                                    IN THE CASE OF



                            UNITED STATES, Appellee

                                            v.

      Galen E. SOTHEN, Jr., Aviation Ordnanceman First Class
                       U.S. Navy, Appellant

                                     No. 00-0200
                             Crim. App. No. 98-0738

             United States Court of Appeals for the Armed Forces

                               Argued October 12, 2000

                               Decided January 5, 2001

     EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and SULLIVAN, GIERKE, and BAKER, JJ., joined.


                                        Counsel

For Appellant: David P. Sheldon (argued); Eugene R. Fidell and Lieutenant
Mari-Rae Sopper, JAGC, USNR (on brief).


For Appellee: Lieutenant Commander Philip Sundel, JAGC, USNR (argued);
Colonel Kevin M. Sandkuhler, USMC (on brief).


Amicus Curiae Urging Reversal: Lieutenant Colonel Adele H. Odegard,
Lieutenant Colonel David A. Mayfield, Major Jonathan F. Potter, and Captain
Kevin J. Mikolashek – For the United States Army Defense Appellate Division.


Military Judge:   James. D. Rockwell




            THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Sothen, No. 00-0200/NA


Judge EFFRON delivered the opinion of the Court.

       A general court-martial composed of officer and enlisted

members convicted appellant, contrary to his pleas, of

conspiracy to commit murder, two specifications of solicitation

to commit murder, and adultery, in violation of Articles 81 and

134, Uniform Code of Military Justice, 10 USC §§ 881 and 934,

respectively.    He was sentenced to a dishonorable discharge,

confinement for 25 years, total forfeitures, and reduction to

E-1.    The convening authority suspended all adjudged forfeitures

greater than $600 pay per month for 6 months and waived the

automatic forfeiture of pay for 6 months, directing payment of

all such monies via allotment to appellant’s wife.      The Court of

Criminal Appeals affirmed in an unpublished opinion.

       On appellant’s petition, we granted review of the following

issues:

            WHETHER APPELLANT’S APPROVED SENTENCE TO
            CONFINEMENT CONSTITUTES AN OBVIOUS
            MISCARRIAGE OF JUSTICE OR AN ABUSE OF
            DISCRETION BECAUSE HIS SENTENCE OF 25 YEARS
            WAS MORE THAN EIGHT TIMES GREATER THAN HIS
            CO-DEFENDANT’S SENTENCE OF 3 YEARS.

            WHETHER THE GOVERNMENT FAILED TO MEET ITS
            BURDEN TO PROVE A RATIONAL BASIS FOR THE
            HIGHLY DISPARATE SENTENCES GIVEN TO
            APPELLANT AND HIS CO-DEFENDANT.

            WHETHER, IN PERFORMING ITS SENTENCE
            APPROPRIATENESS ANALYSIS GIVEN TWO “CLOSELY
            RELATED CASES,” THE COURT OF CRIMINAL
            APPEALS ERRED IN DISREGARDING THE SENTENCE
            OF A CIVILIAN CO-DEFENDANT BECAUSE THE


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           MILITARY AND CIVILIAN SYSTEMS HAVE DIFFERING
           APPROACHES TO SENTENCING PRINCIPLES AND THE
           ADMINISTRATION OF PUNISHMENT.

For the reasons set forth below, we affirm the decision of the

Court of Criminal Appeals.



                             I. Background


     Appellant, who enlisted in the Navy in 1978, was married in

1979 and remained married to his wife Judy during his military

service through the events pertinent to this appeal.      In 1995,

they purchased a house in her hometown of Knoxville, Tennessee.

When appellant received orders to the Naval Support Activity,

Memphis, his wife and their son remained in Knoxville while he

lived approximately 200 miles away in Memphis.      Appellant

anticipated retiring and returning to Knoxville upon completion

of his assignment at Memphis.

     In 1996, appellant entered into an intimate relationship

with Ms. Marney Steen while in Memphis.      As the relationship

deepened, appellant and Steen took steps to terminate

appellant's marriage by arranging for the murder of appellant's

wife.   Appellant, in Ms. Steen's presence, asked James Warthen

to commit the murder.   Warthen declined, but said that he knew

of a person, Baxter Holland, who would do so.      Warthen arranged

for appellant and Steen to meet with Holland, who, unbeknownst



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to them, was an informant for the Shelby County Police

Department.   These arrangements resulted in a series of meetings

involving appellant, Steen, and Holland, at which Holland wore a

hidden recording device.   At these meetings, appellant and Steen

engaged in various conversations about the proposed murder,

which resulted in the arrest of both appellant and Steen.

Steen pled guilty in Tennessee state court proceedings to one

count of solicitation to commit murder, which resulted in a

sentence to 3 years’confinement and a $500 fine.    As noted

above, appellant's sentence included confinement for 25 years,

total forfeitures, reduction to E-1, and a dishonorable

discharge.



   II.   Review of Sentences by the Courts of Criminal Appeals


     Article 66(c) of the UCMJ, 10 USC § 866, provides the

Courts of Criminal Appeals with broad discretion to determine

whether a sentence "should be approved," a power that has no

direct parallel in the federal civilian sector.    See United

States v. Lacy, 50 MJ 286, 287-88 (1999).   The power to review a

case for sentence appropriateness, which reflects the unique

history and attributes of the military justice system, includes

but is not limited to considerations of uniformity and




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evenhandedness of sentencing decisions.    See id.; see also

United States v. Boone, 49 MJ 187, 191-92 (1998).

     The 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. Ballard, 20 MJ 282, 283 (CMA

1985)(quoting lower court’s unpublished opinion).   An appellant

who asks the Court of Criminal Appeals to engage in sentence

comparison bears the burden of demonstrating that any cited

cases are “closely related” to the appellant’s case, and that

the sentences are “highly disparate.”   Lacy, supra at 288.    If

the appellant meets that burden, or if the court raises the

issue on its own motion, the burden shifts to the Government to

show a rational basis for the disparity.   Id.

     Our review of decisions by the Courts of Criminal Appeals

on issues of sentence appropriateness is limited to the narrow

question of whether there has been an “obvious miscarriage[]of

justice or abuse[]of discretion.”    Id., quoting United States v.

Dukes, 5 MJ 71, 73 (CMA 1978).




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   III.    Sentence Comparison by the Court of Criminal Appeals


     The Court of Criminal Appeals concluded that appellant’s

case was “closely related” to that of his civilian co-actor, Ms.

Steen.    The court also found the respective sentences to be

highly disparate.    The court concluded, however, that there were

“many good and cogent reasons in the record of trial that

explain the disparity between the two sentences awarded.”

Unpub. op. at 6.    The court cited the following reasons:   (1)

the parties were tried by two different sovereigns; (2) while it

is appropriate to consider closely related civilian cases,

sentence comparison between civilian and military cases is less

persuasive than comparison among courts-martial in light of the

differences between civilian and military approaches to

sentencing and punishment; (3) appellant was convicted of

multiple serious offenses, while his co-actor was convicted only

of a single count of solicitation; (4) the charges against

appellant were contested, while the conviction of the civilian

co-actor was based on a voluntary, negotiated plea of guilty;

and (5) the sentence of appellant’s co-actor reflected the fact

that she had agreed to assist the prosecution by testifying

against appellant.




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     Appellant contends that the lower court abused its

discretion in affirming his sentence without “cogent reasons.”

Appellant takes the position that the reasons articulated by the

court below do not justify the significant disparity in the

sentences, that the court placed too much emphasis on Ms.

Steen’s guilty plea, and that the court did not give sufficient

weight to her culpability or to appellant’s record of service.

The Government, on the other hand, contends that any deficiency

in sentence comparison is immaterial because, in the

Government’s view, it is not permissible for the Courts of

Criminal Appeals to compare military and civilian sentences.

     With respect to the Government’s argument, we note that

there is nothing in the plain language of Article 66, in its

legislative history, or in our case law that would preclude the

Courts of Criminal Appeals from engaging in sentence comparison

when there is a closely related case (e.g., a civilian co-actor)

with a highly disparate sentence.    To the extent that Article

66’s legislative history and much of our case law discuss

sentence uniformity within the military justice system, this

simply reflects the fact that most closely related cases involve

military relationships.   It does not preclude consideration of

cases involving military and civilian co-actors.   With respect

to appellant’s argument, we note that all of the factors cited

by appellant involve pertinent considerations on the question of


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sentence appropriateness, but they do not demonstrate that the

decision of the court below constituted an abuse of discretion

or an obvious miscarriage of justice.    See Lacy, supra.

     The considerations articulated by the court below provide a

legally sufficient justification for the disparity between the

two sentences.   The court properly considered the treatment of

appellant’s co-actor under the civilian justice system, and

noted a number of variances that could have reasonably accounted

for the differential sentences.    These factors, specifically

enumerated by the court, meet the rational basis standard set

forth in Lacy.



                          IV.   Conclusion

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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