UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           TOZZI, MORAN, and CAMPANELLA
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                         Private E1 JAMES A. ERICKSON
                          United States Army, Appellant

                                    ARMY 20130231

                            Headquarters, Fort Campbell
                        Steven E. Walburn, Military Judge
                  Colonel Jeff A. Bovarnick, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Vincent T. Shuler, JA; Captain Patrick J. Scudieri, JA (on brief).

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


                                       11 July 2014

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                                SUMMARY DISPOSITION
                               ----------------------------------

Per curiam:

       Upon review of the entire record pursuant to Article 66(c), UCMJ, we note
that appellant was, among other offenses, charged with and pleaded guilty to one
specification of wrongfully distributing marijuana (Specification 1 of Charge II) and
one specification of wrongful possession of marijuana with intent to distribute
(Specification 2 of Charge II). The distribution and possession with intent to
distribute were both alleged to have occurred on or about the same day at the same
location. Appellant admitted during his providence inquiry that the only marijuana
he possessed was the same marijuana he distributed. He specifically disclaimed
possessing other amounts of marijuana found where the distribution occurred. Given
the pleadings and the record, we conclude that appellant’s possession of marijuana
with intent to distribute is multiplicious with the distribution of that same marijuana.
See United States v. Savage, 50 M.J. 244, 245 (C.A.A.F. 1999); see also United
States v. Zubko, 18 M.J. 378, 386 (C.M.A. 1984) (“The elements of this possession
offense were necessarily included within the elements of proof for this distribution
ERICKSON—ARMY 20130231

offense.”); United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F. 2002) (“Offenses
are multiplicious if one is a lesser-included offense of the other.”). Although we set
aside this conviction for wrongfully possessing marijuana with intent to distribute,
our holding does not affect the sentence. The penalty landscape has not changed
because the military judge treated these specifications as an unreasonable
multiplication of charges for sentencing. See United States v. Winckelmann, 73 M.J.
11, 15-16 (C.A.A.F. 2013); United States v. Sales, 22 M.J. 305 (C.M.A. 1986).
Furthermore, the admissible aggravation evidence remains the same as well.

       Accordingly, the finding of guilty of Specification 2 of Charge II is set aside,
and that specification is dismissed. The remaining findings of guilty are
AFFIRMED. Considering the modified findings, we find the sentence as approved
by the convening authority is appropriate and 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 hereby ordered restored.


                                        FOR
                                         FORTHE
                                             THECOURT:
                                                 COURT:



                                         ANTHONY O. POTTINGER
                                        ANTHONY
                                         Chief DeputyO. POTTINGER
                                                      Clerk of Court
                                        Chief Deputy Clerk of Court




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