UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
ALDYKIEWICZ, SALUSSOLIA, and WALKER
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Sergeant SHAWN M. ROGERS
United States Army, Appellant

ARMY 20190032

Headquarters, 1st Infantry Division and Fort Riley
Robert Shuck, Military Judge
Lieutenant Colonel Alexander N. Pickands, Acting Staff Judge Advocate

For Appellant: Major Kyle C. Sprague, JA; Captain Alexander N. Hess, JA.

For Appellee: Pursuant to A.C.C.A. Rule 15.4, no response filed.

8 October 2019

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
WALKER, Judge:

A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas of one specification of unlawfully possessing firearms in
violation of 18 U.S.C. §922(g), one specification of obstruction of justice, one
specification of false official statement, one specification of failure to obey a lawful
general regulation, and two specifications of simple assault in violation of Articles
134, 107, 92, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 934, 907,
892, and 928 [UCMJ]. The military judge also convicted appellant pursuant to his
pleas of two “novel” specifications: removing firearms and ammunition from his
residence with the intent to prevent their seizure, which he “knew, persons
authorized to make searches and seizures were about to seize,” and wrongfully
soliciting another soldier “to commit the offense of removal of property in order to
prevent seizure... ,” both charged in violation of Article 134, UCMJ. The
convening authority approved the adjudged sentence of a bad-conduct discharge.
ROGERS—ARMY 20190032
BACKGROUND

In 1999, appellant was convicted of a felony and served three years in prison
for stabbing another individual and cutting off his ear during a fight. Despite his
felony conviction, appellant was able to enlist in 2007 by virtue of a waiver for adult
major misconduct. At all times after his conviction, appellant knew federal law
prohibited him from possessing firearms. In 2017, appellant purchased two firearms
from a private seller. He stored the firearms in the on-post home he shared with his
wife and children at Fort Riley, Kansas. He did not register the firearms with the
Fort Riley Department of Emergency Services, as required by a local post
regulation.

On 10 April 2018, while appellant was in the field, he argued with his wife
via text messages. She threatened to leave him and call the Family Advocacy
Program to report his unregistered firearms. Appellant confided in one of his junior
soldiers that he was a convicted felon and needed to remove illegal firearms from his
on-post residence before they were seized. He told the soldier, “We have to get the
weapons out of the house.” The junior soldier agreed to help appellant, borrowing
another soldier’s car to drive appellant back to his on-post residence.

Appellant went into his home while the junior soldier waited in the car
outside. As appellant argued with his wife, he made his way upstairs and retrieved
his firearms from the master bedroom closet. Appellant’s wife tried to stop him but
he pushed past her and left the house. Appellant’s daughter ran from the house,
crying, and went to a neighbor’s house to dial 911. Appellant threw the firearms
into the borrowed car, jumped in himself, and told the junior soldier to drive. They
drove to the junior soldier’s house to store the weapons.

LAW AND DISCUSSION
A. Specifications that Failed to State an Offense

We conclude the military judge abused his discretion by accepting appellant’s
plea of guilty to the two “novel” Article 134 specifications. We find Specifications
2 and 3 of Charge I failed to state an offense and thus, we provide relief.

A military judge’s acceptance of a guilty plea is reviewed for an abuse of
discretion, whereas questions of law arising from the plea are reviewed de novo.
United States v. Murphy, 74 M.J. 302, 305 (C.A.A.F. 2015). Whether a specification
fails to state an offense is a question of law we review de novo. United States v.
Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006). Because appellant failed to challenge
either specification at trial, we review the “novel” specifications for plain error.
United States v. Gleason, 78 M.J. 473, 475 (C.A.A.F. 2019).
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Our superior court “has held that the government may not charge a ‘novel’
offense if the offense is otherwise listed as an Article 134, UCMS offense. In other
words, if an offense is ‘already listed inside [Article 134’s] framework,’ it may not
be charged as a ‘novel’ general disorder offense.” Jd. (quoting United States v.
Guardado, 77 M.J. 90, 95 (C.A.A.F. 2017).

The government referred two “novel” Article 134 specifications! against
appellant:

Charge I, Specification 2: In that [appellant], did, at or
near Fort Riley, Kansas, on or about 10 April 2018, with
intent to prevent their seizure, remove firearms and
ammunition from his residence at [Fort Riley, Kansas],
property which, as the accused then knew, persons
authorized to make searches and seizures were about to
seize, such conduct being to the prejudice of good order
and discipline in the armed forces and of a nature to bring
discredit upon the armed forces.

Charge I, Specification 3: In that [appellant], did, at or
near Fort Riley, Kansas, on or about 10 April 2018,
wrongfully solicit Specialist (E-4) [BN] to commit the
offense of removal of property in order to prevent seizure,
by stating “we have to the get the weapons out of the
house,” or words to that effect, such conduct being to the
prejudice of good order and discipline in the armed forces
and of a nature to bring discredit upon the armed forces.

In Gleason, the government referred a novel general disorder
Article 134 offense, alleging Staff Sergeant (SSG) Gleason interfered
with his live-in girlfriend’s ability to place an emergency call to the
police. 78 M.J. at 475. Staff Sergeant Gleason had assaulted his
girlfriend and pointed a gun at her moments before he interfered with
her attempt to dial 911. Jd. Our superior court reasoned that under
these circumstances, SSG Gleason’s conduct fell squarely within the
President’s explanation of the obstruction of justice offense. Jd. at 476.
As noted by the court:

 

' We note that both specifications at issue mirror language from the new offense of
“Prevention of authorized seizure of property” under Article 13le, UCMJ, 10 U.S.C.
§ 931le (2019 ed.). This new offense was one of many changes to the UCMJ
implemented by the Military Justice Act of 2016, which became effective on 1
January 2019, subsequent to the charged offenses. Pub. L. No. 114-328 § 5448.
ROGERS—ARMY 20190032

Part IV, para. 96 of the MCM already contains an offense
of obstruction of justice which lists four elements. The
elements of obstruction of justice are:

(1) That the accused wrongfully did a certain act;

(2) That the accused did so in the case of a certain person
against whom the accused had reason to believe there
were or would be criminal proceedings pending;

(3) That the act was done with the intent to influence,
impede, or otherwise obstruct the due administration of
justice; and

(4) That, under the circumstances, the conduct of the
accused was to the prejudice of good order and
discipline in the armed forces of was of a nature to
bring discretion upon the armed forces.

78 M.J. at 475 (citing MCM, pt. IV, para. 96.b.(1)-(4)).

Considering the circumstances of appellant’s removal of firearms from his
home, we find this offense clearly falls under obstruction of justice, which the
President has already listed under Article 134.7 Likewise, appellant’s solicitation of
his junior soldier should have been charged as soliciting the junior soldier to commit
obstruction, rather than soliciting the junior soldier to commit a novel offense. In
light of Gleason, we hold the “novel” offenses arising from appellant’s removal of
firearms from his home and solicitation of another soldier to help him remove the
firearms “were both barred by MCM pt. IV, para. 60.c.(6)(c) and, therefore, both
failed to state an offense under the UCMJ.” Jd. at 476. Accordingly, the military
judge’s acceptance of appellant’s pleas of guilty to the novel specifications
constitutes plain error.

 

* Had appellant committed this offense after 1 January 2019, it would properly be
charged under Article 13le, UCMJ (2019 ed.). The elements the military judge
defined during appellant’s guilty plea were, in fact, the three elements of Article
131e plus the terminal element from Article 134.
ROGERS—ARMY 20190032
B. Sentence Reassessment

In light of our determination that the military judge erred in accepting
appellant’s pleas to Specification 2 and 3 of Charge I, we now turn to appellant’s
sentence. We are able to reassess the sentence and do so after consideration of the
entire record and in accordance with the principles articulated by our superior court
in United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986) and United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013).

In evaluating the Winckelmann factors, we find the change in the penalty
landscape is insignificant. At trial, all parties agreed the maximum possible
sentence to confinement was 24 years and 6 months, apparently in accord that the
two novel specifications were each punishable by a maximum confinement time of
one year. Without the set-aside specifications, the potential maximum sentence to
confinement remains 22 years and 6 months, far greater than the sentence
the military judge imposed, which did not include any confinement.

Second, we note appellant elected to be tried by a military judge alone. We
are confident the factfinder would have sentenced appellant to a bad-conduct
discharge, even if he had acquitted appellant of the set-aside specifications. Most
importantly, we find the remaining offenses capture the gravamen of appellant's
criminal conduct. Based on our experience as judges on this court, we are familiar
with the remaining offenses so that we may reliably determine what sentence would
have been imposed at trial. Having conducted this reassessment, we AFFIRM
appellant’s sentence of a bad-conduct discharge.

CONCLUSION

The findings of guilty of Specifications 2 and 3 of Charge I are SET ASIDE and
those specifications are dismissed. The remaining findings of guilty are
AFFIRMED. The sentence is AFFIRMED. All rights, privileges, and property, of
which appellant has been deprived by virtue of that portion of the findings set aside
by this decision are ordered restored.

Senior Judge ALDYKIEWICZ and Judge SALUSSOLIA concur.

FOR THE COURT:

MALCOLM H. SQUIRES, A

Clerk of Court
