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

                               No. ACM 38890
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                          Willie J. HOLT III
             Staff Sergeant (E-5), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 23 February 2017
                          ________________________

Military Judge: Matthew P. Stoffel.
Approved sentence: Dishonorable discharge, confinement for 25 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 4 May 2015 by GCM convened at Beale Air Force Base, Califor-
nia.
For Appellant: Major Jeffrey A. Davis, USAF.
For Appellee: Lieutenant Colonel Nurit Anderson, USAF; Lieutenant
Colonel Roberto Ramírez, USAF; and Gerald R. Bruce, Esquire.
Before MAYBERRY, SPERANZA, and JOHNSON, Appellate Military
Judges.
Judge SPERANZA delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge JOHNSON joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as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

SPERANZA, Judge:
    A military judge sitting as a general court-martial convicted Appellant, con-
sistent with his pleas pursuant to a pretrial agreement, of two specifications of
                     United States v. Holt, No. ACM 38890


aggravated sexual contact with a child on divers occasions, in violation of Ar-
ticle 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2008);
two specifications of sexual assault of a child on divers occasions, in violation
of Article 120b, UCMJ, 10 U.S.C. § 920b (2012); and two specifications of sexual
abuse of a child on divers occasions, also in violation of Article 120b, UCMJ, 10
U.S.C. § 920b (2012). The military judge sentenced Appellant to a dishonorable
discharge, confinement for 25 years, forfeiture of all pay and allowances, and
reduction to the grade of E-1. In accordance with the pretrial agreement, the
convening authority approved the adjudged sentence.
     Before us, Appellant asserts that: (1) his conditions in post-trial confine-
ment while being held in a civilian confinement facility merit meaningful re-
lief, and (2) his sentence to 25 years of confinement was inappropriately severe
in comparison to closely related cases. 1 We disagree and affirm.

                                I. BACKGROUND
    BA became Appellant’s stepdaughter when she was 7 years old. After BA
turned 11 years old, Appellant committed various sexual offenses against her,
including oral sex and twice penetrating her vulva with his penis, over a period
of three years.

                                II. DISCUSSION
A. Post-trial Confinement Conditions
   Before trial, Appellant had surgery on his lower leg. After trial, Appellant
was confined in a local civilian facility for approximately 36 days until he was
transferred to a military detention facility.
    Over two months after he had been transferred to the military detention
facility, Appellant complained about the conditions of his confinement at the
civilian facility in his request for clemency. Appellant asked the convening au-
thority to grant him three-for-one credit for each day spent in civilian confine-
ment. Appellant also asked the convening authority to reduce his adjudged
confinement to 20 years. The convening authority considered the matters sub-
mitted by Appellant and his counsel and approved the adjudged sentence.
    Appellant maintains, in an affidavit submitted on appeal, that he was iso-
lated, for no stated reason, in the maximum security section of the facility
where he was permitted only one hour per day of free time. Appellant also
claims the “filthy” conditions within his cell, his inability to clean his wounds,


1Appellant raises his second assignment of error pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).


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                     United States v. Holt, No. ACM 38890


and the lack of timely medical care caused a surgical incision to become in-
fected. This infection, according to Appellant, caused Appellant a “tremendous
amount of pain while [he] had to sit in [his] cell and wait to be taken to the
military hospital for care.” Appellant concludes:
       Being held in isolation for almost 40 days at the civilian facility,
       particularly with my medical condition and particularly since
       this was my first experience in prison, was psychologically trau-
       matic and overwhelming. It was made worse by the fact that I
       had no idea why I was being held in this manner, when it would
       end, and when I would be transferred to a military facility,
       where I expected I would not be held in isolation.
    In response, the Government provided affidavits from the base’s noncom-
missioned-officer-in-charge of confinement and an officer from the civilian con-
finement facility that described the conditions of Appellant’s confinement at
the civilian facility.
     Appellant was placed in the civilian confinement facility pursuant to a
memorandum of understanding (MOU) between the base and county. The en-
tire civilian facility is considered a “maximum security” jail. Per the MOU’s
terms, Appellant was prohibited from being housed with or near foreign na-
tionals. Due to Appellant’s medical conditions related to surgery, Appellant
was housed in the civilian facility’s Americans with Disabilities Act (ADA)-
compliant cell. This cell was located within the facility’s single cell unit. Apart
from being ADA-compliant, Appellant’s cell was standard-size with standard
furnishings, including a standard mattress. Like all other inmates placed in
this specific housing unit, Appellant was on 22-hour lockdown. Accordingly,
Appellant was permitted one hour in the outdoor yard and one hour to use the
dayroom. Like all other inmates within the facility, Appellant ate his meals in
his cell. Custody staff at the facility interacted regularly with Appellant. Air
Force personnel performed regular health and welfare checks. Appellant was
transported out of the civilian facility to receive medical care consistent with
the advice of the medical staff. Appellant was returned to the facility after his
medical appointments.
    The civilian facility is inspected biannually by the state’s board of correc-
tions, the county’s health department, environmental health, and a dietician.
Accordingly, administrative “logs,” jail conditions, and inmate living areas are
inspected. The facility passed its prior inspections and was preparing for up-
coming inspections at or near the time of Appellant’s confinement. Inmates at
the facility are responsible for the cleanliness of their living spaces and are
provided the tools and time to meet this responsibility.




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                      United States v. Holt, No. ACM 38890


   Appellant and his counsel filed no grievances with civilian or military au-
thorities regarding the conditions of his confinement. Appellant first raised his
complaints, without identifying any legal error, as part of his clemency sub-
mission to the convening authority.
    Appellant now invites us to exercise our “broad Article 66(c) authority” con-
sistent with United States v. Gay, 74 M.J. 736, 740, 742 (A.F. Ct. Crim. App.
2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), to provide him the same relief the
convening authority denied. Appellant claims that his “post-trial solitary con-
finement conditions [at the civilian confinement facility] were unacceptable,
and he should be awarded [three-for-one] days of credit towards his sentence
to confinement.” 2 Appellant argues that such relief “will provide Appellant
with meaningful relief and at the same time incentivize the government to en-
sure that post-trial confines [sic] are confined in acceptable conditions when
they are being confined in civilian confinement facilities.”
    This court “may affirm only such findings of guilty and the sentence or such
part or amount of the sentence, as it finds correct in law and fact and deter-
mines, on the basis of the entire record, should be approved.” Article 66(c),
UCMJ, 10 U.S.C. § 866(c). In Gay, this court invoked Article 66(c) to grant the
appellant sentencing relief even in the absence of cruel or unusual punishment
in violation of the Eighth Amendment, U.S. CONST. amend. VIII, and Article
55, UCMJ, 10 U.S.C. § 855. 74 M.J. at 742. The Court of Appeals for the Armed
Forces (CAAF) held that this court did not abuse its discretion in doing so. Gay,
75 M.J. at 269. However, the CAAF 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 order-
ing of solitary confinement by an Air Force official where an alternative solu-
tion was available. Id. Significantly, the CAAF emphasized, “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.
    Only in very rare circumstances do we anticipate exercising our Article
66(c) authority to grant sentence relief based upon conditions of post-trial con-
finement when there is no violation of the Eighth Amendment or Article 55,
UCMJ. United States v. Milner, No. ACM S32338, 2017 CCA LEXIS 84 (A.F.
Ct. Crim. App. 7 Feb. 2017) (unpub. op.); United States v. Garcia, No. ACM
38814, 2016 CCA LEXIS 490 (A.F. Ct. Crim. App. 16 Aug. 2016) (unpub. op.);
cf. United States v. Nerad, 69 M.J. 138, 145–47 (C.A.A.F. 2010) (holding that


2Appellant does not contend that the conditions of his post-trial confinement amounted
to cruel or unusual punishment in violation of the Eighth Amendment, U.S. CONST.
amend. VIII, or Article 55, UCMJ, 10 U.S.C. § 855, and we find no such violation.


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                     United States v. Holt, No. ACM 38890


despite our significant discretion in reviewing the appropriateness of a sen-
tence, this court may not engage in acts of clemency.) This case does not pre-
sent such circumstances.
    Appellant also does not present any evidence to suggest he attempted to
utilize any grievance process. Our superior court has emphasized, “A prisoner
must seek administrative relief prior to invoking judicial intervention to re-
dress concerns regarding post-trial confinement conditions.” United States v.
Wise, 64 M.J. 468, 469 (C.A.A.F. 2007). This requirement “promot[es] resolu-
tion of grievances at the lowest possible level [and ensures] that an adequate
record has been developed [to aid appellate review].” Id. at 471 (quoting United
States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)). An appellant must show
that “absent some unusual or egregious circumstance . . . he has exhausted the
prisoner-grievance system [in his detention facility] and that he has petitioned
for relief under Article 138.” Id. (quoting United States v. White, 54 M.J. 469,
472 (C.A.A.F. 2001)). Appellant failed to make such a showing.
     Moreover, the particular conditions of Appellant’s post-trial confinement do
not rise to the level of being so oppressive or disgraceful as to warrant sentence
relief. Appellant was subjected to the standard treatment and conditions ap-
plicable to similarly situated inmates. There is no evidence he was subjected
to physical or mental abuse, singled out for unusual treatment, denied appro-
priate medical attention, or refused any other necessity. Nor is there evidence
the conditions of his confinement impacted his access to counsel or any other
post-trial due process right. Thus, Appellant’s complaints can be summarized
this way: the civilian confinement facility’s standard conditions, under which
he was confined, did not meet his personal standards. Such assertions do not
warrant the extraordinary use of our Article 66(c) power to grant sentence re-
lief.
B. Sentence Appropriateness
   According to the terms of Appellant’s pretrial agreement, the convening
authority agreed to disapprove confinement in excess of 25 years. The military
judge sentenced Appellant inter alia to 25 years of confinement. Despite the
adjudged sentence falling within the parameters of the bargained-for terms of
the agreement, Appellant nevertheless “believes his sentence to 25 years of
confinement was inappropriately severe, particularly in comparison to sen-
tences imposed in closely related cases.” Accordingly, Appellant asks us to re-
duce his sentence to 20 years of confinement.
    We review 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 offense[s], the ap-
pellant’s record of service, and all matters contained in the record of trial.”


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                     United States v. Holt, No. ACM 38890


United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009). Al-
though we are accorded great discretion in determining whether a particular
sentence is appropriate, we are not authorized to engage in exercises of clem-
ency. Nerad, 69 M.J. at 148. We 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)). Appellant bears the
burden of demonstrating that cases are “closely related” to his case and that
the sentences are “highly disparate.” United States v. Lacy, 50 M.J. 286, 288
(C.A.A.F. 1999). If the appellant meets his burden to demonstrate closely re-
lated cases involve highly disparate sentences, the Government “must show
that there is a rational basis for the disparity.” Id.
    Appellant argues that the following cases are closely related to his case and
that we should consider these cases in evaluating the appropriateness of his
sentence: United States v. Ewan, No. ACM 38588, 2015 CCA LEXIS 459 (A.F.
Ct. Crim. App. 27 Oct. 2015) (unpub. op.); United States v. Brown, appeal dock-
eted, No. ACM 38864 (A.F. Ct. Crim. App. 11 Aug. 2015); United States v.
Drees, No. ACM 37942, 2012 CCA LEXIS 446 (A.F. Ct. Crim. App. 21 Nov.
2012) (unpub. op.); United States v. Mullen, No. ACM 37959, 2011 CCA LEXIS
356 (A.F. Ct. Crim. App. 13 Dec. 2011) (unpub. op.); United States v. Brown,
No. ACM 37851, 2011 CCA LEXIS 213 (A.F. Ct. Crim. App. 16 Nov. 2011) (un-
pub. op.). However, the cases cited by Appellant do not involve any co-actors in
Appellant’s offenses, a common or parallel scheme, or any other direct nexus
to Appellant’s case. See Lacy, 50 M.J. at 288 (noting that examples of “closely
related cases” include “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.”). Because
these cases are not closely related to Appellant’s, disparities between the ad-
judged and approved sentences in those cases and Appellant’s sentence are
attributed to the individual facts of each case. Accordingly, Appellant has failed
to demonstrate that these case are closely related to his and that the sentences
approved in those cases are highly disparate from his sentence. Id.
    Although we decline Appellant’s invitation to engage in sentence compari-
sons, we have given individualized consideration to this particular Appellant,
his record of service, the nature and seriousness of his offenses, the terms of
his pretrial agreement with the convening authority, and all other matters
contained in the record of trial, and find that his sentence is not inappropri-
ately severe. Appellant was BA’s stepfather. Rather than treating BA as the
11-to-14 year-old child she was, he decided to use her to gratify his sexual de-
sires over a period of years. Appellant’s misconduct was both recurring and
deeply destructive to a child who trusted him as a father. As such, we find,

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                    United States v. Holt, No. ACM 38890


based on the entire record, that the approved sentence for this noncommis-
sioned officer 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 Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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