          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                        Airman First Class YEDEYCHEM MANN
                                United States Air Force

                                        ACM 38124 (recon)

                                             17 July 2014

         Sentence adjudged 22 March 2012 by GCM convened at Travis
         Air Force Base, California. Military Judge: W. Shane Cohen.

         Approved sentence: Bad-conduct discharge; confinement for 73 days;
         a fine of $2,775.00; and reduction to E-1.

         Appellate Counsel for the Appellant:       Major Tiwana L. Wright;
         Major Matthew T. King; and Captain Michael A. Schrama.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Major Daniel J. Breen; Major Erika L. Sleger; and Gerald R. Bruce,
         Esquire.

                                                 Before

                             ALLRED, MITCHELL, and WEBER
                                 Appellate Military Judges

                                  OPINION OF THE COURT
                                 UPON RECONSIDERATION

                   This opinion is subject to editorial correction before final release.



PER CURIAM:

       The appellant pled guilty to one specification of conspiracy to steal military
property of a value of more than $500 and one specification of stealing military property
of a value of more than $500, in violation of Articles 81 and 121, UCMJ, 10 U.S.C.
§§ 881, 921. He was sentenced to a bad-conduct discharge, confinement for 73 days, a
fine of $2,775.00, and reduction to E-1. The convening authority approved the sentence
as adjudged.
                                            Procedural History

       On 25 January 2013, The Judge Advocate General of the Air Force appointed
Mr. Laurence M. Soybel to the position of appellate military judge on the Air Force
Court of Criminal Appeals pursuant to Article 66(a), UCMJ, 10 U.S.C. § 866(a). At the
time of this appointment, Mr. Soybel, a retired Air Force officer and former appellate
military judge, was serving as a civilian litigation attorney in the Department of the
Air Force. On 25 June 2013, the Secretary of Defense, “[p]ursuant to [his] authority
under title 5, United States Code, section 3101 et seq.,” issued a memorandum that
“appoint[ed] Mr. Laurence M. Soybel, a civilian employee of the Department of the
Air Force, to serve as appellate military judge on the Air Force Court of Criminal
Appeals.” Memorandum from Sec’y of Def. Chuck Hagel for Sec’y of the Air Force Eric
Fanning, (25 June 2013).

      When the appellant’s case was originally before us, he argued his sentence was
inappropriate.

       On 16 July 2013, we issued a decision affirming the approved findings and
sentence in the appellant’s case.1 United States v. Mann, ACM 38124 (recon)
(A.F. Ct. Crim. App. 16 July 2013) (unpub. op.). Pursuant to his appointment by the
Secretary of Defense, Mr. Soybel was a member of that panel. The appellant moved our
superior court to vacate the decision on the basis of Mr. Soybel’s participation, and on
31 October 2013, our superior court converted the appellant’s motion to vacate, which
was pending before our Court, into a motion for reconsideration. United States v. Mann,
73 M.J. 91 (C.A.A.F. 2013) (mem.). On 15 April 2014, our superior court issued its
decision in United States v. Janssen, 73 M.J. 221, 225 (C.A.A.F. 2014), holding the
Secretary of Defense did not have the legislative authority to appoint appellate military
judges, and his appointment of Mr. Soybel to this Court was “invalid and of no effect.”

       In light of Janssen, we granted the motion for reconsideration on 29 April 2014
and permitted the appellant to file a supplemental assignment of errors. The appellant
submitted a supplemental assignment of errors asserting he is entitled to relief due to
excessive post-trial processing delays. With a properly constituted panel, we have
reviewed the appellant’s case, to include the appellant’s previous and current filings and
the previous opinions issued by this Court. Finding no error that materially prejudices a
substantial right of the appellant, we affirm the findings and sentence.




1
  After the appointment of Mr. Lawrence Soybel by the Secretary of Defense on 25 June 2013, this Court sua sponte
reconsidered its 15April 2013 opinion and issued a new opinion on 16 July 2013. The two panels had identical
members.


                                                       2                                     ACM 38124 (recon)
                                           Background

       The appellant, a promising and well-liked young Airman, and his co-conspirator,
Airman First Class (A1C) DR, teamed up with a civilian friend of theirs to steal an
aerospace ground generator used to power military aircraft while it was being serviced.
The generator was several years old, but the Air Force paid approximately $73,000 for it
when it was new. The appellant had parked it in a parking lot on base several weeks
before he and his friends stole it. They decided to steal it after observing no one had
realized it was missing. The scheme was the appellant’s idea. He wanted the generator
because its diesel motor was one he thought could be installed in an old pickup truck he
owned. Early one morning, the three friends decided to take the generator using
A1C DR’s truck and a trailer belonging to the civilian friend. The plan was to push the
generator into the trailer and remove it from base.

        At 0230 in the morning, the three got into A1C DR’s truck, with the appellant
driving because A1C DR had been drinking. They drove to where the generator was
parked on-base but, because of its size, could not fit it into the trailer. At this juncture,
A1C DR got into the back seat of his truck and passed out. The appellant parked the
trailer in another parking lot, returned to the generator, attached it to the truck’s trailer
hitch, and simply hauled it off base. No one questioned him when he drove off base.
A1C DR was passed out when the generator was removed from the base and only
realized they had successfully taken it when he awoke the next morning. He eventually
helped the appellant install the engine in the appellant’s truck.

       For his part in the scheme, A1C DR was court-martialed for stealing military
property of a value of more than $500. The convening authority approved the adjudged
sentence of hard labor without confinement for 90 days, restriction to the limits of Travis
Air Force Base for 60 days, and reduction to E-2.

                                 Sentence Appropriateness

       The appellant claims his sentence is inappropriately severe, given the disparity
between his sentence and his co-conspirator’s, despite the closely related nature of their
offenses.

       This Court reviews sentence appropriateness de novo. United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006). 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.” 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[s], 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) (citations omitted). Although we are accorded great
discretion in determining whether a particular sentence is appropriate, we are not

                                             3                              ACM 38124 (recon)
authorized to engage in exercises of clemency. United States v. Nerad, 69 M.J. 138, 146
(C.A.A.F. 2010).

       Additionally, “[t]he Courts of Criminal Appeals are required to engage in sentence
comparison only ‘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. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (quoting United States v.
Ballard, 20 M.J. 282, 283 (C.M.A. 1985)). Sentence comparison is not required unless
this Court finds that any cited cases are “closely related” to the appellant’s case and the
sentences are “highly disparate.” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F.
1999), quoted in Sothen, 54 M.J. at 296. Closely related cases include those which
pertain to “coactors involved in a common crime, servicemembers involved in a common
or parallel scheme, or some other direct nexus between the servicemembers whose
sentences are sought to be compared.” Lacy, 50 M.J. at 288. 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.’ If the appellant meets that burden . . . then the
Government must show that there is a rational basis for the disparity.” Id.

       In light of the differences between the appellant and A1C DR’s involvement and
benefit from the theft, also taking into account the appellant’s individual circumstances,
we do not conclude that his sentence was inappropriately severe compared to A1C DR’s
sentence. Their actions in carrying out the theft were highly disparate in that the
appellant was the primary actor. It was the appellant who hatched the plan and
prepositioned the generator weeks before the actual theft. The appellant drove the
vehicle on base, hooked it up to the truck, and then drove off base with the generator.
While A1C DR was a willing participant, the theft benefited only the appellant as it was
he who received the motor and was able to install it in his truck. There was no evidence
that A1C DR was unjustly enriched at all. Indeed, when the time came, he was incapable
of even carrying out the theft due to his intoxication. Additionally, we note the appellant
had previously received four letters of counseling and two letters of reprimand.
Comparing the differences and similarities between the two cases, we believe a rational
basis exists for the difference between the two sentences.

                            Appellate Review Time Standards

        We review de novo “[w]hether an appellant has been denied [his] due process
right to a speedy post-trial review . . . and whether [any] constitutional error is harmless
beyond a reasonable doubt.” United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006)
(citations omitted). A presumption of unreasonable delay arises when appellate review is
not completed and a decision is not rendered within 18 months of the case being docketed
before this Court. United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). The
Moreno standards continue to apply as a case remains in the appellate process.
United States v. Mackie, 72 M.J. 135, 135–36 (C.A.A.F. 2013). The Moreno standard is


                                             4                             ACM 38124 (recon)
not violated when each period of time used for the resolution of legal issues between this
Court and our superior court is within the 18-month standard. Id. at 136; United States v.
Roach, 69 M.J. 17 (C.A.A.F. 2010).

       This case was originally docketed for appeal on 15 May 2012, and this Court
rendered a decision on 16 July 2013. This was under the 18-month standard established
in Moreno. As stated supra, our superior court recently decided that one of the judges
who participated in that decision was not properly appointed.              See Janssen,
73 M.J. at 222. Accordingly, we have considered the appellant’s court-martial before a
properly constituted panel and have issued this decision. The time between our superior
court’s action and this decision has not exceeded 18 months; therefore, the Moreno
presumption of unreasonable delay is not triggered. See Mackie, 72 M.J. at 136.

        Additionally, Article 66(c), UCMJ, empowers appellate courts to grant sentence
relief for excessive post-trial delay without the showing of actual prejudice required by
Article 59(a), UCMJ, 10 U.S.C. § 859(a). United States v. Tardif, 57 M.J. 219, 224
(C.A.A.F. 2002); see also United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). In
United States v. Brown, 62 M.J. 602, 606–07 (N.M. Ct. Crim. App. 2005), our Navy and
Marine Court colleagues identified a “non-exhaustive” list of factors to consider in
evaluating whether Article 66(c), UCMJ, relief should be granted for post-trial delay.
Among the non-prejudicial factors are the length and reasons for the delay; the length and
complexity of the record; the offenses involved; and the evidence of bad faith or gross
negligence in the post-trial process. Id. at 607. We find there was no bad faith or gross
negligence in the post-trial processing. The reason for the delay was to allow this court
and our superior court to fully consider a constitutional issue of first impression about
whether the Secretary of Defense has the authority under the Appointments Clause 2 to
appoint civilian employees to the service courts of criminal appeals. We conclude that
sentence relief under Article 66, UCMJ, is not warranted.

                                       Conclusion

       The approved findings and sentence are correct in law and fact and no error
prejudicial to the substantial rights of the appellant occurred. Articles 59(a) and 66(c),
UCMJ.




2
    U.S. CONST. art II § 2, cl 2.


                                            5                             ACM 38124 (recon)
Accordingly, the approved findings and sentence are


                                    AFFIRMED.


             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                           6          ACM 38124 (recon)
