          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201700292
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

                 CRISTIAN A. CRUZHERNANDEZ
             Private First Class (E-2), U.S. Marine Corps
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

   Military Judge: Lieutenant Colonel Jeffrey V. Munoz, USMC.
Convening Authority: Commanding Officer, Marine Corps Mountain
         Warfare Training Center, Bridgeport, Calif ornia.
Staff Judge Advocate’s Recommendation: L ieutenant Colonel Brent
                       W. Stricker, USMC.
     For Appellant: Captain Bree A. Ermentrout, JAGC, USN.
For Appellee: Captain Luke Huisenga, USMC; Lieutenant Megan P.
                      Marinos, JAGC, USN.
                     _________________________

                           Decided 22 May 2018
                           ______________________

Before H UTCHISON , F ULTON , and S AYEGH , Appellate Military Judges
                        _________________________

This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
                        _________________________

   SAYEGH, Judge:
   A military judge, sitting as a special court-martial, convicted the
appellant, pursuant to his pleas, of one specification each of attempted use,
possession, and introduction of a controlled substance, as well as one
specification of wrongful use of cocaine, in violation of Articles 80 and 112a,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892 and 912a. The
                  United States v. Cruzhernandez, No. 201700292


military judge sentenced the appellant to 12 months’ confinement, reduction
to paygrade E-1, forfeiture of $1000.00 pay per month for 12 months, and a
bad-conduct discharge. The convening authority approved the adjudged
sentence but, in accordance with the pretrial agreement, suspended all
confinement in excess of four months.
    In two assignments of error the appellant contends: (1) the military judge
abused his discretion during presentencing by excluding mitigation evidence
offered by the defense; and (2) that the bad-conduct discharge is
inappropriately severe.
   After careful consideration of the record of trial and the pleadings of the
parties, we conclude the findings and sentence are correct in law and fact,
and that no error materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.
                                I. BACKGROUND
   The appellant purchased 70 pills of what he thought was the controlled
substance alprazolam or “Xanax” from a drug dealer. The appellant ingested
cocaine and five of the pills, and then brought the remaining pills aboard
Marine Corps Mountain Warfare Training Center (MWCT), Bridgeport,
California. The pills were tested and found to be doxylamine–a non-controlled
substance–and not alprazolam.
    During the providence inquiry, the appellant testified that at the time of
his offenses he had been prescribed Zoloft, Klonopin, Paxil, “and some other
sleeping meds.”1 The appellant indicated the medications were part of his
ongoing treatment for anxiety and depression. During presentencing, the
appellant’s doctor, Dr. A.M., testified that his diagnosis of the appellant
included a major depressive disorder, a general anxiety disorder, a panic
disorder with panic attacks, and severe insomnia.2 Dr. A.M. prescribed the
appellant Zoloft and Klonopin.
    The trial defense counsel (TDC) asked Dr. A.M. if he had met with the
appellant’s commanding officer (CO) to discuss the case. The trial counsel
objected on relevance grounds. The military judge (MJ) and counsel discussed
the objection briefly on the record:
         TDC: The relevance is that [Dr. A.M.] is going to say that they
         spoke on the issues that he described with PFC
         CruzHernandez. He spoke with [the CO] about potential


   1   Record at 21.
   2   Id. at 84, 88.



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                 United States v. Cruzhernandez, No. 201700292


         separation for adjustment disorder prior to any of these
         incidents arising.
         MJ: How does that relate to the offenses in this case?
         TDC: In terms of a matter of mitigation, Your Honor, it is
         evidence that PFC CruzHernandez was having a lot of
         difficulty that led him to begin self-medicating and is the
         reason why we are here today.
         MJ: The objection is sustained. The court doesn’t find that that
         is relevant.3
                                 II. DISCUSSION
A. Military judge’s exclusion of defense sentencing evidence
    We review a military judge’s exclusion of sentencing evidence for an abuse
of discretion. United States v. Stephens, 67 M.J. 233, 235 (C.A.A.F. 2009). If
we conclude the military judge has abused his discretion, we test for
prejudice by considering whether the error “substantially influenced the
adjudged sentence.” United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005)
(citations omitted).
    The appellant’s presentation of mitigation evidence is governed by RULE
FOR COURTS-MARTIAL (R.C.M.) 1001(c)(1)(B), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2016 ed.), which provides that such evidence is “introduced
to lessen the punishment . . . or to furnish grounds for a recommendation of
clemency.” “However, an accused’s rights regarding extenuation and
mitigation evidence presentation are not unlimited. Military judges should be
vigilant in ensuring that matters in extenuation and mitigation comply with
R.C.M. 1001(c).” United States v. Macias, 53 M.J. 728, 729 (A. Ct. Crim. App.
1999).
   The military judge considered the providence inquiry on sentencing,
which included a substantial amount of evidence in extenuation related to
the appellant’s mental health. However, during presentencing, the military
judge sustained the TDC’s objection to Dr. A.M. testifying that, prior to the
appellant’s misconduct, he recommended to the appellant’s CO that the
appellant be administratively separated for an adjustment disorder.
Although the appellant asserts this would constitute evidence in mitigation,
we believe this evidence is more appropriately considered as a matter in
extenuation that served to explain the circumstances and reasons the
appellant committed his offenses. R.C.M. 1001(c)(1)(A). While the


   3   Id. at 87-88.



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                 United States v. Cruzhernandez, No. 201700292


recommendation from Dr. A.M. to the CO may reasonably have been
considered evidence of extenuation, it must still be relevant. To be relevant,
evidence must “(a) make a fact more or less probable than it would be without
the evidence; and (b) the fact is of consequence in determining the action.”
MILITARY RULE OF EVIDENCE 401, MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2016 ed.). There was no consequential fact within either the
recommendation from Dr. A.M. to administratively discharge the appellant,
or the fact the CO was aware of the appellant’s adjustment disorder, that
made the circumstances surrounding the appellant’s wrongful conduct more
or less probable. Therefore, we find the military judge did not abuse his
discretion in finding no relevance to this limited line of questioning of Dr.
A.M regarding a collateral administrative matter.
    Even assuming the military judge abused his discretion here, the
appellant is only entitled to relief if he can demonstrate that the error
materially prejudiced his substantial rights. Art. 59(a), UCMJ. As the
sentencing authority, military judges are “presumed to know the law and
follow it absent clear evidence to the contrary.” United States v. Erickson, 65
M.J. 221, 225 (C.A.A.F. 2007) (citing United States v. Mason, 45 M.J. 483, 484
(C.A.A.F. 1997)). Despite the appellant’s assertions, there is no indication
that the excluded testimony, “may have provided further detail” about his
medical condition.4 Indeed, the record contains significant evidence in
extenuation regarding the appellant’s mental health and the attempts to
properly treat him through prescribed medications. Under these
circumstances, we are confident that even if the military judge abused his
discretion, the error did not substantially influence the adjudged sentence, or
materially prejudice the appellant. See Griggs, 61 M.J. at 410.
B. Sentence appropriateness
   The appellant argues that a sentence including a bad-conduct discharge is
inappropriately severe because mental health issues affected his judgment,
and his self-destructive behavior did not harm others. We disagree.
   We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006). “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). This requires our “individualized consideration of the particular
accused on the basis of the nature and seriousness of the offense and the
character of the offender.” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (citation and internal quotation marks omitted). In making this


   4   Appellant’s Brief of 8 Dec 2017 at 4.


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                    United States v. Cruzhernandez, No. 201700292


assessment, we analyze the record as a whole. Healy, 26 M.J. at 395. Despite
our significant discretion in determining sentence appropriateness, we must
remain mindful that we may not engage in acts of clemency. United States v.
Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
   The appellant was convicted of using cocaine and attempting to possess,
use, and introduce Xanax onto an installation used by the armed forces.
Setting aside the sentencing limitations of a special court-martial, the
maximum punishment for these offenses included 11 years of confinement
and a dishonorable discharge. Art. 112a, UCMJ. These offenses are serious.
    During the providence inquiry, the appellant claimed that he intended to
use Xanax to “calm [his] anxiety and depression” because his prescribed
medication was not working.5 He also told the military judge he intended to
use some of the “Xanax” pills “to try to overdose and end [his] life[.]”6 This
information is consistent with the evidence of the appellant’s mental health
assessment and on-going treatment. But the appellant’s claims of self-
medication are contradicted later in his providence inquiry by his admission
that he had never been prescribed Xanax previously, that the 70 pills were
intended for his personal use, and that he used both the “Xanax” and cocaine
socially while shopping or at parties at or near San Francisco.
    Having given individualized consideration to the nature and seriousness
of these crimes, the appellant’s limited 15-month record of service, and all
other matters contained in the record of trial, we conclude the sentence is not
inappropriately severe and is appropriate for this offender and his offenses.
United States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005); Healy, 26 M.J. at
395-96; Snelling, 14 M.J. at 268. Granting sentence relief at this point would
be to engage in clemency, which we decline to do. Healy, 26 M.J. at 395-96.
                                  II. CONCLUSION
   The findings and the sentence, as approved by the convening authority,
are affirmed.
   Senior Judge HUTCHISON and Judge FULTON concur.
                                          For the Court




                                          R.H. TROIDL
                                          Clerk of Court

   5   Record at 35.
   6   Id. at 22.


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