         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201700062
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                      AUSTIN J. MICELI
              Lance Corporal (E-3), U.S. Marine Corps
                                Appellant
                         _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

       Military Judge: Lieutenant Colonel J.V. Munoz, USMC.
 Convening Authority: Commanding General, 1st Marine Division,
                        Camp Pendleton, CA.
 Staff Judge Advocate’s Recommendation: Lieutenant Colonel M. J.
                           Stewart, USMC.
    For Appellant: Lieutenant Colonel Lee C. Kindlon, USMCR.
                 For Appellee: Brian K. Keller, Esq.
                       _________________________

                          Decided 21 June 2018
                          ______________________

  Before H UTCHISON , S AYEGH , and F OIL , Appellate Military Judges
                         _________________________

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:
   In a previous decision by this court we held that a mutual
misunderstanding of a material term within the pretrial agreement (PTA)
rendered improvident the appellant’s guilty plea to a single specification of
sexual assault in violation of Article 120, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920 (2012). See United States v. Miceli, No. 201700062,
2017 CCA LEXIS 581 (N-M. Ct. Crim. App. 31 Aug 2017). We set aside the
                        United States v. Miceli, No. 201700062


findings and sentence—four years’ confinement, reduction to pay grade E-1,
and dishonorable discharge1—and authorized a rehearing.
   At the rehearing, a military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his plea, of the same specification of
sexual assault and sentenced the appellant to five years’ confinement,
reduction to paygrade E-1, and a dishonorable discharge. The convening
authority (CA) approved the sentence as adjudged and, once again,
suspended confinement in excess of 36 months, pursuant to a PTA.
   Although not raised as error, we find the approved sentence of five years’
confinement violates the Article 63, UCMJ, prohibition against approving a
more severe sentence than was approved following the original proceedings.
    Article 63, UCMJ, provides that “[u]pon a rehearing . . . no sentence in
excess of or more severe than the original sentence may be approved[.]” RULE
FOR COURTS-MARTIAL 810(d)(1), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2016 ed.) implements this statutory provision by requiring that
“offenses on which a rehearing . . . has been ordered shall not be the basis for
an approved sentence in excess of or more severe than the sentence
ultimately approved by the convening or higher authority following the
previous trial[.]” Simply put, five years is in excess of and more severe than
four years.
    Additionally, in the PTA, the CA agreed to defer and then waive, for the
benefit of the appellant’s dependent, automatic forfeiture of pay in the
amount of $1,599.90 per month.2 See Art. 58b(a)(1), UCMJ. However, in his
action, the CA waived “forfeiture of pay and allowances . . . in excess of
$1,599.90 pay per month.”3 The appellant is entitled to the benefit of his
bargain. See United States v. Olson, 25 M.J. 293, 296 (C.M.A. 1987). “When a
CA fails to take action required by a pretrial agreement, this court has
authority to enforce the agreement.” United States v. Kruse, 75 M.J. 971, 975
(N-M. Ct. Crim. App. 2016) (citing United States v. Cox, 46 C.M.R. 69, 72
(C.M.A. 1972)).
    The findings and only so much of the sentence as provides for confinement
for four years, reduction to paygrade E-1, and a dishonorable discharge are
affirmed. In accordance with the pretrial agreement, automatic forfeiture of


    1 Pursuant to the PTA, the convening authority suspended confinement in excess

of 36 months. Miceli, 2017 CCA LEXIS 581, at *1.
    2 At the time of the rehearing, the pay for an E-1 with more than four months of

service        was       $1,599.90.       Military       Pay       Charts–DFAS.mil,
https://www.dfas.mil/militarymembers/payentitlements/military-pay-charts.html.
   3   CA’s Action of 7 Feb 2018 at 2 (emphasis added).


                                           2
                      United States v. Miceli, No. 201700062


pay in the amount of $1,599.90 pay per month is waived for a period of six
months from 7 February 2018.4
                                        For the Court




                                        R.H. TROIDL
                                        Clerk of Court




   4 The appellant’s active duty service obligation was projected to expire on 17
March 2018, at which time he would no longer be entitled to pay. See Appellate
Exhibit X at 1.


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