UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                          COOK, GALLAGHER, and HAIGHT
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                         Sergeant DONALD E. GRAVES
                         United States Army, Appellant

                                  ARMY 20110210

                              Headquarters, Fort Bliss
                 David H. Robertson, Military Judge (arraignment)
                       Patrick Parrish, Military Judge (trial)
                  Colonel Francis P. King, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain E. Patrick Gilman, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Captain Steve T. Nam, JA;
Major Thomas E. Brzozowski, JA (on brief).


                                  28 February 2013

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


Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of violating a lawful general order by
wrongfully possessing pornography and one specification of knowingly possessing
“pornographic images and virtual images of individuals who were, or appeared to be,
under the age of 18,” in violation of Articles 92 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 892, 934 (2006) [hereinafter UCMJ]. The convening authority
approved the adjudged sentence of a bad-conduct discharge, confinement for two
years, and reduction to the grade of E-1. This case is before us for review pursuant
to Article 66, UCMJ.
GRAVES— ARMY 20110210

                                   BACKGROUND

       At the time of the offenses, appellant was performing duties at Camp Taji,
Iraq. As found at trial, and not contested on appeal, appellant was convicted of
violating a lawful general order, by wrongfully possessing pornography, in violation
of Article 92, UCMJ. Contested on appeal is the validity of the Article 134, UCMJ,
conviction. This specification alleges:

             In that [appellant], U.S. Army, did, at or near Camp Taji,
             Iraq, between on or about 2 July 2009 and 12 July 2009,
             knowingly possess over fifty pornographic images and
             virtual images of individuals who were, or appeared to be
             under the age of eighteen, including but not limited to [20
             jpg files] 1 which conduct was prejudicial to good order
             and discipline in the armed forces and was of a nature to
             bring discredit upon the armed forces. (emphasis added).

       Appellant identifies two assignments of error in challenging this charge. 2 In
light of our superior court’s ruling in United States v. Beaty, 70 M.J. 39 (C.A.A.F

1
  Prior to entry of pleas, six jpg files were removed from the specification, leaving a
total of 14 files.
2
                                           I.

             SOLDIERS MAY BE PROSECUTED UNDER THE
             UNIFORM CODE OF MILITARY JUSTICE FOR
             POSSESSING IMAGES OF APPARENT MINORS
             ENGAGING IN SEXUALLY EXPLICIT CONDUCT.
             THE MILITARY JUDGE FAILED TO ELICIT
             ADMISSIONS FROM THE APPELLANT THAT THOSE
             IMAGES HE POSSESSED WERE OF APPARENT
             CHILDREN ENGAGING IN SEXUALLY EXPLICIT
             CONDUCT BECAUSE HE IMPROPERLY DEFINED
             CHILD PORNOGRAPHY. THEREFORE, THERE IS A
             SUBSTANTIAL BASIS IN LAW AND FACT TO
             QUESTION THE PLEA.

                                          II.

             THE MILITARY JUDGE ADVISED APPELLANT THE
             MAXIMUM PERIOD OF CONFINEMENT FOR THE
             OFFENSES TO WHICH HE PLED GUILTY WAS
             TWELVE YEARS. IN FACT, THE MAXIMUM PERIOD


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GRAVES— ARMY 20110210

2011), appellant’s second assignment of error has merit and we will afford
appropriate relief in our decretal paragraph.

                              LAW and DISCUSSION

       In Beaty, a case decided after appellant’s trial, our superior court, the U.S.
Court of Appeals for the Armed Forces [hereinafter CAAF], was faced with several
of the same issues now present in the instant case. These similarities include the
specification at issue. In the instant case, the specification alleges the images are of
individuals “who were, or appeared to be under the age of eighteen . . . .” (emphasis
added). In Beaty, the specification alleging wrongful possession of child
pornography stated the images were of “a minor, or what appears to be a minor . . .
.” (emphasis added). To the extent 18 U.S.C. § 2252(a) (2006) was used in Beaty in
determining a maximum punishment, we will also use the definition of a minor
found in this statute. Specifically, this statute defines minor as “any person under
the age of eighteen years.” 3 As such, we will treat the operative phrase in the instant
case as being identical to the one found in Beaty.

       Continuing the analysis of similarities between Beaty and the instant case, we
note that: both the specification at issue and the specification in Beaty contain the
Article 134, UCMJ, terminal elements; appellant and Beaty both pleaded guilty to
this specification; and in both cases the military judge referred to 18 U.S.C. §
2252(a) (2006) in determining the maximum confinement for the offense was ten
years.

       The CAAF ultimately affirmed Beaty’s conviction under Article 134, UCMJ.
The CAAF stated it had repeatedly found possession of actual or virtual child
pornography can be prosecuted under clause 1 or 2, Article 134, UCMJ. Beaty 70
M.J. at 41 (internal citations omitted). However, the CAAF also found, while


(. . . continued)
               OF CONFINEMENT APPELLANT WAS FACING FOR
               THE OFFENSES TO WHICH HE PLED GUILTY WAS
               TWO YEARS AND FOUR MONTHS. THE MILITARY
               JUDGE ERRED TO APPELLANT’S SUBSTANTIAL
               PREJUDICE WHEN HE RELIED ON AN ERRONEOUS
               INTERPRETATION OF THE LAW TO ADVISE AND
               SENTENCE APPELLANT. THEREFORE, APPELLANT’S
               PLEA WAS NOT KNOWING AND VOLUNTARY
               BECAUSE IT WAS BASED ON A MISAPPREHENSION
               OF THE MAXIMUM SENTENCE. See United States v.
               Walker, 34 M.J. 264, 266 (C.M.A. 1992).
3
    See 18 U.S.C. § 2256 (2006).


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GRAVES— ARMY 20110210

applying a de novo review of the maximum punishment, the military judge erred as a
matter of law in deciding the charged offense carried a maximum punishment of ten
years.

       Specifically, the CAAF first found possession of child pornography, or what
appears to be child pornography, is not a listed offense under Part IV of the Manual
for Courts-Martial. Id. at 42; Manual for Courts-Martial, United States (2008 ed.)
[hereinafter MCM], pt. IV. The CAAF then found that in response to the Supreme
Court’s decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct.
1389, 152 L. Ed. 2d 403 (2002), “the United States Code does not criminalize
possession of ‘what appears to be’ child pornography.” Beaty, 70 M.J. at 43. As
such, the CAAF found it was error for the military judge to use the maximum
punishment attached to 18 U.S.C. § 2252(a). In finding error the CAAF noted that:

             [w]hen confronted with Article 134, UCMJ, offenses not
             specifically listed, that are not closely related to or
             included in a listed offense, that do not describe acts that
             are criminal under the United States Code, and where
             there is no maximum punishment ‘authorized by the
             custom of the service,’ they are punishable as ‘general’ or
             ‘simple’ disorders, with a maximum sentence of four
             months of confinement . . . .

Id. at 45.

       In applying a de novo review of the maximum punishment, we find it was
error for the military judge to apply the maximum punishment attached to 18 U.S.C.
§ 2252(a) in the instant case. Not only does the instant specification under review
contain the “appears to be” language found wanting in Beaty, but it also contains a
reference to “virtual images.” The applicable statute, 18 U.S.C. § 2252(a),
criminalizes possession of visual depictions that are of, or are indistinguishable
from, an actual minor. This statute does not criminalize possession of virtual child
pornography. 4

      Unlike in Beaty, the government in the instant case conceded the military
judge erred in applying the ten year maximum confinement punishment found in 18
U.S.C. § 2252(a). The government further conceded that based on Beaty, the correct
maximum punishment for this general Article 134, UCMJ, offense includes only four
months of confinement. However, the government further argues appellant has not



4
 18 U.S.C. § 1466A(b)(1)(2006) is an obscenity statute that criminalizes possession
of visual depictions of virtual minors engaging in sexually explicit conduct. See
United States v. Bowersox, 71 M.J. 561 (Army Ct. Crim. App. 2012).


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GRAVES— ARMY 20110210

shown that he was materially prejudiced by this error. We disagree that appellant
was not materially prejudiced.

        Reducing the maximum confinement in the instant case from twelve years to
two years and four months represents a dramatic change in the sentencing landscape,
particularly in light of appellant’s sentence to two years of confinement. A sentence
reassessment under United States v. Sales, 22 M.J. 305 (C.M. A. 1986), would be
inappropriate. We will take appropriate action in our decretal paragraph to remedy
this issue.

                                  CONCLUSION

      The findings of guilty are affirmed. The sentence is reversed and set aside.
The record of trial is returned to The Judge Advocate General. A rehearing on the
sentence may be ordered.  

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




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