UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            LIND, KRAUSS, and PENLAND
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                         Sergeant JOHN J. RODRIGUEZ
                          United States Army, Appellant

                                   ARMY 20120311

               Headquarters, National Training Center and Fort Irwin
                          David L. Conn, Military Judge
              Lieutenant Colonel Gail A. Curley, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain James
S. Trieschmann, Jr., JA (on brief); Major Amy E. Nieman, JA; Captain James S.
Trieschmann, Jr., JA (on supplemental brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Steve T. Nam, JA (on brief).


                                 29 September 2014

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                               SUMMARY DISPOSITION
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LIND, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of conspiracy to wrongfully distribute marijuana; conspiracy
to commit larceny of property of a value greater than $500.00; conspiracy to commit
larceny of military firearms; damage of military property of a value greater than
$500.00; sale of military firearms (four specifications); wrongful disposition of
military firearms (three specifications); damage of non-military property of a value
less than $500.00; wrongful possession of more than 30 grams of marijuana with the
intent to distribute; wrongful introduction of marijuana onto a military installation
with the intent to distribute; wrongful distribution of marijuana; wrongful use of
marijuana; larceny of property of a value greater than $500.00; larceny of military
property of a value greater than $500.00; larceny of military firearms; unlawful
entry (two specifications) in violation of Articles 81, 108, 109, 112a, 121, and 134,
Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 881, 908, 909,
RODRIGUEZ — ARMY 20130311

912a, 921, 934 (2006). The military judge sentenced appellant to a bad-conduct
discharge, confinement for twenty years, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority approved the adjudged
sentence and credited appellant with 247 days against the sentence to confinement.

       This case is before the court for review under Article 66, UCMJ. Appellant
raises several assignments of error, only one of which merits discussion and relief.

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). A guilty
plea will only be set aside if we find a substantial basis in law or fact to question the
plea. Id. (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). The
court applies this “substantial basis” test by determining whether the record raises a
substantial question about the factual basis of appellant’s guilty plea or the law
underpinning the plea. Id.; see also UCMJ art. 45(a); Rule for Courts-Martial
910(e).

       Appellant pled guilty to and was convicted of, inter alia, Specification 1 of
Charge IV, which alleged: “In that [appellant] did, at or near Fort Irwin, California,
on divers occasions between on or about 1 December 2010 and on or about 28 July
2011, wrongfully possess an amount totaling greater than 30 grams of marijuana,
with the intent to distribute the said marijuana.” However, during the providence
inquiry, appellant admitted only that he possessed more than 30 grams of marijuana
with the intent to distribute on a single occasion. Attached to the stipulation of fact
was a photograph, which appellant described during the inquiry as a photograph of
himself holding two bags of marijuana that he and his cousin possessed with the
intent to distribute. Appellant told the military judge that each bag contained an
ounce of marijuana. The judge, without defense objection, took judicial notice that
one ounce of marijuana was equal to 28 grams of marijuana. Appellant then
clarified with the judge that, although he intended to distribute this marijuana, he
never brought it onto Fort Irwin. Appellant explained that this was the only instance
during which appellant possessed more than 30 grams at one time. * We find a
substantial basis in fact to question’s appellant’s plea to “divers occasions” in
Specification 1 of Charge IV and will grant relief in our decretal paragraph.




*
 Appellant also admitted that on 10 to 15 occasions, he would bring onto Fort Irwin
one or two grams of marijuana with the intent to distribute. However, even if
appellant brought two grams of marijuana onto Fort Irwin on 15 occasions, appellant
would not have possessed more than 30 grams with the intent to distribute.




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RODRIGUEZ — ARMY 20130311

                                   CONCLUSION

       We affirm only so much of Specification 1 of Charge IV as provides: “In that
Sergeant John J. Rodriguez, U.S. Army, did, at or near Fort Irwin, California,
between on or about 1 December 2010 and on or about 28 July 2011, wrongfully
possess an amount totaling greater than 30 grams of marijuana, with the intent to
distribute the said marijuana.” The remaining findings of guilty are AFFIRMED.

       Reassessing the sentence on the basis of the error noted, the entire record, and
applying the factors set forth in United States v. Winckelmann, 73 M.J. 11, 15-16
(C.A.A.F. 2013) and the principles of United States v. Sales, 22 M.J. 305, 307-08
(C.M.A. 1986), 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.

      Judge KRAUSS and Judge PENLAND concur.

       
                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




                                       MALCOLM H. SQUIRES, JR.
                                        MALCOLM H. SQUIRES, JR.
                                       Clerk of Court
                                        Clerk of Court




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