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

                               Before
          J.R. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        RICHARD A. SMITH
                  SERGEANT (E-5), U.S. MARINE CORPS

                           NMCCA 201300401
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 31 July 2013.
Military Judge: Col G.W. Riggs, USMC.
Convening Authority: Commanding General, 2d MAW, II MEF,
Cherry Point, NC.
Staff Judge Advocate's Recommendation: LtCol J.J. Murphy,
USMC.
For Appellant: CDR Suzanne M. Lachelier, JAGC, USN.
For Appellee: CDR James E. Carsten, JAGC, USN.

                              24 July 2014

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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 military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of one
specification of wrongfully possessing child pornography, in
violation of Article 134, UCMJ, 10 U.S.C. § 934. The military
judge sentenced the appellant to three years and six months’
confinement, reduction to pay grade E-1, and a dishonorable
discharge. The convening authority (CA) approved the sentence
as adjudged.

     The appellant’s sole assignment of error is that the
awarding of a dishonorable discharge is inappropriately severe
when compared against his military service, his requirement to
register as a sex offender, and the pendency of state
prosecution for child pornography related offenses stemming from
the original Naval Criminal Investigative Service (NCIS)
investigation. We disagree. After carefully considering the
record of trial, and the submissions of the parties, we are
convinced that 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

     During an Immigration and Customs Enforcement (ICE)
investigation into cyber crimes against children, the appellant
was identified as someone who had purchased child pornography
via the internet. NCIS assumed investigative responsibility
after ICE learned that the appellant was an active duty Marine.
The investigation was later provided to local civilian
authorities by one of the NCIS special agents who worked on the
case.

     During the NCIS investigation, it was discovered that the
appellant possessed thousands of images and videos of child
pornography that he downloaded from peer-to-peer file sharing
websites or by purchasing subscriptions to access multiple other
child pornography websites. The National Center for Missing and
Exploited Children determined that 555 of these images depicted
known child victims.

     On 17 July 2013, a civilian arrest warrant was issued for
the appellant based on allegations that he possessed child
pornography from 1 March 2011 to 31 March 2011.

                    Sentence Appropriateness

     This court reviews sentence appropriateness de novo.
United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). In
accordance with Article 66(c), UCMJ, a military appellate 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 determines, on the basis of the entire record,

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should be approved.” Sentence appropriateness involves the
judicial function of assuring that justice is done and that the
accused gets the punishment he deserves. United States v.
Healy, 26 M.J. 394, 395 (C.M.A. 1988). This requires
“‘individualized consideration’ of the particular accused ‘on
the basis of the 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) (quoting United States v. Mamaluy, 27
C.M.R. 176, 180-81 (C.M.A. 1959)).

     After our review of the entire record we find that the
sentence is appropriate under the circumstances. United States
v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005); Healy, 26 M.J. at
395-96; Snelling, 14 M.J. at 268. In addition to considering
the nature and seriousness of the specific offense, we have
carefully considered the individual characteristics of the
appellant, the collateral consequence of sex offender
registration, and the pendency of civilian charges in state
court for the same misconduct to which he pled guilty at court-
martial.1 We also considered the appellant’s overall performance
and recognition he received while in the Marine Corps.
Considering the entire record, we conclude that justice is done
and the appellant received the punishment he deserves by
affirming the sentence as approved by the CA. Granting sentence
relief at this point would be to engage in clemency, a
prerogative reserved for the CA, and we decline to do so.
Healy, 26 M.J. at 395-96.

                                  Conclusion

     The findings and the sentence as approved by the CA are
affirmed.


                                        For the Court



                                        R.H. TROIDL
                                        Clerk of Court




1
  “[I]t is constitutionally permissible to try a person by court-martial and
by a State court for the same act . . . .” RULE FOR COURTS-MARTIAL 201(d), MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Discussion.

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