if any, might have been taken, and we would have a more developed record
that would explain the circumstances. While Appellant argues that he raised
these concerns in his clemency request and that this is tantamount to request-
ing relief, it fails to take into account the timing of his clemency. Appellant did
not file a clemency request until after he was released from confinement.
    Had Appellant properly alerted his chain of command in time as to his spe-
cific concerns about being placed in the restricted housing unit, his command
may have sought to change the policy of placing military members in that unit.
There was, nonetheless, a valid reason which existed at the time for the policy.
Military confinees were placed in the restricted housing unit, or administrative
segregation unit as it was also known, to ensure that military confinees were
not commingled with foreign nationals. This had been an issue because of the
significant number of foreign nationals in general population at that confine-
ment facility.
    Whether his command would have taken such action or how his command
would have justified not taking such action are questions we cannot answer
because Appellant did not raise his concerns until after he had been released
from Otero County. Far from exhausting the prisoner-grievance system and
the Article 138, UCMJ, complaint process, Appellant did not attempt to utilize
either. In failing to do so, Appellant deprived both Otero County and his com-
mand the opportunity to address his concerns at the time.



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                  United States v. Burrell, No. ACM S32523


    Finding that no “unusual or egregious circumstance” exists, excusing Ap-
pellant’s failure to exhaust his administrative remedies, Appellant is not enti-
tled to relief under either the Eighth Amendment or Article 55.
   2. Article 58, UCMJ—Execution of Confinement
    This court also reviews de novo Article 58, UCMJ, issues. Wise, 64 M.J. at
473. Under Article 58(a), UCMJ, sentences to confinement may be served in
military or non-military correctional institutions “[u]nder such instructions as
the Secretary concerned may prescribe.” Article 58, UCMJ, 10 U.S.C. § 858.
Military members incarcerated in non-military institutions “are subject to the
same discipline and treatment” as non-military inmates. Id. Our superior court
has held the prohibition against commingling military prisoners with foreign
nationals under Article 12, UCMJ, 10 U.S.C. § 812, is not inconsistent with
Article 58(a) requirements, and “[m]ilitary confinees can—and must—receive
treatment equal to civilians confined in the same institution, while being con-
fined separately from foreign nationals.” United States v. McPherson, 73 M.J.
393, 396 (C.A.AF. 2014).
    As with alleged violations of the Eighth Amendment and Article 55, pris-
oners must first exhaust administrative remedies before invoking judicial in-
tervention to remedy alleged violations of Article 58(a). See, e.g., United States
v. Damm, No. ACM 39399, 2019 CCA LEXIS 283, at *10 (A.F. Ct. Crim. App.
21 Jun. 2019) (unpub. op.); United States v. Lemburg, No. ACM 39261, 2018
CCA LEXIS 424, at *17–18 (A.F. Ct. Crim. App. 30 Aug. 2018) (unpub. op.);
United States v. Hamric, No. ACM 39096, 2018 CCA LEXIS 3, at *11–12 (A.F.
Ct. Crim. App. 5 Jan. 2018) (unpub. op.), rev. denied, 77 M.J. 369 (C.A.A.F.
2018); United States v. Monahan, No. ACM 38084, 2013 CCA LEXIS 748, at
*23–24 (A.F. Ct. Crim. App. 28 Aug. 2013) (unpub. op.).
    Because we have determined that Appellant failed to exhaust his adminis-
trative remedies, we will not consider Appellant’s claims as they relate to vio-
lations of Article 58, UCMJ.
B. Alternative Argument Pursuant to United States v. Gay
   In the assignment of error, Appellant asserts, in the alternative, that his
post-trial conditions rendered his sentence inappropriately severe pursuant to
United States v. Gay.
    According to Gay, Courts of Criminal Appeals have the authority under
Article 66, UCMJ, 10 U.S.C. § 866, to grant sentence appropriateness relief for
post-trial confinement conditions that do not amount to cruel and unusual pun-
ishment, but where there is nonetheless a legal deficiency in the post-trial con-
finement conditions. 75 M.J. at 268; See also United States v. Tardif, 57 M.J.
219, 223 (C.A.A.F. 2002) (affirming a broad authority of Courts of Criminal
Appeals to review and modify sentences pursuant to Article 66, UCMJ).

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                   United States v. Burrell, No. ACM S32523


    In contrast to the Eighth Amendment and Article 55 claims we analyzed
above, when considering Article 66(c) based claims, we have declined to require
that appellants demonstrate that they have previously exhausted administra-
tive remedies prior to seeking judicial relief. See United States v. Henry, 76
M.J. 595, 610 (A.F. Ct. Crim. App. 2017). We instead consider the entire record
and typically give “significant weight” to an appellant’s failure to exhaust those
remedies before requesting judicial intervention. Henry, 76 M.J. at 610.
    For 37 days, Appellant was kept in the restricted housing unit segregated
from the other inmates. Because he was not permitted to leave his cell on week-
ends, Appellant averaged less than one hour a day each week outside of his cell
for recreation. When he was allowed recreation time, Appellant was required
to spend that time alone. Appellant was given his meals through an opening
in his cell door, and he consumed his meals alone in his cell. As indicated above,
the reason provided by the Government for placing Appellant in the restricted
housing unit was to avoid commingling Appellant with foreign nationals incar-
cerated at Otero County. No evidence has been presented that either Air Force
or Otero County officials considered less-restrictive confinement conditions for
Appellant.
    In making his claim pursuant to Gay, Appellant asserts the circumstances
of his confinement violated Air Force Instruction (AFI) 31-105. AFI 31-105, Air
Force Corrections Systems, ¶ A.19 (22 Apr. 2019), defines the term “restrictive
housing” as having three basic elements: (1) a confinee being separated from
the general population; (2) a confinee being housed in a cell or locked room;
and (3) a confinee being unable to leave the cell “for a vast majority of the day,
typically 22-hours or more per day. . . .” AFI 31-105 ¶ A.19.1. 4 The AFI sets the
use of restrictive housing to very limited circumstances, and when it is im-
posed, confinees are to receive no less than two hours outside of their cells per
day. Id. at ¶¶ A.19.1–3, A.19.10. These provisions pertain to the Air Force Cor-
rections System. Id. at ¶ 2.6.2.20.
    The relevant question under Article 66(c), UCMJ, is whether Appellant’s
confinement conditions rendered his sentence inappropriately severe. We have
previously held that a policy of segregating military prisoners from the general
population at a non-military confinement facility to prevent commingling with
foreign nationals does not constitute cruel and unusual punishment under an
Eighth Amendment analysis, absent evidence the prison officials acted with
deliberate indifference towards a prisoner’s health and safety. See, e.g., United
States v. Wilson, 73 M.J. 529, 535 (A.F. Ct. Crim. App. 2014); United States v.


4 Guidance regarding restrictive housing is set out in Attachment 19 to Air Force In-
struction (AFI) 31-105, titled, “Limiting the Use of Restrictive Housing.” The AFI does
not use the term “solitary confinement.”


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                  United States v. Burrell, No. ACM S32523


Luckado, No. ACM 37962, 2014 CCA LEXIS 397, at *11 (A.F. Ct. Crim. App.
15 Jul. 2014) (unpub. op.).
    Appellant argues our decision in Gay entitles him to relief because the base
legal office knew he was in segregated confinement conditions solely to prevent
him from being housed with foreign nationals. Staff Sergeant (SSgt) Gay was
confined to a segregated cell for 23 hours a day, similar to Appellant. See Gay,
75 M.J. at 266. However, SSgt Gay was segregated at the request of Air Force
officials in spite of the fact that the confinement facility would have kept SSgt
Gay in the general population without commingling him with foreign nationals
but for the Air Force’s request. Id. at 266. Unlike in Gay, Appellant in this case
was placed in the restricted housing unit by operation of Otero County’s policy
of placing all military confinees there. Although Appellant’s command acqui-
esced to Otero County’s policy, this acquiescence is demonstrably different
from affirmative action by military officials to override a civilian confinement
facility’s policies with the resulting consequence of making the conditions of
confinement more severe. Our superior court has held that this court did not
abuse its discretion in granting relief in Gay, but pointed to the unique facts
and legal errors in that case and explained, “[i]n reaching this conclusion, we
do not recognize unlimited authority of the Courts of Criminal Appeals to grant
sentence appropriateness relief for any conditions of post-trial confinement of
which they disapprove.” 75 M.J. at 269.
    Appellant’s confinement conditions at Otero County are recognizably un-
pleasant. They did not, however, rise to the level of an Eighth Amendment or
Article 55, UCMJ, violation which requires a denial of “the minimal civilized
measure of life’s necessities” or “‘deliberate indifference’ to inmate health or
safety.” Avila, 53 M.J. at 101 (quoting Farmer, 511 U.S. at 834).
    In Avila, the CAAF found conditions substantially similar to Appellant’s
did not amount to a violation under either the Eighth Amendment or Article
55, UCMJ. Corporal Avila was “housed in a windowless cell; could not com-
municate with other inmates; was only allowed one hour of recreation per day,
five days per week; had to wear handcuffs and shackles when escorted outside
his cell; and had to remain behind a Plexiglass partition when receiving visi-
tors.” Avila, 53 M.J. at 100. Corporal Avila also complained he should have
been placed in less-restrictive confinement based on a Navy regulation. Id. at
102. The CAAF determined “[t]he fact that regulations were not followed does
not demonstrate a ‘sufficiently serious’ deprivation under the Eighth Amend-
ment.” Id.
   As to Appellant’s claim that the Air Force violated the provisions of AFI 31-
105 by failing to adhere to the limitations on the use of restrictive housing, the
AFI governs Air Force confinement facilities. Appellant has failed to establish
how the AFI applies to non-military facilities. Additionally, Appellant has not

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                  United States v. Burrell, No. ACM S32523


established any requirement that the Air Force must use only those civilian
confinement facilities that meet the Service’s restrictive housing standards.
We find Appellant has not shown a violation of AFI 31-105 by Air Force officials
in his case.
   Accordingly, Appellant is not entitled to relief pursuant to United States v.
Gay.

                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




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