         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201600257
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.
                        JACOB A. SARKOZY
               Lance Corporal (E-3), U.S. Marine Corps
                             Appellant
                      _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Eugene H. Robinson, Jr., USMC .
         Convening Authority: Commanding General, 3d Marine
                     Division, Okinawa, Japan.
Staff Judge Advocate’s Recommendation: Major Timothy S. Taylor,
                               USMC.
 For Appellant: Lieutenant Commander Derek C. Hampton, JAGC,
                                USN.
     For Appellee: Lieutenant Taurean K. Brown, JAGC, USN;
             Lieutenant Robert J. Miller, JAGC, USN.
                      _________________________

                        Decided 31 January 2017
                        _________________________

  Before CAMPBELL, RUGH, and HUTCHISON, Appellate Military Judges
                     _________________________

   PER CURIAM:

   A military judge sitting as a general court-martial convicted the
appellant, consistent with his pleas, of indecent exposure, extortion, and
indecent language—violations of Articles 120c, 127, and 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 920c, 927, and 934 (2012). The military
judge sentenced the appellant to eight months’ confinement, reduction to pay
grade E-1, a reprimand, and a bad-conduct discharge. Pursuant to a pretrial
agreement, the convening authority (CA) disapproved the reprimand and
approved the remaining sentence as adjudged.
                   United States v. Sarkozy, No. 201600257


    We specified two issues related to the appellant’s indecent exposure
conviction: (1) whether the military judge abused his discretion in accepting
the appellant’s guilty plea to specification 1 of Charge II for indecent
exposure in light of United States v. Ferguson, 68 M.J. 431 (C.A.A.F. 2010)
and United States v. Johnston, 75 M.J. 563 (N-M. Ct. Crim. App. 2016); and
(2) whether the term “exposes” under Article 120c(c), UCMJ, encompasses
the electronic transmission of a photograph or digital image of one’s genitalia
to another person.
    After carefully considering the record of trial, the submissions of the
parties, and our holding in United States v. Uriostegui, 75 M.J. 857 (N-M. Ct.
Crim. App. 2016)—decided after the appellant submitted this case without
assignment of error—we find the appellant’s guilty plea to indecent exposure
improvident and take corrective action in our decretal paragraph. We are
convinced that, following our corrective action, the findings and sentence are
correct in law and fact and that no error materially prejudicial to the
substantial rights of the appellant remains. Arts. 59(a) and 66(c), UCMJ.
                                I. BACKGROUND
    From April 2014 to June 2015, while stationed in Okinawa, Japan, the
appellant engaged in a long-distance, online relationship with a 16-year-old
girl. During their online chats, the appellant made numerous sexually
explicit remarks to the girl culminating in his threat to post naked
photographs of her online if she refused to send him other nude photographs
of herself.
    Simultaneously, in March and April 2015, the appellant began
communicating via an anonymous electronic messaging application with an
online profile that, unbeknownst to him, was part of an undercover Naval
Criminal Investigative Service (NCIS) operation. He sent sexually explicit
text messages—which included several threatening remarks—and a picture
of his erect penis to someone he believed was a 14-year-old girl. In truth, the
girl was an undercover NCIS agent.
                                 II. DISCUSSION
A. Indecent exposure
    Specification 1 of Charge II alleges that the appellant “intentionally
expose[d], in an indecent manner, his genitalia.”1 Before his conviction of that
offense, the appellant explained his guilt to the military judge, admitting that
he sent an unsolicited picture of his erect penis to a girl whom he believed

   1 The appellant was arraigned on two specifications under Charge II. He pleaded
not guilty to Specification 2 of Charge II, and that specification was subsequently
dismissed prior to findings.

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                    United States v. Sarkozy, No. 201600257


was 14-years-old using an application on his phone. Subsequently, the
military judge accepted the appellant’s plea and found him guilty of the
specification under the charge.
    We review a military judge’s acceptance of a guilty plea for an abuse of
discretion, reversing only if the “record shows a substantial basis in law or
fact for questioning the plea.” United States v. Moon, 73 M.J. 382, 386
(C.A.A.F. 2014) (citation omitted). Finding no cause to distinguish the
appellant’s case from our holding in Uriostegui,2 we find there is a
substantial basis in law to question the providence of the appellant’s plea.
Beyond that, we find that the appellant’s actions would be legally insufficient
to support an indecent exposure conviction if a rehearing was authorized,
given the specific facts and circumstances in this case. Consequently, we set
aside the indecent exposure conviction and consider the need for sentence
reassessment.
B. Sentence reassessment
   Courts of Criminal Appeals (CCA) can often “modify sentences ‘more
expeditiously, more intelligently, and more fairly’ than a new court-
martial[.]” United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013)
(quoting Jackson v. Taylor, 353 U.S. 569, 580 (1957)). In such cases, CCA “act
with broad discretion when reassessing sentences . . . .” Id.
    Reassessing a sentence is only appropriate if we are able to reliably
determine that, absent the error, the sentence would have been at least of a
certain magnitude. United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000). A
reassessed sentence must not only “be purged of prejudicial error [but] also
must be ‘appropriate’ for the offense involved.” United States v. Sales, 22 M.J.
305, 308 (C.M.A. 1986).
   We base these determinations on the totality of the circumstances of each
case, guided by the following “illustrative, but not dispositive, points of
analysis”:
   (1) Whether there has been a dramatic change in the penalty
   landscape or exposure;
   (2) Whether sentencing was by members or a military judge alone;
   (3) Whether the nature of the remaining offenses captures the
   gravamen of criminal conduct included within the original offenses
   and whether significant or aggravating circumstances addressed


   2 75 M.J. at 865 (finding that Congress did not intend to punish the electronic
transmission of an indecent photograph or digital image to an adult under Article
120c(c), UCMJ).

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                  United States v. Sarkozy, No. 201600257


   at the court-martial remain admissible and relevant to the
   remaining offenses;
   (4) Whether the remaining offenses are of the type with which
   appellate judges should have the experience and familiarity to
   reliably determine what sentence would have been imposed at
   trial.
Winckelmann, 73 M.J. at 15-16.
   Under all the circumstances presented, we find that we can reassess the
sentence and that it is appropriate for us to do so. First, the penalty
landscape has not changed dramatically. The maximum punishment for
indecent exposure is 12 months’ confinement and a dishonorable discharge.
Setting aside the indecent exposure conviction reduces the appellant’s
maximum punishment from five years and six months to four years and six
months. Second, the appellant elected to be sentenced by a military judge,
and we are more likely to be certain of what sentence the military judge, as
opposed to members, would have imposed. Third, we have extensive
experience and familiarity with the remaining offenses, as none presents a
novel issue in aggravation. Finally, the remaining offenses capture the
gravamen of the criminal conduct at issue, and all of the evidence remains
admissible, as the indecent photograph would remain relevant as evidence in
aggravation to the indecent language convictions.
    Taking these facts as a whole, we can confidently and reliably determine
that, absent the error, the military judge would have sentenced the appellant
to at least confinement for eight months, reduction to pay grade E-1, and a
bad-conduct discharge. We also conclude that the adjudged sentence is an
appropriate punishment for the modified offenses and this offender—thus
satisfying the Sales requirement that the reassessed sentence not only be
purged of error, but appropriate. Sales, 22 M.J. at 308.
                             III. CONCLUSION
    The findings of guilty to Specification 1 of Charge II and the charge are
set aside. The remaining findings and the sentence are affirmed.


                               For the Court



                               R.H. TROIDL
                               Clerk of Court




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