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

                               No. ACM 38963
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                         Benjamin A. DOERR
             Staff Sergeant (E-5), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 12 May 2017
                          ________________________

Military Judge: Brendon K. Tukey.
Approved sentence: Dishonorable discharge, confinement for 4 years,
and reduction to E-1. Sentence adjudged 1 December 2015 by GCM
convened at Travis Air Force Base, California.
For Appellant: Major Lauren A. Shure, USAF; Brian L. Mizer, Es-
quire.
For Appellee: Major Jeremy D. Gehman, USAF; Major Meredith L.
Steer, USAF; Gerald R. Bruce, Esquire.
Before DREW, J. BROWN, and MINK, Appellate Military Judges.
Chief Judge DREW delivered the opinion of the court, in which Senior
Judge J. BROWN and Judge MINK joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                          ________________________

DREW, Chief Judge:
   A military judge sitting as a general court-martial convicted Appellant, in
accordance with his plea and pursuant to a pretrial agreement (PTA), of
wrongful possession of, with intent to distribute, child pornography, in viola-
                     United States v. Doerr, No. ACM 38963


tion of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 934. 1 The military judge sentenced Appellant to a dishonorable discharge,
confinement for four years, and reduction to E-1. The convening authority
approved the adjudged sentence. 2 Appellant raises one assignment of error on
appeal: whether his sentence is inappropriately severe.

                                 I. BACKGROUND
    Over the course of nine months, Appellant used peer-to-peer software to
collect and store more than 800 files of known child pornography on his home
computer and knowingly make it available for others to view and download
over the Internet. He specifically searched for, downloaded, stored, and made
available files depicting sexual acts involving girls from seven to 15 years of
age.

                                 II. DISCUSSION
   This court “may affirm only . . . the sentence or such part or amount of the
sentence, as it finds correct in law and fact and determines, on the basis of
the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. §
866(c). 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). This task requires “individualized consideration of the particular ac-
cused on the basis of the nature and seriousness of the offense and the char-


1 Appellant was originally charged with and arraigned on one charge with two speci-
fications. The first specification was for the offense of which Appellant was found
guilty. The second specification alleged wrongful distribution of child pornography.
Pursuant to the PTA between Appellant and the convening authority, the latter dis-
missed the wrongful distribution specification after arraignment but before Appellant
entered pleas. Although not required by the terms of the PTA, the convening authori-
ty dismissed the distribution specification with prejudice. In Appellant’s Assignment
of Error, his Statement of the Case erroneously indicates that he was convicted, in
accordance with his pleas, of the wrongful distribution specification. The Govern-
ment, in its Answer, accepted without correcting Appellant’s Statement of the Case.
2The PTA provided that the convening authority would approve no confinement in
excess of five years, but included no other limitations on the sentence he could ap-
prove. Accordingly, the PTA had no impact on the convening authority’s ability to
approve the adjudged sentence.




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                   United States v. Doerr, No. ACM 38963


acter of the offender.” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180–81 (C.M.A.
1959)) (internal quotation marks omitted).
    In conducting this review, we must also be sensitive to considerations of
uniformity and evenhandedness. United States v. Sothen, 54 M.J. 294, 296
(C.A.A.F. 2001) (citing United States v. Lacy, 50 M.J. 286, 287–88 (C.A.A.F.
1999)). However, we engage in sentence comparison only “in those rare in-
stances in which sentence appropriateness can be fairly determined only by
reference to disparate sentences adjudged in closely related cases.” Id. (quot-
ing United States v. Ballard, 20 M.J. 282, 285 (C.M.A. 1985)).
       An appellant who asks the Court of Criminal Appeals to en-
       gage in sentence comparison bears the burden of demonstrat-
       ing that any cited cases are “closely related” to the appellant’s
       case, and that the sentences are “highly disparate.” If the ap-
       pellant meets that burden . . . the burden shifts to the Govern-
       ment to show a rational basis for the disparity.
Id. (quoting Lacy, 50 M.J. at 288). Sentence comparison is appropriately rare
since “[f]rom the mere face of court-martial promulgating orders or similar
documents, it is simply not possible to assess the multitude of aggravating
and mitigating sentencing factors considered in the cases they represent.”
Ballard, 20 M.J. at 285. Although we are accorded great discretion in deter-
mining whether a particular sentence is appropriate, we are not authorized
to engage in exercises of clemency. United States v. Nerad, 69 M.J. 138, 146
(C.A.A.F. 2010).
    Appellant’s conviction for possession with intent to distribute child por-
nography carried a maximum punishment of a dishonorable discharge, con-
finement for 15 years, total forfeitures, and reduction to E-1. Appellant nego-
tiated with the convening authority to withdraw the allegation of distribution
of child pornography and to not approve confinement in excess of five years
(which was not implicated by Appellant’s sentence of a dishonorable dis-
charge, confinement for four years, and reduction to E-1). Appellant has re-
ferred the court to a number of other child pornography cases. However, Ap-
pellant has failed to meet his burden to establish that any of those cases are
closely related to his.
    We have given individualized consideration to Appellant, the nature and
seriousness of his offense, his record of service, and all other matters con-
tained in the record of trial. We find that the approved sentence was legally
appropriate based on the facts and circumstances of this particular case, and
was not inappropriately severe.




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                   United States v. Doerr, No. ACM 38963


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


                FOR THE COURT



                KURT J. BRUBAKER
                Clerk of the Court




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