UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                         CAMPANELLA, HERRING, and PENLAND
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                    Staff Sergeant NOEL G. AGUIAR-PEREZ
                          United States Army, Appellant

                                       ARMY 20140715

                              Headquarters, I Corps
                  Andrew J. Glass, Military Judge (arraignment)
                     Jeffery D. Lippert, Military Judge (trial)
                 Colonel Randall J. Bagwell, Staff Judge Advocate


For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Payum Doroodian, JA (on brief); Lieutenant Colonel Christopher D. Carrier,
JA; Major Andres Vazquez Jr., JA; Captain Michael A. Gold, JA (on supplemental
brief); Major Andres Vazquez Jr., JA; Captain Michael A. Gold, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Daniel D. Derner, JA; Captain Vincent S. Scalfani, JA (on brief); Colonel
Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, JA; Major Melissa
Dasgupta Smith, JA; Captain Vincent S. Scalfani, JA (on supplemental brief).


                                        13 March 2017

                   ----------------------------------------------------------------
                    SUMMARY DISPOSITION ON FURTHER REVIEW
                   ----------------------------------------------------------------

HERRING, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of violating a lawful general order, seven
specifications of cruelty and maltreatment, four specifications of abusive sexual
contact, one specification of assault consummated by battery, and one specification
of communicating a threat, in violation of Articles 92, 93, 120, 128, and 134
Uniform Code of Military Justice, 10 U.S.C. §§ 892, 893, 920, 928, 934 (2012)
[hereinafter UCMJ]. The convening authority approved the adjudged sentence of a
bad-conduct discharge, confinement for 350 days, and reduction to the grade of E-1.
AGUIAR-PEREZ—ARMY 20140715

       On 31 October 2016, in a summary disposition, this court set aside and
dismissed Specification 2 of Charge V and Charge V (communicating a threat) and
affirmed the remaining findings and sentence. Our superior court reversed our
decision in regard to Specification 1 of Charge IV (assault consummated by battery).
Our superior court remanded the case to our court to reassess the appellant’s
sentence based on the affirmed findings.

      In determining whether we can reassess the sentence, we apply several non-
exhaustive factors:

             (1) Dramatic changes in the penalty landscape and
             exposure.

             (2) Whether an appellant chose sentencing by members or
             a military judge alone. As a matter of logic, judges of the
             courts of criminal appeals are more likely to be certain of
             what a military judge would have done as opposed to
             members. This factor could become more relevant where
             charges address service custom, service discrediting
             conduct or conduct unbecoming.

             (3) Whether the nature of the remaining offenses capture
             the gravamen of criminal conduct included within the
             original offenses and, in related manner, whether
             significant or aggravating circumstances addressed at the
             court-martial remain admissible and relevant to the
             remaining offenses.

             (4) Whether the remaining offenses are of the type that
             judges of the courts of criminal appeals should have the
             experience and familiarity with to reliably determine what
             sentence would have been imposed at trial.

United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) (internal citations
omitted).

      First, our superior court’s dismissal of the assault offense reduced the
maximum sentence to confinement by just six months—for a new maximum of a
dishonorable discharge, thirty-two years of confinement, total forfeiture of pay and
allowances, and reduction to E-1. This does not constitute a dramatic change in the
penalty landscape. Second, appellant was sentenced by a military judge and we are
more likely to be certain of what a military judge would have done. Third,
appellant’s criminal conduct remains significant: he is convicted of violating a
lawful general order, seven specifications of cruelty and maltreatment, and four

                                          2
AGUIAR-PEREZ—ARMY 20140715

specifications of abusive sexual contact. Fourth, we have familiarity and experience
with the remaining offenses to reliably determine what sentence would have been
imposed at trial. After weighing these factors, we are confident we can reassess the
sentence in this case.

      Reassessing the sentence on the basis of the error noted, the entire record, and
applying the principles of United States v. Sales, 22 M.J. 305, 307-08 (C.M.A.
1986), we are confident that based on the entire record and appellant’s course of
conduct, the military judge would have imposed a sentence of at least that which was
adjudged, and accordingly we AFFIRM the sentence. We find this reassessed
sentence is not only purged of any error but is also appropriate.

      Senior Judge CAMPANELLA and Judge PENLAND concur.

                                       FOR THE COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES, JR.
                                       Clerk of Court
                                       Clerk of Court




                                          3
