UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           HAIGHT, PENLAND, and ALMANZA 1
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                       Sergeant GILBERTO A. RODRIGUEZ
                           United States Army, Appellant

                                    ARMY 20140380

                      Headquarters, United States Army South
                           Patricia Lewis, Military Judge
             Lieutenant Colonel Daniel P. Saumur, Staff Judge Advocate


For Appellant: Major Andres Vazquez, Jr., JA; Lieutenant Colonel Charles C. Choi,
JA.

For Appellee: Major A.G. Courie III, JA.


                                  28 September 2015
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                                SUMMARY DISPOSITION
                               ----------------------------------

PENLAND, Judge:

      A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of sexual assault of a child, sexual abuse of a child, assault
consummated by a battery, and solicitation, in violation of Articles 120b, 128, and
134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 920b, 928, and 934
(2012) [hereinafter UCMJ]. The military judge sentenced appellant to a
dishonorable discharge, eight years of confinement, forfeiture of all pay and
allowances, and reduction to the grade of E-1. Pursuant to a pretrial agreement, the
convening authority approved only so much of the sentence as provided for a
dishonorable discharge, five years of confinement, forfeiture of all pay and
allowances, and reduction to the grade of E-1. 2

1
 Judge ALMANZA took final action in this case while on active duty.
2
 The action and promulgating order do not reflect that appellant was awarded ninety
days of confinement credit. Accordingly, to the extent appellant has not already
received this credit, appellant shall be credited with ninety days of confinement
credit.
RODRIGUEZ – ARMY 20140380


      Appellant’s case is now before this court pursuant to Article 66, UCMJ.
Appellant submitted a merits pleading, personally raising several matters pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). They lack merit. However,
we have identified two issues warranting brief discussion and relief.

                           Solicitation – Providence Inquiry

       Appellant entered a plea of guilty to Specification 3 of Additional Charge VI,
in which he was charged with soliciting a civilian police officer (DC) to wrongfully
receive stolen military property. The military judge explained the elements of the
offense, including that “at the time [DC] received the property he knew that it was
stolen . . . .” This advice was correct, because for a solicitation conviction to stand,
the “solicitor’s request [must] be such that the solicitee know that the act requested
of him is part of a criminal venture.” United States v. Higgins, 40 M.J. 67, 68
(C.M.A. 1994) (citing United States v. Oakley, 7 U.S.C.M.A. 733, 735, 23 C.M.R.
197, 199 (1957)).

       Regarding this specification, appellant explained to the military judge that he
responded to an advertisement for a motorcycle by offering to trade night vision
goggles. Appellant told the military judge he did not actually own any such goggles;
instead, he intended to unlawfully procure them from an Army source if DC was
willing to exchange. The military judge did not ask and appellant did not indicate
whether he shared his criminal plan with DC, nor did appellant otherwise tell the
military judge that DC knew appellant sought his participation in a criminal scheme.
We acknowledge that the evidence to which appellant stipulated included his
confirmation to DC that the goggles were “military grade” and his message, “let me
know wat u need i have alot of army stuff.” We also recognize the probative nature
of these communications. However, this evidence does not supplant the
requirement—unmet here—that appellant’s providence inquiry include his admission
to every element of the crime. United States v. Simmons, 63 M.J. 89, 92 (C.A.A.F.
2006).

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). A guilty
plea will only be set aside if we find a substantial basis in law or fact to question the
plea. Id. (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). The
court applies this “substantial basis” test by determining whether the record raises a
substantial question about the factual basis of appellant’s guilty plea or the law
underpinning the plea. Id.; see also UCMJ art. 45(a); Rule for Courts-Martial
910(e). Considering the deficiencies in the providence inquiry, a substantial basis
exists here.




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RODRIGUEZ – ARMY 20140380

                    Sexual Abuse of a Child – Providence Inquiry

       Appellant entered a plea of guilty by exceptions and substitutions to
Specification 1 of Additional Charge III, in which he was charged with sexually
abusing a child by sending her lewd text messages. Among the many lewd messages
enumerated in the specification, appellant was charged with asking “‘have u ever
done it in the butt,’ or words to that effect . . . .” The military judge found appellant
guilty of communicating all of the charged phrases. However, the military judge did
not ask about and appellant did not address the specific phrase mentioned above
during the providence inquiry. Therefore, a substantial basis in fact exists to
question the providency of appellant’s plea of guilty to this repugnant phrase.

                                    CONCLUSION

      The finding of guilty of Specification 3 of Additional Charge VI is set aside
and that specification is DISMISSED.

      We affirm so much of the finding of guilty of Specification 1 of Additional
Charge III as provides:

             In that Sergeant Gilberto Rodriguez, U.S. Army, did, in
             Texas, between on or about 1 October 2012 and 1 December
             2012, commit a lewd act upon Ms. E.E., a child who had
             not attained the age of 16 years, to wit: asked her by text
             message “have u ever got eaten out before by a guy” or
             words to that effect; “U want to fuck” or words to that
             effect, and “U want me to eat that pussy” or words to that
             effect, “I want to eat ur pussy so bad n then lay u on the bed
             n put my dick in ur mouth then I’m gonna fuck that pussy
             so good then I’m gonna bend u over n put it in ur butt do us
             want to try” or words to that effect, “U won’t mind if I cum
             in ur mouth,” or words to that effect, “I want u to ride my
             dick wat position u like,” or words to that effect, “Have u
             ever got eaten out before by a guy,” or words to that effect,
             “so did u like me being inside of u,” or words to that effect,
             “Did u swallow or did u spit it out,” or words to that effect.

      The remaining findings of guilty are AFFIRMED.

      Reassessing the sentence on the basis of the errors noted, the entire record,
and applying the principles of United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986) and the factors set forth in United States v. Winckelmann, 73 M.J. 11, 15-16
(C.A.A.F. 2013), we are confident that absent these errors appellant would have
received a sentence at least as severe as the approved sentence of a dishonorable



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RODRIGUEZ – ARMY 20140380

discharge, five years of confinement, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The approved sentence is AFFIRMED; appellant shall
be credited with ninety days of confinement. 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.


      Senior Judge HAIGHT and Judge ALMANZA concur.

                                       FORTHE
                                      FOR  THECOURT:
                                               COURT:




                                      MALCOLM
                                       MALCOLMH.   H.SQUIRES,
                                                      SQUIRES JR.
                                                              JR.
                                      Clerk of Court
                                       Clerk of Court




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