              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                         ________________________

                              No. ACM 39054
                         ________________________

                            UNITED STATES
                                Appellee
                                     v.
                       Luis J. SEPULVEDA, Jr.
             Senior Airman (E-4), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 24 April 2017
                         ________________________

Military Judge: Mark W. Milam.
Approved sentence: Dishonorable discharge, confinement for 12 mon-
ths, and reduction to E-1. Sentence adjudged 20 January 2016 by GCM
convened at Grand Forks Air Force Base, North Dakota.
For Appellant: Captain Annie W. Morgan, USAF; Captain Patricia En-
carnación Miranda, USAF.
For Appellee: Major Amanda L.K. Linares, USAF; Major Jeremy D.
Gehman, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military
Judges.
Senior Judge MAYBERRY delivered the opinion of the court, in which
Senior Judge JOHNSON and Judge SPERANZA joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
MAYBERRY, Senior Judge:
    A general court-martial composed of a military judge sitting alone con-
victed Appellant, consistent with his pleas, of attempted indecent visual re-
                  United States v. Sepulveda, No. ACM 39054


cording of Mrs. CH and acquitted him of one specification of sexual assault by
digitally penetrating Ms. BS while she was asleep, one specification of sexual
contact of Ms. BS by directly touching her breast with his hand while she was
asleep, and one specification of indecent visual recording of Ms. BS, 1 in viola-
tion of Articles 80, 120 and 120c, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 880, 920, 920c. The adjudged and approved sentence consisted of
a bad-conduct discharge, confinement for 12 months, and reduction to E-1.
   Appellant alleges that his sentence is inappropriately severe. 2 Finding no
prejudicial error, we affirm the findings and sentence as approved by the
convening authority.

                                  I. BACKGROUND
    Appellant, his wife, and a number of other Grand Forks Airmen attended
a party at an off-base apartment. The party started in the late afternoon but
was primarily for the purpose of watching a televised boxing match later that
evening. Appellant and most of the other attendees were drinking at the par-
ty. Appellant, his wife, SrA BH, and his wife, Mrs. CH, did not live in the
apartment, but they planned to spend the night there. The four individuals
slept in the living room, with the Airmen on the floor and their spouses on a
couch. Appellant was the first of the four to wake up, and when he did he re-
alized he could see down the shirt of Mrs. CH, who was still asleep. Because
the lighting was dim, Appellant decided to use the flash on his wife’s cell
phone to illuminate Mrs. CH’s cleavage. In an effort to further expose Mrs.
CH’s breasts, Appellant lifted the top of her scoop neck t-shirt. Appellant took
several photographs of Mrs. CH’s chest area. While doing so, Mrs. CH awoke


1 The evidence associated with the Article 120 and 120c charges did not include pho-
tographs. The forensic analysis of the cell phone showed that 10 images had been
taken between the last photograph of Mrs. CH and the first video of Mrs. CH, but
these images had been deleted and could not be retrieved. Ms. BS and her sister (Ap-
pellant’s wife) testified as to having seen the photos in the “recently deleted photo
album” on Appellant’s wife’s phone and described their content to include photo-
graphs of Ms. BS’s exposed breasts and genitalia with Appellant’s hand visible in
some of the photos. Ms. BS testified that she deleted the photos from that album.
There was no evidence presented as to who had initially deleted the photos, or when
they were deleted. The forensic technician testified that the only evidence he was
able to retrieve established that at least three of the 10 deleted images were taken at
the same location, during the time gap between the photos and videos of Mrs. CH.
2This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982).




                                          2
                 United States v. Sepulveda, No. ACM 39054


and rolled over. It was only because of her rolling over that Appellant did not
fully expose her breasts. Approximately 30 minutes later, Appellant again
used his wife’s cell phone to make two short videos of Mrs. CH’s chest area,
again not fully exposing her breasts.

                                II. DISCUSSION
   Appellant argues that his sentence was inappropriately severe. 3 We disa-
gree.
    This court reviews sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). “We assess sentence appropriateness by
considering the particular appellant, the nature and seriousness of the of-
fenses, the appellant’s record of service, and all matters contained in the rec-
ord of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App.
2009). Although we are accorded great discretion in determining whether a
particular sentence is appropriate, we are not authorized to engage in exer-
cises of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
    Appellant’s conviction for attempting to photograph the breasts of a sleep-
ing spouse of another Airman carried a maximum punishment of a dishonor-
able discharge, confinement for five years, total forfeitures of all pay and al-
lowances, and reduction to E-1. Appellant’s military record established that
he was a solid performer on duty, but he had received administrative disci-
plinary actions on three occasions, two of which were for his conduct in the
spring and early summer of 2014, shortly after the events giving rise to the
charges he faced at trial.
    We have given individualized consideration to Appellant, the nature and
seriousness of the offense, Appellant’s record of service, and all other matters
contained in the record of trial. We find that the approved sentence of a bad-
conduct discharge, 12 months of confinement, and reduction to E-1 was legal-
ly appropriate based on the facts and circumstances of this particular case,
and was not inappropriately severe.

                               III. CONCLUSION
   The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.



3Appellant’s brief states that his sentence was pursuant to a pretrial agreement.
There was no pretrial agreement in this case.




                                       3
                  United States v. Sepulveda, No. ACM 39054


Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and the sentence are AFFIRMED. 4



                  FOR THE COURT



                  MICAH L. SMITH
                  Deputy Clerk of the Court




4 Both the expurgated and unexpurgated court-martial orders (CMO) contain typo-
graphical errors in the Specification of Charge I. The expurgated CMO refers to “pri-
vate are” instead of “private area.” The unexpurgated CMO misspells the first name
of the victim. We order that both versions be corrected.




                                         4
