              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                           ________________________

                               No. ACM S32514
                           ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                       Keagen A. LUDOWESE
           Airman First Class (E-3), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                            Decided 17 June 2019
                           ________________________

Military Judge: Ryan A. Hendricks.
Approved sentence: Bad-conduct discharge, confinement for 45 days,
hard labor without confinement for 45 days, reduction to E-1, and a
reprimand. Sentence adjudged 13 February 2018 by SpCM convened at
Eglin Air Force Base, Florida.
For Appellant: Major Todd M. Swensen, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mi-
chael T. Bunnell, USAF; Mary Ellen Payne, Esquire; Justin A. Miller
(civilian intern). 1
Before JOHNSON, POSCH, and KEY, Appellate Military Judges.
Judge KEY delivered the opinion of the court, in which Senior Judge
JOHNSON and Judge POSCH joined.
                           ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.


1Mr. Miller was a legal intern with the Air Force Legal Operations Agency and was
at all times supervised by attorneys admitted to practice before this court.
                  United States v. Ludowese, No. ACM S32514


                            ________________________

KEY, Judge:
    A special court-martial composed of a military judge convicted Appellant,
in accordance with his pleas, of one specification of wrongful use of cocaine, in
violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 912a. 2 The court-martial sentenced Appellant to a bad-conduct discharge,
confinement for 60 days, hard labor without confinement for 45 days, reduc-
tion to the grade of E-1, and a reprimand. In accordance with a pretrial
agreement (PTA), the convening authority approved confinement for only 45
days but otherwise approved the sentence as adjudged. Also in accordance
with the PTA, the convening authority withdrew and dismissed with preju-
dice a specification alleging fraudulent enlistment charged as a violation of
Article 83, UCMJ, 10 U.S.C. § 883.
   Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appel-
lant asserts on appeal that his sentence is inappropriately severe. We find no
error that materially prejudiced a substantial right of Appellant and affirm
the findings and sentence.

                                 I. BACKGROUND
    In November 2017, Appellant attended an off-base house party hosted by
a civilian friend. At the party, Appellant mentioned to the host that “it would
be nice to do cocaine tonight.” With the host’s assistance, the two connected
with a local drug dealer and purchased cocaine, which Appellant proceeded to
use. One of the other party-goers witnessed and photographed Appellant’s
cocaine use. Approximately two days later, Appellant’s conduct at the party
was the topic of conversation between two of the party-goers and a security
forces Airman assigned to a nearby installation. The Airman obtained a copy
of the picture showing Appellant using cocaine and gave it to investigators
from the Air Force Office of Special Investigations. On 7 November 2017, Ap-
pellant waived his rights under Article 31, UCMJ, 10 U.S.C. § 831, and con-
fessed to using cocaine. Forensic analysis of Appellant’s urine, obtained via
search authorization, revealed the presence of cocaine metabolites, corrobo-
rating Appellant’s confession.




2 Unless otherwise noted, all references in this opinion to the Uniform Code of Mili-
tary Justice and Rules for Courts-Martial are to the Manual for Courts-Martial,
United States (2016 ed.).




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                 United States v. Ludowese, No. ACM S32514


                               II. DISCUSSION
    We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)). Our authority to determine sentence appropriateness “re-
flects the unique history and attributes of the military justice system, [and]
includes but is not limited to considerations of uniformity and evenhanded-
ness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296
(C.A.A.F. 2001) (citations omitted). We may affirm only as much of the sen-
tence as we find correct in law and fact and determine should be approved on
the basis of the entire record. Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We
assess sentence appropriateness by considering the particular appellant, the
nature and seriousness of the offense, the appellant’s record of service, and
all matters contained in the record of trial.” United States v. Anderson, 67
M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (citation omitted). Although we have
great discretion to determine whether a sentence is appropriate, we have no
power to grant mercy. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F.
2010) (citation omitted).
    In February 2018, Appellant and the convening authority entered into a
PTA wherein Appellant agreed, inter alia, to plead guilty to one specification
of wrongful use of cocaine. In exchange, the convening authority agreed, inter
alia, to withdraw and dismiss the remaining charge and specification of
fraudulent enlistment and to not approve confinement in excess of 45 days if
a bad-conduct discharge were to be adjudged (if no such discharge were to be
adjudged, the convening authority would not approve confinement in excess
of 90 days). During the sentencing proceeding, trial counsel recommended a
sentence of three months’ confinement, a bad-conduct discharge, “maximum”
forfeitures, and reduction to the grade of E-1. The adjudged sentence included
60 days of confinement, which was reduced to 45 days by virtue of the PTA.
    On appeal, Appellant asserts his sentence for a single use of cocaine is in-
appropriately severe and he asks this court to disapprove the portion of his
sentence consisting of a bad-conduct discharge. Appellant argues his convic-
tion is ample deterrence and that a bad-conduct discharge is unnecessary to
rehabilitate him and will cause him difficulties in pursuing both education
and employment. Appellant points to no legal errors in his case and is essen-
tially asking this court to grant him clemency—an authority we are not vest-
ed with. We considered Appellant; the nature and seriousness of his admitted
offense; his two-year and five-month record of military service at the time of
his trial; and all matters contained in the record of trial, to include all mat-
ters he submitted in his case in extenuation, mitigation, and clemency. We
conclude the approved sentence, including a bad-conduct discharge, is not in-
appropriately severe.


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                 United States v. Ludowese, No. ACM S32514


   We note that the convening authority’s action is dated 10 April 2018, but
the promulgating order is dated 11 April 2018. See Rule for Courts-Martial
(R.C.M.) 1114(c)(2). In addition, the order fails to set forth the charge and
specification that were withdrawn after arraignment. See R.C.M. 1114(c)(1).
We order the issuance of a new court-martial order correcting these errors.

                                III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. 3
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and sentence are AFFIRMED.




                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




3 The staff judge advocate’s recommendation to the convening authority erroneously
stated the maximum imposable punishment included, inter alia, forfeiture of two-
thirds of Appellant’s pay per month for 12 months and a fine. See R.C.M.
201(f)(2)(B)(i), 1003(b)(3); United States v. Books, No. ACM S32369, 2017 CCA LEXIS
226 at *7 (A.F. Ct. Crim. App. 31 Mar. 2017). However, Appellant has not asserted
and we do not find any colorable showing of possible prejudice from the error under
the facts of this case. See United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000).




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