              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                  Before
                J.A. FISCHER, D.C. KING, T.H. CAMPBELL
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         HOWARD GOMEZ
                  CORPORAL (E-4), U.S. MARINE CORPS

                           NMCCA 201500195
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 19 March 2015.
Military Judge: Maj M.D. Libretto, USMC.
Convening Authority: Commanding General, 2d Marine
Division, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: LtCol K.S. Woodard,
USMC.
For Appellant: CDR Sabatino F. Leo, JAGC, USN.
For Appellee: Capt Diane L. Karr, JAGC, USN; LCDR Justin C.
Henderson, JAGC, USN; Maj Suzanne Dempsey, USMC.

                           10 November 2015

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A general court-martial composed of a military judge
convicted the appellant, pursuant to his pleas, of one
specification of conspiracy, three specifications of wrongful
disposition of military property, one specification of larceny
of military property, and one specification of housebreaking, in
violation of Articles 81, 108, 121, and 130 Uniform Code of
Military Justice, 10 U.S.C. §§ 881, 908, 921, and 930. The
military judge sentenced the appellant to fifty-four months of
confinement, reduction to pay grade E-1, a $30,000.00 fine, and
a dishonorable discharge. The convening authority (CA) approved
the sentence as adjudged, but suspended all confinement in
excess of four years for the period of confinement served plus
six months thereafter, in accordance with the pretrial agreement
(PTA).

     The appellant now raises two assignments of error. First,
the appellant asserts that his sentence is disparately severe
when compared to the sentence of one of his co-conspirators.
Second, the appellant asserts the court-martial promulgating
order does not accurately reflect his charges and pleas.
Finding merit in his second assignment of error, we order
corrective action in our decretal paragraph. We conclude the
findings and the sentence are correct in law and fact, and that
no error materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.

                                  Background

     In the summer of 2014, three Marines -- the appellant,
Lance Corporal (LCpl) Roberts and Private First Class (PFC)
Smith -- conspired to steal military equipment from the 2D
Marine Special Operations Battalion (2D MSOB) supply warehouse
at Camp Lejeune, North Carolina. The object of the conspiracy
was to sell the equipment to civilians for profit and each
member of the conspiracy had a unique role.

     The appellant and PFC Smith were warehouse clerks at the 2D
Reconnaissance Battalion warehouse, when the appellant
discovered that PFC Smith was stealing and selling military
equipment. The appellant then crafted a plan and told PFC Smith
“that [he] had someone working [2D MSOB] in the supply warehouse
that would be willing to steal gear and give [it] to [PFC Smith]
to sell[.]”1 The appellant’s contact in the 2D MSOB warehouse
was LCpl Roberts, his former roommate. Following his discussion
with PFC Smith, the appellant introduced LCpl Roberts and PFC
Smith to each other.

     Together the three Marines decided they would steal
equipment from the 2D MSOB warehouse, sell it, and split the
proceeds. The appellant assumed responsibility for coordinating

1
    Prosecution Exhibit 7 at 1.


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the conspiracy internally and facilitating communication on what
items to steal. He coordinated with his co-conspirators on
pick-up times and locations, and ensured LCpl Roberts received
payment for his part in the operation. The appellant received
approximately $30,000.00 for his contributions to the
conspiracy.

     LCpl Roberts received approximately $20,000.00 for stealing
the military equipment from the 2D MSOB warehouse and giving it
to PFC Smith. PFC Smith received approximately $30,000.00 for
storing the stolen property at his residence, locating buyers,
and executing the sales transaction.

     The appellant and LCpl Roberts were charged at separate
courts-marital convened by different CAs and presided over by
different military judges.2 A military judge sentenced LCpl
Roberts to reduction to pay grade E-1, total forfeiture of pay
and allowances, confinement for thirty-six months, and a
dishonorable discharge.3 The terms of LCpl Roberts’ PTA,
however, suspended six months of his confinement, reducing his
unsuspended amount of confinement to thirty months.

                            Sentence Disparity

     The appellant now argues that his case is disparately
severe when compared to LCpl Roberts’ sentence. He requests
that we set aside his $30,000.00 fine and affirm only 30 months
of the approved confinement, which would result in a sentence
more closely aligned with that of LCpl Roberts. We decline to
do so.

     We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we find]
correct in law and fact and determine[], on the basis of the
entire record, should be approved.” Art. 66(c), UCMJ. Sentence
appropriateness is reviewed de novo, United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006), and involves the judicial function of
assuring that justice is done and that the appellant gets the
punishment he deserves, United States v. Healy, 26 M.J. 394, 395
(C.M.A. 1988). As part of that review, we give “‘individualized
consideration’ of the particular appellant ‘on the basis of the

2
  The record does not indicate what sentence was approved by the CA in LCpl
Roberts’ case.
3
  The record does not inform us as to the fate of PFC Smith, but indicates
that civilian authorities were investigating him for his role in the
conspiracy.
                                      3
nature and seriousness of the offense and the character of the
offender,’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (additional quotations omitted), which generally should be
determined without reference or comparison to sentences in other
cases, United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985).
We are not required to engage in comparison of specific cases
“‘except in those rare instances in which sentence
appropriateness can be fairly determined only by reference to
disparate sentences adjudged in closely related cases.’” United
States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999) (quoting
Ballard, 20 M.J. at 283) (additional citation omitted).
Although we are accorded great discretion in determining whether
a particular sentence is appropriate, we are not authorized to
engage in exercises of clemency. United States v. Nerad, 69
M.J. 138, 146 (C.A.A.F. 2010).

     When seeking relief for a disparately severe sentence, the
appellant “bears the burden of demonstrating that any cited
cases are ‘closely-related’ to his or her case and that the
sentences are ‘highly disparate.’” Lacy, 50 M.J. at 288. If
the appellant shows both that his case is “closely related” and
his sentence is “highly disparate,” then the burden shifts to
the Government to show there is “a rational basis for the
disparity.” Id.; see also, United States v. Durant, 55 M.J.
258, 262-63 (C.A.A.F. 2001). Cases are “closely related” when
they “involve offenses that are similar in both nature and
seriousness or which arise from a common scheme or design,”
United States v. Kelly, 40 M.J. 558, 570 (N.M.Ct.Crim.App.
1994). This includes “co-actors involved in a common crime . .
. [or] servicemembers involved in a common or parallel scheme.”
Lacy, 50 M.J. at 288.

     The appellant and LCpl Roberts were co-conspirators. They
participated in a conspiracy to carry out a common crime --
stealing military equipment from the 2D MSOB warehouse and
selling it to civilians. They each assumed different roles, but
played an active part in the conspiracy, and both profited from
their contributions to the conspiracy. And while the record
does not include LCpl Roberts’ charges, it does show that both
LCpl Roberts and the appellant were convicted at general courts-
martial. Therefore, we find the appellant’s case is closely
related to LCpl Roberts’ case.

     We also find the appellant has demonstrated that his
sentence is highly disparate when compared to that of LCpl
Roberts. Recognizing there will be some disparity amongst
sentences in the military justice system, a disparity between

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sentences in closely related cases is considered “highly
disparate” and may warrant relief if the disparity so great as
to “exceed relative uniformity or when it rises to the level of
an obvious miscarriage of justice or an abuse of discretion.”
United States v. Swan, 43 M.J. 788, 792 (N.M.Ct.Crim.App. 1995))
(internal quotations and citation omitted). The disparity
between LCpl Roberts’ sentence and the appellant’s sentence
exceeds relative uniformity. LCpl Roberts and the appellant
both pleaded guilty at a general court-martial. They entered
into PTAs with different CAs, and different military judges
adjudged their sentences. It appears the appellant received 18
more months of confinement than LCpl Roberts, as well as a
$30,000.00 fine, an amount equal to his unjust enrichment from
the conspiracy. In contrast, LCpl Roberts was not fined,
despite receiving $20,000.00 from the conspiracy. And while the
appellant did not receive an adjudged forfeiture like LCpl
Roberts, the confinement and punitive discharges in both cases
triggered automatic forfeitures under Article 58b, UCMJ.

     The Government cites United States v. Taylor, No.
201300195, 2014 CCA LEXIS 150, unpublished op. (N.M.Ct.Crim.App.
6 Mar 2014), rev. denied, 73 M.J. 285 (C.A.A.F. 2014), as
persuasive authority to support their position that the
appellant’s sentence is not highly disparate when compared to
LCpl Roberts’ sentence.   However, the sentence disparity in the
appellant’s case is significantly more severe that the sentence
disparity in Taylor. The appellant in Taylor was fined
$17,000.00 (equal to his unjust enrichment) and his co-
conspirator was fined $11,000.00 (half of the amount of his
unjust enrichment). Id. at 5-6. This is a difference of $6,000
and a fifty percent difference when comparing the relative
amounts of their unjust enrichment. Here, there is a $30,000.00
difference in fines and a one-hundred percent difference in
unjust enrichment amounts. Furthermore, in Taylor the co-
conspirator’s “sentence was slightly more severe than the
appellant’s in terms of confinement.” Id. at 6. Here, in
addition to receiving no fine, LCpl Roberts also received 18
months less confinement than did the appellant. Mindful that
co-conspirators are not entitled to equal sentences, Durant, 55
M.J. at 260, we nonetheless find appellant’s sentence is highly
disparate when compared to LCpl Roberts’ sentence.

     We next consider whether the Government has met its burden
to show a rational basis for the disparity and find that it has.
The appellant was the only noncommissioned officer and the
senior member of the conspiracy. Moreover, he recognized the
opportunity to steal equipment from the 2D MSOB warehouse,

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concocted the criminal plan and brought junior Marines together
in order to turn that plan into reality. Furthermore, all
communications between LCpl Roberts (the supplier) and PFC Smith
(the seller) went through the appellant, who, in turn was
responsible for ensuring LCpl Roberts was paid a share of the
profits. And while the appellant relied upon his junior Marines
to steal, store, and sell the military equipment, he never
relinquished his role as the central point of coordination,
collecting $10,000.00 more than LCpl Roberts as a result. These
reasons constitute a rational basis for the sentence disparity.
Cf. United States v. Odom, 2015 CCA LEXIS 361 at *6-7,
unpublished op. (N.M.Ct.Crim.App. 31 Aug 2015) (per curiam)
(finding a rational basis for the sentence disparity when the
senior Marine received a more severe sentence than his co-
conspirators).

                Court-Martial Promulgating Order

     Although Charge I originally contained three specifications
of conspiracy, the military judge consolidated them into one, to
which the appellant then pleaded guilty. The promulgating order
fails to reflect that consolidation and single plea. This was
error, but harmless. The appellant, however, is entitled to a
promulgating order that correctly reflects the results of his
proceeding. United States v. Crumpley, 49 M.J. 538, 539
(N.M.Ct.Crim.App. 1998).

                           Conclusion

     The findings and the sentence are affirmed. The
supplemental court-martial promulgating order shall accurately
reflect the consolidation of the specifications under Charge I
and the appellant’s plea thereto.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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