UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                            MULLIGAN, FEBBO and WOLFE
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                   Private First Class MICHAEL A. RUSSELL
                         United States Army, Appellant

                                   ARMY 20150397

                            Headquarters, Fort Campbell
                        Steven E. Walburn, Military Judge
                   Colonel Susan K. Arnold, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Katherine L. DePaul, JA (on brief); Captain Heather L. Tregle,
JA; Captain Katherine L. DePaul, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III,
JA; Lieutenant Colonel Kirsten M. Dowdy, JA (on brief); Major Anne C. Hsieh, JA.


                                  18 November 2016

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                               SUMMARY DISPOSITION
                              ----------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of one specification of indecent language and six
specifications related to the possession of child pornography, distribution of child
pornography, receipt of child pornography, soliciting the production and distribution
of child pornography, in violation of Articles 120b and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 920b, 934 (2012 & Supp. I 2014) [hereinafter UCMJ].
The military judge sentenced appellant to a dishonorable discharge, confinement for
fifteen years, forfeiture of all pay and allowances, and reduction to the grade of E-1.
Pursuant to a pretrial agreement, the convening authority approved the adjudged
sentence except that portion extending to confinement in excess of ten years.

      This case is before the court for review pursuant to Article 66, UCMJ.
Appellant assigns two errors. One error warrants discussion, but no relief.
RUSSELL—ARMY 20150397

                                  BACKGROUND

       Appellant, among other things, pleaded guilty to soliciting his fourteen year
old niece, on multiple occasions, to take digital pictures of her genitalia and nude
body and send them to him. She complied, taking and sending the pictures.
Specification 5 of Charge II involved the solicitation of distribution of child
pornography by having the pictures sent to him. Specification 6 was the solicitation
to create child pornography by taking the images of her genitalia and nude body.
The dates and locations of the two specifications were otherwise identical.

      In appellant’s negotiated pretrial agreement, he agreed to waive “all waivable
motions.” Despite that express language, appellant moved at trial for merger for
sentencing of two sets of specifications, Specifications 1 and 4 of Charge 1 and
Specifications 5 and 6 of Charge 1. The government did not object to the requested
merger as contrary to the plea agreement, and joined the motion, which the military
judge granted. The appellant now asks this court to find the two specifications that
he requested be merged for sentencing, Specifications 5 and 6, be found an
unreasonable multiplication of charges for findings.

             UNREASONABLE MULTIPLICATION OF CHARGES

       Appellant asserts that the military judge abused his discretion in not merging
the solicitation offenses for findings. We disagree. Appellants’ plea of guilty,
especially when part of a negotiated pretrial agreement, waived the issue of whether
any of the specifications were unreasonably multiplied. United States. v.
Schweitzer, 68 M.J. 133, 136 (C.A.A.F. 2009). Unless the offenses are “facially
duplicative” a guilty plea waives any claim that the offenses are unreasonably
multiplied. Id. (citing United States v. Pauling, 60 M.J. 91, 94 (C.A.A.F. 2004). As
we have previously stated in United States v. Thomas, “the issue is not whether the
military judge erred” but whether on appeal “we should exercise our awesome,
plenary de novo power of review to notice waived and forfeited error.” ARMY
20150205, 2016 CCA LEXIS 551 (Army Ct. Crim. App. 9 Sept. 2016) (citing United
States v. Nerad, 69 M.J. 138, 141-42, 144, 146-47 (C.A.A.F. 2010)) (internal
quotation marks omitted). We decline to do so.

       Appellant agreed to plead guilty to all the alleged specifications in his plea
agreement waiving “all waivable motions.” Remarkably, the government did not
object to the violation of this term at appellant’s court-martial by withdrawing from
the agreement. Instead, they joined the motion to reduce appellant’s punitive
exposure from seventy years to fifty-five years. Nothing in this record persuades us
that we should exercise our discretionary authority to disturb that which appellant
specifically negotiated. See United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016).




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RUSSELL—ARMY 20150397

                              CONCLUSION

    The finding of guilty and sentence are AFFIRMED.


                                  FOR
                                  FOR THE
                                      THE COURT:
                                          COURT:




                                  MALCOLM H. SQUIRES, JR.
                                  MALCOLM H. SQUIRES JR.
                                  Clerk of Court
                                  Clerk of Court




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