
                UNITED STATES ARMY COURT OF CRIMINAL APPEALS

                                   Before
                            TOZZI, HAM, and SIMS
                          Appellate Military Judges

                           UNITED STATES, Appellee
                                     v.
                        Sergeant ANDREW T. FULLERTON,
                        United States Army, Appellant

                                ARMY 20090738

                          Headquarters, Fort Lewis
                         Kwasi Hawks, Military Judge
             Colonel Mitchell R. Chitwood, Staff Judge Advocate


For Appellant:  Major Bradley Voorhees, JA; Captain W. Jeremy Stephens, JA
(on brief).

For Appellee:  Lieutenant Colonel Martha L. Foss, JA (on brief).


                               29 January 2010

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

TOZZI, Chief Judge:

      On consideration of the entire record, including consideration of the
issues personally specified by appellant, we hold the findings of guilty
and the sentence as approved by the convening authority correct in law and
fact.  Accordingly, those findings of guilty and the sentence are AFFIRMED.

      Judge SIMS concurs.

HAM, Judge, dissenting:

      This case was submitted to us on its merits.  I dissent from my
brethren’s summary affirmance because I believe the case presents a number
of issues that neither our court, nor our superior court has decided with
regard to the statute to which appellant pled guilty—18 U.S.C. § 2422.  For
example, do the acts admitted to by appellant constitute enticement or
attempted enticement?  If the latter, do appellant’s acts go beyond mere
preparation?  There are other outstanding issues as well.  United States v.
Garner, 67 M.J. 734 (N.M. Ct. Crim. App. 2009), review granted, (January
15, 2010) (No. 10-089), is currently pending before our superior court and
may decide one or more of them.  Therefore, I would specify issues for
briefing and full decision by this court.


      Accordingly, I dissent.

                                  FOR THE COURT:




                                  MALCOLM H. SQUIRES, JR.
                                  Clerk of Court
