UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           COOK, TELLITOCCI, and HAIGHT
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                          Specialist JASMIN K. JENKINS
                           United States Army, Appellant

                                   ARMY 20130362

                         Headquarters, 2d Infantry Division
                          Wendy P. Daknis, Military Judge
                 Colonel Paula I. Schasberger, Staff Judge Advocate


For Appellant: Major Amy E. Nieman, JA; Major Robert N. Michaels, JA (on brief).

For Appellee: Lieutenant Colonel James L. Varley, JA (on brief).


                                    19 August 2014

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

HAIGHT, Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to her pleas, of two specifications of failure to obey a general order by
distributing a synthetic psychotropic substance, one specification of failure to obey a
general order by possessing a synthetic psychoactive substance, making a false
official statement, two specifications of distributing a Schedule I controlled
substance, one specification of possessing a Schedule 1 controlled substance with
the intent to distribute, and two specifications of distributing a synthetic
psychoactive substance to junior enlisted soldiers with such conduct being
prejudicial to the good order and discipline in the armed forces and of a nature to
bring discredit upon the armed forces, in violation of Articles 92, 107, 112a, and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 907, 912a, 934 (2006)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for 12 months, forfeiture of $1,010.00 pay per month for 12
months, and reduction to the grade of E-1. Pursuant to a pretrial agreement, the
convening authority only approved a bad-conduct discharge, reduction to the grade
JENKINS—ARMY 20130362

of E-1, forfeiture of $1,010.00 pay per month for 12 months, and confinement for 5
months.

       Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant asserts
she was subjected to an unreasonable multiplication of charges. We agree and will
take corrective action.

       Although the military judge and both parties agreed that each distribution in
violation of Article 92 should be merged for sentencing purposes with its
corresponding distribution charged under Article 112a, our analysis does not end
there. “[A]ppellate consideration of multiplicity claims is effectively waived by
unconditional guilty pleas, except where the record shows that the challenged
offenses are ‘facially duplicative.’” * United States v. Lloyd, 46 M.J. 19, 23
(C.A.A.F. 1997). See also United States v. Craig, 68 M.J. 399, 400 (C.A.A.F. 2010)
(per curiam); United States v. Campbell, 68 M.J. 217, 219 (C.A.A.F. 2009). Facially
duplicative means the factual components of the charged offenses are the same.
Lloyd, 46 M.J. at 23 (citing United States v. Broce, 488 U.S. 563, 575 (1989)).

       In this case, the record of trial, the providence inquiry, and the stipulation of
fact all unequivocally reveal that the substance in question that was either being
possessed or distributed in violation of Article 92, 112a, or 134 was, in fact, not
only the same substance, but all of the various charges referred to the exact same
conduct, that being one continuous possession and two instances of distribution.
More simply put, the “synthetic psychotropic substance” and “synthetic psychoactive
substance” referenced in the Article 92 specifications constituted the “AM-2201 (1-
(5-fluoropentyl)-3-(1-naphthoyl) indole), a Schedule I controlled substance”
referenced in the Article 112a specifications, as well as the same “synthetic
psychoactive substance” distributed to junior enlisted soldiers in violation of Article
134. Furthermore, the appellant repeatedly clarified that the illegal drug in question,
regardless of how it was charged, was the same substance, known to her as “Spice.”
Accordingly, in this case, the charges address the same conduct and reflect facially
duplicative specifications.




*
  We interpret this to mean that an unconditional guilty plea, without an affirmative
waiver, results in a forfeiture of multiplicity issues absent plain error. An appellant
may show plain error and overcome forfeiture by proving the specifications are
facially duplicative. See United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)
(noting military courts consistently failed to distinguish between the terms “waiver”
and “forfeiture”).




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JENKINS—ARMY 20130362

       Regardless of whether analyzed under principles of multiplicity (double
jeopardy), preemption of Article 134 offenses by Articles 80-132, or unreasonable
multiplication of charges, the particular charging scheme found here is troublesome.
As appellant personally claims the error of unreasonable multiplication of charges,
we provide relief applying the principles announced in United States v. Quiroz, 55
M.J. 334 (C.A.A.F. 2001). In particular, the second and third Quiroz factors are
particularly compelling: the charges and specifications are aimed at the same
criminal acts and unreasonably exaggerate appellant’s criminality. 55 M.J. at 338.

                                   CONCLUSION

       Upon consideration of the entire record, including the matters raised pursuant
to Grostefon, the findings of guilty of Charge I and its specifications and Charge IV
and its specifications are set aside. Charge I and its specifications and Charge IV
and its specifications are dismissed. The remaining findings of guilty are
AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

       In evaluating the Winckelmann factors, we first find no dramatic change in the
penalty landscape in this special court-martial, and the military judge merged some
of the offenses for sentencing purposes. Second, appellant was sentenced by a
military judge. Third, the remaining offenses capture the gravamen of appellant’s
misconduct, and the fact that appellant distributed spice to junior enlisted soldiers
remains admissible aggravation evidence. Fourth, based on our experience, we are
familiar with the remaining offenses so that we may reliably determine what
sentence would have been imposed at trial.

       After reassessing the sentence and the entire record, we AFFIRM the
approved sentence. We find this purges the error in accordance with Sales and
Winckelmann, and is also appropriate under Article 66(c), UCMJ. 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.

      Senior Judge COOK and Judge TELLITOCCI concur.




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                        FOR THE
                        FOR THE COURT:
                                COURT:




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




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