              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                  Before
                J.A. FISCHER, D.C. KING, T.H. CAMPBELL
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      JOSEPH M. HUTCHINSON
                  SERGEANT (E-5), U.S. MARINE CORPS

                           NMCCA 201500124
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 10 December 2014.
Military Judge: Maj N.A. Martz, USMC.
Convening Authority: Commanding General, Command Element,
11 Marine Expeditionary Force, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Maj K.G. Phillips,
USMC.
For Appellant: CAPT Jill James, JAGC, USN.
For Appellee: CDR Christopher J. Geis, JAGC, USN; Capt
Matthew M. Harris, USMC.

                            27 October 2015

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of attempts to
sell military property, conspiracy to sell military property,
wrongful sale of government property, wrongful use of a
controlled substance, and larceny 1 in violation of Articles 80,
81, 108, 112a, and 121 Uniform Code of Military Justice, 10
U.S.C. §§ 880, 881, 908, 912a, and 921. The military judge
sentenced the appellant to confinement for two years, reduction
to pay grade E-1, and a dishonorable discharge. The convening
authority (CA) approved the sentence as adjudged.

     The appellant argues his sentence is inappropriately severe
and unjustifiably disparate with his co-conspirators’ sentences,
and asks this court to reduce his sentence so as to include no
punitive discharge. We decline.

                                 Background

     While deployed as the II Marine Expeditionary Force
Headquarters Group Forward armory chief at Camp Leatherneck in
Afghanistan during 2013, the appellant’s armory compound was
adjacent to the supply lot. His duties resulted in frequent
interactions with supply warehouse Marines, including Corporal
(Cpl) Raymond A. Vasquez. The two noncommissioned officers
decided to sell unaccounted-for military equipment from the
warehouse and split the profits. Outside the view of warehouse
security cameras, on six to eight occasions, Cpl Vasquez
delivered to the appellant supply system gear already scheduled
for retrograde.

     As part of their scheme, the appellant took away a variety
of items—including flak jackets, deployment bags, SAPI plates,
cold-weather “happy suits,” and Gortex jackets—and coordinated
illicit sales. On another occasion, Cpl Vasquez allowed the
appellant to take armory gear (red-dot scopes) which had been
delivered to the supply warehouse without signing for the items.
The appellant also stole a thermal optic scope from a military
property lot and various rifle parts from a retrograde lot. The
appellant sold some of these items: a red-dot scope to Cpl
Blake A. Eads; the thermal-optic scope to Cpl Jorge H. Sifuentes
Jr.; and SAPI plates, plate carriers and day packs to Cpl
Patrick R. Steinhaus.

     At the armory, the appellant assembled rifle parts into
M4/M4A1 upper receivers not included on his property accounts.
He then individually approached, made agreements with, and
received money from would-be buyers for seven upper receivers.
The Naval Criminal Investigative Service thwarted his plan to

1
  The appellant was convicted of seven attempts, one conspiracy, three
wrongful dispositions, one wrong use, and one larceny specification.
                                      2
ship the upper receivers to the United States and complete sales
to Cpl Eads, Sergeant (Sgt) Armando Ramirez, Cpl Sifuentes, Cpl
Steinhaus, Cpl JR, Lance Corporal (LCpl) Frederick Howk III, and
U.S. Army Sergeant HR. 2 Beyond the upper receiver transaction,
the appellant also received money from Sergeant HR for a flak
jacket with SAPI plates, a thermal optic, a night vision
monocular, and an Advanced Combat Optical Gunsight. After
redeploying, the appellate used Oxazepam without a prescription,
testing positive in July 2014.

     The CA’s action indicates this is a companion case to seven
special courts-martial which resulted in six convictions for
various charges including violations of Article 80, 81, 108,
121, and 134 of the UCMJ. The sentence in each of those cases
included reduction to E-1, but other punishments differed.
Adjudged confinement varied from none in one case to nine months
in two others. The adjudged sentences included three bad-
conduct discharges, three fines, and three monthly forfeitures. 3

                                 Discussion

     We review the appropriateness of sentences de novo. United
States v. Lane, 64 M.J. 1,2 (C.A.A.F. 2006). When arguing for
corrective action based on the exercise of our unique, highly
discretionary authority to determine sentence appropriateness
under Article 66, UCMJ, the appellant must demonstrate “that any
cited cases are ‘closely related’ to his or her case and that
the sentences are ‘highly disparate.’ If appellant meets that
burden . . . then the Government must show that there is a
rational basis for the disparity.” United States v. Lacy, 50

2
  Cpl JR was acquitted by a court-martial. The record is silent on what
action was taken in the case of Sergeant HR.
3
  The CA’s action reflects the six adjudged sentences: Cpl Vasquez received
six months’ confinement, reduction to E-1, a $500.00 fine, and a bad-conduct
discharge for three unspecified Article 108 offenses and two unspecified
Article 121 offenses; Cpl Eads received four months’ confinement, reduction
to E-1, forfeiture of $750.00 pay per month for four months, and a $1,068.00
fine for an unspecified attempt; Cpl Sifuentes received nine months’
confinement, reduction to E-1, and a $4,500.00 fine for an unspecified
conspiracy and unspecified Article 134 offense; Cpl Steinhaus received nine
months’ confinement, reduction to E-1, a $1,500.00 fine, and a bad-conduct
discharge for two unspecified attempts, an unspecified Article 108 offense
and an unspecified Article 134 offense; LCpl Howk received three months’
confinement, reduction to E-1, and forfeiture of $500.00 pay per month for
three months for an unspecified attempt, two unspecified Article 121
offenses, and an unspecified Article 134 offense; Sgt Ramirez received
reduction to E-1 and a bad-conduct discharge for two unspecified conspiracies
and an unspecified attempt.
                                      3
M.J. 286, 287 (C.A.A.F. 1999). “Closely related” cases are
those involving “offenses that are similar in both nature and
seriousness or which arise from a common scheme or design.”
United States v. Kelly, 40 M.J. 558, 570 (N.M.C.M.R. 1994); see
also Lacy, 50 M.J. at 288 (citing examples of closely related
cases as including co-actors in a common crime, service members
involved in a common or parallel scheme, or “some other direct
nexus between the servicemembers whose sentences are sought to
be compared”). However, co-conspirators are not entitled to
equal sentences. United States v. Durant, 55 M.J. 258, 260
(C.A.A.F. 2001). Just because an accused receives greater
punishment than a co-accused does not mean his sentence is
unjust. United States v. Wacha, 55 M.J. 266, 268 (C.A.A.F.
2001).

     In assessing whether companion case sentences are highly
disparate, we are “not limited to a narrow comparison of the
relative numerical values of the sentences at issue,” but may
also consider “the disparity in relation to the potential
maximum punishment.” Lacy, 50 M.J. at 289. A vast difference
in maximum punishments—as demonstrated by the appellant facing
122 years of confinement, total forfeitures and a dishonorable
discharge instead of one year’s confinement, forfeitures of two-
thirds pay per month for 12 months, and a bad-conduct discharge
like the others—can result from the CA’s forum selections. A
CA’s discretion on “the selection of the appropriate forum for
disposition of charges is part of prosecutorial discretion,” and
“[d]ecisions on how to process a case are not considered de novo
at the reviewing court level.” Kelly, 40 M.J. at 570. If cases
are closely related yet result in widely disparate disposition,
we must instead decide whether the disparity in disposition also
results from good and cogent reasons. Id. at 571.

     Citing cases beyond those in the CA’s action, the appellant
suggests our consideration, in accordance with Wacha, of other
sale or transportation of functioning firearms cases will reveal
a highly disparate sentence here: Unites States v.
Bredschneider, 65 M.J. 739 (N.M.Ct.Crim.App. 2007) 4; Unites
States v. Gargaro, 45 M.J. 99 (C.A.A.F. 1996) 5; and Unites States
4
  The sentence was 18 months’ confinement, reduction to E-1, total
forfeitures, and a bad-conduct discharge for stealing an M16 rifle from a
military range, transporting it in interstate commerce, and possessing an
unregistered firearm. Bredschneider, 65 M.J. at 740, 744-45.
5
  The sentence was dismissal, one year’s confinement and total forfeitures for
stealing enemy AK-47 rifles gathered from the battlefield after the Gulf War
and illegally importing them. Gargaro, 45 M.J. at 100.


                                      4
v. McDaniel, 1996 CCA Lexis 72, unpublished op.
(A.F.Ct.Crim.App. 1996) 6. Each of those cases has clearly
distinguishable facts, 7 but they all involve disposition at
general courts-martial and sentences at least partially
exceeding the current special court-martial maximums under RULE
FOR COURTS-MARTIAL 201(f)(2)(B), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.).

     Even if the companion cases are closely related and their
sentences are highly disparate, we find the Government has
demonstrated a rational basis for any sentence disparity and
good and cogent reasons for different disposition forums. The
record specifies the misconduct for which only some of the co-
accused were convicted, 8 but facts developed at the appellant’s
trial reveal variations in culpability levels. The Marines who
purchased or attempted to purchase items from the appellant were
each, individually, less involved in the overall criminal
enterprise than the appellant. He links those involved with the
supply gear items and those who relied on his access to weapon
parts and skills as an armorer to build and eventually import
the stolen weapons components. He approached and initially
solicited each of the Marines who bought supply gear and/or gave
him money for rifle upper receivers. While Cpl Vasquez also
sold a plate carrier and sleeping system directly to LCpl Howk,
gave a plate carrier and Kevlar helmet to another Marine, and
stole various supply items and a set of night vision googles 9, he
was not involved in the upper receiver schemes. And, unlike the
appellant’s drug use the following year, nothing indicates any
of the other cases had misconduct outside of the 2013 deployed
context.

     So on the whole, the appellant’s conduct was more serious.
He was senior to all but one of the other Marines. The

6
  The sentence was a bad-conduct discharge, fourteen months’ confinement, and
reduction to E-1 for shipping captured weapons and ammunition from Kuwait to
the United States. McDaniel, 1996 CCA Lexis 72 at *1
7
  Bredschineider was not an armorer, not in a combat zone, and did not
conspire with other servicemembers to steal or sell military property.
Gargaro did not steal U.S. military equipment. McDaniel did not steal items
from his own armory in an active combat zone.
8
  Prosecution Exhibit 3 is the United States v. Vasquez stipulation of fact,
PE 4 contains the United States v. Steinhaus providence inquiry, PE 5
contains the United States v. Sifuentes providence inquiry, and PE 6 contains
the United States v. Eads providence inquiry.
9
    PE 3.


                                      5
Government provided sentencing evidence that he had been trusted
in combat to manage an armory property account with a value in
excess of $2.2 million, and that his armory chief billet
description included the requirement to “maintain good order and
discipline within the armory compound.” 10 The facts in this case
are sufficiently different to explain and justify both the
different forums and sentences, and those facts demonstrate the
appropriateness of the appellant’s sentence.

                                Conclusion

     The findings and the sentence as approved by the CA are
affirmed.

                                      For the Court



                                      R.H. TROIDL
                                      Clerk of Court




10
  PE 10 includes the appellant’s fitness report covering 19 November 2012
through 31 March 2013.
                                      6
