          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                                 Airman CHARLES W. PAUL
                                    United States Air Force

                                        ACM S32025 (rem)

                                           05 August 2014

         Sentence adjudged 5 January 2012 by SPCM convened at Davis-Monthan
         Air Force Base, Arizona. Military Judge: Jeffrey A. Ferguson (sitting
         alone).

         Approved Sentence: Bad-conduct discharge, confinement for 5 months,
         and reduction to E-1.

         Appellate Counsel for the Appellant: Major Zaven T. Saroyan.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Major Erika L. Sleger; and Gerald R. Bruce, Esquire.

                                                 Before

                             ALLRED, MITCHELL, and WEBER
                                 Appellate Military Judges

                                         UPON REMAND

                   This opinion is subject to editorial correction before final release.



PER CURIAM:

       This case is before us on remand from our superior court. The appellant was tried
on 4–5 January 2012 by a military judge alone sitting as a special court-martial. The
military judge accepted the appellant’s pleas of guilty (with certain exceptions) to two
specifications of violating lawful general orders by using spice. Contrary to the
appellant’s pleas, the military judge convicted the appellant of wrongfully using ecstasy,
wrongfully soliciting other Airmen to disobey a general order by using spice, and
wrongfully using marijuana. The appellant’s convictions represented violations of
Articles 92, 112a, and 134, UCMJ, 10 U.S.C. §§ 892, 912a, 934. The military judge
sentenced the appellant to a bad-conduct discharge, confinement for 5 months, and
reduction to E-1. The convening authority approved the sentence as adjudged.

       We previously affirmed the findings and sentence in an unpublished decision.
United States v. Paul, ACM S32025 (A.F. Ct. Crim. App. 23 August 2013) (unpub. op.).
We held that the appellant’s conviction of divers use of ecstasy was legally sufficient
even though the Government introduced no evidence that ecstasy is a Schedule I
controlled substance, as charged in the specification. We held that under the facts of this
case, we could judicially notice that ecstasy is a Schedule I controlled substance, thereby
rendering the appellant’s conviction for divers use of ecstasy legally sufficient.

       On 29 May 2014, the Court of Appeals for the Armed Forces reversed our
decision as to the ecstasy use charge and specification, set aside the finding as to that
specification, and dismissed the specification.1 The Court affirmed the remaining
findings and remanded the case to us for reassessment of the appellant’s sentence.
United States v. Paul, 73 M.J. 274, 280 (C.A.A.F. 2014).

                                      Sentence Reassessment

       In light of our superior court’s decision to set aside and dismiss the ecstasy use
charge and specification, we now must decide whether we can accurately reassess the
appellant’s sentence, or whether we must return this case for a sentence rehearing. This
Court has “broad discretion” in deciding whether it may reassess a sentence to cure error.
United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013). A court of criminal
appeals may reassess a sentence “if the court can determine to its satisfaction that, absent
any error, the sentence adjudged would have been of at least a certain severity.” United
States v. Moffeit, 63 M.J. 40, 41 (C.A.A.F. 2006) (quoting United States v. Sales,
22 M.J. 305, 308 (C.M.A. 1986)). In making this determination, we consider factors such
as whether dramatic changes have occurred in the penalty landscape and exposure,
whether the appellant chose sentencing by members or a military judge alone, whether
the nature of the remaining offenses capture the gravamen of criminal conduct included
within the original offenses or whether significant aggravating circumstances addressed
at the court-martial remain admissible and relevant to the remaining offenses, and
whether the remaining offenses are of the type that we have the experience and
familiarity with to reliably determine what sentence would have been imposed at trial.
Winckelmann, 73 M.J. at 15-16. We may only reassess a sentence if we “confidently can
discern the extent of the error’s effect on the sentencing authority’s decision.” United
States v. Reed, 33 M.J. 98, 99 (C.M.A. 1991).

       We are confident that we can accurately reassess the appellant’s sentence. At this
special court-martial, the set aside and dismissal of the ecstasy use specification does not

1
    The Specification of Charge II.


                                                2                           ACM S32025 (rem)
alter the maximum imposable sentence to confinement. The appellant elected sentencing
by a military judge alone. “As a matter of logic, judges of the courts of criminal appeals
are more likely to be certain of what a military judge would have done as opposed to
members.” Winckelmann, 73 M.J. at 16. The remaining offenses are well within our
experience and quite familiar to us, allowing us to reliably determine what sentence
would have been imposed at trial.

       The remaining offenses of disobeying general orders by using spice, soliciting
others to use spice, and using marijuana also fairly capture the gravamen of the
appellant’s criminal conduct. We recognize that the appellant’s use of ecstasy added a
degree of aggravation to his other drug-related offenses. However, the focus of the
Government’s sentencing case was on the spice use (which was far more extensive than
the appellant’s two-time ecstasy use), and on his solicitation of other Airmen to join him
in using spice. The most aggravating factor the Government introduced was the
appellant’s cavalier attitude toward his drug use and its effect on his military career. This
evidence would have been admissible regardless of the outcome of the ecstasy use
specification. While we believe that the set aside and dismissal of the ecstasy use
specification could have had some impact on the severity of the sentence adjudged, we
have a high degree of confidence that the impact of the ecstasy use specification was
minimal compared with the remaining offenses.

        Applying the criteria set forth in Winckelmann, we are confident that, in the
absence of the charge and specification involving ecstasy use, the military judge would
have imposed a sentence of at least a bad-conduct discharge, confinement for 4 months,
and reduction to E-1. We reassess the sentence accordingly. We also find, after
considering the appellant’s character, the nature and seriousness of the offenses, and the
entire record, the reassessed sentence is appropriate. Article 66(c), UCMJ, 10 U.S.C. §
866(c).

                                                 Conclusion

       The remaining findings and the sentence, as reassessed, are correct in law and fact,
and no error materially prejudicial to the substantial rights of the appellant occurred.2
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).




2
   The court-martial order (CMO) contains formatting and typographical errors. The special court-martial order
(SPCMO) information should appear on the first line of the second page of the CMO and include the date of the
order. The CMO also incorrectly states that mandatory forfeitures were waived for a period of 4 months instead of
2. We have considered these clerical errors and determined they are not prejudicial; however, we order a corrected
CMO. See Air Force Instruction 51-201, Administration of Military Justice, ¶¶ 10.6, 10.10 (6 June 2013).


                                                        3                                     ACM S32025 (rem)
Accordingly, the remaining findings and the sentence, as reassessed, are

                                      AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




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