                          UNITED STATES, Appellee


                                        v.


                    Bryan WACHA, Jr., Lance Corporal
                      U.S. Marine Corps, Appellant


                                  No. 01-0019


                          Crim. App. No. 99-1715

       United States Court of Appeals for the Armed Forces

                          Argued April 17, 2001

                          Decided August 1, 2001

CRAWFORD, C.J., delivered the opinion of the Court, in which
GIERKE, EFFRON, and BAKER, JJ., joined. SULLIVAN, J., filed an
opinion concurring in the result.

                                    Counsel

For Appellant: Lieutenant Colonel Dwight H. Sullivan, USMCR
(argued); Lieutenant Jonathan R. Goodman, JAGC, USNR
(on brief); Lieutenant Amanda St. Claire, JAGC, USNR.

For Appellee: Major Edward C. Durant, USMC (argued);
Colonel Marc W. Fisher, Jr., USMC, and Lieutenant Commander
Philip L. Sundel, JAGC, USNR (on brief).

Military Judge:     R.W. Redcliff

     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Wacha, No. 01-0019/MC


     Chief Judge CRAWFORD delivered the opinion of the Court.

     Appellant pleaded guilty before a military judge sitting

alone as a general court-martial to six specifications involving

conspiracy with other Marines and civilians to possess, use, and

distribute marihuana; eight specifications involving the use,

distribution, and possession of marihuana; and two

specifications of soliciting a fellow Marine, Private Rice, to

buy and possess marihuana, in violation of Articles 81, 112a,

and 134, Uniform Code of Military Justice, 10 USC §§ 881, 912a,

and 934.   His sentence to a bad-conduct discharge, confinement

for 20 months, partial forfeiture of pay for 20 months, and

reduction to E-1 was approved by the convening authority, and

the findings and sentence were affirmed by the Court of Criminal

Appeals.

     We granted review of the following issue:

           WHETHER THE UNITED STATES NAVY-MARINE CORPS
           COURT OF CRIMINAL APPEALS ERRED BY FAILING
           TO CONSIDER WHETHER APPELLANT’S SENTENCE
           SATISFIED A SENTENCE UNIFORMITY STANDARD AS
           INTENDED BY CONGRESS WHEN IT ADOPTED ARTICLE 66(c).

For the reasons set out below, we affirm.

     The gravamen of appellant’s contention lies in the

following sentence from the lower court’s unpublished opinion:




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            Sentence comparison is appropriate only in those
            rare instances of highly disparate sentences in
            closely related cases. United States v. Lacy, 50 MJ
            286, 288 (1999); United States v. Olinger, 12 MJ 458,
            460 (CMA 1982).

Unpub. op. at 2.

     Appellant contends the lower court misread our holdings in

both Lacy and Olinger by declaring that it could not consider

and compare other court-martial sentences with that of this

appellant unless the cases were closely related and the

sentences were highly disparate.       He argues that since the Court

of Criminal Appeals did not consider other court-martial

sentences, it failed, ipso facto, to perform the sentence

appropriateness analysis required by Article 66(c), UCMJ, 10 USC

§ 866(c).

     Recognizing the highly discretionary role of the

experienced Court of Criminal Appeals judges when they perform

their Article 66(c) sentence appropriateness review, Lacy

required Courts of Criminal Appeals “to engage in sentence

comparison with specific cases ... in those rare instances in

which sentence appropriateness can be fairly determined only by

reference to disparate sentences adjudged in closely related

cases.”   50 MJ at 288, quoting United States v. Ballard, 20 MJ

282, 283 (CMA 1985) (emphasis added);      see also United States v.

Sothen, 54 MJ 294 (2001); United States v. Durant, No. 00-0664,

___ MJ ___ (2001).   Nothing in Lacy or its progeny suggests any


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United States v. Wacha, No. 01-0019/MC


limitation on a Court of Criminal Appeals’ discretion to

consider and compare other courts-martial sentences when that

court is reviewing a case for sentence appropriateness and

relative uniformity.

     If the Court of Criminal Appeals did misinterpret our

decision in Lacy and felt constrained to specifically limit its

comparison of sentences to closely related cases with disparate

sentences among co-actors, that court erred.   As Judge Cox so

succinctly stated in Ballard, supra at 286:

          We are, of course, well aware that the experienced and
          professional military lawyers who find themselves
          appointed as trial judges and judges on the courts of
          military review have a solid feel for the range of
          punishments typically meted out in courts-martial.
          Indeed, by the time they receive such assignments,
          they can scarcely help it; and we have every
          confidence that this accumulated knowledge is an
          explicit or implicit factor in virtually every case in
          which a military judge imposes a sentence or a court
          of military review assesses for sentence
          appropriateness. Thus, to hold that a trial or
          appellate court may not consider the sentences in
          other cases would be folly. We simply hold that these
          courts cannot be required to consider such other
          sentences. Thus, if a court concludes that further
          edification in the area of sentence averages is
          unnecessary, we will respect that judgment.

     Appellant does not challenge the lower court’s ruling that

the cases of appellant and Private Rice are not closely related

or that the sentences are not highly disparate.   Although it is

clear that appellant was the supplier of Private Rice’s

marijuana, that fact in and of itself does not make the cases



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United States v. Wacha, No. 01-0019/MC


closely related.   The charges and specifications reflect that

only four of appellant’s 16 drug offenses involved Private Rice.

See unpub. op. at 3.

     Instead, he contends that the court below failed to ensure

relative uniformity of sentences as intended by Congress.     He

asserts that because the sentence appropriateness decision was

made based on an erroneous legal principle (misinterpretation of

Lacy), we must reverse.   In support of this argument, appellant

avers that charges such as those appellant was facing are

normally sent to a special court-martial, the election made by

Private Rice’s special court-martial convening authority, but

not appellant’s.   Accordingly, appellant argues that his

sentence to 20 months’ confinement, more than three times the

maximum sentence to confinement authorized by a special court-

martial in March 1999, is per se inappropriate.

     Congress has vested responsibility for determining sentence

appropriateness in the Courts of Criminal Appeals.   “The power

to review a case for sentence appropriateness, which reflects

the unique history and attributes of the military justice

system, includes but is not limited to considerations of

uniformity and evenhandedness of sentencing decisions.”     Sothen,

54 MJ at 296.

     The role of this Court is to determine, as a matter of law,

whether a Court of Criminal Appeals abused its discretion or


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United States v. Wacha, No. 01-0019/MC


caused a miscarriage of justice in carrying out its highly

discretionary “sentence appropriateness” role.    See United

States v. Fee, 50 MJ 290, 291 (1999).    Assuming arguendo that

the lower court applied Lacy in an unduly restrictive manner, we

must test that court’s finding, that appellant’s sentence was

relatively uniform and appropriate, for abuse of discretion.

See generally United States v. Judd, 11 USCMA 164, 170, 28 CMR

388, 394 (1960)(Ferguson, J., concurring in the result)

(congressional intent in enacting an Article 66 was to attain

relative uniformity of sentences rather than an arithmetically

averaged sentencing scheme).

     A fair reading of the lower court’s opinion convinces us

that the judges went beyond a mere comparison to Private Rice’s

sentence when determining that appellant’s sentence was both

relatively uniform and appropriate.    Finding that sentence

comparison was but one aspect of the sentence appropriateness

equation, the court found that appellant’s sentence was

appropriate for the crimes he had committed, “and the fact that

Pvt Rice received less punishment [did] not render the

appellant’s sentence a miscarriage of justice.”    Unpub. op. at

4; see generally Durant, ___ MJ at (3); United States v.

Snelling, 14 MJ 267, 268 (CMA 1982).    Accordingly, we find no

abuse of discretion or miscarriage of justice in the Article

66(c) analysis performed by the Court of Criminal Appeals.


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United States v. Wacha, No. 01-0019/MC


     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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United States v. Wacha, 01-0019/MC



    SULLIVAN, Judge (concurring in the result):



    Sentence appropriateness determinations are matters for the

Courts of Criminal Appeals.    See United States v. Durant, No. 00-

0664, ___ MJ ___ (2001) (Sullivan, J., concurring).    Moreover, if

those appellate courts make errors of law in their sentence

appropriateness determinations, we are still not allowed to

decide this important question in their stead.    See United States

v. Brock, 46 MJ 11, 13 (1997).    We can, however, decide whether

an error of law by a Court of Criminal Appeals materially

prejudiced its sentence appropriateness determination.    See

Article 59(a), Uniform Code of Military Justice, 10 USC § 859(a).



    The appellate court below stated that “[s]entence comparison

is appropriate only in those rare instances of highly disparate

sentences in closely related cases.    United States v. Lacy, 50 MJ

286, 288 (1999); United States v. Olinger, 12 MJ 458, 460 (CMA

1982).”   (Emphasis added.)   This was an erroneous statement of

the law (see United States v. Sothen, 54 MJ 294, 296 (2001)) and

constituted an abuse of the lower court’s discretion.    See United

States v. Travers, 25 MJ 61, 63 (CMA 1987).



    Nevertheless, I conclude that such error was harmless, i.e.,

it did not materially prejudice the lower appellate court’s

sentence appropriateness determination.    See Article 59(a), UCMJ.
United States v. Wacha, 01-0019/MC


In concluding that appellant’s and Private Rice’s sentences were

not highly disparate, the appellate court below did compare the

court-martial sentences in these two cases.   It said: “Assuming

arguendo that the cases of the appellant and PVT Rice are closely

related, . . . [w]e do not find that the appellant’s sentence

exceeded relative uniformity.”   Unpub. op. at 3.   It also said:

“. . . and the fact that PVT Rice received less punishment does

not render the appellant’s sentence a miscarriage of justice.”

Id. at 4.   Accordingly, in my view, the erroneous statement of

law by the appellate court below generally questioning the

propriety of such a sentence comparison did not materially

prejudice the lower appellate court’s sentence appropriateness

determination in this case.   See United States v. Durant, supra.




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