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

                           No. ACM 38947
                      ________________________

                         UNITED STATES
                             Appellee
                                 v.
                         Ryan D. MEANS
         Airman First Class (E-3), U.S. Air Force, Appellant
                      ________________________

       Appeal from the United States Air Force Trial Judiciary
                        Decided 12 May 2017
                      ________________________

Military Judge: Wendy L. Sherman (arraignment); James R. Dorman
(trial).
Approved sentence: Bad-conduct discharge, confinement for 15 months,
forfeiture of all pay and allowances, and reduction to E-1. Sentence
adjudged 22 September 2015 by GCM convened at Minot Air Force
Base, North Dakota.
For Appellant: Major Mark C. Bruegger, USAF; Major Jeffrey A. Da-
vis, USAF.
For Appellee: Major Mary Ellen Payne, USAF; Major J. Ronald Steel-
man, III, USAF; Gerald R. Bruce, Esquire.
Before DREW, J. BROWN, and MINK, Appellate Military Judges.
Chief Judge DREW delivered the opinion of the Court, in which Senior
Judge J. BROWN and Judge MINK joined.
                      ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                      ________________________
                      United States v. Means, No. ACM 38947


DREW, Chief Judge:
    A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas and pursuant to a pretrial agreement (PTA) of di-
vers wrongful use of heroin, alprazolam, oxycodone, and oxymorphone, and
wrongful possession of cocaine, alprazolam, and clonazepam, in violation of
Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a; in-
capacitation for duty due to wrongful previous overindulgence in drugs, in
violation of Article 134, UCMJ, 10 U.S.C. § 934; and attempt to wrongfully
possess fentanyl and psilocyn, in violation of Article 80, UCMJ, 10 U.S.C. §
880. 1 The military judge sentenced Appellant to a bad-conduct discharge, con-
finement for 15 months, forfeiture of all pay and allowances, and reduction to
E-1. The convening authority approved the adjudged sentence. 2
    Appellant raises four assignments of error on appeal: (1) whether the trial
counsel inappropriately argued that Appellant purposefully withheld evi-
dence during the plea inquiry; (2) whether Appellant’s sentence is unduly se-
vere; (3) whether the Government violated Appellant’s Fourth Amendment 3
rights by opening his mail without consent; 4 and (4) whether Appellant’s

1 In accordance with the PTA between Appellant and the convening authority, the
latter dismissed a specification alleging wrongful distribution of alprazolam and a
specification alleging an attempt to wrongfully possess a substance with the intent to
alter mood or function. The military judge discussed the Government’s requirement
to dismiss the specifications, but trial counsel did not make a motion, nor did the mil-
itary judge sua sponte dismiss the specifications. Nevertheless, the general court-
martial order (CMO) correctly states that the specifications were dismissed pursuant
to the PTA. Since the dismissals occurred after Appellant was arraigned on the speci-
fications, the dismissals were with prejudice.
2 The PTA provided that the convening authority would approve no confinement in
excess of 16 months or a dishonorable discharge, but included no other limitations on
the sentence he could approve. Accordingly, the PTA had no impact on the convening
authority’s ability to approve the adjudged sentence.
3   U.S. CONST. amend. IV.
4 Appellant raises this issue pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). Appellant affirmatively waived the issue as part of his PTA discussion
with the military judge, in which the military judge thoroughly discussed with Appel-
lant his knowing waiver of a motion to suppress, on Fourth Amendment grounds,
evidence that was seized from his mail and concluded with: “MJ: And, it is your de-
sire to give up that motion to suppress for the sake of maintaining the pretrial
agreement? Appellant: Yes, Your Honor.” Ordinarily, appellate courts “do not re-
view waived issues because a valid waiver leaves no error to correct on appeal.” Unit-
ed States v. Ahern, __ M.J. __, No. 17-0032/AR, 2017 CAAF LEXIS 292, at *7
(C.A.A.F. 20 Apr. 2017) (citing United States v. Campos, 67 M.J. 330, 332 (C.A.A.F.
(Footnote continues on next page)


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                       United States v. Means, No. ACM 38947


solitary pretrial confinement constituted unlawful pretrial punishment. 5

                                    I. BACKGROUND
    In March 2015, Appellant snorted heroin in a parking lot of a bar in Min-
ot, North Dakota. Shortly thereafter he was randomly selected for a urinaly-
sis which tested positive for heroin metabolites. A subsequent Bickel 6 inspec-
tion tested positive for heroin metabolites and alprazolam metabolites, result-
ing from his additional snorting of heroin and wrongful ingestion of Xanax. 7
    In April 2015, Appellant wrongfully snorted oxymorphone and wrongfully
ingested Xanax. Due to his Xanax consumption, Appellant reported for duty
incapacitated on 15 April 2015. He was staggering, lethargic, slurring his
speech, and nearly fell over. A urine sample he provided that day came back
on 23 April 2015 and Appellant was placed in pretrial confinement. His wal-
let was later found in a supply closet at his duty section. His wallet contained
various objects with cocaine residue.
    On 30 April 2015, Appellant was released from pretrial confinement and
restricted to base. While restricted, Appellant ordered contraband “magic
mushrooms” and fentanyl without a prescription over the Internet.
    On 18 May 2015, four envelopes belonging to Appellant were found in a
fellow Airman’s car. They contained approximately 80 Xanax pills. On the
same day, Appellant consented to the search of his dorm room. 8 Various ob-


2009)). However, we recognize that this court is permitted, under Article 66(c),
UCMJ, 10 U.S.C. § 866(c), to review issues affirmatively waived by an appellant at
trial. United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (“CCAs are required to
assess the entire record to determine whether to leave an accused’s waiver intact, or
to correct the error.”). After having reviewed the entire record, we leave Appellant’s
waiver of this issue intact.
5 Appellant raises this issue pursuant to United States v. Grostefon. Appellant af-
firmatively waived the issue as part of his PTA discussion with the military judge, in
which the military judge thoroughly discussed with Appellant his knowing waiver of
any unlawful pretrial punishment issue and concluded with: “MJ: Knowing what I
have now told you, do you still desire to give up the right to litigate the issue of ille-
gal pretrial punishment as long as your pretrial agreement continues to exist? Ap-
pellant: Yes, Your Honor.” After having reviewed the entire record, we leave Appel-
lant’s waiver of this issue intact. Chin, 75 MJ at 223.
6   United States v. Bickel, 30 M.J. 277 (C.M.A. 1990).
7   Xanax is a commercial name for Alprazolam.
8   A valid probable cause search authorization was also issued.




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                  United States v. Means, No. ACM 38947


jects were seized, which tested positive for the presence of alprazolam and
clonazepam. Appellant was placed back in pretrial confinement and his in-
spection urine sample tested positive for the metabolites of alprazolam.
    On 19 May 2015, Appellant’s fentanyl order arrived. Since Appellant was
in pretrial confinement, officials opened and inspected the package for con-
traband. Inside the package were four time-release prescription fentanyl
patches and a nose spray bottle, which, following a search authorization,
were tested and determined to each contain fentanyl or an illicit chemical
analog.
    On 20 May 2015, Appellant’s “magic mushroom” order arrived. Since Ap-
pellant was still in pretrial confinement, officials opened and inspected the
package. Inside the package were six small bottles, which, following a search
authorization, were tested and determined to contain psilocyn, a Schedule I
controlled substance related to “magic mushrooms.”
   At the time of trial, Appellant remained in pretrial confinement.

                               II. DISCUSSION
A. Trial Counsel Sentencing Argument
    The maximum punishment for Appellant’s offenses was a dishonorable
discharge, confinement for 31 years and three months, total forfeitures, and
reduction to E-1. The assistant trial counsel argued for a sentence of a bad-
conduct discharge, confinement for 18 months, total forfeitures, and reduc-
tion to E-1. Towards the beginning of his sentencing argument, which, includ-
ing rebuttal argument, spanned ten pages in the record of trial, the assistant
trial counsel made the following argument:
       A1C Means has pleaded guilty today. For the crimes he has
       pled guilty to he is facing 36 [sic] years of confinement and a
       dishonorable discharge. In making our sentencing request of 18
       months and a bad-conduct discharge, the government acknowl-
       edges that A1C Means has taken some responsibility for his
       bad conduct. A1C Means had the opportunity today to take full
       responsibility; he did not. When asked by Your Honor repeated-
       ly “how many times, how much,” he couldn’t remember. And
       not just that he couldn’t remember, but that he couldn’t re-
       member when the answer was likely to be more than what he
       had to admit to.
    Trial defense counsel did not object to the argument, but Appellant now
asserts that assistant trial counsel’s argument that Appellant failed to take
full responsibility during his providence inquiry was error.


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                   United States v. Means, No. ACM 38947


    “Improper argument involves a question of law that [we] review[ ] de no-
vo.” United States v. Frey, 73 M.J. 245, 248 (C.A.A.F. 2014). “The legal test
for improper argument is whether the argument was erroneous and whether
it materially prejudiced the substantial rights of the accused.” United States
v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000). Error occurs when counsel fail to
limit their arguments to “the evidence of record, as well as all reasonable in-
ferences fairly derived from such evidence.” Id. “However, as a threshold mat-
ter, the argument by a trial counsel must be viewed within the context of the
entire court-martial. The focus of our inquiry should not be on words in isola-
tion, 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)). Even within the context of the record, it is error for trial counsel to
make arguments that “unduly . . . inflame the passions or prejudices of the
court members.” United States v. Marsh, 70 M.J. 101, 102 (C.A.A.F. 2011) (al-
teration in original) (quoting United States v. Schroder, 65 M.J. 49, 58
(C.A.A.F. 2007)). On the other hand, trial counsel is expected to zealously ar-
gue for an appropriate sentence, so long as the argument is fair and reasona-
bly based on the evidence. United States v. Kropf, 39 M.J. 107, 108 (C.M.A.
1994).
    Where improper sentencing argument occurs, we must determine wheth-
er we can be confident that the appellant was sentenced on the basis of the
evidence alone. United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013).
When trial defense counsel failed to object to an argument at trial, we review
for plain error. Marsh, 70 M.J. at 104. To establish plain error, Appellant
must prove (1) there was error, (2) it was plain or obvious, and (3) the error
resulted in material prejudice. United States v. Flores, 69 M.J. 366, 369
(C.A.A.F. 2011).
     Argument by trial counsel that comments upon an accused’s right to re-
main silent is “beyond the bounds of fair comment.” United States v. Paxton,
64 M.J. 484, 487 (C.A.A.F. 2007). However, if the proper foundation is laid,
an accused’s refusal to admit guilt or accept responsibility may be an appro-
priate factor for the members’ consideration in their sentencing deliberation
on rehabilitation potential. United States v. Garren, 53 M.J. 142, 144
(C.A.A.F. 2000); United States v. Edwards, 35 M.J. 351, 355 (C.M.A. 1992).
“As a general rule, the predicate foundation is that an accused has either tes-
tified or has made an unsworn statement and has either expressed no re-
morse or his expression of remorse can be arguably construed as being shal-
low, artificial, or contrived.” Edwards, 35 M.J. at 355. “Other evidence in the
record may also give rise to the inference that an accused is not remorseful,
but the inference may not be drawn from his decision not to testify or from
his pleas of not guilty.” Paxton, 64 M.J. at 487 (citing Edwards, 35 M.J. at
355). An accused’s “sworn admissions made during a providence inquiry can

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                   United States v. Means, No. ACM 38947


be admissible for sentencing purposes as aggravating evidence.” United
States v. Price, 76 M.J. 136, __, 2017 CCA LEXIS 265, *7 (C.A.A.F. 2017) (cit-
ing United States v. Holt, 27 M.J. 57, 60 (C.M.A. 1988)).
    Here, assistant trial counsel argued that Appellant minimized his culpa-
bility during his providence inquiry. Trial counsel may properly refer to Ap-
pellant’s sworn providence inquiry testimony during sentencing argument.
Holt, 27 M.J. at 60. Whether Appellant’s asserted memory lapses resulted
from a refusal to accept responsibility, or from the passage of time—possibly
aided by the ingestion of illicit drugs—is a matter for debate. However, just
as trial defense counsel did not see fit to object that the argument misstated
the evidence or was otherwise improper, we do not believe that any error that
may have existed was plain or obvious. In any event, we are convinced that
Appellant was not prejudiced by the argument.
   This was a judge alone trial. We are convinced that the military judge was
not unduly swayed by assistant trial counsel’s fleeting comment, and we are
confident that Appellant was sentenced on the basis of the evidence alone.
B. Sentence Severity
   This court “may affirm only . . . the sentence or such part or amount of the
sentence, as it finds correct in law and fact and determines, on the basis of
the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. §
866(c). This court reviews sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). “We assess sentence appropriateness by
considering the particular appellant, the nature and seriousness of the of-
fenses, the appellant’s record of service, and all matters contained in the rec-
ord of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App.
2009). This task requires “individualized consideration of the particular ac-
cused on the basis of the nature and seriousness of the offense and the char-
acter of the offender.” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180–81 (C.M.A.
1959)) (internal quotation marks omitted).
    In conducting this review, we must also be sensitive to considerations of
uniformity and evenhandedness. United States v. Sothen, 54 M.J. 294, 296
(C.A.A.F. 2001) (citing United States v. Lacy, 50 M.J. 286, 287–88 (C.A.A.F.
1999)). However, we engage in sentence comparison only “in those rare in-
stances in which sentence appropriateness can be fairly determined only by
reference to disparate sentences adjudged in closely related cases.” Id. (quot-
ing United States v. Dukes, 5 M.J., 71, 73 (C.M.A. 1978)).
       An appellant who asks the Court of Criminal Appeals to en-
       gage in sentence comparison bears the burden of demonstrat-
       ing that any cited cases are “closely related” to the appellant’s


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                   United States v. Means, No. ACM 38947


       case, and that the sentences are “highly disparate.” If the ap-
       pellant meets that burden . . . the burden shifts to the Govern-
       ment to show a rational basis for the disparity.
Id. (quoting Lacy, 50 M.J. at 288). Sentence comparison is appropriately rare
since “[f]rom the mere face of court-martial promulgating orders or similar
documents, it is simply not possible to assess the multitude of aggravating
and mitigating sentencing factors considered in the cases they represent.”
United States v. Ballard, 20 M.J. 282, 285 (C.M.A. 1985). Although we are
accorded great discretion in determining whether a particular sentence is ap-
propriate, we are not authorized to engage in exercises of clemency. United
States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
    Appellant’s conviction for multiple drug offenses involving a wide range of
controlled substances carried a maximum punishment of a dishonorable dis-
charge, confinement for 31 years and three months, total forfeitures, and re-
duction to E-1. Appellant negotiated with the convening authority not to ap-
prove a dishonorable discharge or confinement in excess of 16 months, nei-
ther of which were implicated by Appellant’s sentence of a bad-conduct dis-
charge, confinement for 15 months, forfeiture of all pay and allowances, and
reduction to E-1. Appellant has referred the court to a number of other drug
cases. However, Appellant has failed to meet his burden to establish that any
of those cases are closely related to his.
    We have given individualized consideration to Appellant, the nature and
seriousness of his offenses, his record of service, and all other matters con-
tained in the record of trial. We find that the approved sentence was legally
appropriate based on the facts and circumstances of this particular case, and
was not inappropriately severe.




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                    United States v. Means, No. ACM 38947


                                 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.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and the sentence are AFFIRMED. 9


                  FOR THE COURT



                  KURT J. BRUBAKER
                  Clerk of the Court




9 We note that the CMO incorrectly states the plea and finding for Charge I, Specifi-
cation 5. We direct a corrected CMO reflecting the following: “Plea: NG, but G of the
LIO of wrongful possession of a controlled substance. Finding: G of the LIO of wrong-
ful possession of a controlled substance. Greater offense dismissed in accordance with
the PTA.”




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