UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             COOK, CAMPANELLA, and HAIGHT
                                 Appellate Military Judges

                              UNITED STATES, Appellee
                                          v.
                          Private E2 TIMOTHY E. BENNITT
                            United States Army, Appellant

                                        ARMY 20100172

                              Headquarters, I Corps
                         Kwasi L. Hawks, Military Judge
          Colonel Mitchell R. Chitwood, Staff Judge Advocate (pre -trial)
       Lieutenant Colonel Gregg A. Engler, Staff Judge Advocate (post -trial)
           Colonel Walter M. Hudson, Staff Judge Advocate (addendum)


For Appellant: Major Richard E. Gorini, JA; Captain A. Jason Nef, JA (on brief);
Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA (on reply brief); Colonel
Patricia A. Ham, JA; Major Jacob D. Bashore, JA (on Motion for R econsideration of
decision); Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA;
Major Jacob D. Bashore, JA (on Motion for R econsideration of sentence
reassessment).

For Appellee: Major Katherine S. Gowel, JA; Captain Kenneth W. Borgnino, JA (on
brief); Colonel John P. Carrell, JA; Lieutenant James L. Varley, JA; Major Elisabeth
A. Claus, JA; Major Kenneth W. Borgnino, JA (on response to Motion for
Reconsideration of sentence reassessment)


                                         25 March 2014
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                    MEMORANDUM OPINION ON RECONSIDERATION
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  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

COOK, Senior Judge:

      A military judge sitting as a general court -martial convicted appellant,
consistent with his pleas, of four specifications of wrongful distribution of a
controlled substance and four specifications of wrongful use of a controlled
substance, each in violation of Article 112a, Uniform Code of Military Justice, 10
U.S.C. § 912a (2006) [hereinafter UCMJ]. Contrary to appellant’s plea, the military
judge also convicted appellant of involuntary manslaughter while perpetrating an
BENNITT—ARMY 20100172

offense directly affecting the person of LK by aiding or abetting her wrongful use of
a controlled substance in violation of Article 119(b)(2), UCMJ. 1 This wrongful use
ultimately led to LK’s death by drug overdose. The convening authority approved
the adjudged sentence of a dishonorable discharge, confinement for seventy months,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority also credited appellant with 360 days of confinement against his
sentence to confinement.

       On 16 May 2012, this court affirmed the findings and sentence. Our superior
court, in United States v. Bennitt, 72 M.J. 266, 271 (C.A.A.F. 2013), reversed our
decision in regard to the Article 119(b)(2), UCMJ, offense. In setting aside the
finding of guilty and dismissing the specification for legal insufficiency, our
superior court found appellant’s distribution of oxymorphone to LK, his sixteen year
old girlfriend, which led to her death by overdose , did not “constitute an offense
directly affecting the person.” Our superior court also set aside appellant’s
sentence, affirmed the remaining findings of guilty, and returned the record of trial
to The Judge Advocate General of the Army, who in turn returned the record to this
court for a sentence reassessment or rehearing on the sentence.

       On 25 September 2013, in a Summary Disposition on Further R eview, after
reassessing the sentence and the entire record, we affirmed the sentence. In a timely
filed Motion for Reconsideration, appellant’s counsel requested we reconsider our
25 September 2013 decision, alleging that our ruling “overlooks material l egal and
factual matters” and ultimately requested that appellant receive either a sentence re-
hearing or significant sentence relief in the form of a bad-conduct discharge instead
of the approved dishonorable discharge. We granted appellant’s Motion for
Reconsideration on 15 November 2013. For the reasons listed below, we again
affirm the approved sentence.

                              LAW AND DISCUSSION

       In deciding whether we can reassess appellant’s sentence, we consider the
totality of the circumstances presented by appellant’s case, including the principles
and non-exhaustive list of factors 2 articulated by our superior court in United States

1
 The military judge acquitted appellant of involuntary manslaughter by culpable
negligence under Article 119(b)(1), UCMJ.
2
  (1) “Dramatic changes in penalty landscape and exposure.”; (2) “Whether an
appellant chose sentencing by members or a military judge alone.”; (3) “W hether the
nature of the remaining offenses captures the gravamen of criminal conduct included
within the original offenses . . . .”; and (4) “W hether the remaining offenses are of
the type that judges of the courts of criminal appeals should have the experience and

                                                                    (continued . . .)

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BENNITT—ARMY 20100172

v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22
M.J. 305 (C.M.A. 1986).

       First, we note the penalty landscape and exposure has not been dramatically
changed by our superior court setting aside appellant’s Article 119(b)(2), UCMJ,
conviction. After trial, appellant stood convicted of offenses that exposed him to
eighty-two years of confinement. The setting aside of the Article 119(b)(2), UCMJ
conviction reduced appellant’s maximum sentence to confinement b y ten years. As
such, appellant’s approved sentence to seventy months of confinement is still well
below the adjusted maximum period of confinement. This factor weighs in favor of
our ability to reassess his sentence.

       Second, appellant chose to be sentenced by a military judge alone and
“because 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 also favors our
ability to reassess his sentence. Winckelmann, 73 M.J. at 16.

       With respect to the third factor, appellant argues, generally, that because he
now stands acquitted of involuntary manslaughter, evidence relating to his
distribution of oxymorphone to LK would not have been admissible under Rule for
Courts-Martial [hereinafter R.C.M.] 1001(b)(4). This rule, during presentencing,
only allows the admission of “aggravating circumsta nces directly relating to or
resulting from the offenses of which the accused has been found guilty.”

       In support of this position, appellant first argues he has not been found guilty
of distributing oxymorphone to LK because his guilty plea to, and resulting
conviction of, distributing oxymorphone on divers occasions, on or about 14
February 2009, did not include the distribution of oxymorphone to LK. Appellant
then argues that because he has not been convicted of distributing oxymorphone t o
LK, R.C.M. 1001(b)(4) would have precluded evidence concerning the consequences
of that distribution.

       In ultimately rejecting appellant’s argument, we initially note the significance
of how the government charged appellant with oxymorphone distribution and
involuntary manslaughter. Appellant was charged with distributing oxymorphone on
divers occasions between on or about 14 February 2009 and on or about 15 February
2009. During this same time period, appellant was charged with two specifications
of involuntary manslaughter based on the overdose resulting in LK’s death. It is
clear from the record the government prosecuted the involuntary manslaughter

(. . . continued)
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).



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BENNITT—ARMY 20100172

specifications under a theory that appellant’s unlawful killing of LK was a form of
aggravated distribution of oxymorphone, either resulting in a death through culpable
negligence or, alternatively, the lethal distribution was an offense directly affecting
the person of LK.

       In other words, based on the charging framework and trial presentation, the
distribution of oxymorphone charge included the distribution to LK. The military
judge convicted appellant of this distribution charge as admitted to by the appellant,
but also as proven by the evidence. There could not have been a separate conviction
for distribution of oxymorphone to LK as the existing specification covered that
time frame and behavior.

       The government was, therefore, free to present evidence beyond the factual
basis admitted in the providence inquiry as long as this evidence was not in conflict
with appellant’s guilty plea. See United States v. Shupe, 36 M.J. 431, 436 (C.M.A.
1993) (co-conspirator’s testimony concerning five drug distributions in addition to
the one pleaded to “was proper aggravation, because it showed ‘the continuous
nature of the charged conduct and its full impact on the military community’”) ;
United States v. Ross, 34 M.J. 183, 187 (C.M.A. 1992) (permissible to show that
appellant altered twenty to thirty enlistment aptitude tests, even though he pleaded
guilty to only altering four); United States v. Mullens, 29 M.J. 398, 400 (C.M.A.
1990) (uncharged misconduct consisted of “a continuous course of conduct involving
the same or similar crimes, the same victims, and a similar situs . . .”); United States
v. Silva, 21 M.J. 336, 337 (C.M.A. 1986) (uncharged misconduct was “integral part
of his criminal course of conduct”); United States v. Vickers, 13 M.J. 403, 406
(C.M.A. 1982) (“evidence which is directly related to the offense for which an
accused is to be sentenced” may be presented “so that the circumstances surrounding
that offense or its repercussions may be understood by the sentencing authority”).

        In moving to the case’s current posture, appellant stands convicted of
distributing oxymorphone on or about 14 February 2009 on divers occasions. The
evidence in this case, including appellant’s own confession that was properly
admitted on the merits, showed that on or about 14 February 2009, appellant
distributed oxymorphone to multiple persons, including LK, and then went further in
facilitating LK’s use of the drug. Contrary to appellant’s current assertions, our
superior court found that appellant did distribute drugs to LK; however, it ruled that
particular distribution did not constitute an Article 119(b)(2), UCMJ, qualifying
offense. See Bennitt, 72 M.J. at 271 (recognizing that in United States v. Sargent,
18 M.J. 331, 339 (C.M.A. 1984), the Court of Military Appeals “suggested . . . that
under some circumstances drug distribution may constitute an ‘offense . . . directly
affecting the person.’”).

       We, therefore, find that appellant’s conviction for oxymorphone distribution
on divers occasions covers and includes his distribution to LK. This was
specifically discussed by appellant in his confession, wherein he admitted to : (1)


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BENNITT—ARMY 20100172

going to a supplier’s house; (2) purchasing oxymorphone pills for his own purposes;
(3) later ingesting two of his pills in LK’s presence, who then asked to use another
of appellant’s pills; (4) responding to LK’s request to use the drug by crushing an
oxymorphone pill for LK and her friend; and (5) dividing the contents for LK and
her friend, who both then ingested the drug. Under these facts, appellant’s “aiding
and abetting the wrongful use of a controlled substance” by LK constituted
distribution. See Manual for Courts-Martial, United States (2008 ed.), pt. IV, ¶
37.c.(3); United States v. Ratleff, 34 M.J. 80 (C.M.A. 1992); See also United States
v. Branch, 483 F.2d 955 (9th Cir. 1973); United States v. Tingler, 65 M.J. 545, 549
(N.M. Ct. Crim. App. 2006) (sharing an illegal drug is distribution). As a result, all
of the consequences associated with that distribution were and remain admissible, to
include a toxicologist’s trial testimony that the oxymorphone use played a major role
in LK’s death. See R.C.M. 1001; United States v. Terlep, 57 M.J. 344 (C.A.A.F.
2002).

       In applying R.C.M. 1001(b)(4) to appellant’s case and in light of the cases
cited above, it is clear the evidence being challenged would have been properly
admitted aggravation evidence. It showed the continuous and aggravating nature of
appellant’s conduct, involved the same crime and same location, was an integral part
of his criminal course of conduct and its admission puts the entire incident , to
include its impact, in appropriate context.

       The remaining offenses of which appellant stands convicted, linked with the
aggravating evidence concerning appellant’s distribution of oxymorphone to LK and
her resulting death, continue to “capture the gravamen” of appellant’s criminal
conduct and, therefore, the third Winckelmann factor weighs in favor of our ability
to reassess in this case.

       Finally, in reviewing the fourth factor, based on our experience and
familiarity with the type of charges that remain, we are confident we can reliably
determine what sentence would have been imposed at trial. Therefore, after now
concluding that all four enumerated Winckelmann factors support our ability to
reassess appellant’s sentence and after considering the totality of the circum stances
presented by his case—to include the noted error—we ultimately find we are able to
reassess appellant’s sentence.

                                   CONCLUSION

       The decision of this court in this case dated 25 September 2013 is withdrawn.
Reassessing the sentence based on the error noted, the amended findings of guilty
and the entire record, we AFFIRM the sentence as approved by the convening
authority. We find this reassessed sentence is not only purged of any error, but is
also appropriate.




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BENNITT—ARMY 20100172

                        FOR THE COURT:




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




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