                       UNITED STATES, Appellee

                                    v.

                       Scott A. BUBER, Sergeant
                         U.S. Army, Appellant

                              No. 05-0262

                       Crim. App. No. 20000777

       United States Court of Appeals for the Armed Forces

                       Argued December 6, 2005

                        Decided March 16, 2006

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and CRAWFORD, EFFRON, and BAKER, JJ., joined.

                                 Counsel

For Appellant: Captain Eric D. Noble (argued); Lieutenant
Colonel Kirsten V. C. Brunson and Major Billy B. Ruhling II (on
brief); Colonel Mark Cremin, Lieutenant Colonel Mark Tellitocci,
and Major Allyson G. Lambert.

For Appellee: Captain Michael D. Wallace (argued); Colonel
Steven T. Salata, Lieutenant Colonel Theresa A. Gallagher, and
Major Natalie A. Kolb (on brief); Lieutenant Colonel Mark L.
Johnson.

Military Judges:    Robert F. Holland and Steven V. Saynisch


       This opinion is subject to revision before final publication.
United States v. Buber, No. 05-0262/AR


       Judge ERDMANN delivered the opinion of the court.

       Sergeant Scott A. Buber pled not guilty to charges of false

official statement, unpremeditated murder, and assault upon a

child under the age of sixteen in violation of Articles 107,

118, and 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§§ 907, 918, 928 (2000), respectively.    He was convicted by a

panel of enlisted and officer members and sentenced to a

dishonorable discharge and thirty-three years of confinement.

The convening authority approved the sentence.    The United

States Army Court of Criminal Appeals found the evidence

factually insufficient to support the findings of murder and

assault upon a child, set aside those findings and dismissed the

charges, and modified the finding of guilty to false official

statement.    The lower court reassessed the sentence and affirmed

only so much of the sentence as provided for a bad-conduct

discharge and confinement for two years.    United States v.

Buber, No. ARMY 20000777 (A. Ct. Crim. App. Jan. 12, 2005).

       We granted Buber’s Petition for Grant of Review on a single

issue concerning whether the Army court properly reassessed the

sentence rather than directing a rehearing on the sentence.1



1
    We granted review on the following issue:

             WHETHER THE ARMY COURT OF CRIMINAL APPEALS
             ERRED IN REASSESSING APPELLANT’S SENTENCE TO
             TWO YEARS CONFINEMENT AND A BAD-CONDUCT

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United States v. Buber, No. 05-0262/AR

      A Court of Criminal Appeals can reassess a sentence to cure

the effect of prejudicial error where that court can be

confident “that, absent any error, the sentence adjudged would

have been of at least a certain severity.”   United States v.

Sales, 22 M.J. 305, 308 (C.M.A. 1986).   Where the Court of

Criminal Appeals can be so convinced, then that court may

reassess and affirm only a sentence of that magnitude or less.

Id.   Buber claims that the Army court abused its discretion in

deciding to reassess his sentence rather than order a rehearing

because a charge alleging a single, exculpatory false official

statement may not have even been referred to a courts-martial

much less result in a sentence to a bad-conduct discharge and

two years in jail.   We find that the Army court’s decision to

reassess this sentence was an abuse of discretion.

                            BACKGROUND

      After trial on the merits, Buber stood convicted of:

killing his four-year-old stepson by shaking and striking the

child; separately assaulting the child by striking the child “in

the head and face with his hands and/or an object”; and making a

false official statement about the circumstances of the child’s

death.   The members were properly instructed that the maximum

sentence for these offenses included a dishonorable discharge,


           DISCHARGE FOR A SINGLE SPECIFICATION OF A
           FALSE OFFICIAL STATEMENT TO AN INVESTIGATOR.



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United States v. Buber, No. 05-0262/AR

confinement for life with or without eligibility for parole,

forfeiture of all pay and allowances, and reduction to the

lowest enlisted grade.    The members returned a sentence to a

dishonorable discharge and thirty-three years of confinement.

     Finding that the defense theory of accidental injury could

not be discounted beyond a reasonable doubt, the Army Court of

Criminal Appeals set aside the findings of murder and assault

and dismissed those charges.    Buber, No. ARMY 20000777, slip op.

at 2, 11.   Additionally, the court found that a portion of the

specification alleging false official statement was unsupported

by factually sufficient evidence and that the specification was

“duplicitous, in that the statements to SA [Special Agent]

Siebert and Dr. Lyngholm were given at different times and

places.”    Id. at 10.   As a result, the Army court set aside the

factually insufficient and duplicitous portions of the false

official statement specification, dismissed them, and affirmed

the remaining portions of the finding of guilt.    Thus,

reassessment of the sentence was based only on the following

specification under Article 107, UCMJ:

            In that Sergeant Scott A. Buber . . . did .
            . . with intent to deceive, utter a
            statement to Special Agent Nicolas Siebert
            to wit: Ja’lon Johnson became unresponsive
            after falling asleep on 29 November 1999 and
            sustained no injuries on 29 November, or
            words to that effect, which statement was
            totally false in that Ja’lon Johnson became


United States v. Buber, 61 M.J. 473 (C.A.A.F. 2005).

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United States v. Buber, No. 05-0262/AR

             unresponsive after sustaining injuries on 29
             November 1999 when he was awake, and was
             then known by the said SGT Scott A Buber to
             be so false.

See id. at 10-11.

     In discussing its decision to reassess the sentence rather

than order a sentence rehearing, the Army court cited the

applicable law and concluded:

             Appellant’s duty performance was described
             as being in the top five percent of
             noncommissioned officers. He was dependable
             and demonstrated initiative, tenacity, and
             creativity. Given the serious circumstances
             of appellant’s lie, our collective
             experience, and the principles of Sales, we
             conclude that we can reliably determine what
             sentence would have been imposed if these
             errors had not occurred.

Id. at 10.    Having determined that it could reassess the

sentence, the Army court affirmed only so much of the sentence

as provided for a bad-conduct discharge and confinement for two

years.2




2
  Buber petitioned this court for extraordinary relief in the
nature of a writ of habeas corpus on March 9, 2005, requesting
his immediate release from confinement. Buber claimed that he
was entitled to release in that he had already served
confinement in excess of that ultimately affirmed by the Army
court. On March 14, 2005, we ordered the Government to show
cause why the requested relief should not be granted. The
Government answered the order to show cause on March 18, 2005.
On March 30, 2005, we granted Buber’s petition for extraordinary
relief in the nature of a writ of habeas corpus and ordered his
immediate release from confinement. Buber v. Harrison, 61 M.J.
70 (C.A.A.F. 2005).



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United States v. Buber, No. 05-0262/AR

                            DISCUSSION

     Buber claims that the sentencing landscape in this case

changed so dramatically that even the experienced judges of the

Army court could not make “a reliable determination as to the

minimum punishment a panel would have imposed had the remaining

charge and specification stood alone.”      Buber suggests further

that a single specification alleging a false official statement

might not even be tried by court-martial.      He claims that given

the mitigating evidence of good duty performance and soldierly

character, this reassessment was an abuse of discretion and

miscarriage of justice.

     The Government responds that there was no abuse of

discretion.   Noting that the false official statement related to

a child’s death and could have involved serious consequences,

the Government urges that the Army court could “reliably

determine the sentence that would have been imposed absent the

alleged error in this case.”   We will overturn a Court of

Criminal Appeals’ reassessment only for obvious miscarriages of

justice or abuses of discretion.       United States v. Doss, 57 M.J.

182, 185 (C.A.A.F. 2002); United States v. Eversole, 53 M.J.

132, 133 (C.A.A.F. 2000); United States v. Harris, 53 M.J. 86,

88 (C.A.A.F. 2000); United States v. Curtis, 52 M.J. 166, 169

(C.A.A.F. 1999).   Buber bears the burden of showing that the

Army court’s reassessment of his sentence was an abuse of



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United States v. Buber, No. 05-0262/AR

discretion.   United States v. Hawes, 51 M.J. 258, 260 (C.A.A.F.

1999).

     In United States v. Sales, this court articulated the

standard to be applied in determining whether a sentence may be

reassessed to cure prejudicial error:

          In connection with reassessment, we have
          emphasized

                that, when a Court of Military Review
                reassesses a sentence because of
                prejudicial error, its task differs
                from that which it performs in the
                ordinary review of a case. Under
                Article 66, Uniform Code of Military
                Justice, 10 U.S.C. § 866, the Court of
                Military Review must assure that the
                sentence adjudged is appropriate for
                the offenses of which the accused has
                been convicted; and, if the sentence is
                excessive, it must reduce the sentence
                to make it appropriate. However, when
                prejudicial error has occurred in a
                trial, not only must the Court of
                Military Review assure that the
                sentence is appropriate in relation to
                the affirmed findings of guilty, but
                also it must assure that the sentence
                is no greater than that which would
                have been imposed if the prejudicial
                error had not been committed. . . .

          United States v. Suzuki, 20 M.J. 248, 249
          (C.M.A. 1985). Thus, if the court can
          determine to its satisfaction that, absent
          any error, the sentence adjudged would have
          been of at least a certain severity, then a
          sentence of that severity or less will be
          free of the prejudicial effects of error;
          and the demands of Article 59(a) will be
          met. Of course, even within this limit, the
          Court of Military Review will determine that
          a sentence it proposes to affirm will be
          “appropriate,” as required by Article 66(c).


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United States v. Buber, No. 05-0262/AR

            In short, a reassessed sentence must be
            purged of prejudicial error and also must be
            “appropriate” for the offense involved.

22 M.J. at 307-08 (footnote omitted).

       To validly reassess a sentence to purge the effect of

error, the court must be able to make a number of

determinations.   The court must be able to discern the extent of

the error’s effect on the sentence.   Hawes, 51 M.J. at 260

(quoting United States v. Reed, 33 M.J. 98, 99 (C.M.A. 1991)).

The reassessment must be based on a conclusion that the sentence

that would have been imposed at trial absent the error “would

have been at least of a certain magnitude.”   Doss, 57 M.J. at

185.   This conclusion about the sentence that would have been

imposed must be made “with confidence.”   United States v.

Taylor, 51 M.J. 390, 391 (C.A.A.F. 1999); see also Eversole, 53

M.J. at 134 (indicating that there must be a “degree of

certainty” in determining what the trial court would have done

absent the error).

       No higher sentence than that which would have been imposed

by the trial forum may be affirmed.   Hawes, 51 M.J. at 260

(quoting United States v. Davis, 48 M.J. 494, 495 (C.A.A.F.

1998)).   A “dramatic change in the penalty landscape” gravitates

away from the ability to reassess.    United States v. Riley, 58

M.J. 305, 312 (C.A.A.F. 2003).   This court will overturn the

lower court’s reassessment of a sentence where we cannot be



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United States v. Buber, No. 05-0262/AR

confident that the Court of Criminal Appeals could “reliably

determine what sentence the members would have imposed.”     Id.;

see United States v. Vasquez, 54 M.J. 303, 306 (C.A.A.F. 2001).

     Although the content of this false statement relates to the

injury and eventual death of a young child, we must bear in mind

that an accused is to be sentenced only for the offenses he has

been found guilty of committing beyond a reasonable doubt.

Buber’s reassessed sentence must be punishment for only the

offense of false official statement as aggravated by facts and

circumstances admissible in aggravation of that offense –-

“circumstances directly relating to or resulting from the

offense[].”   Rule for Courts-Martial (R.C.M.) 1001(b)(4).

     In its opinion, the Army court did not articulate and we

are uncertain what “serious circumstances of appellant’s lie” it

considered in fashioning the reassessed sentence.   Buber, No.

ARMY 20000777, slip op. at 10.   The Army court dismissed that

portion of the specification indicating that the statement was

made to a doctor.   The single statement made to law enforcement

ten days before the child’s death does not necessarily support

any determination that there was a causal connection between the

statement to law enforcement and any medical treatment or the

failure to give any necessary medical treatment.    The child had

been evacuated to Anchorage before SA Seibert became involved

and interviewed Buber in Buber’s home.   Nothing in SA Seibert’s



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United States v. Buber, No. 05-0262/AR

testimony indicates that he passed Buber’s statements on to

medical personnel or that the statement made to Seibert was

relied upon by medical personnel in treating the child.   At a

minimum, it is uncertain what, if any, consequential

relationship exists between the false statement to SA Seibert

and the child’s subsequent death.3

     In addition, the sentencing landscape in this case changed

dramatically as a result of the Army court’s decision.    There

are no longer findings of murdering and assaulting a child.

There is no longer a maximum sentence that includes confinement

for life without eligibility for parole.   Instead, the

sentencing body would now have before it a single false official

statement and a maximum sentence that includes only five years

of confinement.   See Manual for Courts-Martial, United States

pt. IV, para. 31.e. (2005 ed.) (MCM).    In Riley this court

addressed a similar dramatic change in the sentencing landscape

as follows:

          In light of the dramatic change in the
          “penalty landscape” in this case, we do not

3
  This case presents a situation in which the admissible evidence
at sentencing may have significantly changed. Specifically, the
permissible aggravation evidence “directly related” to the false
official statement may not have included all the evidence
presented on the question of homicide. At a rehearing, Buber
would have had the opportunity to litigate the scope of proper
aggravation evidence under R.C.M. 1001(b)(4). Where, as here,
the Court of Criminal Appeals sets aside significant findings of
guilt and reassesses the sentence, the court should provide a
more illuminating explanation of the aggravation evidence it
considered upon reassessment.

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United States v. Buber, No. 05-0262/AR

              believe that an appellate court can reliably
              determine what sentence the members would
              have imposed. The court members considered
              a maximum sentence including life
              imprisonment but imposed a term of 25 years.
              The maximum term of confinement is now three
              years. MCM Part IV, para. 85.e. The
              offense has been reduced from an intentional
              killing to an act of simple negligence
              resulting in death. We conclude that the
              only “fair course of action” is a sentencing
              rehearing.

Riley, 58 M.J. at 312.        Riley also involved the death of a

child.    The offense that remained in Riley, negligent homicide,

directly related to the death of that child.           In Buber’s case,

there is no death-related offense -– a point that makes Buber’s

penalty landscape even more dramatically changed than Riley’s.

        As we did in Riley, we conclude that the only fair course

of action in this case is to order a sentence rehearing.                  With

all due respect to the experience of the judges of the Army

Court    of   Criminal   Appeals,    we    are   not   convinced   that    the

reviewing     court   could   reliably     determine   what   sentence     the

members would have imposed.         Nor are we able to affirm that this

reassessed sentence is no greater than that which would have

been imposed absent the findings that have been set aside.

                                  DECISION

        The decision of the United States Army Court of Criminal

Appeals is affirmed as to findings and set aside as to sentence.

The sentence is set aside.       The record is returned to the Judge

Advocate General of the Army for a rehearing on sentence.


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