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

                                    No. ACM 38974
                               ________________________

                                  UNITED STATES
                                      Appellee
                                            v.
                              Gabriel J. ROSS
              Airman First Class (E-3), U.S. Air Force, Appellant
                               ________________________

           Appeal from the United States Air Force Trial Judiciary
                                Decided 3 April 2017
                               ________________________

Military Judge: Shaun S. Speranza.
Approved sentence: Dishonorable discharge, confinement for 15 months,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 27 October 2015 by GCM convened at Seymour Johnson Air
Force Base, North Carolina.
For Appellant: Major Lauren A. Shure, USAF.
For Appellee: Major Jeremy D. Gehman, USAF; Captain Matthew L.
Tusing, USAF; Gerald R. Bruce, Esquire.
Before DUBRISKE, HARDING, and C. BROWN, Appellate Military
Judges.
Senior Judge DUBRISKE delivered the opinion of the Court, in which
Judges HARDING and C. BROWN joined. 1
                               ________________________

       This is an unpublished opinion and, as such, does not serve as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




1   Senior Judge Dubriske participated in this decision prior to his reassignment.
                    United States v. Ross, No. ACM 38974


DUBRISKE, Senior Judge:
    Consistent with his pleas pursuant to a pretrial agreement (PTA), Appel-
lant was convicted by a military judge sitting alone of attempted receipt of child
pornography and receipt of child pornography, in violation of Articles 80 and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 934. Appel-
lant pleaded not guilty to an additional specification alleging distribution of
child pornography. This offense was withdrawn and dismissed by the Govern-
ment in accordance with the terms of the PTA upon acceptance of Appellant’s
guilty pleas.
   Appellant was sentenced to a dishonorable discharge, 16 months of confine-
ment, forfeiture of all pay and allowances, and reduction to E-1. The convening
authority only approved 15 months of confinement pursuant to the PTA; oth-
erwise, he approved the sentence as adjudged.
    Appellant raises three issues on appeal: (1) his “inhumane” post-trial con-
finement conditions warrant sentencing relief under Article 66(c), UCMJ, 10
U.S.C. § 866; (2) his sentence is inappropriately severe; and (3) the record of
trial is incomplete as an exhibit containing images of child pornography found
on Appellant’s computer is inoperable.
    The challenged exhibit attached to the original record of trial is operable
and was examined by the court during its review of Appellant’s case. As such,
this specific assignment of error is without merit. We also find Appellant is not
entitled to relief on the remaining two issues and affirm the findings and sen-
tence.

                                I. BACKGROUND
    Over the course of approximately four months, Appellant used peer-to-peer
software on his personal computer to search for and download child pornogra-
phy. Appellant received approximately 400 videos and still images of child por-
nography during this time period.
    Appellant’s misconduct was discovered by a Homeland Security Investiga-
tions (HSI) special agent during routine Internet monitoring for individuals
trafficking in child pornography. The special agent was able to connect to Ap-
pellant’s computer via peer-to-peer software and download videos depicting
children engaging in sexually explicit conduct. Thereafter, HSI obtained a
search warrant for Appellant’s on-base dormitory room.
  During the execution of the search warrant, Appellant agreed to talk with
HSI about his on-line activities. Appellant initially denied knowingly down-




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                       United States v. Ross, No. ACM 38974


loading child pornography. He advised he was only using his peer-to-peer soft-
ware to locate adult pornography and would immediately delete any images
appearing to depict a child.
    After being confronted by HSI with his specific search terms indicative of
child pornography, Appellant admitted he intentionally sought out child por-
nography when he became “bored” with adult pornography.

                                 II. DISCUSSION
A. Post-Trial Confinement Conditions
    At the completion of his trial, Appellant was temporarily confined at the
Sampson County Detention Center in Clinton, North Carolina for 17 days until
he was transferred to a military confinement facility to serve the remainder of
his sentence. Appellant does not assert that the conditions of his post-trial con-
finement in the civilian facility amounted to cruel or unusual punishment in
violation of the Eighth Amendment 2 or Article 55, UCMJ, 10 U.S.C. § 855. Af-
ter examining the record, we also find no such violation.
    Instead, citing this court’s opinion in United States v. Gay, 74 M.J. 736, 742
(A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), Appellant re-
quests we exercise our authority under Article 66(c), UCMJ, to disapprove his
dishonorable discharge or, alternatively, provide some other form of meaning-
ful relief regarding his sentence. In support of this assignment of error, Appel-
lant provided a sworn declaration detailing his concerns about the conditions
of his confinement. Appellant advised he was placed in a segregation cell im-
mediately after he was inprocessed and, apart from a visit to the medical dis-
pensary for a physical, he remained in his cell for the next five days. Over the
remainder of his confinement, Appellant claimed he was denied reasonable ac-
cess to both common areas and recreational activities, estimating he only spent
approximately 45 minutes outside of his cell during his entire incarceration at
the civilian facility. Appellant noted his cell was filthy and infested with in-
sects.
    Appellant also claimed the food at the facility was inedible, resulting in his
voluntary consumption of only 7 meals during his 17-day stay. Appellant was
only provided with two opportunities to shower and, once clean, was required
to wear the same underwear and socks for the duration of his stay. Appellant
advised he would request additional clothing, toiletries, writing materials, and
other necessities, but his requests would be ignored by confinement personnel.




2   U.S. CONST. amend. VIII.


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                    United States v. Ross, No. ACM 38974


Appellant claims these egregious conditions and his poor treatment caused him
to suffer significant mental distress.
    In response, the Government submitted a sworn declaration from Captain
FH, the Assistant Jail Administrator at the Sampson County Detention Cen-
ter. He noted Appellant was not placed on “lockdown” status upon his arrival,
but instead was initially processed into the facility as any other inmate. Ap-
pellant was placed in a portion of the detention facility which allowed him to
be segregated from most other inmates.
    After reviewing facility records, Captain FH noted four specific days in
which Appellant was provided access to common and recreation areas. In ad-
dition to two specific days during which Appellant was given time to shower,
Appellant was also authorized to shower during his recreation time. Captain
FH confirmed Appellant’s cell was cleaned twice during his 17-day incarcera-
tion. Personal laundry was collected twice, and Appellant’s linens were ex-
changed out once during his stay at the detention facility.
    Captain FH further advised the facility is routinely inspected by the North
Carolina Division of Health Service Regulation, with the most recent inspec-
tion occurring approximately two months prior to Appellant’s incarceration.
    Before addressing the merits of Appellant’s claim, we first assess whether
we should remand this case for a post-trial fact-finding hearing as suggested
by Appellant. In United States v. Fagan, 59 M.J. 238, 241–42 (C.A.A.F. 2004),
our superior court determined that the framework of United States v. Ginn, 47
M.J. 236 (C.A.A.F. 1997), guides our determination of whether a post-trial fact-
finding hearing is necessary to resolve a claim based on the conditions of post-
trial punishment. Here, we find no fact-finding hearing is warranted as Appel-
lant’s account of his confinement is relatively consistent with Captain FH’s
declaration on a number of substantive issues, including Appellant’s access to
common areas and shower facilities. See Ginn, 47 M.J. at 248. Additionally, on
certain complaints such as the quality of the confinement facility’s food, we
find the record as a whole “compellingly demonstrates” the improbability of
those facts asserted by Appellant. See id.
   Turning to the merits of Appellant’s claim, this court may employ its Article
66(c) authority to grant sentencing relief even in the absence of cruel or unu-
sual punishment in violation of the Eighth Amendment and Article 55. Gay,
74 M.J. at 742. In reviewing our decision in Gay to use this authority, our su-
perior court noted that Gay involved unique facts driven by legal errors in the
post-trial process that included both a violation of the appellant’s rights under
Article 12, UCMJ, 10 U.S.C. § 812, and the ordering of solitary confinement by
an Air Force official where an alternative solution was available. United States




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                    United States v. Ross, No. ACM 38974


v. Gay, 75 M.J. 264, 269 (C.A.A.F. 2016). Significantly, our superior court em-
phasized, “In reaching this conclusion, we do not recognize unlimited authority
of the Courts of Criminal Appeals to grant sentence appropriateness relief for
any conditions of post-trial confinement of which they disapprove.” Id. Given
these parameters, we have previously noted we will likely only exercise our
Article 66(c) authority to grant sentence relief based upon conditions of post-
trial confinement in very rare circumstances. See United States v. Milner, No.
ACM S32338, 2017 CCA LEXIS 84 (A.F. Ct. Crim. App. 7 Feb. 2017) (unpub.
op.); cf. United States v. Nerad, 69 M.J. 138, 145–47 (C.A.A.F. 2010) (holding
that despite our significant discretion in reviewing the appropriateness of a
sentence, this court may not engage in acts of clemency).
    This case does not present such a rare circumstance; thus, we elect not to
grant relief under our Article 66(c) authority. In so holding, we note, contrary
to Appellant’s characterization as such, he was not kept in solitary confine-
ment. Instead, Appellant was housed in a specific section of the facility to sep-
arate him from the general prison population. This section housed other mili-
tary personnel as well as civilian inmates. Appellant acknowledges he was ad-
vised of this more restrictive environment prior to his transfer to the civilian
facility.
    Appellant also admits he was given at least two opportunities to shower
and, although very limited in his opinion, time outside of his cell. Appellant
was further allowed two visits by his wife and one visit from his chain of com-
mand. Moreover, although he chose not to eat, Appellant was given access to
sufficient food. His cell also afforded him basic sanitation needs with a toilet
and sink.
    After reviewing all of the submitted matters, we are not persuaded that the
conditions of Appellant’s post-trial confinement rise to the level of being so op-
pressive as to warrant sentence relief. There is no evidence he was subjected
to physical or mental abuse, or otherwise singled out for unusual treatment.
Moreover, despite Appellant’s characterizations, the circumstances surround-
ing his 17 days of confinement do not appear to involve the extreme segregation
often associated with solitary confinement. Therefore, we decline to use our
Article 66(c) power to grant sentence relief.
B. Sentence Appropriateness
   Appellant also claims his confinement sentence is not appropriate given his
case was at the “low end” of severity as compared to other child pornography
cases, and his misconduct did not involve the collection of images of children
being sexually abused and exploited. Appellant requests his sentence be re-
duced to at most 12 months of confinement.




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                    United States v. Ross, No. ACM 38974


    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-
fense[s], 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). Although we are accorded great discretion in determining whether a
particular sentence is appropriate, we are not authorized to engage in exercises
of clemency. Nerad, 69 M.J. at 148.
    After giving individualized consideration to this particular Appellant, his
record of service, the nature and seriousness of the offenses, and all other mat-
ters contained in the record of trial, we find the approved sentence is not inap-
propriately severe. Appellant sought out and received 400 images of child por-
nography because adult pornography was not enough for him. We acknowledge
the charged offenses occurred over a short period of time and Appellant ac-
cepted responsibility for his conduct at trial. However, the severity of the of-
fenses causes us to find the approved sentence is not unduly harsh or otherwise
inappropriate.

                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of the 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.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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