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

                                 Before
              K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         AARON C. WILSON
                  CORPORAL (E-4), U.S. MARINE CORPS

                           NMCCA 201500017
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 26 September 2014.
Military Judge: LtCol L.J. Francis, USMC.
Convening Authority: Commanding Officer, Marine Corps Air
Station Yuma, Yuma, AZ.
Staff Judge Advocate's Recommendation: Maj G.T. Funk, USMC.
For Appellant: Maj Jeffrey S. Stephens, USMCR.
For Appellee: CDR C. Eric Roper, JAGC, USN; LT Ann E.
Dingle, JAGC, USN.

                              14 July 2015

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                     OPINION OF THE COURT
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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, found
the appellant guilty, pursuant to his pleas, of one
specification each of conspiracy, making a false official
statement, and destroying non-military property, and two
specifications of larceny, in violation of Articles 81, 107,
109, and 121, Uniform Code of Military Justice, 10 U.S.C.
§§ 881, 907, 909, and 921. The adjudged sentence included two
years’ confinement, reduction to pay grade E-1, and a bad-
conduct discharge. The convening authority (CA) approved the
sentence as adjudged. However, pursuant to a pretrial
agreement, the CA suspended all confinement in excess of 365
days.

     On appeal, the appellant alleges: (1) that his sentence is
inappropriately severe and, (2) that the staff judge advocate’s
recommendation (SJAR) and CA’s action erroneously omitted
reference to two companion cases. After careful examination of
the record of trial and the pleadings of the parties, we
disagree. The findings and sentence are correct in law and
fact, and we find no error materially prejudicial to the
substantial rights of the appellant. Arts. 59(a) and 66(c),
UCMJ.

                           Background

     A motorcyclist, the appellant began riding with the Real
Riders Motorcycle Club near Camp Pendleton, California, in May
2010 and joined the club in May of 2011 after returning from a
six-month deployment to Afghanistan. Sergeant (Sgt) Jeremiah
Ledesma was also a member of the Real Riders, and Lance Corporal
(LCpl) Jovell Nieves joined the club in early 2012.

     In July 2012, the appellant learned from Sgt Ledesma and
LCpl Nieves that they had stolen a blue 2007 Yamaha R6
motorcycle from a parking lot aboard Camp Pendleton to supply
parts for a damaged Yamaha R6 Sgt Ledesma had recently bought.
The appellant failed to report Sgt Ledesma’s and LCpl Nieves’
theft and began to help plan the theft of a second motorcycle.
LCpl Nieves solicited the appellant’s and Sgt Ledesma’s
assistance in locating and stealing a motorcycle as a source of
parts for his new motorcycle. After LCpl Nieves found a
motorcycle similar to his own parked near his barracks, the
appellant, Sgt Ledesma, and LCpl Nieves gathered and caravanned
to the barracks parking lot after dark. The appellant and LCpl
Nieves lifted the motorcycle from its parking spot into the bed
of Sgt Ledesma’s pickup truck and strapped it down. That night,
the appellant and LCpl Nieves began removing parts from the
stolen motorcycle in Sgt Ledesma’s garage. The next day, the
appellant returned to Sgt Ledesma’s garage and coached LCpl
Nieves as to how to remove parts and in what order, taking the
stolen motorcycle down to its frame. Then the appellant
accompanied LCpl Nieves to a motorcycle retail and repair shop
to sell unwanted parts.

                                2
    In August, the appellant, Sgt Ledesma, and LCpl Nieves
surveyed the parking lots aboard Camp Pendleton, looking for
motorcycles similar to their own. The appellant approached
covered motorcycles on foot and raised the covers to determine
their models. On 13 August 2012, LCpl Nieves texted the
appellant, inquiring as to the location of a Yamaha R6 with GYTR 1
they had spotted. The appellant responded, “It was behind the
gas station. Mainside I wanna say it was black.” 2 Two nights
later, Sgt Ledesma and LCpl Nieves stole that motorcycle from a
barracks parking lot and took it to a storage unit they rented
in town. The appellant was not with Sgt Ledesma and LCpl Nieves
for the theft, and he later chided them for stealing the
motorcycle without him. 3

    The motorcycle Sgt Ledesma and LCpl Nieves stole on 15
August 2012 was equipped with a LoJack anti-theft device, and
Sgt Ledesma and LCpl Nieves were soon arrested. The appellant
transferred to Marine Corps Air Station (MCAS) Yuma, Arizona on
14 September 2012, but he was called back to the Camp Pendleton
Criminal Investigation Division on 1 October 2012 for an
interview. The appellant went into great detail, inculpating
his two co-conspirators while attempting to portray himself as a
disapproving observer. The Marine Corps criminal investigator
asked the appellant, “[a]re you involved in the theft of
motorcycles . . . ?” The appellant replied, “[n]o.” 4 The
appellant initialed next to his false response to Agent Hansen’s
question and swore to the truthfulness of his statement.

    There was no evidence that the appellant personally profited
from the theft of the motorcycles. He received neither
motorcycle parts nor cash from the sale of motorcycle parts.

                            Sentence Severity

     The appellant argues that his sentence to a bad-conduct
discharge and confinement for two years, even with the second
year of confinement suspended per the pretrial agreement, was
inappropriately severe given his limited role in the conspiracy

1
  GYTR is an aftermarket exhaust system for motorcycles.   See Prosecution
Exhibit 10 at 4.
2
    PE 12 at 10.
3
  Hours after the 15 August 2012 theft, appellant learned about it from LCpl
Nieves. The appellant reacted with the following text to LCpl Nieves: “Y’all
. . . . went shoppin without me.” Id. at 12.
4
    Id. at 7.
                                      3
to steal, dismantle, and sell motorcycles and his eight years of
service in the Marine Corps. We disagree.

     In accordance with Article 66(c), UCMJ, this court “may
affirm only such findings of guilty and the sentence or such
part or amount of the sentence, as it finds correct in law and
fact and determines, on the basis of the entire record, should
be approved.” “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). That analysis 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) (internal quotation marks and citation omitted).
Factors include “the circumstances surrounding the offense, [the
accused's] acceptance or lack of acceptance of responsibility
for his offense, and his prior record.” United States v.
Aurich, 31 M.J. 95, 97 n.* (C.M.A. 1990).

     We have reviewed the entire record, and we are mindful that
the appellant was a successful Marine for six years, including
two deployments to Afghanistan, before the events at issue. We
also considered the favorable testimony of his supervisor at the
barracks at MCAS Yuma. Although he initially lied to
investigators about his lack of involvement in motorcycle theft,
the appellant eventually took responsibility for his actions
before the military judge and the CA.

     The appellant’s failure to reap any financial benefit from
this conspiracy does little to mitigate his deliberate and
sustained misconduct over the course of at least a month. When
the appellant learned that two members of his motorcycle club
had stolen a fellow Marine’s motorcycle, he reacted without
concern or sympathy for that first victim. Instead, the
appellant used his Marine Corps leadership experience to mentor
a junior Marine, LCpl Nieves, in the identification, theft,
dismantling, poaching, and sale of parts from other Marines’
motorcycles. After actively participating in the theft of a
second motorcycle, the appellant expressed disappointment when
he realized he had missed the theft of the third motorcycle.

    The appellant’s course of misconduct continued far too long
to be characterized as a momentary lapse in judgment.
Furthermore, while awaiting the consequences of his misconduct
in Camp Pendleton, the appellant received nonjudicial punishment


                                4
for driving aboard MCAS Yuma with a blood alcohol content of
.19.

     Each of the five specifications to which the appellant
pleaded guilty carried a maximum sentence of five years. The
appellant is benefiting from a pretrial agreement and serving
one year of confinement for all five of those specifications.
Considering the facts of the case and the appellant’s record, as
well as the mitigating factors presented, the sentence is not
inappropriate.

                 Failure to Note Companion Cases

     The appellant alleges CA error in that the SJAR and CA’s
action both fail to mention two companion cases of the
appellant’s co-conspirators.

     Section 0151a(5) of the Manual of the Judge Advocate
General, Judge Advocate General Instruction 5800.7F (26 June
2012), directs CAs who order separate trials of companion cases
to indicate such an order in the action on the record in each
companion case. This court has interpreted the requirement to
apply only to courts-martial convened by the same CA. United
States v. Ortiz, 52 M.J. 739, 741 (N.M.Ct.Crim.App. 2000)
(citing United States v. Swan, 43 M.J. 788, 790
(N.M.Ct.Crim.App. 1995)). The burden to demonstrate that the
same CA convened the courts-martial that tried potential
companion cases lies with the appellant. Id.

     The commanding officer of MCAS Yuma was the CA in this
case, as appellant was assigned to MCAS Yuma at the time of
preferral of charges. The conduct in this case did not occur at
MCAS Yuma, and neither co-conspirator was assigned to MCAS Yuma.
Absent evidence from the appellant that the commanding officer
of MCAS Yuma convened the courts-martial against Sgt Ledesma and
LCpl Nieves, we reject this second assignment of error.




                                5
                           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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