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

                            UNITED STATES, Appellee
                                         v.
                            Specialist JAMES C. KEYS
                           United States Army, Appellant

                                    ARMY 20140140

              Headquarters, Joint Readiness Training Center and Fort Polk
                           Gregory A. Gross, Military Judge
                  Colonel Samuel A. Schubert, Staff Judge Advocate


For Appellant: Major M. Patrick Gordon, JA; Captain Amanda R. McNeil, JA (on
brief).

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

                                  26 September 2014

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of attempting to wrongfully distribute 10
pills of oxycodone (a Schedule II controlled substance); one specification of
wrongfully distributing 45 pills of codeine (a Schedule III controlled substance); one
specification of wrongfully distributing 59 pills of oxycodone and one pill of
hydrocodone (a Schedule III controlled substance); and one specification of
wrongfully possessing 10 grams of XLR11 (a Schedule I controlled substance) and
wrongfully possessing 10 pills of oxycodone, in violation of Article 80 and 112a,
Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 912a (2006) [hereinafter
UCMJ]. The military judge sentenced appellant to a bad-conduct discharge,
confinement for eight months, forfeiture of all pay and allowances and reduction to
the grade of E-1. The convening authority approved the adjudged sentence. This
case is before this court for review under Article 66, UCMJ.

      Appellant submitted this case on its merits but personally raised matters
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We have
KEYS - ARMY 20140140

reviewed these matters and do not find they merit discussion or relief. However, we
have separately identified an issue regarding the unreasonable multiplication of
charges that merits discussion and relief.

                                                               LAW AND DISCUSSION

       Appellant was separately charged with, and now stands convicted of,
wrongfully possessing 10 oxycodone pills and attempting to wrongfully distribute,
on the same date and location, the exact same 10 oxycodone pills. 1

       Pursuant to Rule for Courts-Martial 307(c)(4), “[w]hat is substantially one
transaction should not be made the basis for an unreasonable multiplication of
charges against one person.” Our superior court, in United States v. Quiroz, 55 M.J.
334 (C.A.A.F. 2001), listed five factors to help guide our analysis of whether
charges have been unreasonably multiplied:
                             (1) Did the accused object at trial that there was an
                                 unreasonable multiplication of charges and/or
                                 specifications?;

                             (2) Is each charge and specification aimed at distinctly
                                 separate criminal acts?;

                             (3) Does the number of charges and specifications
                                 misrepresent or exaggerate the appellant's
                                 criminality?;

                             (4) Does the number of charges and specifications
                                 [unreasonably] increase [the] appellant's punitive
                                 exposure?;

                             (5) Is there any evidence of prosecutorial overreaching or
                                 abuse in the drafting of the charges?

Id. at 338 (internal citation omitted).

      In regards to the first Quiroz factor, appellant did not raise this issue at trial,
and therefore we find this factor does not favor appellant. Failure to raise this issue,
however, is not dispositive. United States v. Gilchrist, 61 M.J. 785, 789 (Army Ct.
Crim. App. 2005). We also do not find in appellant’s favor in regards to the fourth
                                                            
1
  We note that although the singular crime of possession with intent to distribute was
a potential charge, the government instead opted to split appellant’s misconduct into
the two crimes of wrongful possession of a drug and the attempted distribution of
that same drug.

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KEYS - ARMY 20140140

Quiroz factor, because the government, in the specification alleging wrongful
possession of oxycodone, also charged appellant with wrongfully possessing XLR11.
This possession of XLR11 could have been charged separately; doing so would have
increased appellant’s punitive exposure.

       In regards to the remaining Quiroz factors, however, we find in favor of
appellant. Appellant’s possession of 10 oxycodone pills on 11 July 2013 was merely
incidental to his attempted distribution of that drug. We therefore hold that the
portion of Specification 3 of Charge II that covers appellant’s wrongful possession
of oxycodone was not aimed at a distinctly separate criminal act from the attempted
distribution of the 10 oxycodone pills captured in the specification of Charge I. The
inclusion of this language in Specification 3, Charge II misrepresents or exaggerates
the appellant’s criminality and indicates prosecutorial overreaching. We will take
appropriate action in our decretal paragraph.

                                   CONCLUSION

      We AFFIRM only so much of Specification 3 of Charge II as provides:

             In that [appellant], U.S. Army, did, at or near Fort Polk,
             Louisiana, on or about 11 July 2013, wrongfully possess
             approximately 10 grams of XLR11, a Schedule I controlled
             substance.

      We AFFIRM the remaining findings of guilty.

       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 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 or appellant’s punitive exposure which might cause us pause in
reassessing appellant’s sentence. Second, appellant pleaded guilty in a judge-alone
court-martial. Third, we find the nature of the remaining offenses still captures the
gravamen of the original offenses, and the circumstances surrounding appellant’s
conduct giving rise to the amended offense remain admissible and relevant to the
remaining offenses. Finally, 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.

       Reassessing the sentence based on the error noted, the amended findings of
guilty, the entire record and the matters personally raised by appellant pursuant to
Grostefon, we AFFIRM the sentence as approved by the convening authority. We

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KEYS - ARMY 20140140

find this reassessed sentence is not only purged of any error but is also appropriate.
All rights, privileges, and property, of which appellant has been deprived by virtue
of that portion of the findings set aside by our decision are ordered restored. See
UCMJ arts. 58b(c) and 75(a).



                                        FORTHE
                                        FOR THECOURT:
                                                COURT:




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




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