UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                         KERN, ALDYKIEWICZ, and MARTIN
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                       Staff Sergeant RODGER S. DANES
                         United States Army, Appellant

                                    ARMY 20091072

                            Headquarters, Fort Bliss
                        Michael J. Hargis, Military Judge
                Colonel Michael J. Benjamin, Staff Judge Advocate

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain Tiffany K.
Dewell, JA (on brief).

For Appellee: Major Amber J. Williams, JA; Major Ellen S. Jennings, JA; Captain
Nathan S. Mammen, JA (on brief).

                                       31 July 2013

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                        SUMMARY DISPOSITION ON REMAND
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Per Curiam:

       A military judge sitting as a special court -martial convicted appellant, in
accordance with his pleas, of one specification of false official statement and one
specification of wearing an unauthorized Ranger tab in violation of Article s 107 and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 934 (2006) [hereinafter
UCMJ]. Contrary to his pleas, the military judge convicted appellant of one
specification of false official statement, one specification of larceny of military
property, and three specifications of wearing unauthorized badges or ribbons, in
violation of Articles 107, 121, and 134, UCMJ. The convening authority approved
the adjudged sentence to a bad-conduct discharge, confinement for three months, and
reduction to the grade of E-1.

       On 23 November 2011, we affirmed the findings of guilty and the sentence.
United States v. Danes, ARMY 20091072, 2011 WL 6010041 (Army Ct. Crim. App.
23 Nov. 2011) (mem. op.). On 10 July 2012, the Court of Appeals for the Armed
Forces (CAAF) reversed our decision as to Specifications 2, 4, and 6 of Charge III,
the three specifications of wearing unauthorized badges or ribbons in violation of
DANES—ARMY 20091072

Article 134, UCMJ, and as to the sentence, and returned the record of trial to The
Judge Advocate General of the Army for remand to this court for further
consideration in light of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012).
United States v. Danes, 71 M.J. 353 (C.A.A.F. July 10, 2012) (summ. disp.). On
11 September 2012, we again affirmed the findings of guilty and the sentence.
United States v. Danes, ARMY 20091072, 2012 WL 4052518 (Army Ct. Crim. App.
11 Sep. 2012) (summ. disp.). On 22 July 2013, our superior court again reversed our
decision as to Specifications 2, 4, and 6 of Charge III, the three specifications of
wearing unauthorized badges or ribbons in violation of Article 134, UCMJ, setting
aside the findings of guilty as to those specifications and reversing the sentence.
United States v. Danes, __ M.J. ___ (C.A.A.F. July 22, 2013) (summ. disp.). The
CAAF affirmed the remaining findings and then returned the record of trial to The
Judge Advocate General of the Army for remand to this court to either dismiss
Specifications 2, 4, and 6 of Charge III and reassess the sentence based on the
affirmed findings or order a rehearing on the affected charge and sentence. Id.
Consequently, appellant’s case is once again before this court.

                              LAW AND DISCUSSION

       We must now consider the impact of the error identified by our superior court
and determine whether we can appropriately reassess the sentence with the dismissal
of Specifications 2, 4, and 6 of Charge III. If this court “can determine that, absent
the error, the sentence would have been at least of a certain magnitude, then [we]
may cure the error by reassessing the sentence instead of ordering a sentencing
rehearing.” United States v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002) (citing United
States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986)). A “dramatic change in the
‘penalty landscape’” lessens our ability to reassess a sentence. United States v.
Riley, 58 M.J. 305, 312 (C.A.A.F. 2003). Ultimately, a sentence can be reassessed
only 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).
Because the error in this case is of a constitutional magnitude, we “must be satisfied
beyond a reasonable doubt that . . . reassessment [can cure] the error.” Doss, 57
M.J. at 185 (citing Sales, 22 M.J. at 307). Additionally, we must determine that a
sentence we propose to affirm is “appropriate,” as required by Article 66(c), UCMJ.
In short, a reassessed sentence must be purged of prejudicial error and also must be
appropriate for the offense and the offender i nvolved. Sales, 22 M.J. at 307–08.

       In this case, the sentencing landscape does not change with the dismissal of
Specifications 2, 4, and 6 of Charge III. This case is a special court-martial, and the
maximum punishment remains unchanged. Viewing the remaining convictions in
this context, we are convinced that we can reassess the sentence from appellant’s
judge-alone trial. We have considered the entire record and the principles of Sales
and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors
identified by Judge Baker in his concurring opinion in Moffeit. Among other
matters, we took into account appellant’s length of service, his family, and his
deployment history. We also considered the serious nature of appellant’s remaining
                                           2
DANES—ARMY 20091072

convictions, to include submitting false records, stealing, as well as the unauthorized
wear of a Ranger tab on his uniform. In addition, we also considered appellant’s
record of prior non-judicial punishment. In light of the foregoing, we are confident
beyond a reasonable doubt that appellant would have received a sentence on the
remaining convictions of no less than a bad-conduct discharge, confinement for three
months, and reduction to the grade of E-1. We find such a sentence is correct in law
and fact and, based on the entire record, should be approved.

                                   CONCLUSION

       Specifications 2, 4, and 6 of Charge III are dismissed. The remaining findings
of guilty have been previously affirmed by both this court and the CAAF. After
reassessing the sentence on the basis of the error noted above and the entire record,
the sentence is AFFIRMED. All rights, privileges, and property, of which appellant
has been deprived by virtue of that portion of the findings set aside by this decision,
are ordered restored. See UCMJ art. 75(a).


                                        FOR THE COURT:




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




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