              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                               Before
          F.D. MITCHELL, J.R. MCFARLANE, S.A. DOMINGUEZ
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      ALEJANDRO B. AGUILAR
                  SERGEANT (E-5), U.S. MARINE CORPS

                           NMCCA 201300464
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 10 September 2013.
Military Judge: Col Howard Russell, USMCR.
Convening Authority: Commanding General, I MEF, U.S. Marine
Corps Forces, Pacific, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: LtCol D.P. Harvey,
USMC.
For Appellant: LT Jonathan M. Hawkins, JAGC, USN.
For Appellee: Maj Paul M. Ervasti, USMC; Capt Matthew M.
Harris, USMC.

                              31 July 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of two
specifications of larceny, in violation of Article 121, Uniform
Code of Military Justice, 10 U.S.C. § 921. The appellant was
sentenced to confinement for three years, forfeiture of all pay
and allowances, a $45,000.00 fine, reduction to pay grade E-1,
and a bad-conduct discharge. The convening authority (CA)
approved only so much of the sentence as provided for three
years’ confinement, total forfeitures, a $45,000.00 fine, and a
bad-conduct discharge. 1 Pursuant to the terms of a pretrial
agreement, the CA suspended all confinement in excess of 15
months.
     The appellant raises two assignments of error: (1) that his
fine was grossly disproportionate to his misconduct and thus
excessive under the Eighth Amendment; and, (2) that a fine of
$45,000.00 was inappropriately severe given the nature of the
offense and the military character of the appellant.

     After careful consideration of the record of trial, the
parties’ pleadings, and the appellant’s assignments of error, we
conclude that the findings and sentence are correct in law and
fact and that no error was committed that was materially
prejudicial to the substantial rights of the appellant. Arts.
59(a) and 66(c), UCMJ.

                                 Background

     From June 2008 through June 2013, the appellant
fraudulently received more than $100,000.00 by claiming Basic
Allowance for Housing (BAH) to which he was not entitled. He
also fraudulently received Family Separation Allowance while
deployed on two separate occasions between September 2008 and
December 2010. The appellant received these funds based upon
his representation that he had married a woman named BQ. While
the record is unclear as to whether or not the appellant had
legally married BQ in Mexico in 2002, the appellant verified
that he received BAH beginning as early as January 2003, but did
not provide any financial support to BQ while continuing to
receive BAH funds. 2 While the record reveals that the appellant
received the BAH funds under false and fraudulent pretenses for
a period of approximately 10 years, the military judge’s
imposition of a fine was tied to the funds he received during

1
  The CA’s action contains no reference to the military judge’s imposition of
a reduction to pay grade E-1. Accordingly, the adjudged reduction was
neither approved nor ordered executed. Nonetheless, a sentence which
includes a bad-conduct discharge results in an automatic reduction to E-1 by
operation of law. See Art. 58a, UCMJ.

2
  The appellant had no further contact with BQ following the execution of his
orders to Iwakuni, Japan in early 2004.
                                      2
the relevant period within the statute of limitations consistent
with the charged offenses. While imposing the appellant’s
sentence, the military judge further advised that in selecting
an appropriate fine, he had reviewed the Government’s evidence
and attempted to determine the portion of the money the
appellant would have received if he had independently claimed
BAH benefits.

                         Excessive Fines

     The appellant first argues that the $45,000.00 fine is
excessive and thus prohibited under the Eighth Amendment. In
this regard, the appellant claims that the awarded fine is
“grossly disproportionate” to his crimes. The Eighth Amendment
prohibits the imposition of excessive bail, excessive fines and
cruel and unusual punishment.

     To decide whether or not the appellant’s fine is barred by
the Eighth Amendment, we must first determine if the fine falls
within the Excessive Fines Clause of the Eighth Amendment, and
if it does, we must then determine whether the fine is
excessive. United States v. Bajakajian, 524 U.S. 321, 328-29
(1998). Since the fine imposed was to be paid to the Government
as part of appellant’s sentence, the first prong of the analysis
is met. United States v. Stebbins, 61 M.J. 366, 373 (C.A.A.F.
2005). The second prong requires further analysis.     As the
Court in Stebbins noted:

     “The touchstone of the constitutional inquiry under
     the Excessive Fines Clause is the principle of
     proportionality: The amount of the forfeiture must
     bear some relationship to the gravity of the offense
     that it is designed to punish.” Therefore, if a fine
     is “grossly disproportionate to the gravity of a
     defendant’s offense,” it violates the Excessive Fines
     Clause.

Id. (quoting Bajakajian, 524 U.S. at 334) (footnote omitted).

     The appellant freely admitted that he received over
$113,000.00 in BAH funds between 19 June 2008 and 18 June 2013,
even though he was not entitled to them. While the appellant
argues that the Government has initiated steps to

                                3
administratively recoup that money, that fact has no impact on
the legality of the fine imposed. Whether or not the Government
will ever be in a position to recoup its losses is speculative.
The imposition of a $45,000.00 fine under these circumstances
was proportionate to appellant’s misconduct and was not
excessive under the Excessive Fines Clause of the Eighth
Amendment.

                      Severity of Sentence

       In his other assignment of error, the appellant avers
that his sentence, which includes a $45,000.00 fine, is
inappropriately severe. The appellant contends that the quality
and character of his military service, including his multiple
combat deployments and his resulting injuries militate against
such a fine, and the fine is thus inappropriate.

     Under Article 66(c), UCMJ, we independently review
sentences within our purview and only approve that part of a
sentence which we find should be approved. United States v.
Baier, 60 M.J. 382, 383-84 (C.A.A.F. 2005). “Sentence
appropriateness involves the judicial function of assuring that
justice is done and that the accused gets the punishment he
deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A.
1988). This requires “‘individualized consideration’ of the
particular accused ‘on the basis of the nature and seriousness
of the offense and character of the offender.’” United States
v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United
States v. Mamaluy, 27 C.M.R. 176, 180-81 (C.M.A. 1959)).

     Upon review of the entire record in this case, including
the appellant’s military character and the physical maladies he
has suffered during his deployments, we find that a fine of
$45,000.00, in addition to the punishment otherwise imposed, was
appropriate for this offender and his misconduct. Given this
finding, any consideration of appellant’s requested relief would
amount to an act of clemency which is left to the “command
prerogative” of the CA. Healy, 26 M.J. at 396.




                                4
                           Conclusion

     The findings and the sentence as approved by the CA are
affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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