

   
   
   
   U.S. v. Fee



UNITED STATES, Appellee
v.
Stephanie K. FEE, Hospitalman
U.S. Navy, Appellant
 
No. 98-0431
Crim. App. No. 97-0382
 
United States Court of Appeals for the Armed
Forces
Argued December 15, 1998





Decided May 12, 1999
 





EFFRON, J., delivered the opinion of
the Court, in which COX, C.J., and SULLIVAN, CRAWFORD, and GIERKE, JJ.,
joined.
 
Counsel
For Appellant: Lieutenant
Dale O. Harris, JAGC, USNR (argued
For Appellee: Captain Michael
D. Carsten, USMC (argued); Colonel Kevin M. Sandkuhler, USMC,
and Commander D. H. Myers, JAGC, USN (on brief); Colonel Charles
Wm. Dorman, USMC.
Military Judges:
K. B. Martin
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 

Judge EFFRON delivered the opinion of the Court.
Pursuant to her pleas, appellant was convicted
by a general court-martial composed of a military judge alone of various
drug offenses in violation of Article 112a, Uniform Code of Military Justice,
10 USC § 912a. Appellant was sentenced to a dishonorable discharge,
confinement for 6 years, total forfeitures, and reduction to the lowest
enlisted grade. The convening authority approved the sentence but suspended
confinement in excess of 36 months. The Court of Criminal Appeals affirmed
in an unpublished opinion.
This Court granted review of the following
issue:



WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ERRED BY AFFIRMING A SENTENCE INCLUDING 6 YEARS CONFINEMENT AND
A DISHONORABLE DISCHARGE, WHERE APPELLANTS HUSBAND RECEIVED A SENTENCE
OF FIFTEEN MONTHS CONFINEMENT AND A BAD-CONDUCT DISCHARGE FOR SIMILAR OFFENSES.



We hold that the Court of Criminal Appeals did
not abuse its discretion in concluding that there was a proper basis for
differentiating appellant's sentence from the sentence received by her
husband.

I
Appellant and her husband were convicted of
drug offenses. The court below implicitly viewed these offenses as "closely
related" for purposes of sentence comparison. See United States
v. Lacy, No. 98-0511, __ MJ ___ (1999).
The offenses of which appellant and her husband
were convicted involved a number of similar charges, but also involved
differences in periods of time and differences in certain offenses, as
follows: (1) appellant and her husband both were convicted of wrongful
use of marijuana over a 10-month period; (2) appellant was convicted of
wrongful use of LSD over a 6-month period, while her husband was convicted
of wrongful use and possession of LSD over a 1-month period; (3) appellant
was convicted of wrongful distribution of LSD over a 6-month period,
while her husband was convicted of wrongful distribution of LSD over a
1-month period; and (4) appellant was convicted of wrongful distribution
of marijuana over a 10-month period, while her husband was convicted of
wrongful possession of marijuana over a 1-month period.
Appellant's sentence, as approved by the convening
authority, included a dishonorable discharge, an unsuspended 36-month period
of confinement, and a suspended 36-month period of confinement. Her husband's
sentence, as approved by the convening authority, included a bad-conduct
discharge and 15 months confinement.

II
Before our Court, appellant relies on similarities
in the offenses and other factors, such as appellant's guilty pleas and
her cooperation with authorities in the prosecution of her husband's contested
case, for the proposition that the Court of Criminal Appeals erred in not
reducing her sentence. Congress has vested the responsibility for determining
sentence appropriateness -- including the responsibility to weigh the factors
cited by appellant -- in the Court of Criminal Appeals, not in this Court.
Compare
Art. 66(c), UCMJ, 10 USC § 866(c), with Art. 67(c), UCMJ, 10
USC § 876(c). Our role is limited to determining, as a matter of law,
whether the decision of the Court of Criminal Appeals exercising this highly
discretionary power constituted an abuse of discretion or miscarriage of
justice. See United States v. Lacy, supra. If the
appeal involves closely related cases with highly disparate sentences,
we may reverse the court below only in the absence of a rational basis
for the differing sentences. Id.
In the present case, the court below determined
that the cases were closely related but that the sentences were not highly
disparate. The court added that, if the sentences were determined to be
highly disparate, the differences in the sentences would be justified by
two factors: (1) Appellant's LSD offenses covered "a much longer period
of time" than her husband's offenses; and (2) unlike her husband, appellant
was convicted of distribution of marijuana. Unpub op. at 2.
Because these factors provide a rational basis
for the differences in the sentences approved by the convening authorities
in these two cases, we conclude that the decision of the court below did
not constitute an abuse of discretion or miscarriage of justice.*

III
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
* In view of this
conclusion, we need not decide whether the circumstances of the present
appeal involve highly disparate sentences.
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