                        UNITED STATES, Appellee

                                    v.

            Douglas K. WINCKELMANN, Lieutenant Colonel
                       U.S. Army, Appellant

                              No. 11-0280

                       Crim. App. No. 20070243

       United States Court of Appeals for the Armed Forces

                      Argued September 17, 2013

                      Decided December 18, 2013

BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, J., and EFFRON, S.J., joined. STUCKY and RYAN, JJ.,
each filed separate opinions concurring in the result.

                                 Counsel

For Appellant: Frank J. Spinner, Esq. (argued); Captain John L.
Schriver (on brief); Captain Brian D. Andes and Captain Kristin
McGrory.

For Appellee: Captain Jessica J. Morales (argued); Major
Catherine L. Brantley and Major Robert A. Rodrigues (on brief);
Major Elizabeth A. Claus and Captain Edward J. Whitford.



Military Judge:   David L. Conn

       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Winckelmann, No. 11-0280/AR


       Chief Judge BAKER delivered the opinion of the Court.

       This case is before us following a remand to the lower

court for, among other things, reassessment of the sentence.

The facts upon which Appellant’s convictions rest are detailed

in the lower court’s first opinion in this case as well as our

previous opinion.    United States v. Winckelmann, 70 M.J. 403,

404-06 (C.A.A.F. 2011); United States v. Winckelmann

(Winckelmann I), No. ARMY 20070243, 2010 CCA LEXIS 390, at *4-

*8, 2010 WL 4892816, at *1-*3 (A. Ct. Crim. App. Nov. 30, 2010)

(unpublished).    The current appeal is addressed to the lower

court’s sentence reassessment for Appellant’s remaining

convictions of one specification of attempted enticement of a

minor, two specifications of indecent acts, two specifications

of obstructing justice, all in violation of Article 134, UCMJ,1

and four specifications of conduct unbecoming an officer in

violation of Article 133, UCMJ.2

       This appeal raises two questions.3   First, did the United

States Army Court of Criminal Appeals abuse its discretion by


1
  Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 934 (2012).
2
  United States v. Winckelmann (Winckelmann II), No. Army
20070243, 2012 CCA LEXIS 342, 2012 WL 3860024 (A. Ct. Crim. App.
Aug. 30, 2012) (unpublished); Article 133, UCMJ, 10 U.S.C. § 933
(2012).
3
    The Court granted review of the following issue:


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United States v. Winckelmann, No. 11-0280/AR


treating Appellant’s case on remand as “within the zone of Sales

reassessment,” rather than ordering a rehearing?    United States

v. Moffeit, 63 M.J. 40, 44 (C.A.A.F. 2006) (Baker, J.,

concurring in the result).    Second, to what extent, if at all,

should courts of criminal appeals consider the factors

identified in the concurring opinion in Moffeit when determining

whether to conduct a sentence reassessment or, alternatively,

order a sentence rehearing?

     We conclude that based on the totality of circumstances,

the Court of Criminal Appeals did not abuse its broad discretion

in either deciding, in the first instance, to reassess the

sentence or in arriving at the reassessed sentence in this case.

Further, we hold that where the Court of Criminal Appeals

conducts a reasoned and thorough analysis of the totality of the

circumstances presented, greater deference is warranted on

review before this Court.    However, these factors are

illustrative rather than exhaustive or demonstrative benchmarks.




     WHETHER THE ARMY COURT OF CRIMINAL APPEALS, AFTER
     DISAPPROVING THE FINDINGS OF GUILTY FOR CHARGE IV AND
     ITS SPECIFICATIONS AND AFTER CONSIDERING THIS
     HONORABLE COURT’S DECISION DISMISSING SPECIFICATION 3
     OF CHARGE III, ERRED BY REASSESSING APPELLANT’S
     SENTENCE TO CONFINEMENT, FIRST FROM 31 YEARS TO 20
     YEARS (IN THEIR INITIAL DECISION), AND THEN FROM 20
     YEARS TO 11 YEARS (IN A SUBSEQUENT DECISION), RATHER
     THAN DIRECTING A SENTENCE REHEARING.

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United States v. Winckelmann, No. 11-0280/AR


                           BACKGROUND

     At trial, Appellant pled guilty to two specifications of

indecent acts and two specifications of unbecoming conduct, all

stemming from allegations that Appellant had videotaped himself

engaged in sexual acts with two others.      Contrary to his pleas,

a panel of members convicted him of a variety of other offenses.4

He was sentenced to a dismissal, confinement for thirty-one

years and forfeiture of all pay and allowances.      Winckelmann II,

2012 CCA LEXIS 342, at *2, 2012 WL 3860024, at *1.      During its

initial review of this case, the United States Army Court of

Criminal Appeals set aside one of three findings of guilty to

attempted enticement of a minor and one finding of guilty of

possession of child pornography.       Winckelmann I, 2010 CCA LEXIS

390, at *44, 2010 WL 4892816, at *14.      The court reassessed the


4
  Ultimately, Appellant was found guilty of several
specifications charged under Article 133 and 134, UCMJ.      The
Article 134, UCMJ, offenses were:

     1) One specification of possession of child pornography.
     2) Three specifications of attempting to entice a minor to
        engage in sexual activity.
     3) Two specifications of communicating indecent language.
     4) Two specifications of indecent acts.
     5) Two specifications of obstructing justice.

The Article 133, UCMJ, findings included:

     1) Two specifications of engaging in cybersex with whom
        Appellant believed to be a person under the age of
        sixteen.
     2) Two specifications of possessing videotapes of Appellant
        engaged in sex acts with two others.
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United States v. Winckelmann, No. 11-0280/AR


sentence and reduced the approved confinement of thirty-one

years to twenty years.    Id.

     Appellant filed a timely petition in this Court asserting

that the lower court erred by affirming one of the two remaining

enticement findings.    He also challenged the findings of guilt

as to the Article 134, UCMJ, offenses on the ground that the

specifications failed to allege the terminal elements.    This

Court agreed with Appellant regarding the enticement offense and

dismissed it.   70 M.J. at 409.   With respect to the other

Article 134, UCMJ, offenses, the Court remanded for

consideration of those findings in light of United States v.

Fosler, 70 M.J. 225 (C.A.A.F. 2011).    Id.   We affirmed the

remaining findings, vacated the sentence, and returned the case

to the Judge Advocate General of the Army for remand to the

Court of Criminal Appeals “for reassessment of the sentence, or

if it determines appropriate, for the ordering of a rehearing on

sentence.”   Id.    On remand, the Court of Criminal Appeals

dismissed two Article 134, UCMJ, indecent language findings,

again reassessed the sentence and affirmed eleven years of

confinement.    Winckelmann II, 2012 CCA LEXIS 342, at *11, 2012

WL 3860024 at *3.    Appellant again filed a timely petition in

this Court asserting that the Court of Criminal Appeals erred by

reassessing the sentence rather than ordering a rehearing on

sentence.

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United States v. Winckelmann, No. 11-0280/AR


     As a result of the lower court’s two reviews of this case

and our previous review, the remaining findings of guilty

include five specifications charged under Article 134, UCMJ,

namely, one specification of attempted enticement of a minor,

two specifications of indecent acts, and two specifications of

obstructing justice.   In addition, four findings of guilty of

conduct unbecoming an officer remain.    These remaining findings

of guilty together carry a maximum penalty of a dismissal,

forfeiture of all pay and allowances, and fifty-one years of

confinement.   However, in the event of a rehearing on sentence,

the convening authority could approve no greater period of

confinement than thirty-one years, the sentence adjudged by the

members at Appellant’s court-martial.    The military judge

calculated that Appellant’s maximum exposure at his original

sentencing hearing was 115 years.

                            DISCUSSION

     Three cases are central to defining the lower courts’

authority in this area.   Jackson v. Taylor, 353 U.S. 569, 577

(1957), upheld the authority of boards of review to conduct

sentence reassessments in the first instance.   United States v.

Sales, 22 M.J. 305 (C.M.A. 1986), set the standard for sentence

reassessment by the lower appellate courts intended to cure

prejudicial error within a framework of broad discretion.

Finally, Moffeit reaffirmed Sales, but a separate concurrence in

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United States v. Winckelmann, No. 11-0280/AR


the case raised the question whether this Court should identify

factors to be considered in determining whether the lower court

has abused its broad discretion in applying Sales.       Moffeit, 63

M.J. at 43 (Baker, J., concurring in the result).      Moreover,

some of the courts of criminal appeals have begun applying these

factors.    See, e.g., United States v. Certa, No. ACM 38037, 2013

CCA LEXIS 807, at *35, 2013 WL 5460154, at *11 (A.F. Ct. Crim.

App. Sept. 5, 2013) (unpublished); United States v. Gorski, 71

M.J. 729, 738 (A. Ct. Crim. App. 2012).     We briefly review each

of these controlling precedents in turn.

       In Jackson v. Taylor, the appellant was convicted of

premeditated murder and attempted rape, and received a life

sentence.    353 U.S. at 570.   The board of review set aside the

murder conviction, reassessed the sentence and affirmed a term

of confinement of twenty years.    Id.    Jackson argued before the

Supreme Court that the board should have ordered a rehearing on

sentence and that it lacked authority to impose the twenty-year

sentence to confinement.    Id. at 572.    In response to this

latter argument, the Court observed that military sentences are

aggregate sentences not apportioned among the various offenses

of which an accused is convicted.      Id. at 574.   Citing Article

66(c) of the Uniform Code,5 the Court further concluded, “The

board may ‘affirm . . . such part or amount of the sentence, as

5
    Article 66(c), UCMJ, 10 U.S.C. § 866(c).
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United States v. Winckelmann, No. 11-0280/AR


it finds correct . . . .’   That is precisely what the review

board did here.”   Id. at 576.   The Court noted that Congress

could have required the court-martial to enter a sentence on

each separate offense, which would have made it easier for the

boards of review to conduct reassessments of sentences.     Id. at

578-79.   However, Congress chose not to do so.   The Court also

reflected on some practical difficulties inherent in remanding a

case to a new court-martial for a sentence hearing alone.     Id.

at 580.   This, the Court noted, “would merely substitute one

group of nonparticipants for another.”    Id.   The Court went on

to observe that:

      Congress thought the board of review could modify
      sentences when appropriate more expeditiously, more
      intelligently, and more fairly. Acting on a national
      basis the board of review can correct disparities in
      sentences and through its legally-trained personnel
      determine more appropriately the proper disposition to
      be made of the cases. Congress must have known of the
      problems inherent in rehearing and review proceedings
      . . . .
Id.   Finally, the Court concluded that Congress could not have

intended that rehearings be required in every case because

“[s]uch a court-martial would be no more capable -- if as

capable -- as a board of review.”     Id. at 581 n.12.   Although

Jackson conclusively established the review boards’ authority to

reassess sentences in appropriate cases, in light of certain

dicta in Jackson, a certain amount of confusion arose as to the

authority of the boards of review to order a rehearing on the

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United States v. Winckelmann, No. 11-0280/AR


sentence alone.6       However, what confusion that might have arisen

as a result of the dicta in Jackson was resolved by this Court

in United States v. Miller, 10 C.M.A. 296, 27 C.M.R. 370 (1959).

The Miller court discussed Jackson and reaffirmed that “a

rehearing limited to sentence alone may be an appropriate and

permissive remedy for the cure of errors not affecting

findings.”    10 C.M.A. at 299, 27 C.M.R. at 373.     This consistent

practice has stood since 1959 without legislative amendment by

Congress.

       In Sales, this Court defined the standard by which a court

of criminal appeals should determine its capacity to reassess a

sentence.    Sales was convicted by members of indecent acts under

Article 134, UCMJ, and sodomy under Article 125,7 UCMJ.       22 M.J.

at 306.    He received six months of confinement and a bad-conduct

discharge.    Id.   The Court of Military Review found the indecent

acts offense multiplicious with the Article 125, UCMJ, offense

and dismissed the indecent acts offense.       Id.   It affirmed the

Article 125, UCMJ, conviction and reassessed the sentence but

concluded that the adjudged sentence was “clearly appropriate.”


6
  This confusion arose from the following statement in Jackson,
“Finally the petitioner suggests that the case should be
remanded for a rehearing before the court-martial on the
question of the sentence. We find no authority in the Uniform
Code for such a procedure and the petitioner points to none.”
353 U.S. at 579.
7
    10 U.S.C. § 925.
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United States v. Winckelmann, No. 11-0280/AR


Id.    Sales argued the court’s reassessment of his sentence

deprived him of his statutory right to be sentenced by court

members.    Id.     This Court affirmed.

       In some cases, the Court of Military Review may
       conclude that it cannot reliably determine what
       sentence would have been imposed at the trial level if
       the error had not occurred. Under these
       circumstances, a rehearing on sentence is in order. .
       . . On other occasions, the Court of Military Review
       may be convinced that even if no error had occurred at
       trial, the accused’s sentence would have been at least
       of a certain magnitude. Under those circumstances the
       Court of Military Review need not order a rehearing on
       sentence, but instead may itself reassess the
       sentence.

Id. at 307.       Distinguishing between reassessment under Article

59(a), UCMJ,8 and appropriate-sentence review under Article

66(c), UCMJ, this Court held that “[I]f 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 . . . .”      Id. at 308.

       This Court returned to Sales in Moffeit, affirming anew the

Sales standard. “[I]f 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.”    63 M.J. at 41.    However, the concurrence argued for a


8
    10 U.S.C. § 859(a) (2012).
                                    10
United States v. Winckelmann, No. 11-0280/AR


more transparent and predictable process by identifying

illustrative factors this Court should consider in determining

whether a court of criminal appeals has abused its discretion.

Id. at 42.

     We take this opportunity to affirm three principles.

First, while there have been many changes to the UCMJ since

Jackson was decided, the Jackson court’s observations regarding

the difficulties inherent in sentence rehearings and that

court’s conclusions regarding the reassessment powers of the

boards of review are as apt today as then.   In members cases it

is impossible to remand for a rehearing on sentence before the

same court-martial that convicted the accused.     “A court-martial

has neither continuity nor situs and often sits to hear only a

single case.    Because of the nature of military service, the

members of a court-martial may be scattered throughout the world

within a short time after a trial is concluded.”    Jackson, 353

U.S. at 579.9   Remanding to a new court-martial “merely

substitute[s] one group of nonparticipants in the original trial

for another.”   Id. at 580.   If, as the Supreme Court concluded

in Jackson, the judge advocates who then comprised the boards of

review could modify sentences “more expeditiously, more

9
  The relevant language in Article 63, UCMJ, is virtually the
same as it was at the time Jackson was decided: “Each rehearing
under this chapter shall take place before a court-martial
composed of members not members of the court-martial which first
heard the case.” 10 U.S.C. § 863.
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United States v. Winckelmann, No. 11-0280/AR


intelligently, and more fairly” than a new court-martial, that

is certainly the case with respect to today’s military judges

sitting on the courts of criminal appeals.    Id.

     Second, in light of the experience, training, and

independence of military judges, courts of criminal appeals act

with broad discretion when reassessing sentences for the reasons

stated in Jackson.     “We will only disturb the [lower court’s]

reassessment in order to prevent obvious miscarriages of justice

or abuses of discretion.”    United States v. Harris, 53 M.J. 86,

88 (C.A.A.F. 2000) (quoting United States v. Hawes, 51 M.J. 258,

260 (C.A.A.F. 1999) (internal quotation marks omitted)).

     Third, and finally, the Sales analysis is based on the

totality of the circumstances presented.    In this regard, the

factors we enunciate today are among those illustrative, but not

dispositive, points of analysis we would expect the lower

appellate courts to consider when determining whether to

reassess a sentence or order a rehearing.    It is hoped that

these factors will assist the courts of criminal appeals in

carrying out this important function.    These include:

     (1)   Dramatic changes in the penalty landscape and

           exposure.   Compare Hawes, 51 M.J. at 260, and United

           States v. Davis, 48 M.J. 494, 495 (C.A.A.F. 1998),

           with United States v. Buber, 62 M.J. 476, 479



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United States v. Winckelmann, No. 11-0280/AR


           (C.A.A.F. 2006), United States v. Riley, 58 M.J. 305,

           312 (C.A.A.F. 2003), and Harris, 53 M.J. at 88.

     (2)   Whether an appellant chose sentencing by members or a

           military judge alone.    As a matter of logic, judges of

           the courts of criminal appeals are more likely to be

           certain of what a military judge would have done as

           opposed to members.    This factor could become more

           relevant where charges address service custom, service

           discrediting conduct or conduct unbecoming.

     (3)   Whether the nature of the remaining offenses capture

           the gravamen of criminal conduct included within the

           original offenses and, in related manner, whether

           significant or aggravating circumstances addressed at

           the court-martial remain admissible and relevant to

           the remaining offenses.

     (4)   Whether the remaining offenses are of the type that

           judges of the courts of criminal appeals should have

           the experience and familiarity with to reliably

           determine what sentence would have been imposed at

           trial.

     The Court of Criminal Appeals did not detail its analysis

in this case; nor was it obligated to do so.    Going forward,

however, a reasoned analysis will be given greater deference

than otherwise.     Here, the record reflects that the lower court

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United States v. Winckelmann, No. 11-0280/AR


considered the totality of circumstances, including the above

factors, and applied the correct framework.    As a result, and in

light of the totality of circumstances, as well as the deference

we give to such decisions, we conclude that the court below did

not abuse its discretion, nor do we discern any obvious

miscarriage of justice.   Among other things, Appellant remained

exposed to fifty-one years of confinement, which was otherwise

limited by the thirty-one years adjudged at the original court-

martial.   He also remained convicted of five offenses, which

continued to reflect the gravamen of the original charges at

court-martial:   use of the Internet to entice a child to have

sex; obstruction of justice; and conduct unbecoming.    This also

meant that much of the aggravating evidence introduced at trial

remained relevant and could properly be considered by the Court

of Criminal Appeals during its reassessment analysis.

                            CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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United States v. Winckelmann, No. 11-0280/AR


     STUCKY, Judge (concurring in the result):

     “[A] precedent of [the Supreme] Court must be followed by

the lower federal courts no matter how misguided the judges of

those courts may think it to be.”   Hutto v. Davis, 454 U.S. 370,

375 (per curiam), reh’g denied, 455 U.S. 1038 (1982); see United

States v. Allbery, 44 M.J. 226, 228 (C.A.A.F. 1996) (holding

that a lower court does not have the discretion to overrule the

precedent of a superior court).   By discussing at length and in

a favorable light the Supreme Court’s opinion in Jackson v.

Taylor, 353 U.S. 569 (1957), the majority would have us believe

that they have faithfully followed it.   Such is not the case.

     Jackson specifically asked the Supreme Court to remand his

case for a rehearing on sentence.   353 U.S. at 579.   The Supreme

Court refused:

     We find no authority in the Uniform Code for such a
     procedure and the petitioner points to none. The
     reason is, of course, that the Congress intended that
     the board of review should exercise this power. This
     is true because the nature of a court-martial
     proceeding makes it impractical and unfeasible to
     remand for the purpose of sentencing alone. See
     United States v. Keith, 1 C.M.A. 442, 451, 4 C.M.R.
     34, 43 (1952). Even petitioner admits that it would
     now, six years after the trial, be impractical to
     attempt to reconvene the court-martial that decided
     the case originally. A court-martial has neither
     continuity nor situs and often sits to hear only a
     single case. Because of the nature of military
     service, the members of a court-martial may be
     scattered throughout the world within a short time
     after a trial is concluded. Recognizing the
     impossibility of remand to the same court-martial,
     petitioner suggests as an alternative that the case
United States v. Winckelmann, No. 11-0280/AR


     should be remanded for a rehearing before a new court-
     martial. He admits that it would now be impractical
     for such a new court-martial to hear all of the
     evidence, and that the court would have to make its
     sentence determination on the basis of what it could
     learn from reading the record. Such a procedure would
     merely substitute one group of nonparticipants in the
     original trial for another. Congress thought the
     board of review could modify sentences when
     appropriate more expeditiously, more intelligently,
     and more fairly. Acting on a national basis the board
     of review can correct disparities in sentences and
     through its legally-trained personnel determine more
     appropriately the proper disposition to be made of the
     cases. Congress must have known of the problems
     inherent in rehearing and review proceedings for the
     procedures were adopted largely from prior law. It is
     not for us to question the judgment of the Congress in
     selecting the process it chose.

Id. at 579–80 (emphasis added) (footnotes omitted).

     Despite the clear language of Jackson, this Court has

refused to follow it.   See, e.g., United States v. Sills, 56

M.J. 239, 239–40 (C.A.A.F. 2002) (per curiam); United States v.

Boone, 49 M.J. 187, 195 (C.A.A.F. 1998); United States v. Sales,

22 M.J. 305, 307–08 (C.M.A. 1986); United States v. Miller, 10

C.M.A. 296, 297, 27 C.M.R. 370, 371 (1959).    Instead, we have

required remand for a rehearing on sentence alone when the court

below determines it “cannot reliably determine what sentence

would have been imposed at the trial level if the error had not

occurred,” Sales, 22 M.J. at 307, or when there is a “dramatic

change in the penalty landscape.”    United States v. Riley, 58

M.J. 305, 312 (C.A.A.F. 2003) (internal quotation marks




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United States v. Winckelmann, No. 11-0280/AR


omitted); accord United States v. Buber, 62 M.J. 476, 480

(C.A.A.F. 2006).

     In this case, the majority asserts that we ignored Jackson

in the past, and will continue to do so, because “certain dicta”

in the opinion caused “confusion . . . as to the authority of

the boards of review to order a rehearing on the sentence

alone.”   Winckelmann, __ M.J. at __ (8–9) & n.6.   The statement

in Jackson that there was no authority in the Uniform Code for a

rehearing on sentence alone is neither confusing nor a mere

dictum.   353 U.S. at 579.   It is a core holding that this Court

is required to follow.

     The majority also affirms a standard for the Courts of

Criminal Appeals to follow in reassessing a sentence:    The court

can only affirm a sentence that did not exceed that which would

have been adjudged by the court-martial, absent the error.

Winckelmann, __ M.J. at __ (10) (citing United States v.

Moffeit, 63 M.J. 40, 41 (C.A.A.F. 2006); Sales, 22 M.J. at 308).

But the Supreme Court rejected a similar argument in Jackson as

“based on pure conjecture.   No one could say what sentence the

court-martial would have imposed [absent the error]. . . .

Military law provides that one aggregate sentence must be

imposed and the board of review may modify that sentence in the

manner it finds appropriate.”    353 U.S. at 578 (emphasis added).




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United States v. Winckelmann, No. 11-0280/AR


     This Court is authorized to “take action only with respect

to matters of law.”   Article 67(c), Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 867(c) (2012).    Therefore, this

Court’s review of a Court of Criminal Appeals’ sentence

reassessment is limited to preventing “‘obvious miscarriages of

justice or abuses of discretion.’”     United States v. Nerad, 69

M.J. 138, 142 (C.A.A.F. 2010) (quoting United States v. Jones,

39 M.J. 315, 317 (C.M.A. 1994)).

     The reassessed sentence was neither a miscarriage of

justice nor an abuse of discretion.    Therefore, I concur in the

judgment of this Court in affirming Appellant’s reassessed

sentence.




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United States v. Winckelmann, No. 11-0280/AR


     RYAN, Judge (concurring in the result):

     I agree with Judge Stucky that the Jackson v. Taylor

language about “rehearing on sentence alone is neither confusing

nor a mere dictum,” United States v. Winckelmann, __ M.J. __, __

(3) (C.A.A.F. 2013) (Stucky, J., concurring in the result), but

a binding Supreme Court determination that:    (1) the Uniform

Code of Military Justice (UCMJ) does not provide for the Court

of Criminal Appeals (CCA) to remand for a rehearing on sentence

alone; and (2) Congress chose the process of sentence

reassessment by the CCA after the CCA disapproves a finding,

where a rehearing on that finding was not ordered.   353 U.S.

569, 579-80 (1957).   But while the Supreme Court in Jackson

appeared to hold squarely that rehearing on sentence alone was

not a legally available option for the CCA, United States v.

Miller, 10 C.M.A. 296, 299, 27 C.M.R. 370, 373 (1959),

nonetheless, and inexplicably, held precisely to the contrary

(“[T]he literal but entirely unreasonable construction of

Article 66(d), supra, can easily be avoided merely by

substituting ‘or’ for ‘and,’” to construe the statute as stating

“‘findings or sentence.’”), precedent the majority follows in

addressing the question before us.

     Yet no party has asked us to overrule Miller, however

flawed its holding is, let alone explained the reasons for

ignoring stare decisis with respect to a case that has been the
United States v. Winckelmann, No. 11-0280/AR


rule in this Court on an issue that is statutory, rather than

constitutional in nature, for a very long time.      See, e.g.,

Flood v. Kuhn, 407 U.S. 258, 282 (1972) (“[Our past decision

produced] an aberration that has been with us now for half a

century, one heretofore deemed fully entitled to the benefit of

stare decisis . . . .”); see also Hilton v. South Carolina Pub.

Rys. Comm’n, 502 U.S. 197, 202 (1991) (“Considerations of stare

decisis have special force in the area of statutory

interpretation, for here, unlike in the context of

constitutional interpretation, the legislative power is

implicated, and Congress remains free to alter what we have

done.” (citation and quotation marks omitted)).

     Regardless, I disagree with the majority that the CCA is

required to explain its reasoning on the record in order to be

afforded “greater” deference in its decision to reassess the

sentence rather than order a rehearing on sentence.

Winckelmann, __ M.J. at __ (13).       It is unclear how one provides

CCAs with more deference than this Court’s extant recognition

that CCAs have a “highly discretionary power.”      United States v.

Lacy, 50 M.J. 286, 287 (C.A.A.F. 1999).

     In this case, the CCA reassessed the sentence.      Given that

the authority to reassess the sentence derives from Article

66(c), UCMJ, 10 U.S.C. § 866(c) (2012), the same highly

deferential review of the reassessed sentence is warranted that


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United States v. Winckelmann, No. 11-0280/AR


we give to any other review under Article 66(c), UCMJ.

Winckelmann, __ M.J. at __ (3-4) (Stucky, J., concurring in the

result); United States v. Nerad, 69 M.J. 138, 140, 146-47

(C.A.A.F. 2010).   I respectfully concur in the result.




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