UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                          KERN, ALDYKIEWICZ, and MARTIN
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                        Captain DYANA T. THOMAS, SR.
                         United States Army, Appellant

                                     ARMY 20100182

         U.S. Army Central, Coalition Forces Land Component Command
                Patrick Parrish and James L. Pohl, Military Judges
    Colonel Thomas D. Cook, Staff Judge Advocate (pretrial & recommendation)
         Colonel Stephanie L. Stephens, Staff Judge Advocate (addendum)


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

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Julie A. Glascott, JA
(on brief & supplemental brief).


                                        30 July 2013
                        --------------------------------------------------
                        SUMMARY DISPOSITION ON REMAND
                        --------------------------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of violating a lawful general order, violating a lawful order,
fraternization, and obstruction of justice, in violation of Articles 92 and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 892, 934 (2006) [hereinafter UCMJ].
In addition, a panel of officers convicted appellant, contrary to his pleas, of two
specifications of fraternization in violation of Article 134, UCMJ. The convening
authority approved the sentence to a dismissal.

       On 29 January 2013, we affirmed the findings of guilty and the sentence.
United States v. Thomas, ARMY 20100182, 2013 WL 395653 (Army Ct. Crim. App.
29 Jan. 2013) (summ. disp.). On 2 July 2013, the Court of Appeals for the Armed
Forces (CAAF) reversed our decision as to Specifications 1 and 2 (both
fraternization specifications) of Charge VII, setting aside those specifications.
THOMAS—ARMY 20100182

United States v. Thomas, __ M.J. ___ (C.A.A.F. July 2, 2013) (summ. disp.). CAAF
affirmed our decision as to the remaining charges and specifications, reversed our
decision as to the sentence, and returned the case to The Judge Advocate General of
the Army for remand to this court to either dismiss Specifications 1 and 2 of Charge
VII and reassess the sentence base on the affirmed findings or order a rehearing on
the affected charge and the sentence. Id. Consequently, appellant’s case is once
again before this court.

                             LAW AND DISCUSSION

        We must now consider the impact of the error identified by our superior court
and determine whether we can appropriately reassess the sentence with the dismissal
of Specifications 1 and 2 of Charge VII. If this court “can determine that, absent the
error, the sentence would have been at least of a certain magnitude, then [we] may
cure the error by reassessing the sentence instead of ordering a sentencing
rehearing.” United States v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002) (citing United
States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986)). A “dramatic change in the
‘penalty landscape’” lessens our ability to reassess a sentence. United States v.
Riley, 58 M.J. 305, 312 (C.A.A.F. 2003). Ultimately, a sentence can be reassessed
only if we “confidently can discern the extent of the error’s effect on the sentencing
authority’s decision.” United States v. Reed, 33 M.J. 98, 99 (C.M.A. 1991).
Because the error in this case is of a constitutional magnitude, we “must be satisfied
beyond a reasonable doubt that reassessment cured the error.” Doss, 57 M.J. at 185
(citing Sales, 22 M.J. at 307). Additionally, we must determine that a sentence we
propose to affirm is “appropriate,” as required by Article 66(c), UCMJ. In short, a
reassessed sentence must be purged of prejudicial error and also must be appropriate
for the offense and the offender involved. Sales, 22 M.J. at 307–08.

       In this case, the sentencing landscape has not dramatically changed with the
dismissal of Specifications 1 and 2 of Charge VII. In fact the only change is a
reduction of appellant’s maximum exposure to confinement from thirteen years and
six months to nine years and six months. Considering this non-dramatic change in
the sentencing landscape along with the remaining charges, we are convinced that
we can reassess the sentence. We have considered the entire record and the
principles of Sales and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to
include the factors identified by Judge Baker in his concurring opinion in Moffeit.
Among other things, we took into account appellant’s length of service (twenty
years), his family, and his multiple deployments. We also considered the serious
nature of the remaining charges of which appellant stands convicted, to include
violating and disobeying orders, obstructing justice, and fraternizing with an
enlisted person, which is the same enumerated offense as the two offenses that were
dismissed. In addition, we also considered his prior conviction for mail fraud. In
light of the foregoing, we are confident beyond a reasonable doubt that appellant
would have received a sentence on the remaining charges of no less than a dismissal.

                                          2
THOMAS—ARMY 20100182

We find such a sentence is correct in law and fact and, based on the entire record,
should be approved.

                                   CONCLUSION

       Specifications 1 and 2 of Charge VII are dismissed. The remaining findings
of guilty have been previously affirmed by both this court and the Court of Appeals
for the Armed Forces. After reassessing the sentence on the basis of the error noted
above and the entire record, the sentence is AFFIRMED. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of the
findings set aside by this decision, are ordered restored. See UCMJ art. 75(a).


                                        FORTHE
                                       FOR  THECOURT:
                                               COURT:




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




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