

   
   
   
   U.S. v. Lacy



UNITED STATES, Appellee
v.
Andrea N. LACY, Private First Class
U.S. Marine Corps, Appellant
 
No. 98-0511
Crim.App. No. 97-0667
 
United States Court of Appeals for the Armed
Forces
Argued December 15, 1998
Decided May 12, 1999
 
EFFRON, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, CRAWFORD, and GIERKE, JJ., joined.
 
Counsel
For Appellant: Lieutenant
Mari-Rae Sopper, JAGC, USNR (argued); Lieutenant Albert L. DiGiulio,
JAGC, USNR.
For Appellee: Lieutenant Timothy
E. Curley, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler,
USMC, Commander D. H. Myers, JAGC, USN, and Lieutenant
Kevin S. Rosenberg, JAGC, USNR (on brief).
Military Judge: J. A. Bukauskas
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.

 

Judge EFFRON delivered the opinion of the Court.
Pursuant to his pleas, appellant was convicted
by a general court-martial composed of a military judge alone of carnal
knowledge and committing indecent acts, in violation of Articles 120 and
134, Uniform Code of Military Justice, 10 USC §§ 920 and 934,
respectively. Appellant was sentenced to a bad-conduct discharge, confinement
for 18 months, total forfeitures, and reduction to the lowest enlisted
grade. The convening authority approved these results, and the Court of
Criminal Appeals affirmed in an unpublished decision.
This Court granted review of the following
issue:



WHETHER APPELLANTS SENTENCE AND THE SENTENCES
IN THE COMPANION CASES OF LANCE CORPORAL DANIEL AND PRIVATE FIRST CLASS
SEAY ARE INAPPROPRIATELY DISPARATE, RENDERING APPELLANTS SENTENCE INAPPROPRIATELY
SEVERE AS A MATTER OF LAW.



For the reasons stated below, we affirm the decision
of the Court of Criminal Appeals.

I
Appellant and two other Marines had sexual
intercourse with an underage girl in the presence of each other. All three
pleaded guilty to indecent acts and carnal knowledge. All three were tried
by general court-martial, and each elected to be tried by a military judge
sitting alone. The same judge presided at all three trials. All three Marines
were convicted in accordance with their pleas. Appellant was sentenced
to 18 months of confinement, while his coactors were sentenced to 8 months
and 15 months, respectively. Their sentences were the same in all other
respects. The same convening authority acted in two of the cases. His superior
acted in the third case.
The lower court concluded that the sentences
in these three cases were not so disparate as to warrant corrective action
at the appellate level. In the context of the approved findings, the court
below concluded that all three sentences fell within both a range of acceptability
and a range of relative uniformity. Appellant contends that the Court of
Criminal Appeals erred in not revising the confinement portion of his sentence
in light of the different periods of confinement that were adjudged and
approved in the other two cases.

II
The military justice system is highly decentralized.
Military commanders stationed at diverse locations throughout the world
have broad discretion to decide whether a case should be disposed of through
administrative, nonjudicial, or court-martial channels. See, e.g.,
Arts. 15 and 22-24, UCMJ, 10 USC §§ 815 and 822-24; RCM 401-07,
Manual for Courts-Martial, United States (1998 ed.). If the case results
in a finding of guilty, a court-martial has discretion to impose any authorized
punishment that is below the maximum for the offense. After trial, the
commander who convened the court-martial has virtually unfettered discretion,
as a matter of command prerogative, to modify the sentence in whole or
in part, so long as the severity is not increased. See Art. 60,
UCMJ, 10 USC § 860; RCM 1107.
Congress, recognizing that the decentralized
exercise of such broad discretion is likely to produce disparate results,
has provided the Courts of Criminal Appeals not only with the power to
determine whether a sentence is correct in law and fact, but also with
the highly discretionary power to determine whether a sentence "should
be approved." Art. 66(c), UCMJ, 10 USC § 866(c). The power to determine
whether a sentence should be approved has no direct parallel in the federal
civilian sector, which relies on sentencing guidelines. See 18 USC
§ 3742 (delineating the scope of appellate review of federal sentences).
Under Article 66(c), Congress has furthered
the goal of uniformity in sentencing in a system that values individualized
punishment by relying on the judges of the Courts of Criminal Appeals to



utilize the experienced
distilled from years of practice in military law to determine whether,
in light of the facts surrounding [the] accused's delict, his sentence
was appropriate. In short, it was hoped to attain relative uniformity
rather than an arithmetically averaged sentence.



United States v. Olinger, 12 MJ 458, 461
(CMA 1982), quoting United States v. Judd, 11 USCMA 164, 170, 28
CMR 388, 394 (1960) (Ferguson, J., concurring in the result) (emphasis
in original).
The power to review a case for sentence appropriateness,
including relative uniformity, is vested in the Courts of Criminal Appeals,
not in our Court, which is limited to errors of law. Compare Art.
66(c) with Art. 67(c), UCMJ, 10 USC § 867(c); see United
States v. Christopher, 13 USCMA 231, 236, 32 CMR 231, 236 (1962). With
respect to reviewing the actions of the Courts of Criminal Appeals on issues
of sentence appropriateness, our review is limited to preventing "obvious
miscarriages of justice or abuses of discretion." United States v. Dukes,
5 MJ 71, 73 (CMA 1978); see United States v. Henry, 42 MJ
231, 234 (1995).
Recognizing that the sentence review function
of the Courts of Criminal Appeals is highly discretionary, we have not
required those tribunals to engage in sentence comparison with specific
cases "except 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. Ballard, 20 MJ 282,
283 (CMA 1985); see United States v. Brock, 46 MJ
11 (1997). Moreover, as a general matter, we have not required the Courts
of Criminal Appeals to expressly distinguish the case on appeal from the
sentence adjudged in a separate case. As we noted in Ballard, supra
at 286:



[T]he experienced and professional military
lawyers who find themselves appointed as trial judges and judges on the
courts of military review [now the Courts of Criminal Appeals] have a solid
feel for the range of punishments typically meted out in courts-martial.
. . . [W]e have every confidence that this accumulated knowledge is an
explicit or implicit factor in virtually every
case in which a military judge imposes sentence or a court of military
review assesses for sentence appropriateness.



At a Court of Criminal Appeals, an appellant
bears the burden of demonstrating that any cited cases are "closely related"
to his or her case and that the sentences are "highly disparate." If the
appellant meets that burden, or if the court raises the issue on its own
motion, then the Government must show that there is a rational basis for
the disparity.
Our review of a decision from a Court of Criminal
Appeals in such a case is limited to three questions of law: (1) whether
the cases are "closely related" (e.g., 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); (2) whether the cases resulted in "highly disparate"
sentences; and (3) if the requested relief is not granted in a closely
related case involving a highly disparate sentence, whether there is a
rational basis for the differences between or among the cases.
Although we have not required the courts below
to articulate their reasons for such determinations, and do not do so today,
we note that an opinion from a lower court addressing these matters increases
the likelihood that we will not overlook factors that may have been important
to that court in this highly discretionary area of review. A further benefit
of such an opinion is that it provides a means of addressing colorable
allegations of unfairness. See, e.g., United States
v. Kelly, 40 MJ 558 (NMCMR 1994).

III
In the present case, where appellant and two
other Marines engaged in the same course of conduct with the same victim
in each other's presence, we agree with the court below that the cases
fall within the "closely related" test. The sentences, however, are not
"highly disparate." The test in such a case is not limited to a narrow
comparison of the relative numerical values of the sentences at issue,
but also may include consideration of the disparity in relation to the
potential maximum punishment.
The sentences at issue in the present appeal
-- appellant's 18 months' confinement and the 15 and 8 months' confinement
received by the others -- are all relatively short compared to the maximum
confinement of 27 years that appellant was facing. In such circumstances,
we hold that the court below did not abuse its discretion in concluding
that any differences in the confinement did not produce sentences that
were "highly disparate." Having failed to show a high disparity in his
sentence, appellant is not entitled to a further examination of the reasons
for any differences in the sentences.

IV
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
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