             U NITED S TATES AIR F ORCE
            C OURT OF C RIMINAL APPEALS
                        ________________________

                            No. ACM S32368
                        ________________________

                           UNITED STATES
                               Appellee
                                    v.
                        Chad M. WILLIAMS
          Technical Sergeant (E-6), U.S. Air Force, Appellant
                        ________________________

       Appeal from the United States Air Force Trial Judiciary
                          Decided 11 May 2017
                        ________________________

Military Judge: Joseph S. Imburgia.
Approved sentence: Confinement for 12 months, forfeiture of $1,031.00
pay per month for 12 months, reduction to E-1, and a reprimand. Sen-
tence adjudged 5 November 2015 by SpCM convened at Travis Air
Force Base, California.
For Appellant: Lieutenant Colonel Jennifer J. Raab, USAF.
For Appellee: Major Meredith L. Steer, USAF; Captain Matthew L.
Tusing, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military
Judges.
Senior Judge MAYBERRY delivered the opinion of the court, in which
Senior Judge JOHNSON and Judge SPERANZA joined.
                        ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                        ________________________

MAYBERRY, Senior Judge:
   A military judge found Appellant guilty in accordance with his pleas of
wrongful use of methamphetamine on divers occasions in violation of Article
                     United States v. Williams, No. ACM S32368


112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. Officer
members sentenced Appellant to confinement for 12 months, forfeiture of
$1,031.00 pay per month for 12 months, reduction to E-1, and a reprimand.
The convening authority (CA) approved the sentence as adjudged.
   Appellant asserts three assignments of error: (1) trial counsel made an
improper argument during presentencing when he requested 12 months of
confinement for the sole purpose of rehabilitation; (2) Appellant is entitled to
new post-trial processing because the addendum to the staff judge advocate’s
recommendation (SJAR) failed to address raised legal errors; and (3) the sen-
tence is inappropriately severe. We find no prejudicial error and affirm.

                                   I. BACKGROUND
    During the Care 1 inquiry, Appellant, who had been on active duty for
nearly 17 years at the time of trial, testified that after struggling with a
methamphetamine addiction for months, he decided to use methampheta-
mine the weekend before 8 July 2015. He requested methamphetamine from
a person he knew could provide it, he received it in an edible form, and he
swallowed it at his off-base residence when he was alone. He experienced the
symptoms and sensations he expected to feel. On 8 and 10 July 2015, he re-
ceived notification of random urinalysis testing. Even though he had just
been tested, Appellant used methamphetamine again. Both urinalysis results
were positive for methamphetamine. Appellant was required to provide an-
other sample after each positive result was received, and he stated he knew
he was going to fail each subsequent test because he had used methamphet-
amine prior to each of the sample collections on 27 July and 30 July. Appel-
lant testified that he believed the four positive urinalyses in July were accu-
rate and they reflected “four separate uses of methamphetamine.”
   In the sentencing hearing, the Prosecution played the audio recording of
the Care inquiry for the court members and then called Appellant’s com-
mander, who testified that he had known Appellant for a little over a year
and Appellant had very low rehabilitative potential. Defense counsel suc-
ceeded in keeping out the fact that Appellant had previously been tried and
acquitted for methamphetamine use as part of the foundation for the com-
mander’s opinion testimony. During Appellant’s unsworn statement, he re-
vealed that in the past year he discovered he was unknowingly using meth-
amphetamine through weightlifting supplements. He stated he had struggled
to make it through the day, both mentally and physically, without the chemi-

1   United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).




                                            2
                 United States v. Williams, No. ACM S32368


cal. He added that when he was found not guilty at a court-martial “right
here in this same courtroom, I was given a second chance at my career and
my life, and I was completely ignorant to the fact of how powerful this drug
actually is.” He acknowledged that this time, “I used on purpose . . . despite
the consequences I [found] myself using. I’m not allowing this to happen, be-
cause in order for me to allow something to happen would be to say that I
have some sort of control over it.” Appellant asked the members for the op-
portunity to be seen at the Veterans Administration clinics. He said that he
could not do this “with the bad-conduct discharge.” He concluded his unsworn
statement with “[t]ake my rank. Continue to confine me on base or send me
to jail, but please, don’t give me a bad-conduct discharge . . . .”
    After this unsworn statement, the military judge held an Article 39(a)
session and reopened the Care inquiry to ensure Appellant’s uses were, in his
mind, knowing and conscious. Appellant testified that “The feeling of lack of
control. I mean like I know consciously I was doing it, but it just—it’s the
feeling of not having any conscious decision in it, the addiction part of it,
which I understand is not excusable.” The military judge confirmed his find-
ing that Appellant used methamphetamine and he knew in fact he was allow-
ing it to happen, “even though [he] might say [he] had an addiction.”
    The Prosecution re-called the commander in rebuttal to talk about the
treatment options that had been provided to Appellant after the four positive
urinalyses in July. Trial counsel’s sentencing argument emphasized the pow-
erful nature of methamphetamine and the fact that Appellant used metham-
phetamine four times in the span of one month even after being tested. He
advocated for the maximum sentence of 12 months of confinement, reduction
to the lowest grade, maximum forfeitures, and a bad-conduct discharge.
While defense counsel did object to a portion of trial counsel’s argument, the
objection only focused on a reference to sending Appellant to Air Force Alco-
hol and Drug Abuse Prevention and Treatment (ADAPT). In his clemency
submission, Appellant raised for the first time the idea that trial counsel’s
argument improperly requested confinement only for rehabilitative purposes.

                               II. DISCUSSION
A. Improper Argument
    Improper argument is a question of law we review de novo. United States
v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017); United States v. Marsh, 70 M.J. 101,
104 (C.A.A.F. 2011). Because defense counsel did not object to this aspect of
trial counsel’s sentencing argument, we review Appellant’s claim for plain
error. United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007). To prevail,
an appellant must prove that “(1) there was an error; (2) it was plain or obvi-
ous; and (3) the error materially prejudiced a substantial right.” Id. (quoting

                                      3
                 United States v. Williams, No. ACM S32368


United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). Where improper argu-
ment occurs during the sentencing portion of trial, we determine whether we
can be “confident that [the appellant] was sentenced on the basis of the evi-
dence alone.” United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013)
(brackets in original) (internal quotation marks omitted).
    Trial counsel argued that the maximum amount of confinement was ap-
propriate to separate Appellant from the drugs to which he is addicted. De-
fense counsel did not object. Appellant asserts that trial counsel made an im-
proper argument in sentencing by recommending the maximum confinement
sentence for purposes of rehabilitation. Appellant relies on United States v.
Holmes, 61 M.J. 148, 149 (C.A.A.F. 2005) (summary disposition) and Tapia v.
United States, 564 U.S. 319, 334–35 (2011) to support his position. In Holmes,
the United States Court of Appeals for the Armed Forces (CAAF) held that it
is prejudicial for a military judge to instruct court members that confinement
facilities are corrective rather than punitive. 61 M.J. at 149. In Tapia, the
Supreme Court held that a sentencing court cannot impose or lengthen a
prison term in order to foster a defendant’s rehabilitation. 564 U.S. at 334–
35. We find these cases inapposite to the facts before us.
    Here, trial counsel recommended the maximum confinement time was
warranted to separate Appellant from drugs. While Appellant characterizes
the basis of this argument as rehabilitative, we disagree. The military judge
instructed the members that argument by counsel is not to be considered as
the recommendation or opinion of anyone other than the counsel making it.
Unlike Holmes, the instructions given by the military judge did not charac-
terize confinement as corrective. The military judge correctly instructed on
the five principles of sentencing: rehabilitation, punishment, protection of so-
ciety, preservation of good order and discipline, and deterrence. Moreover,
there was no evidence offered regarding the availability of rehabilitation op-
portunities at military confinement facilities. There is no evidence that the
sentence imposed by the members was based on the need for Appellant to
stay in jail to be afforded drug rehabilitation opportunities. Cf. Tapia, 564
U.S. at 334–35.
    Trial counsel explicitly stated that confinement is not the only means to
help a member who is addicted, but that “the other ways did not work,” ac-
knowledging Appellant had already been referred to ADAPT, received inpa-
tient treatment, and was restricted to the base—all of which are non-
punitive. It was trial defense counsel who suggested rehabilitation should be
the primary focus of the sentence. Trial counsel did not specifically argue for
confinement in order to foster Appellant’s drug rehabilitation or rehabilita-
tion in general. Trial counsel’s argument recommended the maximum pun-
ishment across the board, not just for confinement. The requested maximum


                                       4
                 United States v. Williams, No. ACM S32368


punishment was designed to eliminate Appellant’s autonomy—removing his
ability to decide what was appropriate—and punish him for his repeated
drug use.
    After carefully analyzing the evidence and trial counsel’s sentencing ar-
gument, we do not find error. Assuming, arguendo, there was error, and it
was plain or obvious, it did not materially prejudice a substantial right of
Appellant. We are confident Appellant was sentenced based on the evidence
alone. Halpin, 71 M.J. at 480. Here, while Appellant’s counsel argued no one
did anything to help Appellant overcome his addiction after his first court-
martial, there is nothing in the record indicating Appellant ever disclosed his
methamphetamine addiction until after the positive urinalyses some six
months later. In his verbal and written unsworn statements, Appellant spe-
cifically said that he did not want to tell anyone “because he didn’t think it
would have a positive impact on his career.” Instead, he chose to “self-
regulate” his self-diagnosed addiction by personally obtaining and using
methamphetamine. As will be discussed further in this opinion, Appellant
requested that the members spare him a bad-conduct discharge and they did
so. It is, therefore, reasonable to conclude the members elected to lengthen
the duration of confinement in exchange for not imposing the punitive dis-
charge. Appellant had no right to a particular sentence and trial counsel’s
argument did not materially prejudice Appellant.
B. Post-Trial Processing
    The proper completion of post-trial processing is a question of law which
this court reviews de novo. United States v. LeBlanc, 74 M.J. 650, 660 (A.F.
Ct. Crim. App. 2015) (citing United States v. Sheffield, 60 M.J. 591, 593 (A.F.
Ct. Crim. App. 2004)). If the Defense does not make a timely comment on an
error in the SJAR, the error is forfeited “unless it is prejudicial under a plain
error analysis.” United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005) (cit-
ing Rule for Court-Martial (R.C.M.) 1106(f); Kho, 54 M.J. at 65). Under a
plain error analysis, Appellant must persuade this court that: “(1) there was
an error; (2) it was plain or obvious; and (3) the error materially prejudiced a
substantial right.” Id. (quoting Kho, 54 M.J. at 65).
    To meet the third prong of the plain error test in the context of a post-trial
recommendation error, whether that error is preserved or is otherwise con-
sidered under the plain error doctrine, Appellant must make “some colorable
showing of possible prejudice.” Id. at 436–37 (quoting Kho, 54 M.J. at 65).
“The low threshold for material prejudice with respect to an erroneous post-
trial recommendation . . . is designed to avoid undue speculation as to how
certain information might impact the convening authority’s exercise of such
broad discretion.” Id. at 437. While the threshold is low, there must be some
colorable showing of possible prejudice. Id.

                                        5
                 United States v. Williams, No. ACM S32368


    In accordance with R.C.M. 1107(b)(3)(A), before taking action the CA
shall consider the result of trial, the SJAR, and any matters submitted by
Appellant under R.C.M. 1105 or 1106(f). Appellant may submit to the CA any
matters that may reasonably tend to affect the CA’s decision, portions or
summaries of the record and copies of documentary evidence offered or intro-
duced at trial, matters in mitigation which were not available for considera-
tion at the court-martial, and clemency recommendations by any member,
the military judge, or any other person. R.C.M. 1105(b).
    While a staff judge advocate (SJA) is not independently required to exam-
ine the record for legal errors, under R.C.M. 1106(d)(4) when the SJA pre-
pares the recommendation and an allegation of legal error is raised in sub-
mitted matters, “the [SJA] shall state whether, in the SJA’s opinion, correc-
tive action on the findings or sentence should be taken when an allegation of
legal error is raised in matters submitted under R.C.M. 1105 . . . .” The re-
sponse may consist of a statement of agreement or disagreement with the
matter raised by the accused. An analysis or rationale for the SJA’s state-
ment, if any, concerning legal error is not required. R.C.M. 1106(d)(4).
   In light of the CA’s responsibilities, erroneous, inadequate, or misleading
SJARs may prejudice substantial rights of an Appellant. United States v.
Hughes, 48 M.J. 700, 719 (A.F. Ct. Crim. App. 1998) (citing United States v.
Leininger, 25 M.J. 746, 748 (A.C.M.R. 1987)). “If the error raises a fair risk of
prejudice, the convening authority’s action must be invalidated.” Id. Before
taking action on the results of a special court-martial, the CA shall consider
the SJA’s recommendation prepared in accordance with R.C.M. 1106(d)(4).
United States v. Hull, 70 M.J. 145, 151 (C.A.A.F. 2011).
    Appellant asserts the SJA did not address the “legal error” of the sentenc-
ing argument or provide guidance to the CA on how to consider the request in
the addendum to the SJAR, dated 21 December 2015. The addendum includ-
ed the following language: “I also reviewed the attached clemency matters
submitted by the defense. My earlier recommendation remains unchanged.
As such, I recommend that you approve the findings and sentence as ad-
judged.” Id. On 22 December 2015, the CA approved the sentence.
    In United States v. Catrett, 55 M.J. 400, 408 (C.A.A.F. 2001), the CAAF
found that the following statements in an addendum satisfied the minimal
response requirement of R.C.M. 1106(d)(4): “The matters submitted by the
defense are attached to this Addendum and are hereby incorporated by refer-
ence. Nothing contained in the defense submissions warrants further modifi-
cation of the opinions and recommendations expressed in the Staff Judge Ad-
vocate’s Recommendations.” (Emphasis in original). In this case, the adden-
dum informed the CA of the fact that he had to consider the matters submit-
ted and that the SJA disagreed with the matters raised. Like Catrett, the

                                       6
                 United States v. Williams, No. ACM S32368


content of the SJAR addendum satisfied the minimal requirement of R.C.M.
1106(d)(4). No analysis or rationale is required to be included.
    Second, having found the purported legal error without merit, we find no
colorable showing of possible prejudice for the SJA’s failure to specifically ad-
dress it. United States v. Hamilton, 47 M.J. 32 (C.A.A.F. 1997); United States
v. Welker, 44 M.J. 85 (C.A.A.F. 1996); United States v. Hill, 27 M.J. 293, 297
(C.M.A. 1988) (“We are not required to give an accused the benefit of any pos-
sibility that the staff judge advocate might mistakenly have attributed merit
to an allegation of legal error that had no merit and that, in turn, the conven-
ing authority might have taken action favorable to the accused.”)
C. Sentence Appropriateness
    Appellant argues that his sentence was inappropriately severe. We disa-
gree. This court reviews sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). “We assess sentence appropriateness by
considering the particular appellant, the nature and seriousness of the of-
fenses, the appellant’s record of service, and all matters contained in the rec-
ord of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App.
2009). Although we are accorded great discretion in determining whether a
particular sentence is appropriate, we are not authorized to engage in exer-
cises of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
    We have given individualized consideration to Appellant, the nature and
seriousness of the offenses, Appellant’s record of service, and all other mat-
ters contained in the record of trial. The approved sentence of 12 months of
confinement, forfeiture of $1,031.00 per month for 12 months, reduction to E-
1, and a reprimand was within the discretion of the members. Appellant
pleaded guilty after testing positive on four Air Force urinalysis tests. Appel-
lant admitted to wrongfully using methamphetamine on at least four occa-
sions. Appellant begged the members not to adjudge a bad-conduct discharge
and expressly requested they send him to jail instead. We recognize that
when Appellant requested confinement in lieu of a punitive discharge, he did
not express a particular length of confinement and may not have expected 12
months of confinement to be adjudged. The maximum allowable punishment
at a special court-martial allowed for both 12 months of confinement and a
bad-conduct discharge. The sentence was not inappropriately severe based on
the facts and circumstances of this particular case.

                               III. CONCLUSION
   The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.



                                       7
                United States v. Williams, No. ACM S32368


Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and the sentence are AFFIRMED.


                FOR THE COURT



                KURT J. BRUBAKER
                Clerk of the Court




                                     8
