UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                      CAMPANELLA, SALUSSOLIA, and FLEMING
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                   Staff Sergeant NATHAN P. CANCELLIERI
                          United States Army, Appellant

                                   ARMY 20160525

                        Headquarters, 7th Infantry Division
                 Kenneth W. Shahan, Military Judge (arraignment)
                      Sean F. Mangan, Military Judge (trial)
         Lieutenant Colonel James W. Nelson, Acting Staff Judge Advocate


For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Captain Bryan A.
Osterhage, JA; Captain Matthew D. Bernstein, JA (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Captain Austin L. Fenwick,
JA; Captain Joshua B. Banister, JA (on brief).


                                   15 February 2018

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                               SUMMARY DISPOSITION
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FLEMING, Judge:

       We affirm this case, holding a trial counsel’s presentencing argument
referring to a punishment greater than the court-martial could adjudge did not
amount to plain error when viewed in the context of the argument’s overall theme.
Even if the argument was plain error, appellant failed to establish prejudice to a
substantial right because, among other reasons, the military judge sua sponte
instructed the panel on appropriate sentence considerations.

      A panel composed of officer and enlisted members sitting as a special court-
martial convicted appellant of maltreatment and two specifications of abusive sexual
contact in violation of Articles 93 and 120, Uniform Code of Military Justice
[UCMJ], 10 U.S.C. § 893, 920 (2012). The convening authority approved the
adjudged sentence of a bad-conduct discharge, confinement for six months, and
reduction to the grade of E-1.
CANCELLIERI—ARMY 20160525

      Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Appellant asserts one assigned error, which merits discussion but no relief.
Appellant personally raises additional issues pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), which we find meritless.

                                   BACKGROUND

       During the government’s presentencing argument, trial counsel asked the panel
to adjudge, inter alia, six months of confinement and went on to explain the basis for
this suggestion:

             Now, this is a round number, but it is not an arbitrary
             number. There’s two reasons that the government arrived
             at this figure. The first is an acknowledgement of many of
             the things that we have heard about. There is good service
             that has been rendered by [appellant]. He does have some
             potential, and the government is not ignoring that or trying
             to dismiss that.

             Additionally, the government recognizes that in this
             specturm of offenses that fall under Article 120, this is not
             necessarily the most severe. And that’s why when you
             look at first, if this case had been brought at a general
             court-martial, based on these same charges, the accused
             would be facing potentially fifteen years confinement. So
             that [sic] something that we’re not even close to here
             because of the recognition of what is going on.

             Second, is at this court-martial right now, a sentence of up
             to one year is authorized. And the government is not
             asking for that maximum sentence; we’re only asking for
             that six month sentence out of recognition of those two
             factors that I pointed out. But I think there is another
             important justice behind that six month figure. When you
             look back to the specifications as you, the panel members,
             found him, Sergeant [H] suffered through the behavior and
             actions of [appellant] for five months. It was a five month
             ordeal that you saw him talk about the effect it had on
             him, and you heard his mother talk about the effect it had
             on him. And therefore, the government asks, and the
             government believes it’s only fair that [appellant] suffer
             confinement for longer than the period that Sergeant [H]
             has already had to endure.




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CANCELLIERI—ARMY 20160525

     Defense counsel did not object to this argument. When trial counsel finished
argument, the military judge, sua sponte, instructed the panel:

             The trial counsel referenced some maximum punishment
             amounts. Congress has given the authority to the
             President, and through that authority, the President does
             set maximum punishments for various offenses under the
             code. However, that should not be a guide for you in
             determining. You are set—and each court-martial has its
             own unique circumstance. In this particular court-martial,
             the law limits you to a maximum punishment that I will
             describe to you.

The panel members all agreed they could follow the military judge’s instruction.
Defense counsel did not object to the military judge’s corrective instruction.

       After civilian defense counsel’s presentencing argument, the military judge
instructed the panel that “[t]he maximum punishment that may be adjudged in this
case is reduction to the grade of E-1; forfeiture of two-thirds pay per month for
twelve months; confinement for twelve months; and a bad-conduct discharge.”

                              LAW AND DISCUSSION

      Appellant requests this court set aside his sentence and authorize a new
sentencing proceeding because trial counsel’s argument referred to a punishment or
quantum of punishment greater than the court-martial could adjudge in violation of
Rule for Courts-Martial (R.C.M.) 1001(g).

       Appellant concedes he did not object at trial to the improper argument or the
corrective instruction. “Failure to object to improper argument before the military
judge begins to instruct the members on sentencing shall constitute waiver of the
objection.” R.C.M. 1001(g). Because appellant did not object to trial counsel’s
sentencing argument, we review the propriety of the argument for plain error.
United States v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013) (citing United States v.
Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011)).

       Under plain error review, appellant must prove: 1) there was error, 2) such
error was clear or obvious, and 3) the error materially prejudiced a substantial right
of the accused. United States v. Feliciano, 76 M.J. 237, 240 (C.A.A.F. 2017);
United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014); United States v. Maynard,
66 M.J. 242, 244 (C.A.A.F. 2008). Government appellate counsel did not address
whether the government believes there was plain error. To the extent this was a
concession, we do not accept it.




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CANCELLIERI—ARMY 20160525

       While trial counsel’s reference to fifteen years was error, we find no plain or
obvious error because we focus not “on words in isolation, but on the argument as
‘viewed in context.’” United States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000)
(quoting United States v. Young, 470 U.S. 1, 16 (1985)). The inappropriate
argument was within a context of the trial counsel referencing pro-appellant
sentencing factors. The trial counsel noted appellant’s “good service,” his
“potential,” and averred his misconduct was not the “most severe.” Because of these
pro-appellant factors, the trial counsel argued appellant’s case warranted only half
of the confinement authorized for a special-court martial. Under this context, we do
not find plain or obvious error.

       Even assuming we were to find plain or obvious error, we conclude appellant
has failed to meet his burden to demonstrate a material prejudice to his substantial
rights. To make this determination, we have examined the “Fletcher factors,”
articulated in United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005), as
applied in the context of an allegedly improper sentencing argument. United States
v. Frey, 73 M.J. 245, 249 (C.A.A.F. 2014) (citing Halpin, 71 M.J. at 480). In
Fletcher, our superior court instructed us that the “best approach [in assessing
prejudice] involves a balancing of three factors: 1) the severity of the misconduct,
2) the measures adopted to cure the misconduct, and 3) the weight of the evidence
supporting the conviction.” 62 M.J. at 184; see also Frey, 73 M.J. at 249.

       We consider whether “trial counsel’s comments, taken as a whole, ‘were so
damaging that we cannot be confident that [appellant] was sentenced on the basis of
the evidence alone.’” Frey, 73 M.J. at 249 (quoting Halpin, 71 M.J. at 480)
(alteration in original). Trial counsel argued appellant’s conduct was on the less-
severe end of the spectrum of Article 120, UCMJ, offenses. The fact that the panel
sentenced appellant to a bad-conduct discharge, confinement for six months, and
reduction to the grade of E-1 after finding him guilty of one specification of
maltreatment and two specifications of abusive sexual contact demonstrates the lack
of prejudice. See Baer, 53 M.J. at 238 (“In view of the relative lightness of the
sentence which appellant received, we believe that his substantial rights were not
materially prejudiced by the imperfections in his sentencing hearing.”).

       As to curative measures, the military judge sua sponte instructed the members
that the trial counsel’s reference to fifteen years and a general-court martial was not
the sentencing guide for appellant’s case. Further, the military judge gave proper
sentencing instructions informing the panel that “the maximum punishment that may
be adjudged . . . [was] reduction to the grade of E-1, forfeiture of all pay and
allowances, confinement for one year, and a bad-conduct discharge.” See Fletcher,
62 M.J. at 185. Defense did not object to the military judge’s instructions or request
additional corrective action or relief.




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CANCELLIERI—ARMY 20160525

       The evidence supporting appellant’s sentence was strong and any improper
comment was “surrounded by powerful and proper sentencing argument.” Frey, 73
M.J. at 251. As evidence in aggravation, the trial counsel appropriately argued for
the panel to consider the victim and his mother’s testimony highlighting the negative
effects of appellant’s crimes on the victim. Trial counsel’s appeal to the panel to
confine appellant for one month longer than he made his victim suffer was a
reasonable argument. The panel seems to have agreed—they sentenced appellant to
the six months of confinement requested by the government. As in Halpin and Frey,
the “‘weight of the evidence amply supports the sentence imposed by the panel’” and
appellant “has failed to demonstrate he was not sentenced on the basis of evidence
alone.” Id. (quoting Halpin, 71 M.J. at 480). Appellant faced a sentence to, inter
alia, one year of confinement and a bad-conduct discharge. He was sentenced to,
inter alia, only six months confinement and a bad-conduct discharge.

      We hold all the Fletcher factors weigh in favor of the government and
appellant’s sentence was based on the evidence alone. See Halpin, 71 M.J. at 480.
Accordingly, we find no material prejudice to appellant’s substantial rights.

                                  CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge CAMPANELLA and Judge SALUSSOLIA concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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